EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this “Agreement”), is
entered into as of July 16th, 2009,
by and between Midas Medici Group Holdings, Inc., a Delaware corporation (the
“Company”), and
Xxxx Xxxxxxx (the “Executive”).
WHEREAS, Company desires to
employ Executive, and Executive desires to be employed by Company, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the covenants herein contained, and other good and valuable
consideration, the receipt and adequacy of which are hereby forever
acknowledged, the parties, with the intent of being legally bound hereby, agree
as follows:
1. Term. The
term of this Agreement shall commence on the date hereof (the “Effective Date”) and
shall end on the date which is the fifth anniversary of the Effective Date
unless Executive’s employment is terminated earlier in accordance with this
Agreement (the “Initial Term”);
provided, however, that the term of this Agreement shall automatically be
extended beyond the Initial Term for additional one year periods, effective upon
the fifth anniversary of the Effective Date (the “Renewal Term”),
unless either party notifies the other by a date which is ninety (90) days prior
to the expiration of the Initial Term that such party desires not to extend the
Initial Term beyond the fifth anniversary of the Effective Date. This
Agreement shall continue for successive one-year Renewal Terms unless and until
either party gives ninety (90) days notice to the other of its desire not to
extend further the term of this Agreement beyond the end of the then-current
Renewal Term, or this Agreement is otherwise terminated pursuant to Section 5
hereof. The term of this Agreement, whether during the Initial Term
or any Renewal Term, shall be referred to as the “Term.”
2. Position
and Responsibilities.
2.1 Position. Executive
will be employed by Company to render services to Company in the position of
Co-Executive Chairman and Chief Executive Officer, reporting to the Company’s
Board of Directors. In that capacity, Executive shall be responsible
for Company’s long-term and short-term strategy, which includes, but is not
limited to overseeing the Company’s operations, business activities,
implementation of its budgets, and financing strategies. Executive
shall also perform such other duties as may be consistent with Executive’s
position. Executive shall, in all material respects, abide by all
material and written Company rules, policies, and practices as adopted or
modified, from time to time, in Company’s sole discretion; and Executive shall
attempt to use his best efforts in the performance of his duties
hereunder. Executive's principal place of business in the performance
of his duties and obligations under this Agreement shall be in the New York City
metropolitan area. Notwithstanding the preceding sentence, Executive
will engage in such travel and spend such time in other places as may be
necessary or appropriate in furtherance of his duties hereunder. Executive also
agrees to serve such of Company’s subsidiaries and affiliated companies in that
capacity as may be designated by the Company.
2.2 Other
Activities. While
employed by Company, Executive shall devote at least 65% of his work time to
Company’s business utilizing his substantial attention, and skill to perform his
assigned duties, services, and responsibilities hereunder, and shall act at all
times in the performance hereunder in furtherance of Company’s business and
interests. Executive shall not, during the term of this Agreement
engage, directly, in any other business activity which materially interferes
with Executive’s duties and responsibilities hereunder or creates a conflict of
interest with Company. The foregoing limitations shall not prohibit
Executive from engaging in any capacity in other non-competitive
businesses. Company acknowledges and agrees that Executive will from
time-to-time serve as an executive of other companies, on the boards of
corporations, advisory committees, trade organizations, philanthropic
organizations or other entities, and such activities shall not be a breach
hereunder.
2.3 No
Conflict. Executive
represents and warrants that Executive’s execution of this Agreement,
Executive’s employment with Company, and the performance of Executive’s duties
under this Agreement shall not violate any obligations Executive may have to any
other employer, person, or entity, including but not limited to any obligations
with respect to not disclosing any proprietary or confidential information of
any other person or entity.
3. Compensation
and Benefits.
