RESTATED AND AMENDED
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") by and between COMPU-XXXX,
INC., a Delaware corporation ("Company"), and XXXX XXX ("Executive") is made and
entered into a New York, New York on this the 28th day of October, 1996,
effective as of the 1st day of October, 1996 ("Effective Date").
TERMS OF EMPLOYMENT
1.1 Employment. The Company hereby employs the Executive as the
President and Chief Operating Officer of the Company for and during the term
hereof. The Executive hereby accepts employment under the terms and conditions
set forth in this Agreement.
1.2 Duties of Executive. The Executive shall perform in the capacity
described in Section 1.1 hereof and shall have such duties, responsibilities,
and authorities as are designated for such offices pursuant to the Bylaws, as
amended, of the Company, and as may be reasonably assigned to him from time to
time by the Board of Directors of the Company; provided, however, the Executive
shall, during the term hereof, continuously have and retain such duties,
responsibilities, and authorities at least as significant in scope and substance
as the duties, responsibilities, and authorities required of the Executive's
offices and position with the Company as of the effective date. The Executive
agrees to devote his full time during normal business hours, best efforts,
abilities, knowledge and experience to the faithful performance of the duties,
responsibilities, and authorities which may be reasonably assigned to him and
which are consistent with his executive offices under Section 1.1 of this
Agreement. Notwithstanding the preceding, the Executive may, without being in
violation of his obligations hereunder, (i) serve on corporate, civic or
charitable boards or committees which are not engaged in business in the
computer software industry; provided, however, the Executive may serve as an
officer or director of a trade or business association related to the computer
software industry; (ii) invest the Executive's personal assets in such form or
manner as will not require any material services by the Executive in the
operation of the entities in which such investments are made, provided the
Executive shall use his best efforts to pursue such activities in such a manner
so that such activities shall not prevent the Executive from fulfilling his
obligations to the Company hereunder, and provided further, the Executive shall
resolve any conflict between his obligations to the Company and his obligations
to any other entity in which the Executive has a financial interest in favor of
the Company.
1.3 Term. This Agreement shall become effective as of the Effective
Date and shall continue in force and effect until September 30, 1999, unless
sooner terminated as provided in Section 1.6 hereof or renewed or extended
either (i) by written agreement between the Company and the Executive pursuant
to terms and conditions mutually acceptable to each, or (ii) in accordance with
the following sentence of this Section. Notwithstanding the preceding, as of
September 30 each year, the term of this Agreement shall be automatically
extended one (1) additional year so that the unexpired term of this Agreement as
of October 1 each year shall always be three (3) years unless
1
on or before July 1 of any year either party notifies the other in writing that
such party does not desire to so extend the term of this Agreement in which
event this Agreement shall continue in force and effect until the expiration of
the unexpired term of this Agreement, unless sooner terminated as provided in
Section 1.6 hereof or renewed or extended by written agreement between the
Company and the Executive pursuant to terms and conditions mutually acceptable
to each.
1.4 Compensation. The Company shall pay the Executive, as full
compensation for services rendered by the Executive under the Agreement, as
follows:
(a) Base Salary. The Company shall pay the Executive a base salary of
ONE HUNDRED AND TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($125,000.00)
per year, or such higher salary as may be determined from time to time
during the term hereof either in accordance with the provisions of
Section 1.4(b) hereof or by the Board of Directors in its sole
discretion, prorated for any partial period of employment ("Salary").
Such Salary shall be paid by the Company to the Executive in twenty-six
(26) equal bi-weekly installments in accordance with the regular
payroll payment dates of the Company or in such installments and on
such days during the month as the Company and the Executive shall
mutually determine. The Company's compensation of the Executive by
payments of the Salary pursuant to Section 1.4(a) shall not be deemed
exclusive and shall not prevent the Executive from participating in any
other compensation or benefit plan of the Company, nor shall such
compensation in any way limit or reduce any other obligation of the
Company hereunder; and, except to the extent specifically set forth
herein, no other compensation, benefit or payment hereunder shall in
any way limit or reduce the obligation of the Company to pay the Salary
to the Executive during the term of this Agreement.
(b) Annual Bonus Based on Pre-Tax Taxable Income. In addition to the
Salary set forth in Section 1.4(a) hereof, the Executive shall receive
a bonus each year during the term of this Agreement in an amount equal
to a varying percentages of the pre-tax consolidated taxable income of
the Company and its subsidiaries for the preceding taxable year ended
December 31 (or such other fiscal year as the Company may adopt in the
future), commencing with the taxable year ending December 1, 1997 as
determined by the Company's independent accountant in accordance with
generally accepted accounting principles (except as hereinafter set
forth) prorated for any partial period of employment ("Earnings Annual
Bonus"). Notwithstanding the preceding, for purposes of this Agreement
the pre-tax consolidated taxable income of the Company and its
subsidiaries for any given year shall be determined without taking into
consideration; (i) the Earnings Annual Bonus to be paid to the
Executive or other executive officers of the Company for that year or;
(ii) any losses incurred by the Company and its subsidiaries on start
up ventures during the first twelve months of such venture; or (iii)
one-time non-recurring charges as the result of, including but not
limited to, divestitures, acquisitions, consolidations, restructuring,
and changes in accounting ("EBITANC"). The Earnings Annual Bonus
payable to the Executive shall be the amount determined by multiplying
the EBITANC of the Company as determined above by the applicable
percentage based upon the EBITANC of the Company as set forth in the
2
table below, prorated for any partial period of employment:
EBITANC Earninqs Annual Bonus
Less than $250,000 None
$250,000 or more but 5% of EBITANC of the
less than $500,000 Company
$500,000 or more but 6% of the EBITANC of the
less than $1,000,000 Company
$1,000,000 or more but 7.5% of the EBITANC of the
less than $1,500,000 Company
$1,500,000 or more 10% of the EBITANC of the
Company
For example, if the Executive worked a full twelve months during the
employment year and the EBITANC of the Company for the preceding year ended
December 31 was either: $100,000, $300,000, $800,000 or $1,200,000, then the
Earnings Annual Bonus due the Executive would be $0, $15,000 ($300,000 x 5%),
$48,000 ($800,000 x 6%), $90,000 ($1,200,000 x 7.5%) and $150,000 ($1,500,000 x
10%), respectively. Such Earnings Annual Bonus, or the balance thereof in the
event the Executive elects to receive a portion of such bonus quarterly as
hereinafter set forth, shall be paid to the Executive within ninety (90) days
after the end of the taxable year of the Company for which the Executive is
entitled to receive the Earnings Annual Bonus.
