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EXHIBIT 10.38
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is entered into as of
February 27, 1998, between Integrated Technology Holdings Corp., a Delaware
corporation, having its principal place of business at 00000 Xxxxxxxxx 0xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "COMPANY"), and Xxxxxx Xxxxxxx, an
individual residing at 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the
"EMPLOYEE").
W I T N E S S E T H:
WHEREAS, Integrated Technology Corp. ("ITC"), a New Jersey
corporation, and the Employee, the owner of all the outstanding capital stock
of ITC, on the one hand, and Xxxxxxxxx Industries, Inc., a Delaware
corporation, having its principal place of business at 00000 Xxxxxxxxx 0xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 ("XXXXXXXXX"), and the Company, a wholly-owned
subsidiary of Xxxxxxxxx, on the other hand, have entered into a Purchase
Agreement, dated as of the date hereof (the "PURCHASE AGREEMENT"), pursuant to
which Xxxxxxxxx has agreed to acquire, through the Company, substantially all
of the assets of ITC;
WHEREAS, the Employee is a principal executive of ITC with unique and
special skills, and as a material inducement to Xxxxxxxxx to enter into the
Purchase Agreement, the Employee has agreed to be employed by the Company
pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the Company and the Employee hereby agree as follows:
1. DEFINITIONS.
(a) The "BOARD" shall mean the Board of Directors of the Company.
(b) The "EFFECTIVE DATE" shall mean the date that the transactions
contemplated by the Purchase Agreement are consummated, it being understood and
agreed that this Agreement and all of the obligations of each of the parties
hereto shall terminate and be of no force or effect in the event that such
transactions are not consummated.
(c) The "EMPLOYMENT PERIOD" shall mean the period commencing on the
Effective Date and ending on the third anniversary of the Effective Date.
(d) The "EXECUTIVE COMMITTEE" shall mean the Executive Committee of
the Board of Directors of Xxxxxxxxx.
(e) "GAAP" shall mean generally accepted accounting principles in the
United States as in effect from time to time.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the
Employee, and the Employee hereby agrees to be employed by the Company, for the
duration of
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the Employment Period and pursuant to the other terms and conditions provided
herein. This Agreement shall terminate at the end of the Employment Period,
unless earlier terminated under Section 5 below.
3. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES. During the Employment Period the Employee
shall serve as a Senior Vice President of the Company. The Employee shall
perform such duties as the Board or Chief Executive Officer of the Company
shall from time to time determine, consistent with his position as a Senior
Vice President. In the performance of his duties, the Employee shall comply
with the stated policies of the Company.
(b) RELOCATION. The principal place of employment of the Employee
initially shall be at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx. The Company may
relocate all or part of its operations to a location outside of New Jersey
following the Closing of the Purchase Agreement, in which case, it shall
provide the Principal during the term of the Employment Agreement (including
any renewals thereof) with a New Jersey office and support personnel
commensurate with his operational needs.
(c) COMPENSATION.
(i) BASE SALARY. The Employee's annual salary (the "SALARY") shall
be at the rate of $200,000 per annum, payable twice monthly, for the duration
of the Employee's employment hereunder. During the Employment Period, the
Employee's Salary may be reviewed and changed by the Board of Directors at its
sole discretion; however, the Company shall not pay the Employee a Salary less
than such amount during the Employment Period.
(ii) ANNUAL COMPANY BONUS. Subject to paragraph (F) below, for
each calendar year commencing with the year ending December 31, 1998, during
which the Employee is employed by the Company:
(A) if Xxxxxxxxx has Net Income (as hereinafter defined) for such
year of an amount equal to Xxxxxxxxx'x target net income as determined in the
sole discretion of the Board of Directors of Xxxxxxxxx (or the Executive
Committee) for such year (the "TARGET"), the Employee shall be entitled to a
bonus in the amount equal to $100,000.
(B) if Xxxxxxxxx has Net Income for such year more than the Target
and less than 150% of the Target, the Employee shall be entitled to a bonus as
calculated below:
B = $100,000 + [$100,000 x (NI - T)]
----------
T
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where:
B = the bonus earned in such year.
T = the Target for such year.
NI = the actual Net Income of Xxxxxxxxx for such year as
determined in accordance with GAAP.