3.1 Base
Salary. In
consideration of the services to be rendered under this Agreement, Company shall
pay Executive an initial base salary of one hundred twenty five thousand dollars
($125,000) per annum. (“Base Salary”),
exclusive of Business Expenses as defined in Article 3.7, and in accordance with
Company’s standard payroll and expense reimbursement policies. Upon
the earlier to occur of (i) the first anniversary of this Agreement, or (ii) the
date on which the Company publicly reports consolidated annual gross revenues of
at least $10,000,000, the Base Salary shall be increased to
$200,000. Upon the earlier to occur of (i) the second anniversary of
this Agreement, or (ii) the date on which the Company publicly reports
consolidated annual gross revenues of at least $35,000,000, the Base Salary
shall be increased to $250,000. Upon the earlier to occur of (i) the
third anniversary of this Agreement, or (ii) the date on which the Company
publicly reports consolidated annual gross revenues of at least $100,000,000,
the Base Salary shall be increased to $350,000. In addition, the
Executive’s Base Salary will be reviewed, from time to time, and may be adjusted
(upward, but not downward) at the discretion of the Board, including as a result
of performing services for Company’s subsidiaries and affiliated
companies.
3.2 Bonus Payment. In
addition to the Base Salary, Executive shall be paid an annual cash bonus in the
discretion of the Board of Directors (the “Bonus”). The
Bonus shall be paid to Executive within 30 days after the end of each
anniversary of this Agreement. The amount of such Bonus shall be
targeted at 150% to 250% of Base Salary, assuming Executive meets performance
goals set by the Board of Directors.
The
target Bonus after the third year of the Term shall be determined in good faith
by the Board of Directors, but shall in no event be less than the target Bonus
for the third year of the Term. In addition, the Executive’s target Bonus will
be reviewed, from time to time, and may be adjusted (upward, but not downward)
at the discretion of the Board, including as a result of performing services for
Company’s subsidiaries and affiliated companies.
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3.3 Bonus Options.
Executive shall be issued stock options from the Company’s then current
incentive stock option plan, on an annual basis in the discretion of the Board
of Directors (the “Bonus Options”). The
Bonus Options shall be issued to Executive within 30 days after the end of each
anniversary of this Agreement. The amount of Bonus Options each year shall be
determined in good faith by the Board of Director, and will be reviewed, from
time to time, and may be adjusted (upward and not downward) at the discretion of
the Board, including as a result of performing services for Company’s
subsidiaries and affiliated companies. The amount of such Bonus
Options shall be determined by the Board of Directors based on meeting
performance goals set by the Board of Directors in consultation with the
Executive.
3.4 Stock
Options. Company shall grant Executive options to acquire
100,000 shares of Company’s common stock (the “Options”) as early as practicable
after the date hereof. Company shall execute and deliver an award agreement (the
“Award Agreement”) for the Options to Executive as soon as practicable
thereafter. The Award Agreement will reflect Company’s standard terms
and conditions for Executive stock option grants and contain the following
terms:
(a) The
Options shall have an exercise price equal to 100% of the fair market value
(based on recent third-party sales of the Company’s common stock) on the date of
the grant.
(b) The
Options shall become fully vested on the first anniversary of the Effective
Date.
(c) The term
of the Option will be ten years from the date of the Award Agreement (“Option
Term”).
(d) Options
which are vested shall be irrevocable and may be exercised in whole or in part,
by Executive, his heirs or estate, for the full remaining Option Term,
regardless of whether this Agreement should terminate for any reason and
regardless of Executive’s death or disability.
(e) Company
agrees to use commercially reasonable efforts to file and maintain the
effectiveness of (and the availability of any related prospectus) a registration
statement(s) registering the exercise of the Options or the sale or resale of
any common stock acquired upon exercise of the Options.
3.5 Other
Benefits. During
the Term, subject to, and to the extent Executive is eligible under their
respective terms, Executive shall be entitled to receive such other compensation
and fringe benefits as are, or are from time to time hereafter, generally
provided by Company to Company's employees of comparable status (other than
those provided under or pursuant to separately negotiated individual employment
agreements or arrangements and other than as would duplicate benefits otherwise
provided to Executive) and provided by Company’s subsidiaries and affiliated
companies to their employees of comparable status, under any pension or
retirement plan, disability plan or insurance, group life insurance, medical
insurance, travel accident insurance, or other similar plan or program of
Company. To facilitate the performance of Executive's
responsibilities hereunder, during the employment Term, Employer shall lease or
acquire for Executive's exclusive use, or promptly reimburse Executive for the
cost of leasing or acquiring, an automobile at a rate not to exceed $1,200 per
month. Employer shall promptly reimburse Executive for all expenses,
including without limitation, parking and commutation expenses, in connection
with the performance of his duties under this Agreement, subject to such
policies as may be in effect from time to time applicable to senior executive
officers of Employer.