Notwithstanding the preceding, the Earnings Annual Bonus shall be
estimated and determined quarterly by the Company within forty-five (45) days
after the end of each fiscal quarter of the Company ("Estimated Quarterly
Earnings Bonus"). The Company shall notify the Executive ("Bonus Notice") of the
Estimated Quarterly Earnings Bonus due the Executive. The Executive shall have
the option exercisable for a period of thirty (30) days after receiving the
Bonus Notice to demand and receive up to fifty percent (50%) of such Estimated
Quarterly Earnings Bonus ("Advance Earnings Bonus Payment"). If the Executive
elects to receive the Advance Earnings Bonus Payment, such amount shall be paid
concurrently with the next regularly scheduled payroll. In the event that the
sum of the Advance Earnings Bonus Payments paid to the Executive exceeds the
Annual Earnings Bonus due the Executive for the Company's fiscal year, the
Executive shall repay such excess to the Company within ninety (90) days after
the Company's audited financial results are made available by the Company's
auditors.
(c) Annual Bonus Based On Net Sales. In addition to the Minimum Annual
Earnings Bonus set forth in Section 1.4(c) hereof, the Executive shall
receive a bonus each year during the term of this Agreement in an
amount equal to varying percentages of the "net sales" of the
3
Company and its subsidiaries for the preceding taxable year ended
December 31 (or such other fiscal year as the Company may adopt in the
future), commencing with the taxable year ending December 31, 1997 as
determined by the Company's independent accountant in accordance with
generally accepted accounting principles (except as hereinafter set
forth) prorated for any partial period of employment ("Net Sales Annual
Bonus"). The Net Sales Annual Bonus payable to the Executive shall be
the amount determined by multiplying the Executive's base salary of the
Company and its subsidiaries as determined above by the applicable
percentage based upon the "net sales" of the Company and its
subsidiaries as set forth in the table below, prorated for any partial
period of employment, provided however that the threshold bonus levels
below shall increase by $1,000,000 in the year next succeeding a year
when a Net Sales Annual Bonus is earned.
Net Sales Net Sales Annual Bonus
Less than $3,750,000 None
$3,750,000 or more but 7 1/2% of base salary
less than $4,500,000
$4,500,000 or more but 10% of base salary
less than $5,250,000
$5,250,000 or more but 15% of base salary
less than $6,000,000
$6,000,000 or more 20% of base salary
For example, if the Executive worked a full twelve months during the
employment year and the "net sales" of the Company and its subsidiaries for the
preceding year ended December 31 was either: $3,000,000, $4,000,000, $5,000,000,
$5,500,000 & $6,00,000, then the Net Sales Annual Bonus due the Executive would
be $0, $9,375 ($125,000 x 7.5%), $12,500 ($125,000 x 10%), $18,750 ($125,000 x
15%) and $25,000 ($125,000 x 20%), respectively. Such Net Sales Annual Bonus,
shall be paid to the Executive within thirty (30) days after the Company's
audited financial statements are made available by the Company's auditors.
For purposes of this Agreement, the term "Net sales" shall mean the
gross sales of the Company and its subsidiaries for the fiscal year ended
December 31 less the sum of any returns and allowances for such taxable year and
any sales taxes included in the gross sales of the Company and its subsidiaries
for such taxable year.
(d) Discretionary Bonus Compensation. In addition to the Earnings
Annual Bonus set forth in Section 1.4(b) hereof, and Net Sales Annual
Bonus set forth in Section 1.4(c) hereof, the Company may also pay the
Executive discretionary annual bonus compensation
("Discretionary Bonus Compensation") in an amount determined by the
Board of Directors of the Company in its sole discretion to be proper
and appropriate based upon such factors as the Board of Directors deems
appropriate including (i) the Executive's contributions to the success
of the business operations and the pre-tax profits of the Company and
its subsidiaries, as determined in accordance with generally accepted
accounting principles, (ii) the consolidated revenues of the Company
and its subsidiaries for the taxable year, and (iii) the general
overall performance of the Company and its subsidiaries for the taxable
year. Such Discretionary Bonus Compensation shall be paid by the
Company to the Executive in the manner set forth in the resolution of
the Board of Directors of the Company authorizing and declaring the
payment of such Discretionary Bonus Compensation. Notwithstanding
anything herein to the contrary, the Executive shall not be entitled to
any Discretionary Bonus Compensation (i) for a period of one (1) year
following the closing of the contemplated initial public offering of
the Company's securities and (ii) for any Employment Year during the
term of this Agreement unless and until such Discretionary Bonus
Compensation is determined and declared by the Board of Directors of
the Company.
(e) Signing Bonus. In addition to all other bonuses payable hereunder
the Executive shall be paid a signing bonus in the amount of Fifteen
Thousand ($15,000.00) Dollars.
1.5 Employment Benefits. In addition to the Salary, the Earnings Annual
Bonus, Net Sales Annual Bonus or other bonus payable to the Executive hereunder,
the Executive shall be entitled to the following benefits upon satisfaction by
the Executive of the eligibility requirements therefor, subject to the following
limitations:
(a) Sick Leave Benefits and Disability Insurance. Unless this Agreement
is terminated pursuant to the provisions of Section 1.6(b) hereof, the
Executive shall be paid sick leave benefits for a period of up to six
(6) months at his then prevailing Salary rate during his absence due to
illness or other incapacity, reduced by the amount, if any, of worker's
compensation, social security entitlement, or disability benefits, if
any, under the Company's group disability insurance plan, if any.
(b) Life Insurance; "Key Man" Life Insurance. The Company, at its own
expense, shall provide the Executive, subject to the Executive passing
any physical examination required by the Company's insurance company,
life insurance benefits under and consistent with any group term life
insurance plan which the Company, at its election, may adopt. Any such
life insurance coverage shall be upon terms and conditions comparable
to the coverage, if any, provided other executive officers of the
Company and provided further however, that the Company shall not be
obligated to incur a premium of more than $5,000 per year for any such
coverage. In addition, the Company may obtain "Key Man" life insurance
upon the life of the Executive in an amount determined by the Company
in its sole discretion. The Executive shall fully cooperate in
obtaining said life insurance, including submitting to any physical
examination.