(C) if Xxxxxxxxx has Net Income for such year of 150% of the
Target or more, the Employee shall be entitled to a bonus of $150,000.
(D) if Xxxxxxxxx has Net Income for such year of less than 50% of
the Target, the Employee shall not be entitled to a bonus.
(E) if Xxxxxxxxx has Net Income for such year of at least 50% of
the Target but less than the Target, the Employee shall be entitled to a bonus
as calculated below:
B = $100,000 - [$100,000 x 2 X (T - NI)]
--------------
T
where:
B = the bonus earned in such year.
T = the Target for such year.
NI= the actual Net Income of Xxxxxxxxx for such year as determined
in accordance with GAAP.
(F) for any calendar year regarding which the Employee is entitled
to a Bonus under the foregoing provisions of this clause (ii) but during which
year the Employee did not work the entire calendar year, the Employee shall be
entitled to a Bonus equal to the product of the Bonus, as calculated under the
foregoing provisions, multiplied by a fraction, the numerator of which is the
number of months during such calendar year that the Employee was employed with
the Company and the denominator of which is twelve.
(d) STOCK OPTIONS. Under the terms of the Option Agreement, in the
form attached hereto as EXHIBIT A, as soon as practicable following the
Effective Date, the Company shall issue to the Employee options to purchase
150,000 shares of Xxxxxxxxx'x common stock, which options shall be exercisable
at a price equal to the average closing price of the Xxxxxxxxx common stock on
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the five trading days prior to the date hereof and which shall vest with the
Employee over three years in three equal annual installments.
(e) BENEFITS. In addition to the compensation payable to the Employee
as set forth in Section 3(c) above, during the Employment Period the Employee
shall be eligible for similar health insurance, pension plan, incentive, stock
option grants, savings, welfare (including without limitation medical and
dental insurance) plans, practices, policies and programs on or after the
Effective Date applicable generally to the executive vice presidents of
Xxxxxxxxx.
(f) VACATION. During the Employment Period, the Employee shall be
entitled to paid vacation in accordance with the policies and practices
applicable on or after the Effective Date to other executive vice presidents of
Xxxxxxxxx; PROVIDED that the Employee shall be entitled to a minimum of three
(3) weeks of paid vacation per full calendar year (pro rated if the Employee
serves for less than the full calendar year).
(g) HOLIDAYS AND SICK LEAVE. The Employee shall be entitled to all
holidays that are prescribed by the Company's policies and practices. The
Employee shall be entitled to six days paid sick leave per year. Unused sick
leave days may not be carried over to the following calendar year or years.
(h) AUTOMOBILE. During the Employment Period, the Company shall make
available to the Employee the current Mercedes Benz 400 SEL automobile used by
the Employee through the termination of the current lease agreement covering
such automobile. Following the termination of such lease, during the Employment
Period, the Company shall make available to the Employee an automobile similar
to the automobiles currently made available to other executive vice presidents
of Xxxxxxxxx, and the Company shall pay or reimburse the Employee for all
expenses of insurance, maintenance and operation of such automobile.
(i) EXPENSES. The Company shall pay or reimburse the Employee for
reasonable expenses incurred or paid by him during the Employment Period in the
performance of his services under this Agreement upon presentation of expense
statements or such other supporting information as may be required for other
officers of Xxxxxxxxx in accordance with Xxxxxxxxx'x policy.
4. EMPLOYEE'S OBLIGATIONS AND REPRESENTATIONS; INDEMNITY.
(a) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Employee is entitled, the Employee agrees
to devote substantially all of his attention and time during normal business
hours to the business and affairs of the Company and to perform faithfully and
efficiently the responsibilities assigned to the Employee by the Company.
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(b) The Employee represents and warrants to the Company that there are
no agreements or arrangements, whether written or oral, in effect which would
prevent the Employee from rendering exclusive service to the Company during the
Employment Period. The Employee further represents, warrants and agrees with
the Company that as of the Effective Date he has not made and will not make
during the Employment Period any commitment or do any act in conflict with this
Agreement, or take any action that might divert from the Company any
opportunity which would be in the scope of any present or future business of
the Company or any subsidiary thereof.
(c) The Company shall indemnify and hold harmless the Employee from
all claims, losses, liabilities, damages and causes of action relating to or
arising out of the Employee's performance, duties and responsibilities to, for,
or on behalf of the Company to the extent provided by the Company's certificate
of incorporation and by-laws.
