EMPLOYMENT AGREEMENT
Exhibit
10(xii)
AGREEMENT
dated as of the 1st day of
November, 2006 by and between Oiltek, Inc. a Delaware corporation, with an
address at 7000 Flour Exchange Building, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx,
XX 00000 (the “Employer”) and Xxxx Xxxxxxx, with an address at
______________________________ (the “Employee”).
W I T N E S S E T
H:
WHEREAS, the Employer desires
to employ and retain the services of the Employee;
WHEREAS, the Employee desires
to devote such time and attention to the business of the Employer as shall be
required by the Employer in the sole and absolute discretion of the Employer’s
Board of Directors;
NOW, THEREFORE, in
consideration of the mutual covenants of the parties which are hereinafter set
forth and for other good and valuable consideration, receipt of which is hereby
acknowledged,
IT IS AGREED:
1. Recitals. The
parties hereby adopt as part of this Agreement each of the recitals which is set
forth above in the WHEREAS clauses, and agree that such recitals shall be
binding upon the parties hereto by way of contract and not merely by way of
recital or inducement and such WHEREAS clauses are hereby confirmed and ratified
as being accurate by each party as to itself and herself.
2. Employment. The
Employer hereby agrees to employ the Employee and the Employee hereby accepts
such employment. The Employee shall be elected by the Board of
Directors of the Employer as President and a Director (the
“Positions”). The Employee accepts such employment upon the terms and
conditions which are hereinafter set forth.
3. Duties. The
Employee shall report to (and have only such authority as shall be granted to
her by) the Board of Directors of the Employer. The Employee shall
conduct herself and perform such duties which are commensurate with the
Positions as may be assigned by the Board of Directors of the
Employer.
4. Location. The
subject services shall be performed no more than twenty-five (25) miles from the
Minneapolis, Minnesota metropolitan area, subject to reasonable travel as may be
required in the performance of the services required pursuant to this
Agreement.
5. Term.
A. The term
of this Agreement (the “Term”) shall commence as of the 1st day of
November, 2006 (the “Commencement Date”) and shall continue for two (2) years
until October 31, 2008, unless or until terminated as set forth in Paragraph “B”
of this Article “5” of this Agreement. “Year” shall be deemed to mean
each period from November 1st through
October 31st.
B. The Term
and the Employee’s employment shall automatically terminate upon the date of
death of the Employee or upon the date of Total Disability (as defined in
Article “10” of this Agreement) of the Employee, and the Employer shall have the
right to terminate the Employee’s employment for Cause (as defined in Article
“11” of this Agreement).
6. Compensation. The
Employer agrees to pay, and the Employee agrees to accept, compensation at a
monthly rate of five thousand dollars ($5,000), payable to the Employee pursuant
to the standard payroll practices of the Employer. The Employer shall
deduct from Employee’s compensation all federal, state and local taxes which it
may now or may hereafter be required to deduct.
7. Benefits. In
addition to the compensation which is provided for herein, the Employer shall
provide the Employee with individual health insurance coverage as determined by
the Employer in its reasonable discretion.
8. Vacation/Personal Days; Sick
Days.
A. The
Employee shall be entitled each Year during the Term of this Agreement to
personal and vacation days pursuant to the standard practices of the Employer,
provided however that the Employee shall be entitled to two (2) weeks vacation
each Year, exclusive of (A) Holidays as defined in Article “10” of this
Agreement and (B) weekend days, during which time the Employee’s compensation
shall be paid in full. Such days shall be taken at a time or times
approved in advance by the Employer upon reasonable notice from the Employee,
which approval shall not be unreasonably withheld, provided that no vacation
time shall be taken by the Employee until after January 31,
2007. Personal and vacation days not utilized during any Year shall
not accrue and shall not be carried over and be available for utilization during
any subsequent calendar year. The Employee shall not be paid for
personal and vacation days not utilized.
B. The
Employee shall be entitled to ten (10) days of paid sick or personal leave
during each Year of this Agreement.
9. Employee
Covenants.
