EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of March 15, 2000,
by and between XxxxxxxXxxx.xxx, Inc., a Delaware corporation (the "Company"),
and Xxxxx X. Xxxxx (the "Executive"). The "Effective Date" of this Agreement
shall be the date the Securities and Exchange Commission (the "Commission")
declares effective the Registration Statement on Form S-1 (File No. 95895)
originally filed by the Company with the Commission on February 1, 2000.
RECITALS:
A. The Company desires to obtain the benefit of the Executive's
knowledge, skills and experience and assure itself of the ongoing right to
Executive's services subject to the terms and conditions set forth in this
Agreement beginning on the Effective Date; and
B. Executive is willing and able to render services to the Company,
beginning on the Effective Date, on the terms and conditions set forth in this
Agreement.
AGREEMENTS:
In consideration of the mutual agreements, provisions and covenants
contained in this Agreement, the Company and Executive hereby agree as follows:
1. Employment. Subject to all of the terms and conditions provided in
this Agreement, the Company hereby agrees to employ Executive and Executive
hereby accepts employment with the Company. Executive's title shall be Chief
Financial Officer of the Company and he shall possess such powers and perform
such duties as are normally incident to such office, as provided in the By-Laws
of the Company and in accordance with the applicable corporate laws governing
the Company. Executive shall perform such duties as may be identified from time
to time by the Chief Executive Officer of the Company or the Board of Directors
of the Company (the "Board"). Executive will perform the duties of his
employment hereunder diligently and faithfully and in conformity with the
directions of the Board, and shall at all times be subject to and shall observe
and carry out such reasonable rules, regulations, policies, directions and
restrictions as may be established from time to time by the Company.
2. Term of Employment. Unless terminated as provided in Section 6 hereof,
the term of this Agreement shall be for a period of one year (the "Employment
Period"), commencing on the Effective Date and continuing through and including
the day immediately preceding the second anniversary of the Effective Date (the
"Expiration Date"). Before the Expiration Date, the Company and Executive shall
negotiate, in good faith, an extension, modification or amendment of this
Agreement, or a new employment agreement, which would govern the employment of
Executive by the Company after the Expiration Date; provided, however, that
neither party shall be bound by the non-surviving terms of any employment
agreement governing the employment of Executive after the Expiration Date unless
such parties shall have entered into a binding, written agreement governing such
employment.
3. Compensation and Benefits.
(a) Base Salary. As compensation for the services to be rendered by
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Executive hereunder, the Company shall pay to Executive a base salary of
$149,000 per year (as increased from time to time, the "Base Salary"), subject
to increase in January of each year during the term of this Agreement as
determined by the Compensation Committee of the Board. The Base Salary shall be
payable in periodic installments (but in no event less frequently than semi-
monthly) in accordance with the standard payroll practices of the Company in
effect from time to time, less income tax withholdings and other required
employee deductions.
(b) Business Expenses. In accordance with the Company's policies
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established from time to time, the Company will pay or reimburse Executive for
all reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the presentation by
Executive of appropriate receipts and vouchers.
(c) Bonus. For each fiscal year during the Employment Period, the Company
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will set a bonus for Executive upon the achievement of the objectives defined by
the Board or the Compensation Committee up to 40% of Executive's then Base
Salary. The amount of the bonus actually paid, if any, will be determined by the
Compensation Committee of the Board based upon Executive's performance and the
achievement of the Company's financial objectives. The annual bonus (in its
entirety) for each year will be paid in the first month of each year.
(d) Fringe Benefits. The Company shall make available to Executive,
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throughout the Employment Period, such benefits and perquisites as are generally
provided by the Company to its executive employees. Without limiting the
foregoing, Executive shall be eligible to participate in the group life, health
or accident insurance, or other such plan or policy which may presently be in
effect or which may hereafter be adopted by the Company for the benefit of its
executive Executives generally, in each case subject to the terms and conditions
of any such plan or policy.
(e) Severance Pay/Change of Control. In the event Executive's employment
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with the Company is terminated by the Company (i) without Cause, (ii) without
Cause following a Change of Control or (iii) as a result of Executive's Death or
Disability (a "Severance Event"), in consideration of the Executive's covenants
set forth in Section 7 hereof, and in consideration of his employment, the
Company shall
(A) pay Executive severance pay in an aggregate amount equal to 50%
of Executive's Base Salary (the "Severance Amount"), less income tax
withholdings and other required employee deductions, payable in semi-
monthly installments over a period of three months, subject to the terms of
Section 3(a);
(B) pay Executive a lump sum on the date of termination equal to the
pro rata portion of the maximum annual bonus earned as of the date of
severance; and
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(C) accelerate the vesting of 50% of (i) the options the Company has
to repurchase restricted stock from Executive pursuant to restricted stock
agreements and (ii) unvested options to purchase the Common Stock of the
Company granted to Executive under the 1998 Stock Plan, as may be amended
or restated from time to time, or any other stock option plan that the
Company may implement from time to time.