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3.6 Vacation. During
the Term, Executive shall be entitled to vacation each year in accordance with
Company’s policies in effect from time to time, the length of which shall be
determined by the Company consistent with the effective discharge of Executive’s
duties and the general customs and practices of the Company applicable to
executives of Executive’s status, but in no event less than four (4) weeks paid
vacation per calendar year. Executive shall also be entitled to such
periods of sick leave as is customarily provided by Company for its senior
executive employees.
3.7 Business
Expenses. Throughout
the term of Executive’s employment hereunder, Company shall promptly reimburse
Executive for all reasonable and necessary travel, entertainment, promotional,
and other business expenses that may be incurred by Executive in the course of
performing Executive’s duties, including but not limited to cell phone service,
portable e-mail service and such other customary expenses incurred by principal
executive officers (“Business
Expenses”). Authorized expenses shall be reimbursed by Company
in accordance with policies and practices adopted, from time to time, by Company
concerning expense reimbursement for employees and shall be reimbursed upon
timely presentation to Company of an itemized expense statement with respect
thereto, including substantiation of expenses incurred and such other
documentation as may be required by Company’s reimbursement policies from time
to time and in accordance with US Internal Revenue Service
guidelines.
3.8 Liability
Insurance. Upon the request of the Executive, the Company
shall be required to maintain a directors’ and officers’ liability insurance
policy covering the executive with a minimum coverage of
$5,000,000.
4. Nondisclosure
of Confidential and Proprietary Information
. At
all times before and after the termination of Executive’s service (for any
reason by Company or by Executive), Executive agrees to keep all confidential or
proprietary information of the Company in strict confidence and secrecy, and not
to disclose or use the confidential or proprietary information in any way
outside of Executive’s assigned responsibilities for Company. Notwithstanding
the foregoing, nothing herein shall prohibit Executive from disclosing any
information if compelled pursuant to the order of a court or other governmental
or legal body having jurisdiction over such matter. In the event
Executive is compelled by order of a court or other governmental or legal body
to communicate or divulge any such information, knowledge or data, he shall
reasonably promptly notify Company.
5. Termination; Rights and Obligations
on Termination. Executive’s employment
under this Agreement may be terminated in any one of the followings
ways:
(a) Death. The
death of Executive shall immediately and automatically terminate Executive’s
employment under this Agreement. If Executive dies while employed by
Company, any unvested equity compensation granted to Executive under any Plan
(including the Options) shall immediately vest and any vested warrants may be
exercised on or before the earlier of (i) the warrant’s expiration date or (ii)
eighteen months after Executive’s death. Any warrant that remains
unexercised after this period shall be forfeited. Upon Executive’s
death, Executive’s legal representative shall receive: (1) any
compensation earned but not yet paid, including and without limitation, any
bonus if declared or earned but not yet paid for a completed fiscal year, any
amount of Base Salary earned but unpaid, any accrued vacation pay payable
pursuant to Company’s policies, and any unreimbursed business expenses, which
amounts shall be promptly paid in a lump sum, (2) the pro rata amount of any
Bonus or Bonus Options earned, and (3) any other amounts or benefits owing to
Executive under any then applicable employee benefit plans, long term incentive
plans or equity plans and programs of Company which shall be paid or treated in
accordance with the terms of such plans and programs (subsections (1), (2) and
(3) shall be collectively referred to as, the “Accrued
Amounts”). Other than the benefits described above, no further
compensation or benefits shall be due or owing upon Executive’s
death.
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(b) Disability. If as a
result of incapacity due to physical or mental illness or injury, Executive
shall have been absent from Executive’s duties hereunder for six months, then
thirty (30) days after receiving written notice (which notice may occur before
or after the end of such six month period, but which shall not be effective
earlier than the last day of such six month period, Company may terminate
Executive’s employment hereunder provided Executive is unable to substantially
perform his duties hereunder at the conclusion of such notice period (a “Disability”), as
determined by a physician mutually selected by the parties hereto. In
the event Executive’s employment is terminated as a result of Disability,
Executive shall receive from Company, in a lump-sum payment due within ten (10)
days of the effective date of termination, an amount equal to the Accrued
Amounts. Additionally, if Executive is terminated due to a
Disability, any unvested equity compensation granted to Executive under any Plan
(including the Options) shall immediately vest and any vested warrants may be
exercised on or before the earlier of: (i) the warrant’s expiration date or (ii)
eighteen months after Executive’s termination due to the
Disability. Any warrant that remains unexercised after this period
shall be forfeited. Other than the benefits described above, no
further compensation or benefits shall be due or owing upon Executive’s
termination due to Disability.
