Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of the
1st day of November 2003, between Summus, Inc (USA)., a Florida corporation (the
"COMPANY"), and Xxxx Xxxx (the "EXECUTIVE").
RECITALS:
WHEREAS, the Company desires to employ Executive, and Executive desires
to be employed by the Company, on the terms and subject to the conditions set
forth herein.
NOW, THEREFOR, in consideration of the mutual premises herein
contained, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive as Chief Financial
Officer and Executive hereby accepts such employment, on the terms and subject
to the conditions hereinafter set forth.
2. DUTIES OF EXECUTIVE.
2.1 Executive shall report directly to Chief Executive
Officer, and shall perform such duties consistent
with his position as Chief Financial Officer pursuant
to the direction of the Chief Executive Officer and
Board of Directors.
2.2 Executive shall be required to devote his full
business time, attention and effort to the Company's
business and affairs except for vacation time and
reasonable periods of absence due to sickness,
personal injury or other disability and shall perform
diligently such duties as are customarily performed
by executives in similar positions with companies
similar in character or size to the Company, all
subject to the direction of the Chief Executive
Officer. Executive agrees to use all of his skills
and business judgment and render services to the best
of his ability to serve the interests of the Company.
Subject to the terms of Section 8 hereof, this shall
not preclude Executive from serving on community and
civic boards, participating in industry associations,
pursuing his personal financial and legal affairs or
otherwise engaging in other activities, so long as
such activities do not unreasonably interfere with
his duties to the Company.
3. SUPPORT SERVICES. Executive shall be entitled to all the
administrative, operational and facility support customary to a similarly
situated executive. This support shall include, without limitation, a suitably
appointed private office, and payment of or reimbursement for reasonable
cellular telephone expenses, travel and entertainment expenses, expenses of
Executive maintaining his professional license and standing and any and all
other business expenses reasonably incurred on behalf of or in the course of
performing duties for the Company, all in accordance with the expense
reimbursement policies established from time to time by the Company. Executive
agrees to provide documentation of these expenses as may be reasonably required.
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4. TERM. The term of Executive's employment shall begin as of November
1, 2003 and shall end on October 31, 2005, unless sooner terminated pursuant to
Section 7 hereof (the "Term").
5. COMPENSATION. Throughout the Term, the Company shall pay or provide,
as the case may be, to Executive the compensation and other benefits and rights
set forth in this Section 5.
5.1 BASE SALARY. The Company shall pay to Executive a base
salary ("Base Salary"), payable in accordance with the Company's usual pay
practices (and in any event no less frequently than monthly), of $120,000 per
annum. The Board shall annually review Executive's Base Salary in light of the
base salaries paid to other executives of the Company and the performance of
Executive, and the Company may, in its discretion, increase such Base Salary by
an amount it determines is appropriate.
5.2 OPTIONS. Options, subject to, the terms and conditions of
the Company's Amended and Restated 2000 Equity Compensation Plan and
NonQualified Stock option agreement attached hereto as EXHIBIT A (the "Option
Agreement").
5.3 PERFORMANCE BONUS. The Company shall pay to Executive
bonus compensation for each fiscal year, or part thereof that he is employed by
the Company, in an amount to be determined at the discretion of the CEO and
Board, provided that such bonus shall be commensurate with other bonuses paid to
employees of the Company target at 100% and shall take into account the total
compensation paid to executives of other companies which would be competitive
for Executive's services.
5.4 INSURANCE. The Company shall provide medical, vision,
hospitalization, disability and dental insurance for Executive, his spouse and
eligible family members, subject to and in accordance with the Company's policy,
the proportion of the cost thereof to be borne by the Company and Executive to
be in accordance with such policy.
5.5 EMPLOYEE BENEFIT PLANS. Executive shall be eligible to
participate in all retirement and other benefit plans of the Company generally
available from time to time to employees of the Company and for which Executive
qualifies under the terms thereof (and nothing in this Agreement shall, or shall
be deemed to, in any way affect Executive's rights and benefits thereunder
except as expressly provided herein).
5.6 OTHER BENEFIT PLANS. Executive shall be entitled to
participate in any equity or other employee benefit plan that is generally
available to senior executive officers, as distinguished from general
management, of the Company, at the highest level provided for any employee.