A. The
Employee covenants and agrees that, except as specifically approved by the Board
of Directors of the Employer, she shall devote all of her working time and give
her best endeavors, energies and skills to the discharge of her duties and
obligations hereunder and she shall not, as long as she is in the employ of the
Employer, enter into the services of any business, or any other business
undertaking, as an employee, agent, partner, associate, joint venture partner,
consultant or independent contractor, or in any other manner without the
Employer’s explicit written consent.
B. Notwithstanding
anything contained in Paragraph “A” of this Article “9” of this Agreement to the
contrary, the Employee may engage in any or all of the following if such
engagement does not interfere with the performance of her duties pursuant to
this Agreement: (i) make and supervise passive or active investments in
businesses which do not in any manner compete with the Employer and any
subsidiary , (ii) own shares of any publicly held corporation which does not in
any manner compete with the Employer and any subsidiary, or (iii) own shares of
any publicly-held corporation which in any manner competes with the Employer and
any subsidiary, which shares are equal to no more than one (1%) percent of the
issued and outstanding shares of such corporation.
10. Total
Disability. For purposes of this Agreement, the term “Total
Disability” shall mean the failure or inability of the Employee for reasons of
health to perform her usual and customary duties on behalf of the Employer in
the usual and customary manner for a total of more than forty-five (45) days
(excluding Saturdays, Sundays and Holidays, as specified below in this Article
“10” of this Agreement) out of any consecutive period of three hundred and sixty
five (365) days (including Saturdays, Sundays and Holidays, as specified below
in this Article “10” of this Agreement). The term “Holidays” shall
include New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day, Christmas Day and any other weekday upon which banks are closed in the
State of Minnesota. In such event, Total Disability shall be deemed
to have occurred on the forty-sixth (46th) such
day that the Employee shall fail or be unable to perform her usual and customary
duties on behalf of the Employer in the usual and customary
manner. Subject to Paragraph “B” of Article “8” of this Agreement,
the Employee shall not be entitled to be paid during any period of Total
Disability. If the Employee receives any salary during any period of
disability, the amount of the Employee’s salary during such period of disability
shall be reduced by disability insurance paid to the Employee, if any, which is
maintained by the Employer at the Employer’s expense. If the Employee
receives any disability insurance payments subsequent to the Company paying the
Employee for such period, the Employee agrees to endorse the disability
insurance payment(s) to the order of the Company. Upon the date on
which Total Disability shall have occurred, the Employer shall have the right to
terminate the Employee’s compensation and status as an Employee under this
Agreement, but such termination shall not be for Cause. Such
termination of the Employee’s employment shall not constitute a breach of this
Agreement by the Employer and the Employer’s sole obligation to the Employee
shall be to pay the Employee the amount of any compensation accrued through the
date of termination. If the parties are unable to agree with respect
to any question relating to Total Disability including, but not limited to, the
following: (i) whether the Employee is Totally Disabled, (ii) the date upon
which the disability of the Employee commenced or (iii) the date upon which
either the disability of the Employee terminated or the Total Disability
occurred, then such dispute shall be determined by arbitration in accordance
with Paragraph “D” of Article “19” of this Agreement.
11. Cause. For
purposes of this Agreement, the term “Cause” shall be limited to: (i) the
Employee’s willful malfeasance or gross negligence; (ii) the Employee’s fraud,
misappropriation or embezzlement; (iii) the Employee’s repeated failure to
perform material duties of the Position which are reasonably assigned to her by
the Employer, provided that the Employer gives the Employee due notice of such
failure and a reasonable opportunity to improve her performance; (iv) the
Employee’s default, violation of, or failure to perform any provision of this
Agreement, including but not limited to, Article “9” of this Agreement; or (v)
any material misrepresentation made by the Employee with respect to Article “14”
of this Agreement. The Employer may terminate this Agreement and the
Employee's employment for Cause upon written notice to the Employee pursuant to
Paragraph “C” of Article “19” of this Agreement, which notice shall state the
cause for termination and the date of termination which, at the Employer’s
election, may be effective immediately. Such termination of the
Employee’s employment shall not constitute a breach of this Agreement by the
Employer, and the Employer’s sole obligation to the Employee shall be to pay the
Employee the amount of any compensation then due to the Employee through the
date of termination. The issue of “Cause”, if contested by the
Employee, is subject to arbitration pursuant in accordance with Paragraph “D” of
Article “19” of this Agreement, provided however, that the Employee shall not
remain in the employ of the Employer while such proceeding is pending, and if a
determination is made in the Employee’s favor, the Employee shall be solely
entitled to any compensation then due to the Employee through the end of the
applicable Term.