5
(c) Hospitalization, Accident, Major Medical and Dental Insurance. The
Company, at its own expense, shall provide the Executive (and all
dependents of the Executive at the request of the Executive) with group
hospitalization, group accident, major medical, and dental insurance in
amounts of coverage comparable to the coverage, if any, provided other
executive officers of the Company.
(d) Vacations. The Executive shall be entitled to a reasonable paid
vacation of not less that fifteen (15) business days each year during
the term of this Agreement, exclusive of national and religious
holidays and weekends, which vacation shall be taken by the Executive
in accordance with the business requirements of the Company at the time
and its personnel policies then in effect relative to this subject. The
Executive shall also be entitled to all paid holidays given by the
Company to its executive employees.
(e) Working Facilities. During the term of this Agreement, the Company
shall provide at its expense, adequate office space, furniture,
equipment, supplies, and personnel (including professional, clerical,
support and other personnel) as shall be suitable in the opinion of the
Board of Directors of the Company to the Executive's position and
adequate for the Executive's use in performing his duties and
responsibilities under this Agreement.
(f) Automobile Allowance. During the term of this Agreement, the
Company shall provide the Executive with a monthly automobile allowance
of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00). In addition during the
term of this Agreement, the Company shall reimburse the Executive for
the cost of automobile insurance, gasoline and maintenance expenses
incurred by the Executive in connection with such automobile on a
monthly basis within ten (10) business days after receiving an itemized
invoice. Any allowance due the Executive pursuant to the preceding
provisions of this paragraph shall be paid by the Company concurrently
with payroll in twenty-six payments of $461.54 per month.
(g) Minimum Incentive Stock Options. With respect to each of the
Company's fiscal years ending during the term of this Agreement, the
Company shall grant the Executive incentive stock options effective as
of December 31 of that year, to the extent permissible under incentive
stock option plans maintained by the Company, to purchase 5,000 shares
of common stock of the Company for each full $100,000 of EBITANC of the
Company and its subsidiaries for such fiscal year as determined by the
Company's independent accountant in accordance with generally accepted
accounting principles. The number of shares of common stock covered by
the incentive stock options to be granted to the Executive pursuant to
this paragraph, and the exercise price per share thereof, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of common stock of the Company resulting from a
subdivision or consolidation of shares or the payment of a stock
dividend (but only on the common stock) or any other increase or
decrease in the number of shares affected without receipt of
consideration by the Company. Notwithstanding the preceding, nothing
contained herein shall preclude the Board of Directors of the Company
from terminating one or more incentive stock option plans currently or
hereafter maintained by
6
the Company or issuing additional incentive stock options to the
Executive in its discretion.
(h) Other Employment Benefits. As an employee of the Company, the
Executive shall participate in and receive such other fringe benefits
as may be in effect from time to time for employees of the Company,
whether or not specifically enumerated herein and whether or not
through any written plan or arrangement, upon satisfaction by the
Executive of the eligibility requirements therefor. Any such benefits
shall be upon terms and conditions comparable to the benefits, if any,
provided other executive officers of the Company.
1.6 Termination. This Agreement and the Executive's employment
hereunder may be terminated without any breach of this Agreement at any time
during the term hereof only by reason of and in accordance with the following
provisions:
(a) Death. If the Executive dies during the term of this Agreement and
while in the employ of the Company, this Agreement shall automatically
terminate as of the date of the Executive's death, and the Company
shall have no further liability hereunder to the Executive or his
estate except to the extent set forth in Section 1.7(a) hereof.
(b) Disability. If, during the term of this Agreement, the Executive
shall be prevented from performing his duties hereunder by reason of
becoming disabled as hereinafter defined for twelve (12) months out of
a twenty-four (24) month period, then the Company may terminate this
Agreement immediately upon written notice to the Executive without any
further liability hereunder to the Executive except as set forth in
Section 1.7(b) hereof. For purposes of this Agreement, the Executive
shall be deemed to have become disabled when (i) he either receives
"disability benefits" under (a) Social Security, or (b) the Company's
disability plan, if any (whether funded with insurance or self-funded
by the Company), or (ii) the Board of Directors of the Company, upon
the written report of a qualified physician (after complete examination
of the Executive) designated by the Board of Directors of the Company
or its insurers, shall have determined that the Executive has become
physically and/or mentally incapable of performing his duties under
this Agreement.
(c) Termination by the Company for Cause. Prior to the expiration of
the term of this Agreement, the Company may discharge the Executive for
cause and terminate this Agreement immediately upon written notice to
the Executive without any further liability hereunder to the Executive
or his estate, except to the extent set forth in Section 1.7(c) hereof.
For purposes of this Agreement, a "discharge for cause" shall mean
termination of the Executive upon written notice to the Executive
limited, however, to one or more of the following reasons:
(1) Misappropriation or embezzlement by the Executive in
connection with the Company as determined by the affirmative
unanimous vote of the Board of Directors of the Company other
than the Executive;
7
(2) Gross mismanagement or gross neglect of the Executive's
duties as determined by the affirmative unanimous vote of the
Board of Directors of the Company other than the Executive
after notice to the Executive of the particular details
thereof and a period of thirty (30) days thereafter within
which to cure such act or acts of gross mismanagement or gross
neglect, and the failure of the Executive to cure such act or
acts within such thirty (30) day period;
(3) Indictment for a felony; or
(4) Willful and unauthorized disclosure of Trade Secrets (as
defined in Section 1.8 hereof) of the Company as determined by
the affirmative unanimous vote of the Board of Directors of
the Company other than the Executive.
(d) Termination by the Company with Notice. The Company may terminate
this Agreement, for a reason other than as set forth in subparagraphs
(a), (b), (c) or (g) of this Section 1.6 at any time immediately upon
written notice to the Executive without any further liability hereunder
to the Executive except to the extent set forth in Section 1.7(d)
hereof.
(e) Termination by the Executive with Notice. The Executive may
terminate this Agreement without liability to the Company arising
solely from the resignation of the Executive at any time upon thirty
(30) days written notice to the Company in which event the Company
shall have no further liability hereunder to the Executive except to
the extent set forth in Section 1.7(e) hereof.