Executive's participation in and benefits under any such plan shall be on the
terms and subject to the conditions specified in the governing document of the
particular plan.
5.7 VACATION. Executive shall be entitled to Twenty (20) days
of vacation allowance each year, which shall accrue at the rate of five (5) days
per calendar quarter, but may be used in advance of accrual. Vacation days not
used in one calendar year shall carry over to the following calendar year(s) up
to a maximum of ten days. Executive shall also be entitled to a sick leave
allowance as provided under the Company's vacation and sick leave policy for
executive officers.
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6. PERMANENT DISABILITY.
6.1 For purposes of this Agreement, Executive's "Permanent
Disability" shall be deemed to have occurred one day after one hundred eighty
(180) days in the aggregate during any consecutive twelve (12) month period, or
one day after one hundred twenty consecutive days, during which 180 or 120 days,
as the case may be, Executive, by reason of his physical or mental disability or
illness, shall have been unable to discharge fully his duties under this
Agreement.
6.2 If either the Company or Executive, after receipt of
notice of Executive's Permanent Disability from the other, disputes that
Executive's Permanent Disability shall have occurred, Executive shall promptly
submit to a physical examination by a physician at any major accredited hospital
and, unless such physician shall issue his written statement to the effect that,
in his opinion, based on his diagnosis, Executive is capable of resuming his
employment and devoting his full time and energy to discharging fully his duties
hereunder within thirty (30) days after the date of such statement, such
Permanent Disability shall be deemed to have occurred on the day above
specified.
7. TERMINATION.
7.1 BASES FOR TERMINATION. Executive's employment under this
Agreement and the Term shall be terminated immediately on the death of Executive
and may be terminated by the Board:
(a) at any time after the Permanent Disability
of Executive;
(b) at any time for "Cause" (as defined in
Section 7.8 hereof); or
(c) at any time without Cause.
7.2 TERMINATION BY DEATH. If Executive's employment is
termination by death, Executive's estate or designated beneficiaries shall be
entitled to receive:
(a) life insurance benefits pursuant to any life
insurance policy purchased by the Company;
(b) a pro rata portion of the bonus applicable to the
calendar year in which such termination
occurs, payable when and as such bonus is determined under Section 5.3 but no
less than a pro rata portion of Executive's bonus for the prior year;
(c) other benefits, payable within ninety (90) days
after the date of Executive's death; and
(d) reimbursement for all expenses incurred by
Executive pursuant to Section 3 hereof.
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7.3 TERMINATION FOR PERMANENT DISABILITY. If Executive's
employment is terminated by the Company for Permanent Disability, Executive
shall be entitled to receive:
(a) a pro rata portion of the bonus applicable to the
calendar year in which such termination
occurs, payable when and as such bonus is determined under Section 5.3, but no
less than a pro rata portion of Executive's bonus for the preceding calendar
year;
(b) other benefits, payable within ninety (90) days
after termination for Permanent Disability,
accrued by him hereunder up to and including the date of such termination;
(c) continuation of the insurance provided by the
Company pursuant to Section 5.4 for 6 months; and
(d) reimbursement for all expenses incurred by
Executive pursuant to Section 3 prior to his
termination.
7.4 TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY EXECUTIVE
FOR GOOD REASON. If Executive's employment is terminated by the Company without
Cause (as defined in Section 7.8(a)) or by Executive for Good Reason (as defined
in Section 7.8(e)), Executive shall be entitled to receive:
(a) a cash lump sum payment in respect of accrued but
unused vacation days;
(b) other benefits, payable within ninety (90) days
after the date of such termination, accrued by
him hereunder up to and including the date of such termination;
(c) reimbursement for all expenses incurred by
Executive pursuant to Section 3 prior to his
termination.
The Company shall have the right to terminate any payments due Executive
hereunder at any time Executive fails to honor the restrictive covenants set
forth in Section 8 hereof.