12. Non-Disclosure of
Confidential Information.
A. As used
in this Agreement, “Confidential Information” means oral or written information
which is directly or indirectly presented to the Employee by the Employer or the
Employer’s past, present or future subsidiaries, parents, officers, consultants,
directors, stockholders, affiliates, attorneys, employees, agents and the
Employer’s and their respective Immediate Families (as defined below; all of the
foregoing are hereinafter collectively referred to as “Agents”) or developed,
conceived or created by the Employer or its Agents, or disclosed to the Employee
or known by or conceived or created by the Employee during the term of the
Employee’s employment with the Employer, with respect to the Employer, its
business or any of its products, processes, and other services relating thereto,
relating to the past or present business or any plans with respect to future
business of the Employer, or relating to the past or present business of a third
party or plans with respect to future business of a third party which are
disclosed to the Employee. Confidential Information includes, but is
not limited to, all documentation, hardware and software relating thereto, and
information and data in written, graphic and/or machine readable form, products,
processes and services, whether or not patentable, trademarkable or
copyrightable or otherwise protectable, including, but not limited to,
information with respect to discoveries; know-how; ideas; computer programs,
source codes and object codes; designs; algorithms; processes and structures;
product information; marketing information; price lists; cost information;
product contents and formulae; manufacturing and production techniques and
methods; research and development information; lists of clients and vendors and
other information relating thereto; financial data and information; business
plans and processes; documentation with respect to any of the foregoing; and any
other information of the Employer that the Employer or its Agents informs the
Employee or the Employee should know, by virtue of the Employee’s position or
the circumstances in which the Employee learned such other information, is to be
kept confidential including, but not limited to, any information acquired by the
Employer from any sources prior to the commencement of this
Agreement. Confidential Information also includes similar information
obtained by the Employer in confidence from its vendors, licensors, licensees,
customers and/or clients. Confidential Information may or may not be
labeled as confidential.
For
purposes of this Agreement, “Immediate Family” shall include the following: (A)
any spouse, parent, spouse of a parent, mother-in-law, father-in-law,
brother-in-law, sister-in-law, child, spouse of a child, adopted child, spouse
of an adopted child, sibling, spouse of a sibling, grandparent, spouse of a
grandparent, and any issue or spouse of any such persons, and (B) such child or
issue of such child which is born and/or adopted during or after the term of
this Agreement, and the issue (whether by blood or adoption) of any such person;
provided, however, that it shall not include any person who was legally adopted
after the age of eighteen (18) by any of the persons specified in subparagraphs
“(A)” or “(B)” of this sentence. For purposes of this Agreement, an
Immediate Family shall also be deemed to include any affiliate of a member of
that Immediate Family, as defined in Rule 405 of the Securities Act of 1933, as
amended, and any trust created for the benefit of one or more persons in that
Immediate Family.
