EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.46
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of October
5, 2007, between NS8 Corporation, a Delaware corporation (the “Company”),
and Xxxxx X. Xxxxxx (the “Executive”).
1. Employment. The
Company hereby agrees to employ the Executive, and the Executive hereby
agrees
to be employed by the Company, on the terms and conditions set forth
herein.
2. Term. The
employment of the Executive by the Company as provided herein will commence
on
October 29 2007 (the “Effective Date”) and terminate as herein provided
(such period, the “Employment Period”).
3. Position,
Duties and Responsibilities.
(a) Position. Effective
as of the Effective Date and throughout the Employment Period, the Executive
hereby agrees to serve, and the Company hereby agrees to employ, the Executive,
as Chief Executive Officer of the Company, reporting to the Company’s Board of
Directors (the “Board”). The Executive shall devote his best
efforts and all of his business time and attention to the performance of
services to the Company in his capacity as an officer thereof and as may
reasonably be requested by the Board. The duties, functions,
responsibilities and authority of the Executive, including those reasonably
required by the Board hereunder, shall be those as are reasonable and customary
for a person serving as chief executive officer of an enterprise comparable
to
the Company. Subject to the foregoing, the Company shall retain full
direction and control of the means and methods by which the Executive performs
the above services.
(b) Exclusivity. Except
with the prior written approval of the Board (which the Board may grant
or
withhold in its sole and absolute discretion), the Executive, during the
Employment Period, shall devote all of his working time, attention and
energies
to the business of the Company and will not (i) run his own business (ii)
accept
any other employment, (iii) serve on the board of directors or similar
body of
any other business entity, or (iv) engage, directly or indirectly, in any
other
business activity (whether or not pursued for pecuniary advantage).
(c) Conditions
to Employment. The Executive has provided the Company with
satisfactory proof of the Executive’s legal right to work and carryout business
in the United States. In addition, the Executive has provided
satisfactory proof of the Executive’s ability to freely and legally obtain work
visas or apply for immigration applications as might be necessary in order
to
conduct business at branch offices or subsidiaries of the Company legally
domiciled in countries outside of the United States. The Executive is not
party
to any contract or agreement, whether oral or in writing, that may preclude
him
from rendering services as an employee of the Company hereunder. In
connection with, and as a condition to his employment by the Company, the
Executive has executed and agrees to be bound by that certain Confidential
Information and Invention Assignment Agreement with the Company attached
hereto
as Exhibit A.
4. Compensation
and Related Matters.
(a) Salary. The
Company shall pay the Executive a base salary of $200,000 per year, which
shall
be paid to Executive in accordance with the Company’s standard payroll
practices. The Executive’s performance and salary shall be subject to
review and increase consistent with the standard practices of the
Company.
(b) Bonus. The
Executive shall be eligible to receive a quarterly incentive bonus with
a target
of a maximum of up to $12,500 each quarter and a maximum of up to $50,000
in
annual incentive bonus each calendar year (the “Bonus”), which amount
shall be pro-rated with respect to the remainder of calendar year 2007
by
reference to the number of whole calendar months remaining between the
Effective
Date and December 31, 2007. The Bonus shall be payable to the
Executive in respect of his services to the Company based on the achievement
of
revenue, operating profit, and operating metric objectives (hereinafter
“Performance Milestones”) for the remainder of 2007 as determined by the Board
of the Company, and on the achievement of Performance Milestones for subsequent
quarters as determined by the Board of the Company and presented to the
Executive in advance of each such quarter. Each Performance Milestones
presented
to the Executive by the Board of the Company will be attached hereto as
Schedule
“A” and will form as an integral part of this Agreement. For each calendar
quarter, the Bonus shall be payable as soon as practicable following the
Board’s
determination in its reasonable judgment that all or any portion of the
Bonus
has been earned as a result of the achievement of the Performance Milestones
on
a pro rata basis for such quarter. In addition to the quarterly Bonus
of the Executive during the entire term of this Agreement, a one time
commencement bonus (“Commencement Bonus”) not exceeding an aggregate sum of
$20,000 shall be paid in installments of $5,000 on the last business week
of
each quarter starting with the quarter immediately following the execution
of
this Agreement until the end of the first year of this Agreement.
Total
cash compensation potential: $329,000 per year comprised of:
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·
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$200,000
base Salary per annum.