7.5 TERMINATION BY THE COMPANY FOR CAUSE OR BY EXECUTIVE
WITHOUT GOOD REASON. If Executive's employment is terminated by the Company for
Cause or by Executive without Good Reason (other than as a result of Executive's
Permanent Disability or Death), the Company shall not have any other or further
obligations to Executive under this Agreement (except (i) as may be provided in
accordance with the terms of retirement and other benefit plans pursuant to
Sections 5.5 and 5.6 hereof, (ii) as to that portion of any unpaid Base Salary
and other benefits accrued and earned under this Agreement through the date of
such termination, (iii) as to benefits, if any, provided by any insurance
policies in accordance with their terms, and (iv) reimbursement for all expenses
incurred by Executive pursuant to Section 3 prior to his termination). In
addition, if Executive's employment is terminated by the Company for Cause at
any time during the Term, Executive shall immediately forfeit any and all
unvested stock rights, stock options and other such unvested incentives or
awards previously granted to him by the Company. The foregoing sentence shall be
in addition to, and not in lieu of, any and all other rights and remedies which
may be available to the Company under the circumstances, whether at law or in
equity.
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7.6 TERMINATION BY EXECUTIVE UPON A CHANGE IN CONTROL. If
Executive's employment is terminated as set forth in this Section 7.6 as
Termination Upon a Change in Control (as defined in Section 7.8(g) hereof),
Executive shall receive:
(a) a cash lump sum payment in respect of accrued but
unused vacation days;
(b) a pro rata portion of the bonus applicable to the
calendar year in which such termination
occurs, payable when and as such bonus is determined under Section 5.3, but no
less than a pro rata portion of Executive's bonus for the preceding calendar
year;
(c) acceleration of the vesting of one hundred
percent (100%) of the unvested portion of Executive
stock options or other stock-based awards, together with the right to exercise
such stock options or awards for a period equal to the greater of (i) the
remaining term for exercising such options or awards under the applicable
agreement and/or plan;
(d) other benefits, payable within ninety (90) days
after the date of such termination, accrued by
him hereunder up to and including the date of such termination;
(e) continuation of the insurance provided by the
Company pursuant to Section 5.4 for the longer of 12 months or the remainder of
the Term (but not longer than 12 months), or if not available a lump sum payment
of an amount equal to the fair value of such insurance; and
(f) reimbursement for all expenses incurred by
Executive pursuant to Section 3 prior to his
termination.
7.7 TERMINATION UPON CESSATION OF BUSINESS. The Company shall
have the right to immediately terminate Executive's employment under this
Agreement upon a Cessation of Business (as defined in Section 7.8(b)). Upon
termination in connection with a Cessation of Business, the Company shall (i)
pay to Executive the Base Salary, and (ii) provide the same health insurance
benefits to which Executive is entitled hereunder, in each case until the
earlier to occur of (A) the expiration of the remaining portion of the Term, or
(B) the expiration of the three month period commencing on the date Executive is
terminated. The Company may make such payments in accordance with its regular
payroll schedule or in a single lump sum payment in its sole discretion.
7.8 DEFINITIONS. As used herein:
(a) "CAUSE" shall mean:
(1) active participation by Executive in
fraudulent conduct against the Company, conviction of or a plea of guilty or
NOLO CONTENDERE with respect to a felony involving theft or moral turpitude, an
act or series of deliberate acts which were not taken in good faith by Executive
and which, in the reasonable judgment of the Board, results or will likely
result in material injury to the business, operations or business reputation of
the Company, or an act or series of acts constituting willful malfeasance or
gross misconduct;
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(2) a substantial and continual refusal by
Executive in breach of this Agreement to perform the duties, responsibilities or
obligations assigned to Executive pursuant to the terms hereof including any act
of insubordination, failing to comply with any instructions of the Company's
Chief Executive Officer or Board, or commits any act or omission which the Chief
Executive Officer or Board determines, in good faith, may materially adversely
affect the Company's business or operations, which breach has not been cured (if
it is of a nature that can be cured) to the Board's reasonable satisfaction
within ten (10) days after the Company gives written notice thereof to
Executive;
(3) excessive absenteeism by Executive;
provided that absenteeism (i) related to illness or otherwise covered by Section
6 hereof, (ii) required to be permitted under applicable federal or state laws,
or (iii) permitted under Company policy, shall not be deemed to be excessive; or
(4) the voluntary resignation of Executive
without Good Reason (as defined below) and without the prior consent of the
Board.