(c) Cause . Company
may terminate this Agreement immediately upon written notice to Executive for
“Cause,” which shall mean: (i) Executive’s willful, material, and irreparable
breach of this Agreement; (ii) Executive’s willful misconduct in the performance
of any of his material duties and responsibilities hereunder that has a material
adverse effect on Company; (iii) Executive’s material and willful dishonesty or
fraud with regard to Company (other than good faith expense account disputes)
that has a material adverse effect on Company (whether to the business or
reputation of Company), or (iv) Executive’s conviction of a felony (other than
as a result of vicarious liability or a traffic related offense). For
purposes of this paragraph, no act, or failure to act, on Executive’s part shall
be considered “willful” unless done or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interests of Company. In the event of Executive’s termination of
employment by Company for Cause, Executive shall receive only the Accrued
Amounts.
Notwithstanding
the foregoing, following Executive’s receipt of written notice from Company of
any of the events described in subsections (i) through (iii) above, including
detailed and specific descriptions of the alleged conduct, Executive shall have
twenty (20) days in which to cure the alleged conduct (if curable).
(d) Without Cause
. At any
time after Executive’s commencement of employment, Company may, without Cause,
terminate Executive’s employment, effective thirty (30) days after written
notice is provided to Executive. In the event Executive is terminated
by Company without Cause, Executive shall receive from Company within ten (10)
days after such termination, in a lump sum payment, an amount equal to the sum
of the Base Salary, maximum Bonus and Options that would have been paid to
Executive through the end of the then remaining Term if Executive had not been
terminated or for twelve months, whichever is more. Executive shall
also receive the Accrued Amounts. Additionally, if Executive is
terminated by Company without Cause, any unvested equity compensation granted to
Executive under any Plan (including the Options) shall immediately vest and any
vested warrants may be exercised on or before the earlier of: (i) the
warrant’s expiration date or (ii) eighteen months after Executive’s termination.
Any warrant that remains unexercised after this period shall be
forfeited.
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(e) Resignation for Good Reason
. At any time after
Executive’s commencement of employment, Executive may resign for Good Reason (as
defined below) effective thirty (30) days after written notice is provided to
Company. Upon Executive’s termination of employment for Good Reason,
Executive shall be entitled to all payments and benefits as if his employment
was terminated by Company without Cause as provided in subsection (d)
above. For purposes of this Agreement, Good Reason means:
(i) any adverse change in Executive’s position, title or reporting
relationship or a material diminution of his then duties, responsibilities or
authority or the assignment to Executive of duties or responsibilities that are
inconsistent with Executive’s then position; (ii) the failure by Company to
continue in effect any material compensation or benefit plan or arrangement in
which Executive participates unless an equitable and substantially comparable
arrangement (embodied in a substitute or alternative plan) has been made with
respect to such plan or arrangement, or the failure by Company to continue
Executive’s participation therein (or in such substitute or alternative plan or
arrangement) on a basis not less favorable, both in terms of the amount of
benefits provided and the level of participation relative to other participants,
as existed at the time of Executive’s termination of employment; (iii) any
breach of this Agreement (or any other written agreement entered into between
Executive and Company) by Company; (iv) failure of any successor to Company
(whether direct or indirect and whether by merger, acquisition, consolidation or
otherwise) to assume in a writing delivered to Executive upon the assignee
becoming such, the obligations of Company hereunder; (v) a change in Company’s
principal place of business to a location not within the New York metropolitan
area, (vi) any significant and prolonged increase in the travelling requirements
applicable to the discharge of Executive’s responsibilities, (vii) Executive has
been removed from the Board of Company, or (viii) the aggregate amount of
compensation and other benefits to be received by Executive pursuant to Sections
3.1, 3.2, 3.3 and 3.5 hereof for any twelve full calendar months shall be less
than 100% of the amount received by Executive during the comparable preceding
period without agreement by Executive in writing.
