EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (this "Agreement") is dated as of the 28th day of
April, 2000, and is by and between Fullcomm, Inc., a Delaware corporation with
an office for purposes of this Agreement at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter the "Company" or "Employer"), and Xxxxxx X. Xxxxxxxxx
(hereinafter the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Company wishes to retain the services of Employee to act as Chief
Executive Officer for and on its behalf in accordance with the following terms,
conditions and provisions; and
WHEREAS, Employee wishes to perform such services for and on behalf of the
Company, in accordance with the following terms, conditions and provisions.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained the parties hereto intending to be legally bound hereby agree
as follows:
1. EMPLOYMENT. Company hereby employs Employee and Employee accepts such
----------
employment, and each party shall perform its or his respective duties and the
responsibilities provided for herein in accordance with the terms and conditions
of this Agreement.
2. EMPLOYMENT STATUS. Employee shall at all times be Company's employee
------------------
subject to the terms and conditions of this Agreement and entitled to such
benefits as provided herein.
3. TERM. Unless earlier terminated pursuant to terms and provisions of this
----
Agreement, this Agreement shall have a term (the "Term") of two (2) years
commencing May 22, 2000. The Term shall automatically renew for successive
two-year terms thereafter unless either party delivers written notice of
termination to the other at least 60 days prior to the end of the initial
two-year Term or any succeeding two-year Term.
4. POSITION. During Employee's employment hereunder, Employee shall serve
--------
as Chief Executive Officer of the Company. In such position, Employee shall have
the customary powers, responsibilities and authorities of such position in
corporations of the size, type and nature of the Company including being
generally responsible for the day-to-day operations of Employer's business.
Employee shall perform such duties and exercise such powers commensurate with
his positions and responsibilities as shall be determined from time to time by
the Board of Directors of the Company (the "Board"). Neither Employee's title
nor any of his functions shall be changed, diminished or adversely affected
during the Term without his written consent. Employee shall be provided with an
office, staff and other working facilities at the executive offices of the
Company consistent with his position and as required for the
performance of his duties. In addition, Employer shall use its best efforts to
have Employee elected to the Board of Directors of Employer's parent company,
Contessa Corporation, at each of Contessa Corporation's Annual Meeting of
Stockholders.
5. COMPENSATION. For the performance of all of Employee's services to be
------------
rendered pursuant to the terms of this Agreement, Company will pay and Employee
will accept the following compensation:
5.1.(a) During the Term, Company shall pay the Employee an initial base
annual salary of $130,000 (the "Base Salary") payable in bi-monthly
installments, and such Base Salary shall not be decreased during the Term.
Employee's Base Salary, as in effect from time to time, is hereinafter referred
to as the "Employee's Base Salary." Employee's Base Salary shall be reviewed
annually by the Board, who, in its sole discretion, may increase Employee's Base
Salary based upon Employee's performance.
(b) For each of the following key milestones that are obtained by the
Employer over the first twelve (12) months of Employee's employment with the
Employer, Employee shall be entitled to a bonus of $30,000: (i) a working
prototype which has been completed and successfully tested by the third-party
design team, (ii) successful beta test with a reputable company (where test
parameters have been established prior to the beta test and the results of such
beta test meet the test parameters established by management), and (iii)
completion of a letter of intent describing a joint marketing agreement with an
acceptable market leader, as determined by management.
(c) Upon the execution of this Agreement, Employee shall receive
options to purchase 625,074 shares of the common stock of Contessa Corporation.
Such options shall have an exercise price equal to the fair market value of such
common stock on the date of grant. Such options shall vest as follows: (i)
223,241 of such options granted shall vest on the first anniversary of the grant
date, (ii) 223,241 of such options granted shall vest on the second anniversary
of the grant date, and (iii) 178,592 of such options granted shall vest upon the
earlier of (x) the market capitalization of Contessa Corporation reaching the
sum of an average of $100 million for a period of one month during the initial
term of this Agreement, or (y) the seventh anniversary of the grant date.
5.2. Employee shall be eligible to participate in (i) the Incentive Stock
Option Plan as may be established by the Board on the terms and conditions
generally applicable to such ISO plan participants and (ii) the Company's Senior
Management Bonus Plan.
5.3. Company shall deduct and withhold from Employee's compensation all
necessary or required taxes, including but not limited to Social Security,
withholding and otherwise, and any other applicable amounts required by law or
any taxing authority.