B. Except as
required in the performance of the Employee’s obligations pursuant to this
Agreement, the Employee shall not, during, or after the termination of, this
Agreement, directly or indirectly, use any Confidential Information or
disseminate or disclose any Confidential Information to any person, firm,
corporation, association or other entity. The Employee shall take all
reasonable measures to protect Confidential Information from any accidental,
unauthorized or premature use, disclosure or destruction. The
foregoing prohibition shall not apply to any Confidential Information which: (i)
was generally available to the public prior to such disclosure; (ii) becomes
publicly available through no act or omission of the Employee; (iii) is
disclosed as reasonably required in a proceeding to enforce the Employee’s
rights under this Agreement; or (iv) is disclosed as required by court order or
applicable law; provided, however, that if the Employee is legally requested or
required by court order or applicable law, including, but not limited to, by
oral question, interrogatories, request for information or documents, subpoenas,
civil investigative demand or similar process to disclose any Confidential
Information, the Employee shall promptly notify Employer of such request or
requirement so that Employer may seek an appropriate protective order; provided
further, however; that if such protective order is not obtained, the Employee
agrees to furnish only that portion of the Confidential Information which she is
advised by her counsel is legally required.
C. Upon
termination of this Agreement for any reason, or at any time upon request of the
Employer or its Agents, the Employee agrees to deliver to the Employer all
materials of any nature which are in the Employee’s possession or control and
which are or contain Confidential Information, or which are otherwise the
property of the Employer or any vendor, licensor, licensee, customer or client
of the Employer, including, but not limited to, writings, designs, documents,
records, data, memoranda, tapes and disks containing software, computer source
code listings, routines, file layouts, record layouts, system design
information, models, manuals, documentation and notes. The Employee
shall destroy all written documentation prepared by her for internal purposes
based in whole or in part upon any Confidential Information and such destruction
shall be confirmed to the Employer in writing by the Employee.
D. All of
the Confidential Information shall be deemed to be the property of the Employer,
and the Employee may not disclose any Confidential Information without the prior
written consent of the Employer.
E. The
Employee shall not assert any rights with respect to the Employer, its business,
or any of its products, processes and other services relating thereto or any
Confidential Information as having been acquired or known by the Employee prior
to the commencement of the Employee's employment with the Employer.
13. Restrictive
Covenants.
A. From the
date hereof and (i) for a period of one (1) year after the Term or (ii) if this
Agreement is terminated prior to the end of the Term, for the greater of: (a)
the remaining term of this Agreement or (b) a period of one (1) year following
the termination of her employment (whenever, however and by whomever caused),
the Employee shall not (1) enter into any business which is in competition with
the Employer, (2) directly or indirectly engage in marketing activities on
behalf of any company which competes either directly or indirectly with the
Employer or any subsidiary, or (3) directly or indirectly own, manage,
participate in the operation or control of, or be connected as an officer,
director, partner, consultant, owner, employee, agent, lender, donor, vendor or
otherwise, or have any financial interest in or aid or assist anyone else in the
conduct of any competing entity in the same business as the Employer, or any
entity that is otherwise engaged in, either directly or indirectly, business
then conducted by the Employer or any subsidiary or which the Employer or any
subsidiary plan to conduct within such time. Notwithstanding the
foregoing, the Employee and the Employee’s Agents may engage in the
following: (i) make and supervise passive investments in businesses which do not
in any manner compete with the Employer, (ii) own shares of any publicly
held corporation which does not in any manner compete with the Employer, (iii)
own shares of any publicly-held corporations which in any manner competes with
the Employer, which shares (a) are equal to no more than three (3%) percent of
the issued and outstanding shares of such corporation, and (b) have a value
equal to no more than five (5%) percent of the Employee’s net worth, or (iv)
serve on the Board of Directors of another company as long as there is no
conflict of interest.
B. The
Employee agrees that she shall not, during her employment and for a period of
two (2) years after the termination of her employment, (1) personally, or cause
others to personally induce or attempt to induce any employees to terminate
their employment with the Employer, any subsidiary or any of their respective
affiliates; (2) interfere with or disrupt the Employer’s, any subsidiary’s or
any of their respective affiliates’ relationships with their respective
suppliers, vendors, customers or employees; (3) take any action prejudicial to
the Employer, any subsidiary or any of their respective affiliates’ business,
affairs or interests.