(d) All transactions between the Company and FSI shall be approved by
an officer of Xxxxxxxxx Industries, Inc.
5. TERMINATION.
(a) DEATH. This Agreement shall terminate automatically upon the
Employee's death. If the Employee's employment is terminated by reason of the
Employee's death, the Employee's legal representative shall be entitled to
receive (i) the Employee's full Salary through the last day of the month in
which his death occurs, payable as and when such Salary would otherwise have
been payable to the Employee, (ii) an amount equal to the Employee's Annual
Company Bonus, pro rated through the date of the Employee's death in accordance
with Section 3(c)(ii)(F), payable when such bonus would otherwise have been
paid to the Employee and (iii) the reimbursement of reasonable expenses
incurred by the Employee prior to his death.
(b) DISABILITY. If the Company, in consultation with an independent
physician, determines in good faith that the Employee has a "disability" (as
defined below), it may give the Employee written notice of its intention to
terminate the Employee's employment. In such event, the Employee's employment
with the Company shall terminate effective on the 30th day after receipt by the
Employee of such notice. No such notice of termination by reason of disability
shall be given until the Employee has experienced a period of two consecutive
months of disability and the disability is continuing. The notice of
termination shall not be effective if the Employee returns to full-time
performance of his duties prior to the expiration of the 30-day notice period.
For purposes of this Agreement, "DISABILITY" shall mean a physical or mental
condition which, two months after its commencement, is determined by an
independent physician selected by the Company to be a total and permanent
condition which substantially prevents Employee from performing the services to
be provided by him hereunder. The
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Employee shall be entitled to all compensation and benefits provided for under
this Agreement during the two-month waiting period for the disability
determination and during the 30-day notice of termination period. In the event
that the Company provides long-term disability benefits for the Employee, such
benefits shall not commence until after the employment of the Employee has been
terminated and the Company has ceased paying the Employee compensation pursuant
to the foregoing sentence. If the Employee's employment is terminated by reason
of the Employee's disability, this Agreement shall terminate without further
obligations to the Employee or the Employee's legal representatives under this
Agreement, other than those obligations accrued, earned or vested by the
Employee as of the date of the termination, including, without limitation, an
amount equal to the Employee's annual Company Bonus, pro rated through the date
of termination in accordance with Section 3(c)(ii)(F), payable when such bonus
would otherwise have been paid to the Employee.
(c) CAUSE. During the Employment Period, the Company may terminate the
Employee's employment for "cause" as defined below. For purposes of this
Agreement, "CAUSE" shall mean:
(i) an act or acts of fraud, embezzlement or any other act that
would constitute a felony under the laws of the state of Florida taken by the
Employee;
(ii) repeated violations by the Employee of his obligations under
Section 4(a) of this Agreement which are not remedied within a reasonable
period of time after receipt of written notice from the Company of such
violations or a breach by the Employee of his representations or obligations
under any of Section 4(b), 6, 7 or 8 of this Agreement;
(iii) the indictment of the Employee of a crime, where the Company
reasonably believes it would impair the Employee's ability to perform his
services under this Agreement; or
(iv) if (x) the PBT (as defined in APPENDIX X to SCHEDULE 2.03(A)
of the Purchase Agreement) of the RR-JT8 Division in any Payment Year is less
than 50% of the Target amount for such Payment Year.
If the Employee's employment is terminated for cause, this Agreement shall
terminate without further obligations to the Employee under this Agreement,
other than those obligations accrued, earned or vested by the Employee as of
the date of the termination. The Employee shall not be entitled to any Bonus in
respect of the year of termination in the event the Employee's employment is
terminated for cause pursuant to this Section 5(c).