For purposes of this Agreement, "terminated" shall include the reduction
of Executive's responsibilities and duties to the Company, or, except with
respect to a Change of Control of the Company, the reduction of Executive's
title. For purposes of this Agreement, a Change in Control shall mean any of the
following events:
(A) the acquisition by new stockholders (being any entity, person or
group of persons) acting in concert, of a beneficial ownership interest in
the Company, resulting in the total beneficial interest of such entity,
person or group of persons equaling or exceeding 50% of the total
outstanding common stock and warrants of the Company. The change in control
shall occur on the date the beneficial ownership of the acquiring entity,
person or group of persons equals or exceeds 50% of the outstanding common
stock and warrants of the Company; or
(B) a merger, consolidation, or reorganization having substantially
the same effect; or the sale of all or substantially all the consolidated
assets of the Company, in each case, with respect to the entity, person or
group of persons who were the respective. beneficial owners of the
outstanding common stock immediately prior to such event do not, following
such event, beneficially own, directly or indirectly, more than 50%
respectively, of the then outstanding voting stock of the corporation
resulting from such event or the corporation purchasing or receiving assets
pursuant to such event.
4. Vacation. Throughout the Employment Period, Executive shall be
entitled to take, from time to time, on an annual basis, four weeks of vacation
with pay, at such times as shall be mutually convenient to Executive and the
Company. Executive shall also be entitled to take, from time to time, five
personal days and three sick days.
5. Termination.
(a) For Cause. At any time during the term of this Agreement, the Company
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may terminate Executive's employment under this Agreement for Cause, without any
further liability hereunder. As used in this Agreement, "Cause" shall mean
termination by action of the Board because of any one or more of the following:
(i) the Executive's conviction of, or plea of nolo contendere to, a felony; (ii)
the Executive's breach of any legal duty of loyalty to the Company,
misappropriation of the Company's funds, or dishonest, fraudulent, illegal or
unethical business conduct; (iii) the failure of Executive to perform the duties
provided in Section 1, which failure to so perform shall continue after notice
from the Company; (iv) the Executive's breach of the obligations provided in
Sections 6 and 7 of this Agreement as provided therein; or (v) the Executive's
illegal use of controlled substances. Termination for Cause shall be effective
immediately for those events described in subparagraphs (i), (ii), (iv), and
(v). Termination for
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Cause shall be effective for the events in subparagraph (iii) 30 days after
notice to Executive from the Company of the occurrence of such event and
Executive shall have failed to cure such event within such 30-day period.
(b) Death of Executive. This Agreement shall terminate automatically upon
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the death of Executive.
(c) Disability. This Agreement shall terminate upon a determination by the
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Board based upon a written medical opinion that the Executive is unable to
perform the essential functions of his employment position, due to a disability
of Executive that cannot be reasonably accommodated by the Company.
6. Confidential Information.
(a) Confidential Information Defined. "Confidential Information" means any
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trade secret (as defined in 765 ILSC (S)1065/2(d)) of the Company that contains,
reflects or embodies the Company's business plans or the Company's strategic,
financial, technical, joint venture, or investor information.
(b) Disclosure and Use. Executive shall not disclose or use at any time,
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either during or after Executive's employment with the Company or any other
direct or indirect subsidiary of the Company (collectively referred to in this
paragraph as the "Company"), any Confidential Information, except that Executive
may disclose, subject to Section 7, Confidential Information solely to the
extent: (1) required for Executive to perform his employment duties with the
Company; (2) it has been disclosed to Executive by a third party who is not
subject to restriction on the disclosure of such information; (3) it has or
becomes generally available to the public other than as a result of a disclosure
by a party who is not subject to nondisclosure obligations with respect thereto;
(4) it must be disclosed as a result of a subpoena or other legal process, after
the Company has had the opportunity to request a suitable protective order for
such information; or (5) the Company has given Executive prior written
authorization to do so. Executive's obligations under this paragraph shall
survive the termination of this Agreement and Executive's employment with the
Company, and shall remain in effect and be enforceable against Executive for so
long as any Confidential Information retains economic value, whether actual or
potential, because it is not generally known to other persons who can obtain
economic value from its disclosure or use. Executive shall execute such
reasonable further agreements evidencing Executive's obligations to the Company
concerning nondisclosure of Confidential Information as the Company may require
from time to time.