C. The
Employee agrees that the duration, scope and geographic area for which the
provisions set forth in Paragraphs “A” and “B” of this Article “13” of this
Agreement are to be effective are reasonable. If any court of
competent jurisdiction determines that any provision of this Agreement is
invalid or unenforceable by reason of such provision extending the covenants and
agreements contained herein for too great a period of time or over too great a
geographical area, or by reason of it being too extensive in any other respect,
such agreement or covenant shall be interpreted to extend only over the maximum
period of time and geographical area, and to the maximum extent in all other
respects, as to which it is valid and enforceable, all as determined by such
court in such action. Any determination that any provision of this
Agreement is invalid or unenforceable, in whole or in part, shall have no effect
on the validity or enforceability of any remaining provision of this
Agreement.
D. Any
period of time set forth in this Article “13” of this Agreement shall not be
construed to permit the Employee or the Employee’s Agents to engage in any of
the prohibited acts set forth in this Agreement after such period if such acts
would otherwise be prohibited by any applicable statute or legal
precedent.
14. Representations, Warrants
and Covenants of the Employee. The Employee represents,
warrants and covenants to the Employer as follows:
A. The
Employee has the full right, power and legal capacity to enter into this
Agreement and to consummate the transactions contemplated
hereby. This Agreement is valid and binding upon the Employee and
enforceable against her in accordance with its terms.
B. The
execution, delivery and performance of this Agreement: (i) does not violate any
agreement or undertaking to which the Employee is a party or by which the
Employee may be bound and (ii) shall not result in the imposition of any
restrictions or obligations upon the Employee other than the restrictions and
obligations imposed by this Agreement.
C. The
Employee has neither entered into, nor is subject to, any agreement, including,
but not limited, to any employment, non-compete, confidentiality or work product
agreement which would (i) prohibit the execution of this Agreement, (ii)
prohibit her employment by the Employer, or (iii) affect any of the provisions
of, or her obligations pursuant to, this Agreement.
D. If,
during the Term, any event occurs or any event known to the Employee relating to
or affecting the Employee shall occur as a result of which: (i) any provision of
this Article “14” of this Agreement at that time shall include an untrue
statement of a material fact, or (ii) this Article ”14” of this Agreement shall
omit to state any material fact necessary to make the statements herein, in
light of the circumstances under which they were made, not misleading, the
Employee shall immediately notify the Employer pursuant to Paragraph ”C” of
Article “19” of this Agreement.
E. It shall
not be a defense to a suit for damages for any misrepresentation or breach of
covenant or warranty that the Employer knew or had reason to know that any
representation, warranty or covenant in this Agreement or furnished or to be
furnished to the Employer contained untrue statements.
F. No
representation or warranty of the Employee which is contained in this Agreement,
or in a writing furnished or to be furnished pursuant to this Agreement,
contains or shall contain any untrue statement of a material fact, omits or
shall omit to state any material fact which is required to make the statements
which are contained herein or therein, in light of the circumstances pursuant to
which they were made, not misleading.
G. The
representations, warranties and covenants made herein shall survive throughout
the Term of this Agreement, it being agreed and understood that each of such
representations, warranties and covenants is of the essence of this Agreement
and the same shall be binding upon the Employee and inure to the Employer, its
successors and assigns.
15. Representations, Warrants
and Covenants of the Employer. The Employer represents,
warrants and covenants to the Employee as follows:
A. The
Employer is a corporation duly organized, validly existing and in good standing
pursuant to the laws of Delaware, with all requisite power and authority to
carry on its business as presently conducted in all jurisdictions where
presently conducted, to enter into this Agreement and to consummate the
transactions set forth in this Agreement.
B. The
Employer has the full power and authority to execute, deliver, and perform this
Agreement and has taken all action required by law and its organizational
documents to authorize the execution and delivery of this Agreement and the
consummation of the transactions set forth in this Agreement. This
Agreement and the consummation by the Employer of the transactions contemplated
by this Agreement have been duly and validly authorized, executed, and delivered
by the members of the Employer, and this Agreement is valid and binding upon the
Employer and enforceable against the Employer in accordance with its terms
(except as the enforceability thereof may be limited by bankruptcy, bank
moratorium or similar laws affecting creditors' rights generally and laws
restricting the availability of equitable remedies and may be subject to general
principles of equity whether or not such enforceability is considered in a
proceeding at law or in equity).