(f) Termination by the Executive for Good Reason. The Executive may
terminate this Agreement at any time for Good Reason (as hereinafter
defined) in which event the Company shall have no further liability
hereunder to the Executive except to the extent set forth in Section
1.7(f) hereof. For purposes of this Agreement, the term "Good Reason"
shall mean, without the Executive's express written consent, the
occurrence of any the following circumstances (which changes shall
constitute a "Change"):
(1) The assignment to the Executive of any duties inconsistent
in any material respect (unless in the nature of a promotion)
with the Executive's position in the Company immediately prior
to such Change (including, but not limited to, the Executive's
status, offices and titles), or a significant adverse
alteration or diminution in the nature or status of the
Executive's authority, duties or responsibilities from those
in effect immediately prior to such change, other than an
isolated, insubstantial and inadvertent action that is fully
corrected within five (5) days after receipt of written notice
from the Executive;
(2) Any failure by the Company to comply with any of the
provisions of Section 1.4 or 1.5 of this Agreement, other than
an isolated, insubstantial and inadvertent action that is
fully corrected within five (5) days after receipt of written
notice from the
8
Executive;
(3) The Company's requiring the Executive to be based anywhere
other than at the Company's executive office, except for
travel reasonably required of the Executive in the performance
of the Executive's duties on behalf of the Company to an
extent substantially consistent with the Executive's present
business travel obligations;
(4) The failure of the Company to obtain an agreement,
satisfactory to the Executive, from any and all successors to
assume and agree to perform this Agreement, as contemplated in
Section 1.9 hereof; or
(5) Any failure by the Company to comply with any material
provision of this Agreement that has not been cured within ten
(10) days after notice of such noncompliance has been given by
the Executive to the Company.
During a period of three (3) months immediately following any such
termination of this Agreement by the Executive, the Executive agrees to
provide such consulting services to the Company as it may reasonably
request, at such time or times within such period as may be mutually
agreed upon between the Company and the Executive. The Executive shall
be compensated for any such consulting services at a daily rate equal
to one thirtieth (1/30) of the monthly Salary paid to the Executive at
the time of the Executive's resignation from the Company, plus
reimbursement for any reasonable out-of-pocket expenses incurred by the
Executive in rendering such consulting services.
(g) Termination upon Change in Control. The Company may terminate this
Agreement at any time within twelve (12) months after a Change in
Control (as hereinafter defined) immediately upon written notice to the
Executive without any further liability hereunder to the Executive
except to the extent set forth in Section 1.7(g) hereof. In the event
this Agreement is terminated by the Company within twelve (12) months
after the occurrence of a Change of Control, the provisions of this
Section shall supersede the provisions of Sections 1.6(d) hereof, the
provisions of Section 1.6(d) shall not be available to the Company and
the payments due the Executive hereunder shall be determined in
accordance with the provisions of Section 1.7(g) hereof and the
provisions of Section 1.7(d) shall not be available. For purposes of
this Agreement, the terms "Change of Control" shall mean:
(1) The transfer, through one transaction or a series of
related transactions, either directly or indirectly, or
through one or more intermediaries, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of 25% or more of either the
then outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors, or
the last of any series of transfers that results in the
transfer of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934)
of 25% or more
9
of either the then outstanding shares of common stock or the
combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of
directors;
(2) Approval by the shareholders of the Company of a merger or
consolidation, with respect to which persons who were the
shareholders of the Company immediately prior to such merger
or consolidation do not, immediately thereafter, own more than
50% of the combined voting power entitled to vote generally in
the election of directors of the merged or consolidated
company's then outstanding voting securities, or a liquidation
or dissolution of the Company or the sale of all or
substantially all of the assets of the Company;
(3) The transfer, through one transaction or a series of
related transactions, of more than 50% of the assets of the
Company, or the last of any series of transfers that results
in the transfer of more than 50% of the assets of the Company.
For purposes of this paragraph, the determination of what
constitutes more than 50% of the assets of the Company shall
be determined based on the most recent financial statement
prepared by the Company's independent accountants; or
(4) During any calendar year, individuals who at the beginning
of such year constituted the Board of the Company and any new
director or directors whose election by the Board was approved
by a vote of a majority of the directors then still in office
who either were directors at the beginning of the year or
whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority
thereof provided, however, that this provision will not be
triggered in the event the Executive votes or causes other
stockholders to vote their shares to cause said change to the
directorship of the Company.
1.7 Compensation upon Termination.
(a) Death. In the event the Executive's employment hereunder is
terminated pursuant to the provisions of Section 1.6(a) hereof due to
the death of the Executive, the Company shall have no further
obligation to the Executive or his estate, except to pay to the
Executive's spouse, or if he leaves no spouse, to the estate of the
Executive (provided, however, that the Executive, with the written
consent of the Executive's spouse, if any, may affirmatively designate
a beneficiary other than his spouse or estate): (i) any accrued, but
unpaid, Salary, any authorized but unreimbursed business expenses, and
any vacation or sick leave benefits, which have accrued as of the date
of death, but were then unpaid or unused, (ii) any accrued, but unpaid,
Earnings Annual Bonus, Net Sales Annual Bonus or other bonuses payable
to the Executive, and (iii) an amount equal to the difference between
(a) the full monthly Salary payable hereunder as of the date of death
of the Executive for a period consisting of that number of months equal
to one (1) month multiplied by the number of full years that the
Executive was an employee of the Company or a subsidiary or a
predecessor in interest
10
thereof, and (b) the monthly payment, if any, payable to the Executive
under the Company's salary continuation plan, if any, for the
corresponding month during the period set forth in clause (iii)(a)
above. Any amount due the Executive under clause (i) of this paragraph
shall be paid in a lump sum in cash within thirty (30) days after the
death of the Executive, any amount due the Executive under clause (ii)
of this paragraph shall be paid in accordance with the Discretionary
Bonus Resolution; provided, however, that any unpaid Annual Bonus shall
be paid to the Executive within thirty (30) days after the Company's
audited financial statements for the fiscal year is made available by
the Company's auditors for which such Annual Bonus is due, and any
amount due the Executive under clause (iii) of this paragraph shall be
paid in accordance with the Company's regular payroll periods during
the period set forth in said clause (iii). For purposes of the
provision "Salary" shall include any amounts due under Section 1.5(f)
hereof.