Executive shall be permitted to respond and defend himself before the
Board within ten (10) days after delivery to Executive of written notification
of any proposed termination for Cause which specifies in detail the reasons for
such termination. If the majority of the members of the Board (excluding
Executive) do not confirm that the Company had grounds for a "Cause"
termination, Executive shall have the option to treat his employment as not
having terminated or as having been terminated pursuant to a termination without
Cause.
(b) "CESSATION OF BUSINESS" shall mean the Company's ceasing
to operate in the ordinary course of business, whether by dissolution,
liquidation, in connection with a good faith determination by the Board that the
continuing operation of the business in its ordinary course is reasonably likely
to render the Company unable to meet its liabilities as they mature.
(c) A "CHANGE IN CONTROL" shall occur if:
(1) there shall be consummated any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation;
(2) any Person (as defined in Section 2(a)(2) of the
Securities Act of 1933, as amended) other than the Company, is or becomes the
beneficial owner, directly or indirectly (including by holding securities which
are exercisable for or convertible into shares of capital stock of the Company)
of fifty percent (50%) or more of the combined voting power of the then
outstanding shares of capital stock of the Company entitled to vote generally in
the election of directors;
(3) the Company sells, leases, exchanges or otherwise
transfers all or substantially all of its property and assets (in a transaction
or series of transactions contemplated or arranged by any party as a single
plan);
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(4) a majority of the Outside Directors determine
that a Change in Control has occurred.
(d) "GOOD REASON" means a termination of Executive's
employment by Executive within ninety (90)
days following:
(1) a reduction in Executive's Base Salary
or incentive compensation or equity participation opportunity;
(2) a material reduction in Executive's
position(s), duties and responsibilities or
reporting lines from those described in Section 2 hereof;
(3) a change in the location of the
Company's headquarters or of the office of Executive from the Raleigh
metropolitan area;
(4) a material breach of this Agreement by
the Company if such breach is not cured within 15 days of written notice thereof
by Executive to the Company; or
(5) any failure by the Company to obtain
from any successor to the Company an agreement reasonably satisfactory to
Executive to assume and perform this Agreement, as contemplated by Section 11.3
hereof.
Notwithstanding the foregoing, a termination shall not be treated as a
termination for Good Reason (A) if Executive shall have consented in writing to
the occurrence of the event giving rise to the claim of termination for Good
Reason, or (B) unless Executive shall have delivered a written notice to the
Board within thirty (30) days of his having actual knowledge of the occurrence
of one of such events stating that he intends to terminate his employment for
Good Reason and specifying the factual basis for such termination, and such
event, if capable of being cured, shall not have been cured within ten (10) days
of the receipt of such notice.
(f) "OUTSIDE DIRECTOR" means a member of the Board
who is not, and who during the past six months
was not, an employee of officer of the Company.
(g) "TERMINATION UPON A CHANGE IN CONTROL" means:
(1) a termination by Executive for Good
Reason within one year following a Change in
Control;
(2) declination by Executive of an offer of
employment from the Company or the Company's successor, for Good Reason at or in
anticipation of a Change in Control, if Executive would not have been permitted
to retain Executive's existing position; or
(3) termination of Executive's employment by
the Company or the Company's successor within one year following a Change in
Control other than a termination for Cause or a termination resulting from
Executive's death or Permanent Disability.
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7.8 MITIGATION OF DAMAGES. Executive is not required to
mitigate the amount of any payments to be made by the Company pursuant to this
Agreement following his termination by seeking other employment or otherwise. In
addition, the amount of any post-termination payments provided for in this
Agreement shall, except as otherwise expressly provided herein, not be reduced
by any remuneration earned by Executive during the period following the
termination of his employment as a result of employment by another employer or
otherwise after the date of termination of his employment with the Company.
7.9 GOLDEN PARACHUTE EXCISE TAX GROSS-UP. In the event that
the severance and other benefits provided for in this Agreement or otherwise
payable to Executive constitute "parachute payments" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and
will be subject to the excise tax imposed by Section 4999 of the Code, then
Executive shall receive (i) a payment from the Company sufficient to pay such
excise tax, and (ii) an additional payment from the Company sufficient to pay
such excise tax and federal and state income taxes arising from the payments
made by the Company to Executive pursuant to this sentence. Unless the Company
and Executive otherwise agree in writing, the determination of Executive's
excise tax liability and the amount required to be paid under this Section shall
be made in writing by the Company's independent accountants who audit the
Company's financial statements, working together with Executive's accountants.