C. The
execution, delivery and performance of this Agreement: (i) does not violate any
agreement or undertaking to which the Employer is a party or by which the
Employer may be bound and (ii) shall not result in the imposition of any
restrictions or obligations upon the Employer other than the restrictions and
obligations imposed by this Agreement.
D. The
Employer has neither entered into, nor is subject to, any agreement which would
(i) prohibit the execution of this Agreement, (ii) prohibit its employment of
the Employee, or (iii) affect any of the provisions of, or its obligations
pursuant to, this Agreement.
E. If,
during the Term, any event occurs or any event known to the Employer relating to
or affecting the Employer shall occur as a result of which: (i) any provision of
this Article ”15” of this Agreement at that time shall include an untrue
statement of a fact, or (ii) this Article ”15” of this Agreement shall omit to
state any fact necessary to make the statements herein, in light of the
circumstances under which they were made, not misleading, the Employer shall
immediately notify the Employee pursuant to Paragraph ”C” of Article ”19” of
this Agreement.
F. It shall
not be a defense to a suit for damages for any misrepresentation or breach of
covenant or warranty that the Employee knew or had reason to know that any
representation, warranty or covenant in this Agreement or furnished or to be
furnished to the Employee contained untrue statements.
G. No
representation or warranty of the Employer which is contained in this Agreement,
or in a writing furnished or to be furnished pursuant to this Agreement,
contains or shall contain any untrue statement of a material fact, omits or
shall omit to state any material fact which is required to make the statements
which are contained herein or therein, in light of the circumstances pursuant to
which they were made, not misleading.
H. The
representations, warranties and covenants made herein shall survive throughout
the Term of this Agreement, it being agreed and understood that each of such
representations, warranties and covenants is of the essence of this Agreement
and the same shall be binding upon the Employer and inure to the Employee, her
successors and assigns.
16. Reasonableness. Employee
agrees that the duration, scope and geographic area for which the provisions set
forth in this Agreement are to be effective are reasonable. If any
court of competent jurisdiction determines that any provision of this Agreement
is invalid or unenforceable by reason of such provision extending the covenants
and agreements contained herein for too great a period of time or over too great
a geographical area, or by reason of its being too extensive in any other
respect, such agreement or covenant shall be interpreted to extend only over the
maximum period of time and geographical area, and to the maximum extent in all
other respects, as to which it is valid and enforceable, all as determined by
such court in such action.
17. Equitable
Relief. If the Employee breaches this Agreement, subject to
the terms and conditions of this Agreement, the Employer shall have the right,
at its election, to obtain equitable relief including, but not limited to, an
order for specific performance of this Agreement or an injunction, without the
need to: (i) post a bond or other security, (ii) to prove any actual damage or
(iii) to prove that money damages would not provide an adequate
remedy. Resort to such equitable relief, however, shall not be
construed to be a waiver of any other rights or remedies which the Employer may
have for damages or otherwise.
18. Employer. As
used in this Agreement, “Employer” shall mean Oiltek, Inc., its successors and
assigns, and any of its present or future subsidiaries or organizations
controlled by it or parent and affiliates.
19. Miscellaneous.
A. Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
B. Enforceability. If
any provision which is contained in this Agreement should, for any reason, be
held to be invalid or unenforceable in any respect under the laws of any
jurisdiction, such invalidity or unenforceability shall not affect any other
provision of this Agreement. Instead, this Agreement shall be
construed as if such invalid or unenforceable provisions had not been contained
herein.
C. Notices. Any
notice or other communication required or permitted hereunder must be in writing
and sent by either (i) certified mail, postage prepaid, return receipt requested
and first class mail, (ii) overnight delivery with confirmation of delivery, or
(iii) facsimile transmission with an original mailed by first class mail,
postage prepaid, addressed as follows:
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If
to Employer:
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7000
Flour Exchange Building
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000
Xxxxxx Xxxxxx Xxxxx
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Xxxxxxxxxxx,
XX 00000
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Attention:
Xxxx Xxxxxxxxx
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Facsimile
No.: (000) 000-0000
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With
a copy to:
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Xxxxx
& Fraade, P.C.