(b) Disability. In the event the Executive's employment hereunder is
terminated pursuant to the provisions of Section 1.6(b) hereof due to
the Disability of the Executive, the Company shall be relieved of all
of its obligations under this Agreement, except to pay the Executive
(i) any accrued, but unpaid Salary, any authorized but unreimbursed
business expenses, and any vacation or sick leave benefits which have
accrued as of the date on which such permanent disability is
determined, but then remain unpaid, (ii) any accrued, but unpaid,
Earnings Annual Bonus and Net Sales Annual Bonus and any declared, but
unpaid, Discretionary Bonus Compensation but without accelerating the
bonus payment date, and (iii) an amount equal to the difference between
(a) the full monthly Salary payable hereunder as of the date of
termination of the Executive's employment hereunder for a period
consisting of that number of months equal to one (1) month multiplied
by the number of full years that the Executive was an employee of the
Company or a subsidiary or predecessor in interest thereof, subject to
a minimum of six (6) months, and (b) the monthly payment, if any,
payable to the Executive under the Company's salary continuation plan
and/or disability plan, if any, for the corresponding month during the
period set forth in clause (iii)(a) above. The provisions of the
preceding sentence shall not affect the Executive's rights to receive
payments under the Company's disability insurance plan, if any. Any
amount due the Executive under clause (i) of this paragraph shall be
paid in a lump sum in cash within thirty (30) days after the
termination of the Executive's employment hereunder, any amount due the
Executive under clause (ii) of this paragraph shall be paid in
accordance with the Discretionary Bonus Resolution; provided, however,
that bonus and Net Sales Annual Bonus shall be paid to the Executive
within thirty (30) days after the issuance of the Company's fiscal year
audited financial results for which such Earnings Annual Bonus is due,
and any amount due the Executive under clause (iii) of this paragraph
shall be paid in accordance with the Company's regular payroll periods
during the period set forth in clause (iii). For purposes of this
provision "salary" shall include any amounts due under Section 1.5(f)
hereof.
(c) Cause. In the event the Executive's employment hereunder is
terminated by the Company for Cause pursuant to the provisions of
Section 1.6(c) hereof, the Company shall
11
have no further obligation to the Executive under this Agreement:
except to pay the Executive (i) any accrued, but unpaid, Salary, any
authorized but unreimbursed business expenses, and any vacation or sick
leave benefits, which have accrued as of the date of termination of
this Agreement, but were then unpaid or unused, and (ii) any accrued,
but unpaid, Earnings Annual Bonus, Net Sales Annual Bonus and other
bonus. Any amount due the Executive under clause (i) of this paragraph
shall be paid in a lump sum in cash within thirty (30) days after the
termination of the Executive's employment hereunder, and any amount due
the Executive under clause (ii) of this Paragraph shall be paid in
accordance with the Discretionary Bonus Resolution; provided, however,
that any unpaid Earnings Annual Bonus or Net Sales Annual Bonus and
other bonus shall be paid to the Executive within thirty (30) days
after the end of the Company's taxable year for which such Earnings or
Net Sales Annual Bonus is due.
(d) Termination by the Company with Notice. In the event the
Executive's employment hereunder is terminated by the Company pursuant
to the provisions of Section 1.6(d) hereof, the Executive shall be
entitled to receive (i) any accrued, but unpaid, Salary, any authorized
but unreimbursed business expenses, and any vacation or sick leave
benefits which have accrued as of the date of termination of the
Agreement, but were then unpaid or unused, (ii) any accrued, but
unpaid, Earnings Annual Bonus or Net Sales Annual Bonus and any
declared, but unpaid, and (iii) the full monthly Salary payable
hereunder for the unexpired term of the Agreement whelher or not the
Executive has sought or obtained employment elsewhere after the
termination of the Executive's employment pursuant to the provisions of
section 1.6(d) hereof. Any amount due the Executive under clauses (i),
(ii) and (iii) of this paragraph (other than for any Earnings Annual
Bonus and Net Sales Annual Bonus) shall be paid in a lump sum in cash
within thirty (30) days after the termination of the Executive's
employment thereunder; provided, however, that any unpaid Earnings
Annual Bonus and Net Sales Annual Bonus shall be paid to the Executive
within ninety (90) days after the end of the Company's taxable year for
which such Earnings or Net Sales Annual Bonus is due. In addition, in
the event this Agreement is terminated by the Company pursuant to the
provisions of Section 1.6(d) hereof, the Company at its expense shall
continue to provide the Executive with the benefits set forth in
Sections 1.5(b), 1.5(c), 1.5(f) and 1.5(h) above for the unexpired term
of this Agreement whether or not the Executive has sought or obtained
employment elsewhere after the termination of the Executive's
employment pursuant to the provisions of Section 1.6(d) hereof;
provided, however, if the Executive obtains employment elsewhere during
the aforesaid period, then the Company shall continue to provide the
benefits set forth in Sections 1.5(b), 1.5(c), 1.5(f) and 1.5(h) hereof
only to the extent the Executive does not receive such benefits in
their entirety from the Executive's then current employer.
(e) Termination by the Executive with Notice. In the event the
Executive's employment hereunder is terminated by the Executive
pursuant to the provisions of Section 1.6(e) hereof, the Executive
shall be entitled to receive (1) any accrued, but unpaid, Salary, any
authorized but unreimbursed bus:ness expenses, and any vacation or sick
leave benefits which have
12
accrued as of the date of termination of this Agreement, but were then
unpaid or unused, and (ii) any accrued, but unpaid, Earnings Annual
Bonus, Net Sales Annual Bonus and any declared, but unpaid,
Discretionary Bonus Compensation. Any amount due the Executive under
clause (i) of this paragraph shall be paid in a lump sum in cash within
thirty (30) days after the termination of the Executive's employment
hereunder, and any amount due the Executive under clause (ii) of this
paragraph shall be paid in accordance with the Discretionary Bonus
Resolution; provided, however, that any unpaid Earnings Annual Bonus
and Net Sales Annual Bonus shall be paid to the Executive within ninety
(90) days after the end of the Company's taxable year for which such
Earnings or Net Sales Annual Bonus is due.
(f) Termination by the Executive for Good Reason.