6. Employee Benefits.
-----------------
6.1. During the Term hereof and so long as Employee is not terminated for
cause (as such term is defined herein), Employee shall receive and be provided
health and dental insurance, and during Employee's employment hereunder, in the
sole and absolute discretion of the Board, such other employee benefits
including, without limitation, fringe benefits, vacation, automobile, retirement
plan participation and life, health, accident and disability insurance, etc.
(collectively, "Employee Benefits"). The parties acknowledge that the benefits
to be provided pursuant to this Section shall commence as soon as practicable
following the date hereof, but in any case within thirty days following the date
hereof.
6.2. Employee shall be entitled to receive four (4) weeks paid vacation per
calendar year. If such vacation time is not taken by Employee in the then
current year, Employee at his option may accrue vacation or receive compensation
in lieu thereof at one-half the then current level of Employee's Base Salary.
6.3. Reasonable travel, entertainment and other business expenses actually
incurred by Employee in the performance of his duties hereunder shall be
reimbursed by the Company upon the approval of the Chief Executive Officer who
shall be entitled to request supporting documentation (receipts, invoices, etc.)
with respect to such expenses.
6.4. Employee agrees to temporarily move, for a period not to exceed six
(6) months, to a site where the Employer's prototype design team is located.
During such time period, Employer shall reimburse Employee for temporary living
expenses not to exceed $1,350 per month. Upon the earlier of (i) Board approval
of a permanent site or (ii) the expiration of 180 days from the date of
execution of this Agreement, Employer shall pay to Employee a lump sum in the
amount of $30,000 to cover the relocation expense for Employee to move to a
permanent site, as approved by the Board. Employee shall then be responsible for
all of his transition and moving costs, as well as any and all federal and/or
state taxes that may be incurred by Employee in connection with such $30,000
payment.
7. Termination.
-----------
7.1. For Cause by the Company. Employee's employment hereunder may be
-------------------------
terminated by the Company at any time with or without cause upon sixty (60) days
prior written notice. Any termination of Employee's employment pursuant to this
Section 7.1 shall be made by the Board.
7.1.1. If Employee is terminated for cause, he shall be entitled to
receive Employee's Base Salary from Company only through the date of
termination and Employee shall be entitled to no other payments of
Employee's Base Salary under this Agreement. If Employee is terminated
without cause, he shall be entitled to receive Employee's Base Salary for a
period of six (6) months immediately following the termination date and all
previously granted options shall be accelerated and vest immediately. All
other benefits, if any, due Employee following Employee's termination of
employment pursuant to this Subsection 7.1.1 shall be determined in
accordance with
law and with the plans, policies and practices of the Company as in general
effect on the date of termination.
7.1.2 For the purposes of this Agreement, "cause" shall include,
without limitation, the following conduct of the Employee:
(i) neglect or refusal to perform the duties assigned to
the Employee under or pursuant to this Employment Agreement or
material breach of any provision of this Employment Agreement by the
Employee after due notice thereof and a 15 day opportunity to cure
such breach;
(ii) willful misconduct as an Employee, including but not
limited to, misappropriating funds or property of the Company; any
attempt to obtain any personal profit from any transaction in which
the Employee has an interest that is adverse to the Company or any
breach of the duty of loyalty and fidelity to the Company; or any
other act or omission of the Employee which substantially impairs the
Company's ability to conduct its ordinary business in its usual
manner;
(iii) conviction of a felony or plea of guilty or nolo
contendere to a felony;
(iv) acts of dishonesty or moral turpitude by the Employee
that are detrimental to the Company or any other act or omission which
subjects the Company or any of its affiliates to public disrespect,
scandal, or ridicule, or that causes the Company to be in violation of
governmental regulations that subjects the Company either to sanctions
by governmental authority or to civil liability to its employees or
third parties; and
(v) disclosure or use of confidential information of the
Company, other than as specifically authorized and required in the
performance of Employee's duties.