In the event that the excise tax incurred by Executive is determined by the
Internal Revenue Service to be greater or lesser than the amount so determined
by the accountants, the Company and Executive agree to promptly make such
additional payment, including interest and any tax penalties, to the other party
as the accountants reasonably determine is appropriate to ensure that the net
economic effect to Executive under this Section, on an after-tax basis, is as if
the Section 4999 excise tax did not apply to Executive. For purposes of making
the calculations required by this Section, the accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
interpretations of the Code for which there is a "substantial authority" tax
reporting position. The Company and Executive shall furnish to the accountants
such information and documents as the accountants may reasonably request in
order to make a determination under this Section. The Company shall bear all
costs the accountants may reasonably incur in connection with any calculations
contemplated by this Section.
8. COVENANTS AND CONFIDENTIAL INFORMATION.
8.1 RESTRICTIVE COVENANTS. Executive acknowledges the
Company's reliance on and expectation of Executive's continued commitment to
performance of his duties and responsibilities during the term. In light of such
reliance and expectation on the part of the Company, during the applicable
period hereafter specified in Section 8.2, Executive shall not, directly or
indirectly, do or suffer either of the following;
(a) (1) own, manage, control or participate in the
ownership, management or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor or otherwise
with, any other corporation, partnership, proprietorship, firm, association or
other business entity engaged in the business of, or otherwise engage in the
business of, information processing of multimedia over mobile and wireless
networks within the United States in competition with the Company; provided,
however, that the beneficial and/or record ownership of not more than 4.9% of
any class of publicly traded securities of any entity shall not be deemed a
violation of this covenant;
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(2) solicit any business or contracts from any
customers of the Company or its affiliates, any past customers of the Company or
its affiliates, or any prospective customers of the Company or its affiliates
(i.e., potential customers from which the Company or its affiliates has
solicited business at any time during the 12 month period preceding the
expiration or termination of the Term), except as necessitated by Executive's
position with the Company and then only in furtherance of the business interests
of the Company or its affiliates;
(3) induce or attempt to induce any such customer to
alter its business relationship with the Company or its affiliates except as
necessitated by Executive's position with the Company and then only in
furtherance of the business interests of the Company or its affiliates;
(4) solicit or induce or attempt to solicit or induce
any employee of the Company or its affiliates to leave the employ of the Company
or any of its affiliates for any reason whatsoever or hire any employee or any
person who was an employee of the Company or its affiliates within the twelve
(12) month period prior to such hiring; or
(b) disclose, divulge, discuss, copy or otherwise use or
suffer to be used in any manner, other than in accordance with Executive's
duties hereunder, any confidential or proprietary information relating to the
Company's business, prospects, finances, operations or properties or other trade
secrets of the Company, it being acknowledged by Executive that all such
information regarding the business of the Company compiled or obtained by, or
furnished to, Executive while Executive shall have been employed by or
associated with the Company is confidential and/or proprietary information and
the Company's exclusive property; provided, however, that the foregoing
restrictions shall not apply to the extent that such information: (A) is clearly
obtainable in the public domain; (B) becomes obtainable in the public domain,
except by reason of the breach by Executive of the terms hereof or by another
person barred by a similar duty of confidentiality; or (C) is required to be
disclosed by rule of law or by order of a court or governmental body or agency.
8.2 APPLICABLE PERIODS. The applicable periods shall be:
(a) so long as Executive is an employee of the
Company;
(b) as to Section 8.1(b), at any time after Executive
is no longer an employee of the Company; and
(c) for a period of 12 months after termination of
employment.
8.3 INJUNCTIVE RELIEF. Executive agrees and understands that
the remedy at law for any breach by him of this Section 8 will be inadequate and
that the damages flowing from such breach are not readily susceptible to being
measured in monetary terms. Accordingly, it is acknowledged that the Company
shall be entitled to immediate injunctive relief and may obtain a temporary
order restraining any threatened or further breach. Nothing in this Section 8
shall be deemed to limit the Company's remedies at law or in equity for any
breach by Executive of any of the provisions of this Section 8 which may be
pursued or availed of by the Company.