(1) Prior to Change of Control. In the event this Agreement is
terminated by the Executive pursuant to the provisions of
Section 1.6(f) hereof prior to the occurrence of a Change of
Control, the Executive shall be entitled to receive (i) any
accrued, but unpaid, Salary, any authorized but unreimbursed
business expenses, and any vacation or sick leave benefits
which have accrued as of the date of termination of the
Agreement, but were then unpaid or unused, (ii) any accrued,
but unpaid, Earnings Annual Bonus, and Net Sales Annual Bonus
and any declared, but unpaid, Discretionary Bonus
Compensation, and (iii) the full monthly Salary payable
hereunder for the unexpired term of the Agreement whether or
not the Executive has sought or obtained employment elsewhere
after the termination of the Executive's employment pursuant
of the provisions of Section 1.6(f) hereof. Any amount due the
Executive under clauses (i), (ii) and (iii) of this paragraph
(other than for any Earnings Annual Bonus and Net Sales Annual
Bonus) shall be paid in a lump sum in cash within thirty (30)
days after the termination of the Executive's employment
hereunder; provided, however, that any unpaid Earnings or Net
Sales Annual Bonus shall be paid to the Executive within
ninety (90) days after the end of the Company's taxable year
for which such Minimum Annual Bonus is due. In addition, in
the event this Agreement is terminated by the Executive
pursuant to the provisions of Section 1.6(f) hereof prior to
the occurrence of a Change of Control, the Company at its
expense shall continue to provide the Executive with the
benefits set forth in Section 1.5(b), 1.5(c) 1.5(f) and 1.5(h)
above for the unexpired term of this Agreement whether or not
the Executive has sought or obtained employment elsewhere
after the termination of the Executive's employment pursuant
to the provisions of Section 1.6(f) hereof; provided, however,
if the Executive obtains employment elsewhere during the
aforesaid period, then the Company shall continue to provide
the benefits set forth in Sections 1.5(b), 1.5(c) and 1.5(h)
hereof only to the extent the Executive does not receive such
benefits in their entirety from the Executive's then current
employer.
In addition, in the event this Agreement is terminated by the
Executive pursuant to
13
the provisions of Section 1.6(f), the Company at its expense
shall purchase the automobile provided to the Executive
pursuant to Section 1.5(f) by paying the total lease payments
due pursuant to Section 1.5(f) and the residual value then due
in order to acquire title and transfer title on said
automobile to Executive within ninety (90) days after the
termination of the Executive's employment thereunder.
(2) After Change of Control. In the event this Agreement is
terminated by the Executive pursuant to the provisions of
Section 1.6(f) hereof after the occurrence of a Change of
control, the executive shall be entitled to receive (i) any
accrued, but unpaid, Salary, any authorized but unreimbursed
business expenses, and any vacation or sick leave benefits
which have accrued as of the date of termination of the
Agreement, but were then unpaid or unused, (ii) any accrued,
but unpaid, Earnings Annual Bonus, Net Sales Annual Bonus and
any declared, but unpaid, Discretionary Bonus Compensation,
and (iii) an amount equal to the full monthly Salary payable
hereunder for the unexpired term of the Agreement whether or
not the Executive has sought or obtained employment elsewhere
after the termination of the Executive's employment pursuant
to the provisions of Section 1.6(f) hereof. Any amount due the
Executive under clauses (i), (ii) and (iii) of this paragraph
(other than for any Earnings or Net Sales Annual Bonus) shall
be paid in a lump sum in cash within thirty (30) days after
the termination of the Executive's employment hereunder;
provided, however, than any unpaid Earnings Annual Bonus and
Net Sales Annual Bonus shall be paid to the Executive within
ninety (90) days after the end of the Company's taxable year
for which such Earnings or Net Sales Annual Bonus is due. In
addition, in the event this Agreement is terminated by the
Executive pursuant to the provisions of Section 1.6(f) hereof
after the occurrence of a Change of Control, the Company at
its expense shall continue to provide the Executive with the
benefits set forth in Section 1.5(b), 1.5(c) 1.5(f) and 1.5(h)
above for the unexpired term of this Agreement whether or not
the Executive has sought or obtained employment elsewhere
after the termination of the Executive's employment pursuant
to the provisions of Section 1.6(f) hereof; provided, however,
if the Executive obtains employment elsewhere during the
aforesaid period, then the Company shall continue to provide
the benefits set forth in Sections 1.5(b), 1.5(c) 1.5(f) and
1.5(h) hereof only to the extent the Executive does not
receive such benefits in their entirety from the Executive's
current employer. In addition, in the event this Agreement is
terminated by the Executive pursuant to the provisions of
Section 1.6(f), the Company at its expense shall purchase the
automobile provided to the Executive pursuant to Section
1.5(f) by paying the total lease payments due Section 1.5(f)
and residual value than due in order to acquire title and
transfer title on said automobile to Executive within ninety
(90) days after the termination of the Executive's employment
thereunder.
(g) Termination by the Company After Change of Control. In the event
this Agreement is terminated by the Company pursuant to the provisions
of Section 1.6(g) hereof after the
14
occurrence of a Change of Control, the Executive shall be entitled to
receive (i) any accrued, but unpaid, Salary, any authorized but
unreimbursed business expenses, and any vacation or sick leave benefits
which have accrued as of the date of termination of the Agreement, but
were then unpaid or unused, (ii) any accrued, but unpaid, Earnings
Annual Bonus, Net Sales Annual Bonus and any declared, but unpaid,
Discretionary Bonus Compensation, and (iii) an amount equal to the full
monthly Salary payable hereunder for the unexpired term of the
Agreement whether or not the Executive has sought or obtained
employment elsewhere after the termination of the Executive's
employment pursuant to the provisions of Section 1.6(g) hereof. Any
amount due the Executive under clauses (i) and (ii) of this paragraph
shall be paid in a lump sum in cash within thirty (30) days after the
termination of the Executive's employment hereunder, and any amount due
the Executive under clause (iii) of this paragraph shall be paid in a
lump sum in cash within ninety (90) days after the termination of the
Executive's employment hereunder. In addition, in the event this
Agreement is terminated by the Company pursuant to the provisions of
Section 1.6(g) hereof after the occurrence of a Change of Control, the
Company at its expense shall continue to provide the Executive with the
benefits set forth in Sections 1.5(b), 1.5(c) 1.5(f) and 1.5(h) above
for the unexpired term of this Agreement whether or not the Executive
has sought or obtained employment elsewhere after the termination of
the Executive's employment pursuant to the provisions of Section 1.6(g)
hereof; provided, however, if the Executive obtains employment
elsewhere during the aforesaid period, then the Company shall continue
to provide the benefits set forth in Sections 1.5(b), 1.5(c) 1.5 (f)
and 1.5(h) hereof only to the extent the Executive does not receive
such benefits in their entirety from the Executive's then current
employer.