Notwithstanding
the foregoing, following Company’s receipt of written notice from Executive of
any of the events described in subsections (i) through (vii) above, Company
shall have twenty (20) days in which to cure the alleged conduct (if
curable).
(f) Resignation without Good
Reason or Retirement by Executive .
Executive may resign without Good Reason or retire upon thirty (30) days’
written notice, and upon such termination of employment, he shall receive the
Accrued Amounts.
(g) No Duty to
Mitigate. In the event of any termination of employment under
Section 5(d) or 5(e), Executive shall be under no obligation to seek other
employment and there shall be no offset against amounts due Executive under this
Agreement on account of any remuneration attributable to any subsequent
employment that Executive may obtain. Any amounts due under this
Section 5 are in the nature of severance payments, or liquidated damages, or
both, and are not in the nature of a penalty.
(h) Liquidity
Event. The provisions of this Section 5(h) set forth
certain terms reached between the Executive and the Company regarding the
Executive’s rights and obligations upon the occurrence of a Liquidity
Event. These provisions are intended to assure and encourage in
advance the Executive’s continued attention and dedication to his assigned
duties and his objectivity during the pendency and after the occurrence of any
such event.
(i) Definition
A “Liquidity Event” shall be deemed to have occurred upon the
consummation of (A) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger, beneficially own (as
such term is defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate more than 50 percent of the voting shares
of the Company issuing cash or securities in the consolidation or merger (or of
its ultimate parent corporation, if any), (B) the acquisition, directly or
indirectly, by any person, or by two or more persons acting together, of
beneficial ownership of more than 50 percent of the outstanding voting shares of
the Company, including without limitation, any such acquisition by means of a
tender or exchange offer or proxy solicitation or pursuant to a judgment, decree
or final order of a judicial or administrative body of competent jurisdiction,
or (C) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a single plan)
of all or substantially all of the assets of the Company.
(ii) Transaction
Bonus. Upon the closing of a transaction constituting a
Liquidity Event the Executive shall be entitled to a “Transaction Bonus,”
subject to the conditions set forth in this Section 5(h). In
addition, all un-vested Options and Bonus Options shall become fully vested as
of the date of said Liquidity Event.
(iii) Amount. The
Transaction Bonus shall be equal to 2.99 times the Executive’s then current Base
Salary.
(iv) Employment Status.
The Transaction Bonus shall be paid to the Executive upon the closing of the
transaction constituting the Liquidity Event; provided that, unless
Executive is Terminated Without Cause as provided in Section 5(d) or Executive
terminated his employment for Good Reasons provided in Section 5(e), the
Executive must remain employed with the Company on such date.
(v) Gross-Up Payment.
Anything in this Agreement to the contrary notwithstanding, in the event it
shall be determined that any compensation, payment or distribution by the
Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the “Severance Payments”),
would be subject to the excise tax imposed by Section 4999 of the Code, or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), then
the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”)
such that the net amount retained by the Executive, after deduction of any
Excise Tax on the Severance Payments, any Federal, state, and local income tax,
employment tax and Excise Tax upon the payment provided by this Section, and any
interest and/or penalties assessed with respect to such Excise Tax, shall be
equal to the Severance Payments.
(i) Superseding
Agreement. This
Agreement shall be terminated immediately and automatically if the parties enter
into another agreement which expressly supersedes this Agreement. In
the event the parties enter into a superseding agreement, no severance pay or
other compensation shall be due to Executive with respect to the termination of
this Agreement.
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6. Company
Property; Non-Solicitation; Non-Competition
6.1 Use and Return of Company
Property. Executive acknowledges Company’s proprietary rights
and interests in its tangible and intangible property. Accordingly,
Executive agrees that upon termination of Executive’s employment with Company,
for any reason, and at any time, Executive shall deliver to Company all Company
property. Notwithstanding the foregoing, Executive may retain his
rolodex and similar address and telephone directories (whether in writing or
electronic format).