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(d) GOOD REASON. During the Employment Period, the Employee may
terminate his employment for "good reason" as defined below. For purposes of
this Agreement, "GOOD REASON" shall mean:
(i) the assignment to the Employee of any duties materially
inconsistent with Employee's position, duties and responsibilities as set forth
in Section 3(a) of this Agreement or any action by the Company which results in
a material diminution in such position, authority, duties or responsibilities,
excluding for this purpose (x) any isolated, insubstantial and inadvertent
action by the Company which is not taken in bad faith, (y) the relocation of
the Business after the Closing Date and (z) any action by the Company or any
circumstances which are remedied by the Company within sixty (60) days of
receiving written notice thereof by the Employee particularly describing the
actions or circumstances; or
(ii) any failure by the Company to comply with any of the
provisions of Sections 3(c) through 3(i) of this Agreement regarding the
Employee's compensation, benefits, vacation, holidays and sick leave other than
an isolated, insubstantial and inadvertent action by the Company which is not
taken in bad faith and any action of the Company or any circumstances which are
remedied by the Company within sixty (60) days of receiving written notice
thereof by the Employee particularly describing the actions or circumstances;
or
(iii) the Company requiring the Employee to be based at any office
or location other than that described in Section 3(b) of this Agreement, except
for travel reasonably required in the performance of Employee's
responsibilities.
In the event that the Employee terminates his employment for good reason as
defined in this Section 5(d), the Company shall (i) pay the Employee's Salary
through the remainder of the term of this Agreement, payable when the Salary
would otherwise have been paid to the Employee; (ii) continue to pay the
Employee an amount equal to the Employee's Annual Company Bonus under Section
3(c)(ii) above, through the remainder of the term of the Agreement, payable
when such bonus would otherwise have been paid to the Employee; and (iii) to
the extent permissible under Xxxxxxxxx'x medical plans then in effect, continue
to provide the Employee with medical insurance in effect at the time of the
termination of the employment.
(e) VOLUNTARY TERMINATION. The Employee agrees to provide the Company
with 15 days' notice prior to voluntarily terminating his employment (other
than for "good reason" as defined in Section 5(d) above). At the end of such
15-day period, this Agreement shall terminate automatically and the Company
shall have no further obligations to the Employee under this Agreement, other
than those obligations accrued, earned or vested by the Employee as of the date
of the termination. The Employee shall not be entitled to any annual Company
Bonus in respect of the year of termination in the event the Employee's
employment is terminated pursuant to this Section 5(e).
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(f) ADDITIONAL PAYMENTS UNDER PURCHASE AGREEMENT. Anything contained
in this Agreement to the contrary notwithstanding, the termination of this
Agreement for any reason, whether pursuant to the terms and conditions of this
Agreement or otherwise, at law or in equity, prior to its expiration by its
terms shall not affect the Employee's right to receive and retain all
Additional Payments to which he is entitled under the Purchase Agreement,
except to the extent specifically set forth therein.
6. CONFIDENTIALITY.
(a) ACKNOWLEDGEMENT AND PURPOSES. The Employee acknowledges that, with
respect to ITC, he has learned, developed and had access to, and with respect
to the Company and Xxxxxxxxx during the Employment Period, he will learn,
develop and have access to, Confidential Information relating to the business
and affairs of the Company and Xxxxxxxxx. As used in this Agreement,
"CONFIDENTIAL INFORMATION" shall mean all trade secrets and other confidential
information concerning the business and affairs of ITC, the Company and
Xxxxxxxxx including, without limitation, information regarding the operations,
future plans, projected and historical sales, marketing, costs, production,
growth and distribution, any customer lists, customer information, information
relating to governmental relations, and information relating to the products or
services, whether patentable or not, but shall not include information
contained in books and records constituting "Excluded Assets," as defined in
the Purchase Agreement.
The Company, ITC and Xxxxxxxxx are engaged in a highly competitive
business; their competitive position depends in great measure upon the ability
to develop or acquire and maintain the confidentiality of Confidential
Information; and they have expended and are likely to continue to expend
considerable efforts and resources in the development or acquisition of
Confidential Information. Based upon the foregoing, the Employee recognizes
that the unauthorized disclosure of Confidential Information in violation of
the terms hereof is likely to result in serious and irrevocable harm to the
Company and Xxxxxxxxx.