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|
·
|
Up
to $50,000 to be earned as a quarterly performance incentive
Bonus paid in
quarterly installments of up to $12,500 per quarter for performance
achievements as determined by the
Board;
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|
·
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Up
to $50,000 to be earned as an annual performance Bonus as determined
by
the Board;
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·
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One
time Commencement Bonus of $20,000 paid in quarterly installments
of
$5,000 during the last Friday of each ensuing quarter;
and
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·
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An
annual car allowance starting at $9,000 to be paid in equal monthly
installments of $750 per month.
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(c) Stock
Options.
(i) Initial
Option Grant. The Executive shall be granted on the Effective
Date, an option to purchase 5,000,000 shares of the Company’s Common Stock at an
exercise price of Two Cents ($0.02) per share (the “Initial Option”) over
a four (4) year vesting period. The shares covered by the
Initial Option, if immediately exercisable, would constitute two and a
half
percent (2.5%) of the outstanding Common Stock of the Company on a fully
diluted
basis as of the date of grant of the Initial
Option. Except as otherwise provided herein, subject to
the Executive remaining continuously employed by the Company as of each
such
date, the Initial Option shall vest and become exercisable in accordance
with
the following schedule:
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(a)
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1,250,000
in year 1
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(b)
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1,250,000
in year 2
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(c)
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1,250,000
in year 3
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(d)
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1,250,000
in year 4
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(ii) Performance
Option Grant. If the Company has exceeded its agreed upon
Performance Milestones during its first year of operations as determined
by the
Board of the Company, the Executive shall be granted an option to purchase
an
additional 5,000,000 shares (subject to appropriate capitalization adjustments)
of the Company’s Common Stock at an exercise price of Two Cents ($0.02) per
share over a four year period. (the “Performance Option”). The shares
covered by the Performance Option, if immediately exercisable, would constitute
two and one half percent (2.5%) of the outstanding Common Stock of the
Company
on a fully diluted basis as of the date of grant. The
Performance Option shall be granted within two (2) weeks of the Company’s filing
of its Annual Report on Form 10-K for the applicable fiscal year, which
shall
include the Company’s annual audited financial statements for such fiscal
year. The Performance Option shall be vested and exercisable in
accordance with the following schedule:
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(a)
|
1,250,000
end of year 1
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|
(b)
|
1,250,000
end of year 2
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(c)
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1,250,000
end of year 3
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(d)
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1,250,000
end of year 4
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(iii) Miscellaneous. The
Initial Option and the Performance Option shall be intended to qualify as
“incentive stock options” within the meaning of Section 422(b) of the Internal
Revenue Code of 1986, as amended (the “Code”) to the maximum extent
permitted under the applicable federal income tax rules and shall each
have a
per share exercise price equal to the fair market value of a share of the
Company’s Common Stock as of the dates they are granted. The Initial
Option and the Performance Option shall be granted under, and subject to
the
terms and conditions of, the Company’s Stock Option Plan (or any successor
plan(s) thereto). The specific terms of the Initial Option and the
Performance Option shall be set forth in written stock option agreements
between
the Company and the Executive which, except as provided herein, shall be
in the
same form as customarily used by the Company with respect to employee stock
option grants.
(d) Business
Expenses. The Company shall reimburse the Executive for
reasonable expenses incurred in connection with the conduct of the Company’s
business upon presentation of sufficient receipts of such expenditures
consistent with the Company’s policies as in place from time to
time.
(e) Other
Benefits. The Executive shall be entitled to participate in or
receive health, welfare, life insurance, long-term disability insurance,
bonus
plan and similar benefits as the Company provides generally from time to
time to
its senior executives, and to its employees, generally. Nothing herein
is
intended, or shall be construed to require the Company to institute or
continue
any, or any particular, plan or benefits, other than the contractual Bonus
program and the contractual stock option program for the Executive described
in
Sections 4(b) and (c), respectively.
(f) Relocation
Expense. If determined as necessary by the Company and the
Executive for the proper execution of the Company’s business plan, the Executive
will be relocated. If such relocation is deemed necessary, the
Company will pay necessary expenses related to the relocation of the Executive,
including but not limited to, (i) professional moving costs, (ii) storage
of
household items, (iii) travel expenses, and (iv) temporary living
expenses.
(g) Vacations. During
the Employment Period, the Executive shall be entitled to four (4) weeks
of paid
vacation each year. The Executive shall also be entitled to all paid
holidays given by the Company to its senior executives. The Executive
agrees to utilize his vacation at such time or times as are (i) consistent
with
the proper performance of his duties and responsibilities hereunder; and
(ii)
mutually convenient for the Company and the Executive.