(c) Return of Materials. Upon termination of his employment with the
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Company, Executive shall promptly deliver to the Company all customer lists,
specifications, drawings, computer programs, listings, documentation, manuals,
letters, notes, note books, reports, and all other embodiments of Confidential
Information (together with copies thereof) in the possession or under the
control of Executive.
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7. Restrictive Covenant.
(a) Restricted Activities. As conditions of his employment and in
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consideration of his employment, Executive covenants and agrees as follows:
(i) subject to Section 7(c) below, beginning on the Effective Date
and continuing for 12 months after the termination of Executive's
employment with the Company (the "Restricted Period"), he will not, without
the prior written consent of the Board, directly or indirectly, as a
stockholder (except as a stockholder owning beneficially or of record less
than 5% of the outstanding shares of any class of publicly traded stock of
any issuer), or as an officer, director, employee, partner, joint venturer,
proprietor or otherwise, engage in, become interested in, consult with,
lend to or borrow from, advise or negotiate for or on behalf of, a
"Restricted Business."
(ii) during the Restricted Period, he will not solicit (or employ or
cause to be employed other than by the Company) other employees of the
Company or any affiliate or subsidiary of the Company, directly or
indirectly, for the purpose of enticing them to leave their employment with
the Company or any affiliate or subsidiary of the Company;
(iii) during the Restricted Period, he will not attempt in any manner
to solicit any Restricted Business from any individual or entity who or
which is a client of the Company at any time within six months before the
date that Executive's employment by the Company terminates or to persuade
any such client to cease doing business with the Company or to reduce the
amount of business which such client has customarily done or contemplates
doing with the Company, whether or not the relationship between the Company
and such client was originally established in whole or in part through his
efforts;
(iv) during the Restricted Period, he will make full and complete
disclosure of the existence of this Agreement and the content of this
Section 7 to all prospective employers with whom he may discuss possible
employment;
(v) he will refrain from any disparagement, direct or indirect,
through innuendo or otherwise, of the Company or any of its employees,
agents, officers, directors, shareholders or affiliates;
(vi) subject to Section 7(c) below, during his employment with the
Company, he will not, without the prior written consent in each case of the
Board, participate actively in any other business interests or investments
which would conflict with his responsibilities under this Agreement;
(vii) during his employment with the Company, he will not, without
the prior written consent in each case of the Board: (a) exchange goods,
products or services of the Company in return for goods, products or
services of any individual or firm or (b) accept gifts or favors from any
outside organization or agency which, individually or
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collectively, may cause undue influence in his selection of goods, products
or services for the Company; and
(viii) after the termination of his employment with the Company, he
will not secure, or attempt to secure, from any employee or former employee
of the Company or any affiliate or subsidiary of the Company, any
information relating to the Company or any affiliate or subsidiary of the
Company or its operations.
(b) Restricted Business Defined. For the purposes of this Agreement,
"Restricted Business" means any company that would be considered a competitive
threat to the Company's market position if they hired away the Company's key
employees that had a working knowledge of the Company's key strategies.
(c) Representation and Warranty. Executive represents and warrants to the
Company that, notwithstanding the operation of the covenants contained in this
Section 7, upon the termination of his employment hereunder, Executive will be
able to obtain employment for the purpose of earning a livelihood.
8. Inventions.
(a) Inventions Retained and Licensed. Executive has attached hereto, as
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Exhibit A, a list describing all inventions, original works of authorship,
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developments, improvements, and trade secrets which were made by Executive prior
to Executive's employment with the Company (collectively referred to as "Prior
Inventions"), which belong to Executive, which relate to the Company's proposed
business, products or research and development, and which are not assigned to
the Company hereunder; or, if no such list is attached, Executive represents
that there are no such Prior Inventions. If in the course of Executive's
employment with the Company, Executive incorporates into a Company product,
process or machine a Prior Invention owned by Executive or in which Executive
has an interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have made,
modify, use and sell such Prior Invention as part of or in connection with such
product, process or machine.
(b) Assignment of Inventions. Executive agrees that Executive will
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promptly make full written disclosure to the Company, will hold in trust for the
sole right and benefit of the Company, and hereby assign to the Company, or its
designee, all Executive's right, title, and interest in and to any and all
inventions, original works of authorship, developments, concepts, improvements,
designs, discoveries, ideas, trademarks or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which Executive may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time
Executive is in the employ of the Company (collectively referred to as
"Inventions"), except as provided in Section 8(f) below. Executive further
acknowledges that all original works of authorship which are made by Executive
(solely or jointly with others) within the scope of and during the period of
Executive's employment with the Company and which are protectible by copyright
are "works made for hire," as that term is defined in the United States
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Copyright Act. Executive understands and agrees that the decision whether or
not to commercialize or market any invention developed by Executive solely or
jointly with others is within the Company's sole discretion and for the
Company's sole benefit and that no royalty will be due to Executive as a result
of the Company's efforts to commercialize or market any such invention.