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8.4 ACKNOWLEDGMENT BY EXECUTIVE. Executive has carefully
considered the nature and extent of the restrictions upon him and the rights and
remedies conferred upon the Company under this Section 8, and hereby
acknowledges and agrees that the same are reasonable in time and territory, are
designed to eliminate competition which otherwise would be unfair to the
Company, do not stifle the inherent skill and experience of Executive, would not
operate as a bar to Executive's sole means of support, are fully required to
protect the legitimate interests of the Company, and do not confer a benefit
upon the Company disproportionate to the detriment of Executive.
8.5 SURVIVAL. Executive acknowledges that Executive's
obligations under this Section 8 shall survive in accordance with Section 8.2
hereof regardless of whether Executive's employment by the Company is
terminated, voluntarily or involuntarily, by the Company or Executive, with
Cause or without Cause, or the Executive with or without Good Reason.
9. PROPRIETARY RIGHTS.
9.1 At all times during the Term, all right, title and
interest in all copyrightable material which Executive shall conceive or
originate, either individually or jointly with others, and which arise out of
the performance of this Agreement, will be the property of the Company and are
by this Agreement assigned to the Company along with ownership of any and all
copyrights in the copyrightable material. At all times during the Term,
Executive agrees to execute all papers and perform all other acts necessary to
assist the Company to obtain and register copyrights on such materials in any
and all countries, and the Company agrees to pay expenses associated with such
copyright registration. Works of authorship created by Executive for the Company
in performing his responsibilities under this Agreement shall be considered
"works made for hire" as defined in the U.S. Copyright Act. In addition,
Executive hereby assignees to the Company all proprietary rights, including but
not limited to, all patents, copyrights, trade secrets and trademarks Executive
might otherwise have, by operation of law or otherwise, in all inventions,
discoveries, works, ideas, information, knowledge and data related to
Executive's access to confidential information of the Company during the Term.
9.2 All know-how and trade secret information conceived or
originated by Executive which arises out of the performance of his obligations
or responsibilities under this Agreement during the Term shall be the property
of the Company, and all rights therein are by this Agreement assigned to the
Company.
9.3 If, during the term, Executive is engaged in or associated
with the planning or implementing of any project, program or venture involving
the Company and a third party or parties, all rights in such project, program or
venture shall belong to the Company. Except as formally approved by the Board,
Executive shall not be entitled to any interest in such project, program or
venture or to any commission, finder's fee or other compensation in connection
therewith other than the compensation to be paid to Executive as provided in
this Agreement.
9.4 Upon termination of the Term, Executive shall deliver
promptly to the Company all records, manuals, books, documents, letters,
memoranda, notes, notebooks, reports, data, tables, calculations, customer and
prospective customer lists, and copies of all of the foregoing, which are the
property of the Company, and all other property, trade secrets and confidential
information of the Company, including, but not limited to, all documents which
in whole or in part contain any trade secrets or confidential information of the
Company, which in any of these cases are in his possession or under his control.
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9.5 The obligations of Executive under this Section 9 shall
survive the termination or expiration of the Term.
10. INDEMNIFICATION. During the Term, the Company shall indemnify
Executive and hold Executive harmless from and against any claim, loss or cause
of action arising from or out of Executive's performance as an officer, director
or employee of the Company or any of its subsidiaries or in any other capacity,
including any fiduciary capacity, in which Executive serves at the request of
the Company to the maximum extent permitted by applicable law. If any claim is
asserted hereunder with respect to which Executive reasonably believes in good
faith he is entitled to indemnification, the Company shall pay Executive's legal
expenses (or cause such expenses to be paid), on a monthly basis, provided that
Executive shall reimburse the Company for such amounts if Executive shall be
found by a court of competent jurisdiction not to have been entitled to
indemnification. In addition, the Company agrees to provide Executive with
coverage under a directors and officers liability insurance policy.
11. MISCELLANEOUS.
11.1 REPRESENTATION AND WARRANTY BY EXECUTIVE. Executive
represents and warrants that he is not a party to any agreement, contract or
understanding, whether employment or otherwise, which would restrict or prohibit
him from undertaking or performing employment in accordance with the terms and
conditions of this Agreement.
11.2 SEVERABILITY. The provisions of this Agreement are
severable and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions and any
partially unenforceable provision, to the extent enforceable in any
jurisdiction, nevertheless shall be binding and enforceable.