6.2 Non-Solicitation. At all
times while Executive is employed by Company and for a period of: (i) one (1)
year after any termination of Executive’s employment for Cause or Executive’s
termination of his employment without Good Reason; (ii) the lesser of one (1)
year or the remainder of the Term after any termination of Executive’s
employment by Company without Cause or Executive’s termination for Good Reason;
and (iii) one (1) year following the non-renewal of this Agreement or any
termination pursuant to Section 5, Executive
shall not, directly, (a) employ or attempt to employ or enter
into any contractual arrangement with any employee of Company, or (b) call on or
solicit any of the actual customers or suppliers of Company on behalf
of himself in connection with any business that directly and materially competes
with the Business of Company. For purposes of this Section 6.2, the term
“Business” shall mean the business of the Company conducted at the time of the
Executive’s termination of employment.
6.3 Non-Competition. At
all times while Executive is employed by Company and for a period of: (i) one
(1) year after any termination of Executive’s employment for Cause or
Executive’s termination of his employment without Good Reason; (ii) the lesser
of one (1) year or the remainder of the Term after any termination of
Executive’s employment by Company without Cause or Executive’s termination for
Good Reason; and (iii) one (1) year following the non-renewal of this Agreement
or any termination pursuant to Section 5, Executive shall not, directly, engage
in or have any interest in any entity (whether as an employee, officer,
director, partner, agent, security holder, creditor, consultant or otherwise)
that directly competes with Company’s Business (as defined below); provided that
such provision shall not apply to Executive’s ownership of securities of any
entity solely as an investment. For purposes of this Section 6.3, the
term “Business” shall mean the business of the Company conducted at the time of
the Executive’s termination of employment.
7. Indemnification;
Insurance.
7.1 Indemnification of
Executive. Except
as otherwise provided by applicable law, while Executive is employed by Company
and thereafter while potential liability exists (but in no event less than five
(5) years after termination), in the event Executive is made a party to any
threatened, pending, or contemplated action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by Company
against Executive), by reason of the fact that Executive is or was performing
services under this Agreement, then Company shall indemnify Executive to the
fullest extent permitted by applicable law against all expenses (including
attorneys’ fees), judgments, fines, and amounts paid in settlement, as actually
and reasonably incurred by Executive in connection therewith. In the
event that both Executive and Company are made a party to the same third party
action, complaint, suit, or proceeding, Company will engage competent legal
representation, and Executive will use the same representation, provided that if
counsel selected by Company shall have a conflict of interest that prevents such
counsel from representing Executive, then Company may engage separate counsel on
Executive’s behalf, and subject to the provisions of this Section 7, Company
will pay all attorneys’ fees of such separate counsel.
7.2 Insurance
(a)
Executive agrees that the Company may at any time or times and for the Company's
own benefit apply for and take out life, health, accident, and other insurance
covering Executive either independently or together with others in any amount
which the Company may deem to be in its best interests and the Company may
maintain any existing insurance policies on the life of Executive owned by the
Company. The Company shall own all rights in such insurance and in the cash
value and proceeds thereof and Executive shall not have any right, title or
interest therein.
(b) The
Company agrees to procure and maintain throughout the term of Executive's
employment hereunder, at the Company's sole expense, term life insurance on
Executive's life in the amount of One Million Dollars ($1,000,000). Such
insurance shall be payable to such beneficiaries as Executive shall designate
from time to time by written notice to the Company, or, failing such
designation, to his estate.
(c)
Executive agrees to assist the Company at the Company's expense in obtaining the
insurance referred to in Subparagraphs (a) and (b) above by, among other things,
submitting to the customary examinations and correctly preparing, signing and
delivering such applications and other documents as reasonably may be
required.
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8. Assignment;
Binding Effect
. Executive
shall have no right to assign this Agreement to another party other than by will
or by the laws of descent and distribution. This Agreement may be
assigned or transferred by Company only to an acquirer of all or substantially
all of the assets of Company, provided such acquirer promptly assumes all of the
obligations hereunder of Company in a writing delivered to Executive and
otherwise complies with the provisions hereof with regard to such
assumption. Nothing in this Agreement shall prevent the
consolidation, merger, or sale of Company or a sale of any or all or
substantially all of its assets. Subject to the foregoing restriction
on assignment by Executive, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors, and assigns.
9. Additional
Provisions.