(h) Termination of Obligations of the Company Upon Payment of
Compensation. Upon payment of the amount, if any, due the Executive
pursuant to the preceding provisions of this Section, the Company shall
have no further obligation to the Executive under this Agreement.
1.8 Protective Covenants. The Executive recognizes that his employment
by the Company is one of the highest trust and confidence because (i) the
Executive will become fully familiar with all aspects of the Company's business
and that of its subsidiaries during the period of his employment with the
Company, (ii) certain information of which the Executive will gain knowledge
during his employment is proprietary and confidential information which is of
special and peculiar value to the Company or its subsidiaries, and (iii) if any
such proprietary and confidential information were imparted to or became known
by any person, including the Executive, engaging in a business in competition
with that of the Company or its subsidiaries, hardship, loss and irreparable
injury and damage could result to the Company or its subsidiaries, the
measurement of which would be difficult if not impossible to ascertain. The
Executive acknowledges that any and all inventions, improvements, discoveries,
formulae, processes, products or designs developed by the Executive alone or in
conjunction with others in connection with the Company's business during the
term of the Executive's employment with the Company ("Proprietary Information")
shall be the sole and absolute property of the Company in perpetuity, that the
Executive shall promptly disclose
15
such Proprietary Information to the Company, and the Executive shall have no
right, title or interest therein or to receive additional monies therefor,
regardless of whether development occurred during working hours or any other
time during the term of the Executive's employment with the Company. The
Executive shall assist the Company in obtaining patents on all such Proprietary
Information deemed patentable by the Company and shall execute all documents
necessary to obtain such patents and to vest the Company with full and extensive
title to the patents and to protect the patents against infringement by others.
For purposes of this Agreement, an invention shall be deemed to have been made
during the period of the Executive's employment if, during such period, the
invention was conceived or first actually reduced to practice, and the Executive
agrees that any patent application filed by the Executive within one (1) year
after a termination of the Executive's employment with the Company shall be
presumed to relate to an invention made during the term of the Executive's
employment with the Company unless the Executive can establish the contrary. The
Executive further acknowledges that the Company or its subsidiaries has
developed unique skills, concepts, sales presentations, marketing programs,
marketing strategy, business practices, methods of operation, trademarks,
licenses, technical information, Proprietary Information, computer software
programs, tapes and discs concerning its operations systems, customer lists,
customer leads, documents identifying past, present and future customers, hiring
and training methods, investment policies, financial and other confidential and
proprietary information concerning its operations and expansion plans ("Trade
Secrets"). Therefore, the Executive agrees that it is necessary for the Company
to protect its business and that of its subsidiaries from such damage, and the
Executive further agrees that the following covenants constitute a reasonable
and appropriate means, consistent with the best interest of both the Executive
and the Company, to protect the Company or its subsidiaries against such damage
and shall apply to and be binding upon the Executive as provided herein:
(a) Trade Secrets. The Executive recognizes that his position with the
Company is one of the highest trust and confidence by reason of the Executive's
access to and contact with certain Trade Secrets of the Company and its
subsidiaries. The Executive agrees and covenants to use his best efforts and
exercise utmost diligence to protect and safeguard the Trade Secrets of the
Company and its subsidiaries. The Executive further agrees and covenants that,
except as may be required by the Company in connection with this Agreement, or
with the prior written consent of the Company, the Executive shall not, either
during the term of this Agreement or thereafter, directly or indirectly, use for
the Executive's own benefit or for the benefit of another, or disclose,
disseminate, or distribute to another, any Trade Secret (whether or not
acquired, learned, obtained, or developed by the Executive alone or in
conjunction with others) of the Company or its subsidiaries or of others with
whom the Company or its subsidiaries has a business relation ship. All
memoranda, notes, records, drawings, documents, or other writings whatsoever
made, compiled, acquired, or received by the Executive during the term of this
Agreement, arising out of, in connection with, or related to any activity or
business of the Company or its subsidiaries, including, but not limited to, the
customers, suppliers, or others with whom the Company or its subsidiaries has a
business relationship, the arrangements of the Company or its subsidiaries with
such parties, and the pricing and expansion policies and strategy of the Company
or its subsidiaries, are, and shall continue to be, the sole and exclusive
property of the Company or its
16
subsidiaries, are, and shall continue to be, the sole and exclusive property of
the Company or its subsidiaries, as applicable, and shall, together with all
copies thereof and all advertising literature, to be returned and delivered to
the Company by the Executive immediately, without demand, upon the termination
of this Agreement, or at any time upon the Company's demand.
(b) Restriction on Soliciting Customers of the Company and its
Subsidiaries. The Executive covenants that for a period of twenty-four (24)
months following the termination of this Agreement, he will not, either directly
or indirectly, (i) disclose or otherwise make known to any person or entity the
names and addresses of any of the customers of the Company, or (ii) call on,
solicit, or take away, or attempt to call on solicit or take away any of the
customers of the Company or its subsidiaries with whom he became acquainted
during his employment with the Company, either for himself or for any other
person, firm, corporation or other entity.
(c) Covenant Not to Compete. In the event this Agreement is terminated
pursuant to the provisions of Section 1.6(c) hereof, the Executive hereby
covenants and agrees that for a period of twelve (12) months following the
termination of his employment hereunder, he will not directly or indirectly,
either as an employee, employer, consultant, agent, principal, partner,
shareholder (other than through ownership of public traded capital stock of a
corporation which represent less than five percent (5%) of the outstanding
capital stock of such corporation), corporate officer director, investor,
financier or in any other individual or representative capacity, engage or
participate in any business located in a county in which the Company or any of
its subsidiaries is doing business as of the date of termination of the
Executive's employment hereunder which is competitive with the business of the
Company or any of its subsidiaries as of such date.
(d) Survival of Covenants. Each covenants of the Executive set forth in
this Section 1.8 shall survive the termination of this Agreement and shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of the Executive against the
Company whether predicated on this Agreement or otherwise shall not constitute a
defense to the enforcement by the Company of said covenant.