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000
Xxxxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Attention:
Xxxxxxxxx X. Xxxxx
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Facsimile
No.: (000) 000-0000
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If
to Employee:
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Xxxx
Xxxxxxx
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____________________
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____________________
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Facsimile
No.: (___) ___-____
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With
a copy to:
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____________________
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____________________
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____________________
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Attention:
_______________
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Facsimile
No.: (___) ___-____
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or in
each case to such other address and facsimile number as shall have last been
furnished by like notice. If all of the methods of notice set forth
in this Paragraph “C” of this Article “19” of this Agreement are impossible for
any reason, notice shall be in writing and personally delivered to the aforesaid
addresses. Each notice or communication shall be deemed to have been
given as of the date so mailed or delivered as the case may be; provided,
however, that any notice sent by facsimile with confirmed receipt of successful
transmission to the recipient shall be deemed to have been given as of the date
so sent if a copy thereof is also mailed by first class mail on the date sent by
facsimile. If the date of mailing is not the same as the date of
sending by facsimile, then the date of mailing by first class mail shall be
deemed to be the date upon which notice is given; provided further, however,
that any notice sent by overnight delivery shall be deemed to have been given as
of the date of delivery.
D. Governing Law; Dispute. This
Agreement shall in accordance with Section 5-1401 of the General Obligations Law
of New York in all respects be construed, governed, applied and enforced under
the internal laws of the State of New York without giving effect to the
principles of conflicts of laws and be deemed to be an agreement entered into in
the State of New York and made pursuant to the laws of the State of New
York. The parties agree that they shall be deemed to have agreed to
binding arbitration with respect to the entire subject matter of any and all
disputes relating to or arising under this Agreement including, but not limited
to, the specific matters or disputes as to which arbitration has been expressly
provided for by other provisions of this Agreement and that any such arbitration
shall be commenced exclusively in New York, New York. Any such
arbitration shall be by a panel of three arbitrators and pursuant to the
commercial rules then existing of the American Arbitration Association in the
State of New York, County of New York. In all arbitrations, judgment
upon the arbitration award may be entered in any court having
jurisdiction. The parties specifically designate the courts in the
City of New York, State of New York as properly having jurisdiction for any
proceeding to confirm and enter judgment upon any such arbitration
award. The parties hereby consent to and submit to the exclusive
jurisdiction of the courts of the State of New York in any action or proceeding
and submit to personal jurisdiction over each of them by such
courts. The parties hereby waive personal service of any and all
process and specifically consent that in any such action or proceeding brought
in the courts of the State of New York, any service of process may be
effectuated upon any of them by certified mail, return receipt requested, in
accordance with Paragraph “C” of this Article “19” of this
Agreement. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law.
The
parties agree, further, that the prevailing party in any such arbitration as
determined by the arbitrators shall be entitled to such costs and attorney's
fees, if any, in connection with such arbitration as may be awarded by the
arbitrators. In connection with the arbitrators’ determination for
the purpose of which party, if any, is the prevailing party, they shall take
into account all of the factors and circumstances including, without limitation,
the relief sought, and by whom, and the relief, if any, awarded, and to
whom. In addition, and notwithstanding the foregoing sentence, a
party shall not be deemed to be the prevailing party in a claim seeking monetary
damages, unless the amount of the arbitration award exceeds the amount offered
in a legally binding writing by the other party by fifteen percent (15%) or
more. For example, if the party initiating arbitration (“A”) seeks an
award of $100,000 plus costs and expenses, the other party (“B”) has offered A
$50,000 in a legally binding written offer prior to the commencement of the
arbitration proceeding, and the arbitration panel awards any amount less than
$57,500 to A, the panel should determine that B has “prevailed”.