9.1 Amendments; Waivers;
Remedies. This
Agreement may not be amended, and no provision of this Agreement may be waived,
except by a writing signed by Executive and by a duly authorized representative
of Company. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this
Agreement shall not operate as a waiver of any subsequent
breaches. All rights or remedies specified for a party herein shall
be cumulative and in addition to all other rights and remedies of the party
hereunder or under applicable law.
9.2 Notices. Any
notice under this Agreement must be in writing and addressed to Company or to
Executive at the corresponding address below. Notices under this
Agreement shall be effective upon: (a) hand delivery, when personally delivered;
(b) written verification of receipt, when delivered by overnight courier or
certified or registered mail; or (c) acknowledgment of receipt of electronic
transmission, when delivered via electronic mail or
facsimile. Executive shall be obligated to notify Company, in
writing, of any change in Executive’s address. Notice of change of
address shall be effective only when done in accordance with this Section
9.2.
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Company’s
Notice Address:
|
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn.: Xx.
Xxxxxxx Kachidza
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
|
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Executive’s
Notice Address:
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00
Xxxxxxx Xxxxxx, Xxx. #0
Xxxxxx
Xxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
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9.3 Severability. If any
provision of this Agreement shall be held by a court of competent jurisdiction
to be invalid, unenforceable, or void, such provision shall be enforced to the
fullest extent permitted by law, and the remainder of this Agreement shall
remain in full force and effect. In the event that the time period or
scope of any provision is declared by a court of competent jurisdiction to
exceed the maximum time period or scope that such court deems enforceable, then
such court shall reduce the time period or scope to the maximum time period or
scope permitted by law.
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9.4 Taxes. All
amounts paid under this Agreement (including, without limitation, Base Salary)
shall be reduced by all applicable state and federal tax withholdings and any
other withholdings required by any applicable jurisdiction.
9.5 Governing
Law. The
validity, interpretation, enforceability and performance of this Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to conflict of laws principles that would cause the laws of
another jurisdiction to apply.
9.6 Venue. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York, for the purposes of any suit, action, or other
proceeding arising out of this Agreement or any transaction contemplated
hereby.
9.7 Interpretation. This
Agreement shall be construed as a whole, according to its fair meaning, and not
in favor of or against any party. Sections and section headings
contained in this Agreement are for reference purposes only, and shall not
affect, in any manner, the meaning or interpretation of this
Agreement. Whenever the context requires, references to the singular
shall include the plural and the plural the singular.
9.8 Survival. Sections
4, 6.1, 6.2 and any other provision in this Agreement that requires performance
by Executive or Company following termination of Executive’s employment
hereunder shall survive any termination of this Agreement.
9.9 Counterparts. This
Agreement may be executed in several counterparts (including by means of
telecopied signature pages), each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
9.10 Authority. Each
party represents and warrants that such party has the right, power, and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder, and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
9.11 Additional
Assurances. The
provisions of this Agreement shall be self-operative and shall not require
further agreement by the parties except as may be herein specifically provided
to the contrary; provided, however, that at the request of Company, Executive
shall execute such additional instruments and take such additional acts as
Company may deem necessary to effectuate this Agreement.
9.12 Entire
Agreement. This
Agreement is the final, complete, and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all prior or
contemporaneous representations, discussions, proposals, negotiations,
conditions, communications, and agreements, whether written or oral, between the
parties relating to the subject matter hereof and all past courses of dealing or
industry custom. No oral statements or prior written material not
specifically incorporated herein shall be of any force and effect, and no
changes in or additions to this Agreement shall be recognized unless
incorporated herein by amendment, as provided herein (such amendment to become
effective on the date stipulated therein).
9.13 Executive
Acknowledgment.
Executive acknowledges that, before signing this Agreement, Executive was
advised of his right to consult with an attorney of his choice to review this
Agreement and that Executive had sufficient opportunity to have an attorney
review the provisions of this Agreement and negotiate its terms. Executive
further acknowledges that Executive had a full and adequate opportunity to
review this Agreement before signing it; that Executive carefully read and fully
understood all the provisions of this Agreement before signing it, including the
rights and obligations of the parties; and that Executive has entered into this
Agreement knowingly and voluntarily.
9
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
|
|
By:
|
/s/ Xxxxxxx Kachidza | |
| Xxxxxxx Kachidza | |||
| Co-Executive Chairman and President | |||
| Employee | |||
|
|
|
/s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | |||
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