7.2. Disability or Death. (i) Employee's employment hereunder shall
---------------------
terminate upon his death or if Employee becomes physically or mentally
incapacitated and is therefore unable (or will, as a result thereof, be unable)
to perform his duties for a period of nine (9) consecutive months or for an
aggregate of fifteen (15) months in any twenty-four (24) consecutive month
period (such incapacity is hereinafter referred to as "Disability"). If Company
terminates Employee's employment under the terms of this Agreement and Employee
does not receive disability insurance payments under the terms hereof in an
amount at least equal to the then effective Employee's Base Salary pursuant to a
policy maintained and paid for by the Company, Company shall be responsible to
continue to pay Employee's Base Salary during the then remaining Term to the
extent required to bring the Employee's annual compensation (together with
disability payments) up to the amount equal to the Employee's Base Salary
immediately prior to the termination for disability. Any question as to the
existence of the Disability of Employee as to which Employee and the Company
cannot agree shall be determined in writing
by a qualified independent physician mutually acceptable to Employee and the
Company. If Employee and the Company cannot agree as to a qualified independent
physician, each shall appoint such a physician and those two physicians shall
select a third who shall make such determination in writing. The determination
of Disability made in writing to the Company and Employee shall be final and
conclusive for all purposes of the Agreement.
7.2.1. Upon termination of Employee's employment hereunder
during the Term as a result of death, Employee's estate or named
beneficiary(ies) shall receive from the Company (x) Employee's Base
Salary at the rate in effect at the time of Employee's death through
the end of the month in which his death and (y) the proceeds of any
life insurance policy maintained for his benefit by the Company
pursuant to this Agreement (or the Plans and Policies of the Company
generally).
7.2.2. All other benefits, if any, due Employee following
Employee's termination of employment pursuant to this Section 7.2
shall be determined in accordance with the plans, policies and
practices of the Company in general effect at the date of death.
7.3. Change in Control Payment.
-------------------------
7.3.1. If there is a Change of Control within one (1) year of the
termination of this Agreement without cause by the Company, Employee shall be
entitled to receive the difference between those monies he actually received
upon such termination and 2.99 times Employee's base amount as defined in
Section 280G(b)(3) of the Internal Revenue code of 1986, as amended (the "Code")
(the "Employee Base Amount").
7.3.2. Subject to Section 7.6, if Employee's employment is terminated
by the Company and coincident with or following a Change of Control, Employee
shall be entitled to a lump sum payment, payable within ten (10) days after such
termination of employment, equal to the product of (x) 2.99 times (y) the
Employee Base Amount.
7.4. Termination by Employee. If Employee, upon ninety (90) days
-------------------------
notice to the Employer, terminates his employment with the Company for any
reason during the term, Employee shall be entitled to continued benefits and
compensation, as set forth in Paragraph 5 herein, during the ninety (90) days
following such notice. Employee shall continue to perform his duties during the
ninety (90) days following such notice, unless less otherwise notified by the
Employer.
7.5 Change of Control defined: For purposes of this Agreement, "Change
-------------------------
of Control" shall mean (i) any transaction or series of transactions (including,
without limitation, a tender offer, merger or consolidation) the result of which
is that any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), becomes the "beneficial" owner (as defined in rule 13(d)(3) under the
Securities Exchange Act of 1934) of more than 50 percent (50%) of the total
aggregate voting power of all classes of the voting stock of the Company and/or
warrants or options to acquire such voting stock, calculated on a fully diluted
basis, (ii) during any period of two consecutive calendar years, individuals who
at the beginning of such period constituted the Board of
Directors (together with any new directors whose election by the Board of
Directors or whose nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors then in office, or (iii) a sale of assets
constituting all or substantially all of the assets of the Company (determined
on a consolidated basis). In the event of such Change of Control, the new entity
shall be obligated to assume the terms and conditions of this Agreement.
7.6. Limitation on Certain Payments.
------------------------------
7.6.1. In the event it is determined pursuant to Section 7.6.2 below,
that part or all of the consideration, compensation or benefits to be paid to
Employee under this Agreement in connection with Employee's termination of
employment following a Change of Control or under any other plan, arrangement or
agreement in connection therewith, constitutes a "parachute payment" (or
payments) under Section 280G(b)(2) of the Code, then, of the aggregate present
value of such parachute payments (the "Parachute Amount") exceeds 2.99 times the
Employee Base Amount, the amounts constituting "parachute payments" which would
otherwise be payable to or for the benefit of Employee shall be reduced to the
extent necessary such that the Parachute Amount is equal to 2.99 times the
Employee Base Amount. Employee shall have the right to choose which amounts that
would otherwise be due him but for the limitations described in this paragraph
shall be subject to reduction. Notwithstanding the foregoing, if it is
determined that stockholder approval of the payment of such compensation and
benefits will reduce the applicability of Section 280G of the Code to such
payment, promptly after request by Employee, Company will undertake reasonable
efforts to hold such a stockholder meeting to obtain such approval or to solicit
such approval by written consent, and to obtain such approval.