(c) Inventions Assigned to the United States. Executive agrees to assign
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to the United States government all Executive's right, title, and interest in
and to any and all Inventions whenever such full title is required to be in the
United States by a contract between the Company and the United States or any of
its agencies.
(d) Maintenance of Records. Executive agrees to keep and maintain adequate
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and current written records of all Inventions made by Executive (solely or
jointly with others) during the term of Executive's employment with the Company.
The records will be in the form of notes, sketches, drawings, and any other
format that may be specified by the Company. The records will be available to
and remain the sole property of the Company at all times.
(e) Patent and Copyright Registrations. Executive agrees to assist the
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Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. Executive further agrees that Executive's obligation to
execute or cause to be executed, when it is in Executive's power to do so, any
such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of Executive's mental or physical
incapacity or for any other reason to secure Executive's signature to apply for
or to pursue any application for any United States or foreign patents or
copyright registrations covering Inventions or original works of authorship
assigned to the Company as above, then Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents as
Executive's agent and attorney in fact, to act for and in Executive's behalf and
stead to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent or
copyright registrations thereon with the same legal force and effect as if
executed by Executive.
(f) Exception to Assignments. Executive understands that the provisions of
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this Agreement requiring assignment of Inventions to the Company do not apply to
any invention, which qualifies as follows:
(A) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or
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her own time without using the employer's equipment, supplies, facilities,
or trade secret information except for those inventions that either: (1)
relate at the time of conception or reduction to practice of the invention
to the employer's business, or actual or demonstrably anticipated research
or development of the employer; or (2) result from any work performed by
the employee for the employer; and
(B) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
Executive will advise the Company promptly in writing of any inventions
that Executive believes meet the above criteria and are not otherwise disclosed
on Exhibit A.
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9. Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render the same valid, or not applicable to the given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be. Should this Agreement, or any one or more of its
provisions hereof, be held to be invalid, illegal or unenforceable within any
governmental jurisdiction or subdivision thereof, the Agreement or any such
provision or provisions shall not as a consequence thereof be deemed to be
invalid, illegal or unenforceable in any other governmental jurisdiction or
subdivision thereof.
10. Legal Remedies. Executive hereby acknowledges that the Company would
suffer irreparable injury if the provisions of Sections 6, 7 and 8 above, which
shall survive the termination of the Agreement, were breached and that the
Company's remedies at law would be inadequate in the event of such breach.
Accordingly, Executive hereby agrees that any such breach or threatened breach
may, in addition to any and all other available remedies, be preliminarily
enjoined by the Company. In the event of litigation under this Agreement, each
of the Company and Executive shall pay its own attorneys' fees and expenses,
except that if Executive is enjoined either preliminarily or permanently, after
an evidentiary hearing, then Executive shall pay the attorneys' fees and
expenses of the Company in connection with that evidentiary hearing and,
similarly, if such evidentiary hearing results in a court refusing a permanent
injunction, then the Company shall pay Executive's attorneys' fees and expenses
in connection with such hearing.
11. Non-Assignability. In light of the unique personal services to be
performed by Executive hereunder, it is acknowledged and agreed that any
purported or attempted assignment or transfer by Executive of this Agreement or
any of Executive's duties, responsibilities or obligations hereunder shall be
void. This Agreement shall not be assigned by the Company without the prior
written consent of Executive.
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12. Notices. Any notice, request, demand or other communication required
or permitted under this Agreement shall be in writing and shall be deemed to
have been given when delivered personally or when mailed by certified mail,
return receipt requested addressed as follows: I
If to the Company:
XxxxxxxXxxx.xxx, Inc.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
If to Executive, to the address listed on the signature page hereto.
or to such other address or addresses as may be specified from time to time by
notice; provided, however, that any notice of change of address shall not be
effective until its receipt by the party to be charged therewith.
13. General.
(a) Amendments. Neither this Agreement nor any of the terms or conditions
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hereof may be waived, amended or modified except by means of a written
instrument duly executed by the parties hereto.
(b) Captions and Headings. The captions and paragraph headings used in
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this Agreement are for convenience of reference only, and shall not affect the
construction or interpretation of this Agreement or any of the provisions hereof
(c) Successors and Assigns. This Agreement shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns.
(d) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original hereof, but all of
which together shall constitute one and the same instrument.