(h) Indemnification. The
Executive, while acting in any capacity on behalf of the Company or any
of its
subsidiaries or affiliates, shall be entitled to coverage under each directors’
and officers’ liability insurance policy, if any, maintained by or on behalf of
the Company’s directors and officers. If, not currently available, the Company
will adopt such plan within 90 days of the Effective Date.
5. Termination. The
Executive’s employment hereunder shall be terminated, or may be terminated, as
the case may be, under the following circumstances:
(a) Death. The
Executive’s employment hereunder shall terminate upon his death.
(b) Cause. The
Company may terminate the Executive’s employment hereunder for
“Cause.” Cause shall mean (i) Employee’s breach of any of
the material terms of this Agreement and the failure by the Executive to
cure or
remedy such breach within thirty (30) days after receipt by the Executive
of
written notice from the Board specifying the breach, (ii) his conviction
of a
crime involving moral turpitude or constituting a felony under the laws
of any
state, the District of Columbia or of the United States, or (iii) his willful,
intentional and material misconduct in the performance of his duties hereunder,
including without limitation, his willful and intentional failure or refusal
to
carry out any proper direction by the Board with respect to the services
to be
rendered by him hereunder or the manner of rendering such services or his
habitual neglect of his duties as an officer of the Company, which misconduct
or
neglect, if capable of cure in the Board’s reasonable judgment, shall continue
after receipt of written notice from the Company, specifying the alleged
misconduct.
(c) Employment-At-Will/Termination
for Any Reason. The Executive hereby agrees that the Company may
dismiss him under this Section 5 without regard (i) to any general or
specific policies (whether written or oral) of the Company relating to
the
employment or termination of its employees, or (ii) to any statements made
to
the Executive, whether made orally or contained in any document, pertaining
to
the Executive’s relationship with the Company. Notwithstanding
anything to the contrary contained herein, the Executive’s employment with the
Company is not for any specified term and may be terminated by the Company
at
any time by delivery of a Notice of Termination, for any reason, with or
without
Cause, without liability except with respect to the payments provided for
by
Section 5 below.
(d) Termination
by the Executive for Good Reason. The Executive may terminate his
employment hereunder for “Good Reason”. Good Reason shall mean
(i) any reduction in the amount of the Executive’s base salary or aggregate
incentive compensation opportunities (inclusive of the Bonus) which reduction
may also occur pursuant to any assignment of performance goals and corresponding
awards which are inconsistent with prior performance goals and awards,
(ii) any
significant reduction in the aggregate value of the Executive’s benefits as such
benefits may be increased from time to time (unless such reduction is pursuant
to a general change in benefits applicable to all similarly situated employees
of the Company), (iii) any material breach by the Company of this Agreement
or
other written agreement with the Executive and the failure to cure or remedy
such breach within thirty (30) days after receipt by the Company of written
notice from the Executive, or (iv) any of (A) assignment to the Executive
of any
duties materially inconsistent with his status as Chief Executive Officer
of the
Company, (B) the removal of the Executive from the office of Chief Executive
Officer without his consent, or (C) a significant adverse change in the
nature
or scope of the authorities, powers, functions, responsibilities or duties
attached to the Executive’s position with the Company.
(e) Voluntary
Resignation. The Executive may voluntarily resign his position
and terminate his employment with the Company at any time by delivery of
a
written notice of resignation to the Company (the “Notice of
Resignation”). The Notice of Resignation shall set forth the date
such resignation shall become effective (the “Date of Resignation”),
which date shall, in any event, be at least sixty (60) days and no more
than
ninety (90) days from the date the Notice of Resignation is delivered to
the
Company.
(f) Notice. Any
termination of the Executive’s employment by the Company or by the Executive for
Good Reason shall be communicated by written Notice of Termination to the
Executive or the Company, as applicable. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice that shall
indicate the specific termination provision in this Agreement relied upon
and
shall set forth in reasonable detail the facts and circumstances claimed
to
provide a basis for termination of the Executive’s employment under the
provision so indicated.
(g) “Date
of Termination” shall mean (i) if the Executive’s employment is terminated
by his death, the date of his death; and (ii) if the Executive’s employment is
terminated pursuant to subsections (b), (c), (d), or (e) above, the date
specified in the Notice of Termination or Notice of Resignation, as
applicable.
(h) Termination
Obligations.