7.6.2. Any determination that a payment constitutes a parachute
payment and any calculation described in this Section 7.6 ("determination")
shall be made by the independent public accountants for the Company, and may, at
Company's election, be made prior to termination of Employee's employment where
Company determines that a Change in Control, as provided in this Section 7, is
imminent. Such determination shall be furnished in writing no later than thirty
(30) days following the date of the Change in Control by the accountants to
Employee. If Employee does not agree with such determination from the
accountants and within Fifteen (15) days thereafter, accountants of Employee's
choice must deliver to the Company their determination that in their judgment
complies with the Code. If the two accountants cannot agree upon the amount to
be paid to Employee pursuant to this Section 7 within ten (10) days of the
delivery of the statement of Employee's accountants to the Company, the two
accountants shall choose a third accountant who shall deliver their
determination of the appropriate amount to be paid to Employee pursuant to this
Section 7.6, which determination shall be final. If the final determination
provides for the payment of a greater amount than that proposed by the
accountants of the Company, then the Company shall pay all of Employee's costs
incurred in contesting such determination and all other costs incurred by the
Company with respect to such determination.
7.6.3. If the final determination made pursuant to Subsection 7.6.2 of
this Section 7.6 results in a reduction of the payments that would otherwise be
paid to Employee except for the application of Section 7.6.1 of this Section
7.6, Employee may then elect, in his sole discretion, which and how much of any
particular entitlement shall be eliminated or reduced and shall advise the
Company in writing of his election within ten (10) days of the final
determination of the reduction in payments. If no such election is made by
Employee within such 10-day period, the Company may elect which and how much of
any entitlement shall be eliminated or reduced and shall notify Employee
promptly of such election. Within ten (10) days following such determination and
the elections hereunder, the Company shall pay to or distribute to or for the
benefit of Employee such amounts as become due to Employee under this agreement.
7.6.4. As a result of the uncertainty in the application of Section
280G of the Code at the time of a determination hereunder, it is possible that
payments will be made by the Company which should not have been made under
Subsection 7.6.1 of this Section 7.6 ("Overpayment") or that additional payments
which are not made by the Company pursuant to Subsection 7.6.1 of this Section
7.6 should have been made ("Underpayment"). In the event that there is a final
determination by the Internal Revenue Service, or a final determination by a
court of competent jurisdiction, that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to Employee which
Employee shall repay to the Company together with interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Code. In the event that
there is a final determination by the Internal Revenue Service, a final
determination by a court of competent jurisdiction or a change in the provisions
of the Code or regulations pursuant to which an Underpayment arises under this
Agreement, any such Underpayment shall be promptly paid by the Company to or for
the benefit of Employee, together with interest at the applicable Federal rate
provided for in Section 7872(f)(2) of the code.
8. NON-DISCLOSURE OF INFORMATION.
-----------------------------
8.1. Employee acknowledges that by virtue of his position he will be privy
to the Company's confidential information and trade secrets, as they may exist
from time to time, and that such confidential information and trade secrets may
constitute valuable, special, and unique assets of the Company (hereinafter
collectively "Confidential Information"). Accordingly, Employee shall not,
during the Term and for a period of five (5) years thereafter, intentionally
disclose all or any part of the Confidential Information to any person, firm,
corporation, association or any other entity for any reason or purpose
whatsoever, nor shall Employee and any other person by, through or with
Employee, during the term and for a period of five (5) years thereafter,
intentionally make use of any of the Confidential Information for any purpose or
for the benefit of any other person or entity, other than Company, under any
circumstances.
8.2. Company and Employee agree that a violation of the foregoing covenants
will cause irreparable injury to the Company, and that in the event of a breach
or threatened breach by Employee of the provisions of this Section 8, Company
shall be entitled to an injunction restraining Employee from disclosing, in
whole or in part, any Confidential Information, or from rendering any services
to any person, firm, corporation, association or other entity to whom any
such information, in whole or in part, has been disclosed in violation of this
Agreement. Nothing herein stated shall be construed as prohibiting the Company
from pursuing any other rights and remedies, at law or in equity, available to
the Company for such breach or threatened breach, including the recovery of
damages from the Employee. In connection with this paragraph's provisions,
Employee hereby (i) submits to the jurisdiction of any federal court in New
Jersey or any New Jersey state court of general jurisdiction in the county in
which Princeton is located, (ii) waives any and all defenses based on
inconvenient forum, and (iii) agrees to pay the reasonable fees and
disbursements of the Company's legal counsel in connection with obtaining any
such injunctive relief.