11.3 ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the heirs and representatives of Executive and the
assigns and successors of the Company, but neither this Agreement nor any rights
or obligations hereunder shall be assignable or otherwise subject to
hypothecation by Executive (except by will or by operation of the laws of
intestate succession) or by the Company, except that the Company may assign this
Agreement to any successor (whether by merger, purchase or otherwise) to all or
substantially all of the stock, assets or business of the Company, and the
Company shall require such successor to expressly agree to assume the
obligations of the Company hereunder.
11.4 DISPUTE RESOLUTION. Any controversy or claim arising out
of or relating to this Agreement, or the breach thereof, shall be settled by
mediation, and if not settled within 14 days of the submission to meditation, by
arbitration in accordance with the Voluntary Arbitration Rules of the American
Arbitration association, and the arbitration shall be held in the Raleigh, North
Carolina area. The arbitrator shall be acceptable to both the Company and
Executive. If the parties cannot agree on an acceptable arbitrator, the dispute
shall be heard by a panel of three (3) arbitrators, one appointed by each of the
parties and the third appointed by the other two arbitrators. Judgment upon the
award rendered by the arbitrator or arbitrators may be entered in any court
having jurisdiction thereof. The arbitrator or arbitrators shall be deemed to
possess the power to issue mandatory orders and restraining orders in connection
with such arbitration; provided, however, that nothing in this Section 11.4
shall be construed so as to deny the Company the right and power to seek and
obtain injunctive relief in a court of equity for any breach or threatened
breach by Executive of his covenants contained in Section 8 hereof. All costs
and expenses of arbitration shall be paid one-half by the Company and one-half
by Executive.
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11.5 NOTICES. All notices and other communications required or
permitted under this Agreement shall be in writing, and shall be deemed properly
given if delivered personally, mailed by registered or certified mail in the
United States mail, postage prepaid, return receipt requested, send by facsimile
or sent by Express Mail, Federal Express or other nationally recognized express
delivery service, as follows:
If to the Company or the Board:
Summus, Inc. (USA).
If to Executive: Xxxx Xxxx
Notice given by hand, certified or registered mail, or by Express Mail,
Federal Express or other such express delivery service, shall be effective upon
receipt. Notice given by facsimile transmission shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All notices by facsimile
transmission shall be confirmed promptly after transmission in writing by
certified mail or personal delivery.
Any party may change any address to which notice is to be given to it
by giving notice as provided above of such change of address.
11.6 AMENDMENT. This Agreement may only be amended by written
agreement of the parties hereto.
11.7 BENEFICIARIES; REFERENCES. Executive shall be entitled to
select (and change, to the extent permitted under applicable law) a beneficiary
or beneficiaries to receive any compensation or benefit payable hereunder
following Executive's death, and may change such election, in either case by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative. Any reference to the masculine gender in
this Agreement shall include, where appropriate, the feminine.
11.8 SURVIVORSHIP. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
The provisions of this Section are in addition to the survivorship provisions of
any other section of this Agreement.
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11.9 GOVERNING LAW. This Agreement shall be construed,
interpreted and governed in accordance with the laws of the State of North
Carolina without reference to rules relating to conflicts of law. For purposes
of jurisdiction and venue, the Company hereby consents to jurisdiction and venue
in any suit, action or proceeding with respect to this Agreement in any court of
competent jurisdiction in the state in which Executive resides at the
commencement of such suit, action or proceeding and waives any objection,
challenge or dispute as to such jurisdiction or venue being proper.
11.10 EFFECT OF PRIOR AGREEMENTS. This Agreement contains the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes in all respects any prior or other agreement or
understanding between the Company or any affiliate of the Company and Executive
with respect to the subject matter hereof.
11.11 WITHHOLDING. The Company shall be entitled, to the
extent permitted or required by law, to withhold from any payment of any kind
due Executive under this Agreement to satisfy the tax withholding obligations of
the Company under applicable law.
11.12 COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an
original.
IN WITNESS WHEREOF, the parties hereto, having duly been authorized,
have executed this Agreement as of the date first above written.
Summus, Inc. (USA) Xxxx Xxxx
By: ___________________________ _________________________
Name: ___________________________
Title: ___________________________
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