(i) The
Executive hereby acknowledges and agrees that all personal property
and equipment furnished to, or prepared by, the Executive in the course
of, or
incident to, his employment, belongs to the Company and shall be promptly
returned to the Company upon termination of the Employment
Period. “Personal Property” includes, without limitation, all
books, manuals, records, reports, notes, contracts, lists, blueprints,
and other
documents, or materials, or copies thereof (including computer files),
and all
other proprietary information relating to the business of the
Company. Following termination, the Executive will not retain any
written or other tangible material containing any proprietary information
of the
Company.
(ii) Upon
termination of the Employment Period, the Executive shall be deemed to
have
resigned from all offices, including his position as a director of the
Company
if applicable, then held with the Company or any affiliate.
(iii) Upon
termination of the Employment Period, this Agreement shall expire, subject
to
fulfillment by the Executive and the Company of their respective obligations
upon termination provided for in this Agreement.
6. Compensation
Upon Termination.
(a) Terminations
other than by the Company Without Cause or by the Executive For Good
Reason. If the Executive’s employment shall terminate for any
reason other than as a result of (i) the Company’s termination of the
Executive’s employment without Cause pursuant to Section 5(c) hereof or (ii) the
Executive’s termination of his employment for Good Reason pursuant to Section
5(d) hereof, the Company shall promptly pay the Executive (i) his salary
to and
including the Date of Termination.
(b) Terminations
by the Executive For Good Reason. If the Executive terminates his
employment for Good Reason pursuant to Section 5(d) hereof, the Company
shall,
promptly pay the Executive in a single lump sum an amount equal to twelve
(12)
months of the salary payable to the Executive pursuant to and in accordance
with
Section 4(a) hereof; provided, however, that such entitlement to
compensation upon termination under this Section 6(b) as aforesaid will
commence
on the one (1) year anniversary of the Executive’s employment. In
addition, in the event of the Executive’s termination of employment for Good
Reason, the Company shall cause the Initial Option and Performance Options
to
immediately become vested and exercisable. Finally, the Company shall
also promptly pay to the Executive the amounts described in Section 6(a)
as if
the Executive’s employment had terminated for reasons other than by the
Executive for Good Reason.
(c) Termination
by the Company Without Cause. If the Company shall terminate the
Executive’s employment without Cause pursuant to Section 5(c) hereof, the
Company shall promptly pay the Executive in a single lump sum an amount
equal to
twelve (12) months of the salary payable to the Executive pursuant to and
in
accordance with Section 4(a) hereof. In addition, the Company shall
cause one half (½) of any remaining portion of the Unvested Initial Option to
immediately become vested and exercisable. Provided,
however, that such entitlement to compensation upon termination under this
Section 6(c) will commence on the one (1) year anniversary of the Executive’s
employment.
7. Restrictive
Covenants.
(a) Definitions.
(i) The
term
“Company” for purposes of Section 7 of this Agreement shall mean NS8
Corporation, a Delaware corporation, and its affiliated and related entities
including, but not limited to, all of NS8 Corporation’s subsidiaries, partners
and joint venturers. It is understood that any affiliated or related
entities of NS8 Corporation are intended third-party beneficiaries of the
provisions of this Agreement.
(ii) The
term
“Confidential Information” shall include, but not be limited to, (a)
Customer lists and Prospective Customer lists; specific information on
Customers
and Prospective Customers (including information on purchasing preferences,
credit information, and pricing), pricing lists (including item
and Customer specific pricing information); names of agents; operations;
contractual or personnel data; trade secrets; license agreements; proprietary
purchasing and sales methods and techniques; pricing methods and strategies;
computer software design and/or improvements; methods of distribution;
market
feasibility studies; proposed or existing marketing techniques or plans;
future
Company business plans; project files; design systems; information on current
and potential Vendors including, but not limited to, their identity, pricing,
and purchasing information not generally known; personal information about
the
Company’s executive officers and directors; and (b) any information that is of
value or significance to the Company that derives independent economic
value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic
value
from its disclosure or use, including information not generally known to
the
competitors of the Company nor intended by the Company for general
dissemination. Confidential Information shall not include any (1)
information known generally to the public (other than as a result of
unauthorized disclosure by the Executive), (2) information that became available
from a third party source and such source is not bound by a confidentiality
agreement with the Company, or (3) any information not otherwise considered
by
the Board to be Confidential Information.
(iii) The
term
“Customer” shall mean any person or entity which has purchased goods,
products or services from the Company, entered into any contract for products
or
services with the Company, and/or entered into any contract for the distribution
of any products or services with the Company within the one (1) year immediately
preceding the termination of the Executive’s employment with the Company for
whatever reason.