8.3. Notwithstanding anything contained in this Section 8 to the
contrary"Confidential Information" shall not include (i) information in the
public domain as of the date hereof, (ii) information which enters the public
domain hereafter through no fault of the Employee, and (iii) information
created, discovered or developed by the Employee independent of his association
with the Company, provided that such information is supported by accompanying
documentation of such independent development. Nothing contained in this Section
8 shall be deemed to preclude the proper use by the Employee of Confidential
Information in the exercise of his duties hereunder or the disclosure of
Confidential Information required by law.
9. RESTRICTIVE COVENANT.
--------------------
9.1. During the term hereof and for a period of one (1) year after the
termination of this Agreement, Employee covenants and agrees that he shall not
own, manage, operate, control, be employed by, participate in, or be connected
in any manner with the ownership, management, operation, or control, whether
directly or indirectly, as an individual on his own account, or as a partner,
member, joint venturer, officer, director or shareholder of a corporation or
other entity, of any business which competes with the Company's business of
embedded digital media security. Notwithstanding the foregoing, (i) nothing in
this Section 9 shall prohibit Employee from owning up to 5% of the outstanding
voting capital stock of any corporation or other entity listed on Nasdaq or
traded on any national securities exchange, and (ii) in the event of a
termination by the Company, such restriction shall apply only if the Company has
paid to the Employee all amounts owed to the Employee and is otherwise in
compliance with Section 7 hereof. The foregoing shall not preclude the Employee
from any consulting arrangement which may be entered into from time to time with
the Company, or its affiliate.
9.2. Employee acknowledges that the restrictions contained in this Section
9 are reasonable. In that regard, it is the intention of the parties to this
Agreement that the provisions of this Section 9 shall be enforced to the fullest
extent permissible under the law and public policy applied in each jurisdiction
in which enforcement is sought. Accordingly, if any portion of this Section 9
shall be adjudicated or deemed to be invalid or unenforceable, the remaining
portions shall remain in full force and effect, and such invalid or
unenforceable portion shall be limited to the particular jurisdiction in which
such adjudication is made.
10. BREACH OR THREATENED BREACH OF COVENANTS. In the event of Employee's
-----------------------------------------
actual or threatened breach of his obligations under either Paragraph 8 or 9, or
both, of this Agreement, or Company's breach or threatened breach of its
obligations under this
Agreement, in addition to any other remedies either party may have, such party
shall be entitled to obtain a temporary restraining order and a preliminary
and/or permanent injunction restraining the other from violating these
provisions. Nothing in this Agreement shall be construed to prohibit Company or
Employee, as the case may be, from pursuing and obtaining any other available
remedies which Company or Employee, as the case may be, may have for such breach
or threatened breach, whether at law or in equity, including the recovery of
damages from the other.
11. DISCLOSURE OF INNOVATIONS. The Employee hereby agrees to disclose in
--------------------------
writing to the Company all inventions, improvements and other innovations of any
kind that the Employee makes, conceives, develops or reduces to practice, alone
or jointly with others, during the Term, to the extent they are related to the
Employee's work for the Company and whether or not they are eligible for patent,
copyright, trademark, trade secret or other legal protection ("Innovations").
Examples of Innovations shall include, but are not limited to, discoveries,
research, inventions, formulas, techniques, processes, tools, know-how,
marketing plans, new product plans, production processes, advertising, packaging
and marketing techniques.
12. ASSIGNMENT OF OWNERSHIP OF INNOVATIONS. The Employee hereby agrees that
--------------------------------------
all Innovations will be the sole and exclusive property of the Company and the
Employee hereby assigns all of his rights, title or interest in the Innovations
and in all related patents, copyrights, trademarks, trade secrets, rights of
priority and other proprietary rights to the Company to the extent they are
related to the Employee's work for the Company. At the Company's request and
expense, during and after the Term, the Employee will assist and cooperate with
the Company in all respects and will execute documents, and, subject to his
reasonable availability, give testimony and take further acts requested by the
Company to obtain, maintain, perfect and enforce for the Company patent,
copyright, trademark, trade secret and other legal protection for the
Innovations. The Employee hereby appoints the President of the Company as his
attorney-in-fact to execute documents on his behalf for this purpose.
13. REPRESENTATIONS AND WARRANTIES BY EMPLOYEE. Employee hereby warrants
-------------------------------------------
and represents that he is not subject to or a party to any restrictive covenants
or other agreements that in any way preclude, restrict, restrain or limit him
(a) from being an Employee of Company, (b) from engaging in the business of
Company in any capacity, directly or indirectly, and (c) from competing with any
other persons, companies, businesses or entities engaged in the business of
Company.