The
arbitration panel shall have no power to award non-monetary or equitable relief
of any sort. It shall also have no power to award (i) damages
inconsistent with any applicable agreement between the parties or (ii) punitive
damages or any other damages not measured by the prevailing party’s actual
damages; and the parties expressly waive their right to obtain such damages in
arbitration or in any other forum. In no event, even if any other
portion of these provisions is held invalid or unenforceable, shall the
arbitration panel have power to make an award or impose a remedy which could not
be made or imposed by a court deciding the matter in the same
jurisdiction.
Discovery
shall be permitted in connection with the arbitration only to the extent, if
any, expressly authorized by the arbitration panel upon a showing of substantial
need by the party seeking discovery.
All aspects of the arbitration shall be
treated as confidential. The parties and the arbitration panel may
disclose the existence, content or results of the arbitration only as provided
in the rules of the American Arbitration Association in New York, New
York. Before making any such disclosure, a party shall give written
notice to all other parties and shall afford such parties a reasonable
opportunity to protect their interest.
E. Construction. Each
of the parties hereto hereby further acknowledges and agrees that (i) each has
been advised by counsel during the course of negotiations; (ii) each counsel has
had significant input in the development of this Agreement and (iii) this
Agreement shall not, therefore, be construed more strictly against any party
responsible for its drafting regardless of any presumption or rule requiring
construction against the party whose attorney drafted this
Agreement.
F. Entire Agreement. The
parties have not made any representations, warranties or covenants with respect
to the subject matter hereof which is not set forth herein, and this Agreement
constitutes the entire agreement between them with respect to the subject matter
hereof. All understandings and agreements heretofore had between the
parties with respect to the subject matter hereof are merged in this Agreement
which alone fully and completely expresses their agreement.
G. Further Assurances. The
parties agree to execute any and all instruments and documents, and to take any
and all such further actions reasonably required to effectuate this Agreement
and the intents and purposes hereof.
H. Binding Agreement and
Survivorship. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns. The respective
rights and obligations of the parties hereunder shall survive any termination of
the Employee’s employment to the extent necessary to preserve the rights and
obligations of the parties pursuant to this Agreement.
I. Waiver. Except
as otherwise expressly provided herein, no waiver of any covenant, condition, or
provision of this Agreement shall be deemed to have been made unless expressly
in writing and signed by the party against whom such waiver is charged; and (i)
the failure of any party to insist in any one or more cases upon the performance
of any of the provisions, covenants or conditions of this Agreement or to
exercise any option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants or conditions,
(ii) the acceptance of performance of anything required by this Agreement to be
performed with knowledge of the breach or failure of a covenant, condition or
provision hereof shall not be deemed a waiver of such breach or failure, and
(iii) no waiver by any party of one breach by another party shall be construed
as a waiver with respect to any other breach of this Agreement.
J. Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
K. Facsimile
Signatures. Any signature which is delivered via facsimile
shall be deemed to be an original and have the same force and effect as if such
facsimile signature were the original thereof.
L. Modifications. This
Agreement may not be changed, modified, extended, terminated or discharged
orally, except by a written agreement specifically referring to this Agreement
which is signed by all of the parties to this Agreement.
M. Exhibits. All
Exhibits annexed or attached to this Agreement are incorporated into this
Agreement by reference thereto and constitute an integral part of this
Agreement.
N. Severability. The
provisions of this Agreement shall be deemed separable. Therefore, if any part
of this Agreement is rendered void, invalid or unenforceable, such rendering
shall not affect the validity or enforceability of the remainder of this
Agreement; provided, however, that if the part or parts which are void, invalid
or unenforceable as aforesaid shall substantially impair the value of this whole
Agreement to any party, that party may cancel, and terminate the Agreement by
giving written notice to the other party
IN WITNESS
WHEREOF, the parties to this Agreement have set their hands and seals or
caused these presents to be signed effective as of the day and year first above
written.
By:
_________________________________
Name: Title:
____________________________________
Xxxx
Xxxxxxx