(iv) The
phrase “directly or indirectly” shall include the Executive either on his
own account, or as a partner, owner, promoter, joint venturer, employee,
agent,
consultant, advisor, manager, executive, independent contractor, officer,
director, stockholder, or otherwise, of an entity.
(v) The
term
“Non-Compete Period” shall mean the Employment Period and the twelve (12)
months immediately following termination of the Executive’s employment with the
Company for whatever reason.
(vi) The
term
“Prospective Customer” shall mean any person or entity which has
purchased goods, products or services from the Company, entered into any
contract for products or services with the Company, and/or entered into
any
contract for the distribution of any products or services with the Company
within the one (1) year immediately preceding the termination of the Executive’s
employment with the Company for whatever reason.
(vii) The
term
“Restricted Area” shall include any geographical location anywhere in the
world where Executive has been assigned to perform services on behalf of
Company
during the Employment Period and where the Company, its affiliates or
subsidiaries either (a) is engaged in business, and (b) has evidenced an
intention to engage in business.
(viii) The
term
“Vendor” shall mean any supplier, person or entity from which the Company
has purchased products or services during the one (1) year immediately
preceding
the termination of the Executive’s employment with the Company for whatever
reason.
(b) Non-Competition. During
the Employment Period and Non-Compete Period, in the Restricted Area, the
Executive shall not, directly or indirectly, engage in, promote, finance,
own,
operate, develop, sell or manage or assist in or carry on any business
in
competition with the business of the Company, as such business now exists
or as
it may exist at the time of the termination of the Executive’s employment with
the Company for whatever reason; provided, however,
that Executive may at any time own securities of any competitor
corporation whose securities are publicly traded on a recognized exchange
so
long as the aggregate holdings of the Executive in any one such corporation
shall constitute not more than 5% of the voting stock of such
corporation.
(c) Non-Solicitation
of Employees or Independent Contractors. During the Employment
Period and the Non-Compete Period, the Executive shall not, directly or
indirectly, solicit or attempt to induce any employee of the Company or
independent contractor engaged and/or utilized by the Company in any capacity
to
terminate his employment with, or engagement by, the
Company. Likewise, during the Employment Period and the Non-Compete
Period, the Executive shall not, directly or indirectly, hire or attempt
to hire
for another entity or person any employee of the Company or independent
contractor engaged and/or utilized by the Company in any capacity.
(d) Non-Solicitation
of Customers, Prospective Customers or Vendors. During the
Employment Period and the Non-Compete Period, the Executive shall not,
directly
or indirectly, sell, assemble, manufacture or distribute products or services
of
the type sold or distributed by the Company to any Customer, Prospective
Customer or Vendor of the Company in the Restricted Area through any entity
other than the Company. The Executive acknowledges and agrees that
the Company has substantial relationships with its Customers and Vendors,
which
the Company expends significant time and resources in acquiring and maintaining,
and that the Company’s relationships with its Customers and Vendors constitute a
significant and valuable asset of the Company.
(e) Non-Disclosure
of Confidential Information. During and after the Employment
Period, the Executive shall not, directly or indirectly, without the prior
written consent of the Board, or a person duly authorized thereby, disclose
or
use for the benefit of himself or any other person, corporation, partnership,
joint venture, association, or other business organization, any of the
trade
secrets or Confidential Information of the Company other than a person
to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by Executive of the duties of Executive as an employee of the
Company, If Executive is legally required to disclose any
Confidential Information, Executive will notify the Company prior to doing
so by
providing Company with written notice at least ten (10) business days in
advance
of the intended or compelled disclosure. Notice shall be provided as
defined in Section 7 below.
(f) Need
for Restrictions. The Executive acknowledges and agrees that each
of the restrictive covenants contained in this Section 7 is reasonable
and
necessary to protect the legitimate business interests of the Company,
including, without limitation, the need to protect the Company’s trade secrets
and Confidential Information and the need to protect its relationships
with its
Customers, Prospective Customers, Vendors and agents. The Executive
also acknowledges and agrees, as set forth in Section 7(h) below, that
the
Company may obtain a temporary and/or permanent injunction to restrain
any
violations, or otherwise enforce, the restrictive covenants contained in
this
Section 7.
(g) Ownership
by Company. The Executive acknowledges and agrees that any of his
work product created, produced or conceived in connection with his association
with the Company shall be deemed work for hire and shall be deemed owned
exclusively by the Company. The Executive agrees to execute and
deliver all documents required by the Company to document or perfect the
Company’s proprietary rights in and to the Executive’s work
product.