(e) Remedies. In the event of breach or threatened breach by the
Executive of any provision of this Section 1.8, the Company shall be entitled to
relief by temporary restraining order, temporary injunction, or permanent
injunction or otherwise, in addition to other legal and equitable relief to
which it may be entitled, including any and all monetary damages which the
Company may incur as a result of said breach, violation or threatened breach or
violation. The Company may pursue any remedy available to it concurrently or
consecutively in any order as to any breach, violation, or threatened breach or
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any other of
such remedies as to such breach, violation, or threatened breach or violation,
or as to any other breach, violation, or threatened breach or violation.
The Executive hereby acknowledges that the Executive's agreement to be
bound by the protective covenants set forth in this Section 1.8 was a material
inducement for the Company
17
entering into this Agreement and agreeing to pay the Executive the compensation
and benefits set forth herein.
1.9 Merger or Acquisition. In the event the Company should consolidate,
or merge into another corporation, or transfer all or substantially all of its
assets to another entity, or divide its assets among a number of entities, this
Agreement shall continue in full force and effect. The Company will require any
and all successors (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, to expressly assume and agree pursuant to an appropriate
written assumption agreement to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such successor shall be a breach of this
Agreement and shall entitle the Executive to terminate his employment and this
Agreement for Good Reason. As used in this Agreement, the term "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which executes and delivers the assumption agreement
provided for in this Section 1.9 or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
1.10 Reimbursement of Employee Expenses. The Executive is authorized to
incur ordinary, necessary and reasonable expenses in connection with the
performance of his duties and responsibilities under this Agreement and for the
promotion of the business and activities of the Company during the term hereof,
including, without limitation, expenses for necessary travel and necessary
travel and entertainment and other items of expenses required in the normal and
routine course of the Executive's employment hereunder. The Company will
reimburse the Executive from time to time for all such business expenses
incurred pursuant to and in conformity with the provisions of this Section
provided that the Executive presents to the Company:
(a) An account book in which the Executive recorded at or near
the time each expenditure was made; (i) the amount of the expenditures, (ii) the
time, place and designation of the type of entertainment and travel or other
expenses, or the date and description of the gift (gifts made to one individual
are not to exceed a total of Twenty-Five and No/100 Dollars ($25.00) in any
taxable year); (iii) the business reason for the expenditure and the nature of
the business benefit derived or expected to be derived as the result of the
expenditure; and (iv) the names, occupations, addresses and other information
concerning each person who was entertained or given a gift sufficient to
establish the business relationship to the Company; and
(b) Documentary evidence (such as receipts or paid bills)
which state sufficient information to establish the amount, date, place and
essential character of the expenditure, for such expenditure (i) of Twenty-Five
and No/100 Dollars ($25.00) or more except for transportation charges if not
readily available) and (ii) for lodging or traveling away from home.
GENERAL PROVISIONS
18
2.1 Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed to have been
delivered on the date personally delivered or on the date deposited in a
receptacle maintained by the United States Postal Service for such purpose,
postage prepaid, by certified mail, return receipt requested, addressed to the
respective parties as follows:
If to the Executive: Dong. X. Xxx
00 Xxxxxx Xxxx., xxx. 0X
Xxxx Xxxxx, Xxx Xxxx 00000
If to the Company: Compu-Xxxx, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Either party hereto may designate a different address by providing written
notice of such new address to the other party hereto.
2.2 Severability. If any provision contained in this Agreement is
determined to be void, illegal or unenforceable, in whole or in part, then the
other provisions contained herein shall remain in full force and effect as if
the provision which was determined to be void, illegal, or unenforceable had not
been contained herein.
2.3 Waiver, Modification, and Integration. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any party. This instrument
contains the entire agreement of the parties concerning employment and
supersedes all prior and contemporaneous representations, understandings and
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Company and all such prior or
contemporaneous representations, understandings and agreements, both oral and
written, are hereby terminated. The terms of this Agreement may not be modified,
altered or amended except by written agreement of the Executive and the Company,
subject to the prior approval of the Board of Directors of the Company.
2.4 Binding Effect. This Agreement shall be binding and effective upon
the Company and its successors and permitted assigns, and upon the Executive,
his heirs and representatives; provided, however, that the Company shall not
assign this Agreement without the written consent of the Executive.
2.5 Choice of Law and Venue. The parties agree that this Agreement is
made and entered into in Nassau County, New York and shall be governed by and
construed in accordance with the laws of the State of New York, and that any
litigation, special proceeding or other proceeding as between the parties that
may be brought, or arise out of, in connection with or by reason of this
Agreement shall be brought in the applicable state court in and for Nassau
County, New York which Courts shall be the exclusive courts or jurisdiction and
venue.
19
2.6 Representation of Executive. The Executive hereby represents and
warrants to the Company that he has not previously assumed any obligations
inconsistent with those contained in this Agreement. The Executive further
represents and warrants to the Company that the Executive has entered into this
Agreement pursuant to his own initiative and that the Company did not induce the
Executive to execute this Agreement in contravention of any existing
commitments. The Executive acknowledges that the Company has entered into this
Agreement in reliance upon the foregoing representations of the Executive.
2.7 Independent Counsel. The Company has been presented by XXXXXX X.
XXXXXXX,ESQ. The Executive has been represented by . Each
has made his or its own determination with respect to counsel without coercion
from the other. Each has thoroughly reviewed the provisions of this Agreement
and all matters concerning the consulting with the benefit of independent
counsel.
2.8 Arbitration Any controversy or claim arising out of or relating to
this Agreement shall be settled by binding arbitration in Nassau County, New
York under the rules of the American Arbitration Association. Judgment upon the
award may be entered in any court having jurisdiction and the arbitrator(s) are
specifically authorized to award the prevailing party in such arbitration all
reasonable attorney's fees, expenses and costs of arbitration.
2.9 Counterpart Execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written effective as of the Effective Date.
COMPU-XXXX, INC.
BY:/s/ Xxxx Honisgfeld
XXXX XXXXXXXXXX, Secretary
and Chairman of the Board
EXECUTIVE:
/s/ Xxxx Xxx
XXXX XXX
Attest
/s/ Xxxxx Xxxxxxx
Assistant Secretary
AGEMPCOAST
21