(e) Entire Agreement. Except as otherwise set forth or referred to in this
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Agreement, this Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
(f) Reliance by Third Parties. This Agreement is intended for the sole and
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exclusive benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns, and
no other person or entity shall have any
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right to rely on this Agreement or to claim or derive any benefit therefrom
absent the express written consent of the party to be charged with such reliance
or benefit.
(g) Governing Law, Jurisdiction. This Agreement shall be construed in
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accordance with and governed in all respects by the laws of the State of
Illinois (without giving effect to the conflicts of laws provisions thereof).
Subject to Section 14 below, the parties hereto agree that all claims, disputes,
or controversies between them arising out of, connected with, related to, or
incidental to the relationship established between them in connection with this
Agreement, whether arising at law or equity in contract, tort, equity, or
otherwise, if pursued in court shall be resolved only by state or federal courts
located in Xxxx County, Illinois, but each party hereto acknowledges that any
appeals from those courts may have to be heard by a court located outside of
Xxxx County, Illinois. Each party hereto waives in all disputes any objection
that it may have to personal jurisdiction or the venue of the court considering
the dispute.
14. Arbitration and Equitable Relief.
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(a) Arbitration. EXCEPT AS PROVIDED IN SECTION 14(b) BELOW, EXECUTIVE
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AGREES THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING TO, OR
CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH OF THIS
AGREEMENT, SHALL BE SETTLED BY ARBITRATION TO BE HELD IN ILLINOIS, IN ACCORDANCE
WITH THE EMPLOYMENT DISPUTE RESOLUTION RULES THEN IN EFFECT OF THE AMERICAN
ARBITRATION ASSOCIATION. THE ARBITRATOR MAY GRANT INJUNCTIONS OR OTHER RELIEF
IN SUCH DISPUTE OR CONTROVERSY. THE DECISION OF THE ARBITRATOR SHALL BE FINAL,
CONCLUSIVE AND BINDING ON THE PARTIES TO THE ARBITRATION. JUDGMENT MAY BE
ENTERED ON THE ARBITRATOR'S DECISION IN ANY COURT HAVING JURISDICTION. THE
COMPANY AND EXECUTIVE SHALL EACH PAY ONE-HALF OF THE COSTS AND EXPENSES OF SUCH
ARBITRATION, AND EACH SHALL SEPARATELY PAY THE RESPECTIVE COUNSEL FEES AND
EXPENSES.
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY
TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF
THE EMPLOYER/EMPLOYEE RELATIONSHIP (EXCEPT AS PROVIDED IN SECTION 14(b) BELOW),
INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:
i. ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION;
NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION;
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ii. ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, AND THE FAIR LABOR
STANDARDS ACT;
iii. ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
(b) Equitable Remedies. EXECUTIVE AGREES THAT IT WOULD BE IMPOSSIBLE
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OR INADEQUATE TO MEASURE AND CALCULATE THE COMPANY'S DAMAGES FROM ANY BREACH OF
THE COVENANTS SET FORTH IN SECTIONS 6, 7 AND 8 HEREIN. ACCORDINGLY, EXECUTIVE
AGREES THAT IF EXECUTIVE BREACHES ANY OF SUCH SECTIONS, THE COMPANY WILL HAVE
AVAILABLE, IN ADDITION TO ANY OTHER RIGHT OR REMEDY AVAILABLE, THE RIGHT TO
OBTAIN AN INJUNCTION FROM A COURT OF COMPETENT JURISDICTION RESTRAINING SUCH
BREACH OR THREATENED BREACH AND TO SPECIFIC PERFORMANCE OF ANY SUCH PROVISION OF
THIS AGREEMENT. EXECUTIVE FURTHER AGREES THAT NO BOND OR OTHER SECURITY SHALL
BE REQUIRED IN OBTAINING SUCH EQUITABLE RELIEF AND EXECUTIVE HEREBY CONSENT TO
THE ISSUANCE OF SUCH INJUNCTION AND TO THE ORDERING OF SPECIFIC PERFORMANCE.
(c) Consideration. EXECUTIVE UNDERSTANDS THAT EACH PARTY'S PROMISE TO
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RESOLVE CLAIMS BY ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT, RATHER THAN THROUGH THE COURTS, IS CONSIDERATION FOR OTHER PARTY'S
LIKE PROMISE. EXECUTIVE FURTHER UNDERSTANDS THAT EXECUTIVE IS OFFERED
EMPLOYMENT IN CONSIDERATION OF MY PROMISE TO ARBITRATE CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on and as of the date first set forth above.
The Company:
XxxxxxxXxxx.xxx, Inc.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Executive:
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
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