(h) Breach
of Restrictive Covenants. In the event of a breach by the
Executive of any restrictive covenant set forth in this Section 7, the
Executive
agrees that such a breach would cause irreparable injury to the Company,
and
that if the Company shall bring legal proceedings against the Executive
to
enforce any restrictive covenant, the Company shall be entitled to seek
all
available civil remedies, at law or in equity, including, without limitation,
an
injunction without posting a bond, damages, attorneys’ fees, or
costs.
(i) Successors
and Assigns. The Company and its successors and assigns may
enforce these restrictive covenants.
(j) Construction,
Survival. If the period of time, area, or scope of restriction
specified in this Section 7 should be adjudged unreasonable in any proceeding,
then the period of time, area, or scope shall be reduced so that the
restrictions may be enforced as is adjudged to be reasonable. If the
Executive violates any of the restrictions contained in this Section, the
restrictive period shall be tolled during the time that the Executive is
in
violation. All the provisions of this Section 7 shall survive the
term of this Agreement and the Executive’s employment with the
Company.
8. Return
of Company Property. All of the Company’s products, Customer
correspondence, internal memoranda, designs, sales brochures, training
manuals,
project files, price lists, Customer and Vendor lists, prospectus reports,
Customer or Vendor information, sales literature, territory printouts,
call
books, notebooks, textbooks e-mails and Internet access, and all other
like
information or products, including all copies, duplications, replications
and
derivatives of such information or products, acquired by the Executive
while in
the employ of the Company, whether prepared by the Executive or coming
into the
Executive’s possession, shall be the exclusive property of the Company and shall
be returned to the Company promptly upon the Executive’s separation from the
Company. The Executive’s obligations under this Section 8 shall exist
whether or not any of these materials contain Confidential
Information. The Executive shall provide the Company with a signed
certificate evidencing that all such property has been returned, and that
no
such property or Confidential Information has been retained by the Executive
in
any form.
9. Notice. For
the purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed
to have
been duly given when personally delivered, when transmitted by facsimile
with
receipt confirmed, or one day after delivery to an overnight air courier
guaranteeing next day delivery, addressed as follows:
If
to the
Executive:
[name]
Address
With
a copy
to:
Name
Contact
info
If
to the
Company: NS8
Corporation
Contact
Info
With
a copy
to Name
Contact
Info
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall be
effective
only upon receipt.
10. Severability. The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision
of this
Agreement, which shall remain in full force and effect.
11. Assignment. This
Agreement may not be assigned by the Executive, but may be assigned by
the
Company to any successor to its business and will inure to the benefit
and be
binding upon any such successor.
12. Tax
Withholding. All amounts payable hereunder (including any
non-cash benefits) shall be subject to all applicable tax
withholdings.
13. Counterparts. This
Agreement may be executed in several counterparts, each of which shall
be deemed
to be an original but all of which together will constitute one and the
same
instrument.
14. Headings. The
headings contained herein are for reference purposes only and shall not
in any
way affect the meaning or interpretation of this Agreement.
15. Choice
of Law. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State
of
Florida (without reference to the choice of law provisions of Florida
law).
16. Limitation
on Liabilities. If either party is awarded any damages as
compensation for any breach or action related to this Agreement, or any
other
cause of action based in whole or in part on any breach of any provision
of this
Agreement, such damages shall be limited to contractual damages and shall
exclude (i) punitive damages, and (ii) consequential and/or incidental
damages
(e.g., loss of profits and other indirect, remote or speculative
damages).
17. Entire
Agreement. This Agreement contains the entire agreement and
understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby, and
no
representations, promises, agreements or understandings, written or oral,
not
herein contained shall be of any force or effect. This Agreement
shall not be changed unless in writing and signed by both the Executive
and the
Board of Directors of the Company.
18. The
Executive’s Acknowledgment. The Executive acknowledges
(a) that he has consulted with or has had the opportunity to consult with
independent legal counsel of his own choice concerning this Agreement and
has
been advised to do so by the Company, and (b) that he has read and
understands this Agreement, is fully aware of its legal effect, and has
entered
into it freely based on his own judgment.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
NS8
Corporation
/s/ Xxxxxxx
Xxxx
Name: Xxxxxxx
Xxxx
Title: Chairman
of the Board
EXECUTIVE
/s/ Xxxxx
X.
Xxxxxx
Name: Xxxxx
X.
Xxxxxx