14. ARBITRATION. Other than with respect to a proceeding for injunctive
-----------
relief referred to herein, any controversy or claim arising out of or relating
to this Agreement, the performance thereof or its breach or threatened breach
shall be settled by arbitration in Princeton, New Jersey or other mutually
acceptable place in accordance with the then governing rules of the American
Arbitration Association. The finding of the arbitration panel or arbitrator
shall be final and binding upon the parties with the costs of arbitration to be
equally borne by the plaintiffs and the defendants, i.e. the costs borne by
defendant side in the arbitration, whether single or multiple, shall equal the
costs borne by the plaintiff side in the arbitration, whether single or
multiple. Judgment upon any arbitration award rendered may be entered and
enforced in any
court of competent jurisdiction. In no event may the arbitration determination
change Employee's compensation, title, duties or responsibilities, the entity to
whom Employee reports or the principal place where Employee is to render his
services.
15. NOTICES. Any notice required, permitted or desired to be given under
-------
this Agreement shall be sufficient if it is in writing and (a) personally
delivered to Employee or any officer of the Company other than Employee, (b)
sent by overnight delivery or (c) sent by registered or certified mail, return
receipt requested, to Employer's or Employee's address as provided in this
Agreement or to a different address designated in writing by either party. In
all instances of notices to be given to Company, a copy by like means shall be
delivered to Company's counsel care of Xxxxxxxx Xxxxxxxxx Professional
Corporation, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention:
Xxxxx X. Xxxxx, Esq. In all instances of notices to be given to Employee, a copy
by like means shall be delivered to Employee's counsel at the address supplied
by the Employee. Notice is deemed given on the day it is delivered personally or
by overnight delivery, or five (5) business days after it is mailed, if
transmitted by the United States Post Office.
16. ASSIGNMENT. Employee acknowledges that his services are unique and
----------
personal. Accordingly, Employee may not assign his rights or delegate his duties
or obligations under this Agreement. Company's rights and obligations under this
Agreement shall inure to the benefit of and shall be binding upon the Company's
successors and assigns. Company has the absolute right to assign its rights and
benefits under the terms of this Agreement to any person or entity that
unconditionally assumes the Company's obligations under the terms of this
Agreement.
17. WAIVER OF BREACH. Any waiver of a breach of a provision of this
------------------
Agreement, or any delay or failure to exercise a right under a provision of this
Agreement, by either party, shall not operate or be construed as a waiver of
that or any other subsequent breach or right.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
----------------
parties. It may not be changed orally but only by an agreement in writing which
is signed by the parties. The parties hereto agree that any existing employment
agreement between them shall terminate as of the date of this Agreement.
19. GOVERNING LAW. This Agreement shall be construed in accordance with and
-------------
governed by the internal laws of the State of New Jersey.
20. SEVERABILITY. The invalidity or non-enforceability of any provision of
------------
this Agreement or application thereof shall not affect the remaining valid and
enforceable provisions of this Agreement or application thereof.
21. CAPTIONS. Captions in this Agreement are inserted only as a matter of
--------
convenience and reference and shall not be used to interpret or construe any
provisions of this Agreement.
22. GRAMMATICAL USAGE. In construing or interpreting this Agreement,
------------------
masculine usage shall be substituted for those feminine in form and vice versa,
and plural usage shall be substituted or singular and vice versa, in any place
in which the context so requires.
23. CAPACITY. Employee has read and is familiar with all of the terms and
--------
conditions of this Agreement and has the capacity to understand such terms and
conditions hereof. By executing this Agreement, Employee agrees to be bound by
this Agreement and the terms and conditions hereof. Employer represents that
this Agreement has been duly authorized by the Company and the Company agrees to
be bound by this Agreement and terms and conditions thereof.
24. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement. Delivery of signed
counterparts via facsimile transmission shall be effective as manual delivery
thereof.
25. CONFLICT OF INTEREST. In any matter requiring a Board determination
--------------------
hereunder, Employee, who, it is contemplated, will be a Director, shall be
counted for purposes of determining a quorum but shall recuse himself from the
Board vote on the matter being determined. Employee may be present in order to
give a presentation on the matter being determined, but shall otherwise be
absent during the course of the Board's deliberation.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first herein above written.
FULLCOMM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx, President
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