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(b) RESTRICTIONS ON THE USE OF CONFIDENTIAL INFORMATION. The Employee
agrees and covenants as follows:
(i) All documents and other materials made or compiled by or made
available to the Employee prior to the date hereof by ITC or during the
Employment Period by the Company and Xxxxxxxxx and any copies thereof, whether
or not containing Confidential Information, are and shall be the property of
the Company and Xxxxxxxxx, respectively and shall, at the request of the
Company or Xxxxxxxxx, be delivered to the Company or Xxxxxxxxx by the Employee
immediately upon the conclusion of his engagement as an Employee. Except as
required in connection with the services to be performed hereunder, the
Employee agrees not to remove from the Company's premises, without permission,
any papers or drawings belonging to the Company, including those prepared or
worked on by him. The Employee will treat as trade secrets all Confidential
Information acquired by him prior to the date hereof with respect to ITC or
during the Employment Period with respect to the Company and Xxxxxxxxx, and
shall not at any time use any Confidential Information for his own benefit nor
disclose it or any part of it to any other person, firm or corporation not
connected with the Company (A) without the prior written consent of the Company
or (B) unless such disclosure is required by law or in response to a legal
order or (C) unless such Confidential Information has become generally
available to the public other than through the breach the Employee of the terms
hereof.
(ii) All ideas, reports, and other creative works conceived by the
Employee during the Employment Period and relating to Confidential Information,
shall be disclosed to the Company and shall be the sole property of the
Company.
7. NON-COMPETITION. The Employee agrees that during the Employment
Period and for two (2) years after the Employment Period he will not, anywhere
in the world, directly or indirectly, engage or participate or make any
financial investments in or become employed by or render advisory or other
services to or for any person, firm or corporation, or in connection with any
business activity which directly or indirectly is in competition with any of
the business operations or activities of the Company or Xxxxxxxxx as of the
date of termination of his employment, or of the Company, Xxxxxxxxx or ITC for
any time prior thereto.
Notwithstanding anything in this Agreement to the contrary, (a) in the
event that it is finally determined under the procedure set forth in Section
2.03 of the Purchase Agreement, or agreed to by Xxxxxxxxx that Xxxxxxxxx is
required to pay to Company the Additional Payments (as defined in Schedule 2.03
to the Purchase Agreement), and Xxxxxxxxx is in default of such payments, or
(b) if Employee leaves the employ of the Company for good reason (as defined in
Section 5(e) of this Agreement), the non-competition provisions set forth
herein shall terminate.
Nothing herein contained, however, shall restrict the Employee from:
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(x) making any investments in any company (but without otherwise
participating in the activities of such company) whose stock is listed on a
national securities exchange or actively traded in the over-the-counter market,
as long as such investment does not give him the right to control or influence
the policy decisions of any such business or enterprise which is or might be
directly or indirectly in competition with any of such business operations or
activities of the Company or Xxxxxxxxx and does not involve the record or
beneficial ownership of more than 2% of the equity interests in such business
or enterprise;
(y) owning shares of capital stock of FSI, currently owned by the
Employee, and serving as a director or as an officer of FSI so long as the
Employee's acting as a shareholder, director and officer of FSI do not,
together with any activities under clause (z) below, materially interfere with
the Employee's duties and obligations under this Agreement and Employee shall
not invest in any Debt Financing (as defined in the Purchase Agreement) or
Equity or Equity Equivalent Securities (as defined in the Purchase Agreement)
of FSI other than his ownership of shares of capital stock of FSI as of the
date hereof, without the prior written consent of Xxxxxxxxx; and
(z) owning an equity interest (without otherwise being materially
involved so long as such non-material involvement, together with any activities
under clause (y) above, does not materially interfere with the Principal's
duties and obligations under this Agreement) in any entity which owns rights to
the so-called "AirFoil Recast" technology so long as such entity is not
utilizing the so-called "AirFoil Recast" technology in connection with the
refurbishing or repair of jet, turbo prop or other aircraft engines or jet,
turbo prop or other aircraft engine parts, or any other aircraft parts.
Termination of this Agreement or the provisions of this Section 7
shall in no way affect or diminish the obligations of the Employee pursuant to
the non-competition requirements contained in the Purchase Agreement.
8. RESTRICTION ON SOLICITATION. The Employee agrees that during the
Employment Period and for two (2) years thereafter he will not:
(i) directly or indirectly solicit, raid, entice or induce any
employee of the Company or Xxxxxxxxx to become an employee of any person, firm
or corporation which is, directly or indirectly, in competition with the
business or activities of the Company or Xxxxxxxxx;
(ii) directly or indirectly approach any such employee for these
purposes;
(iii) authorize or knowingly approve the taking of such actions by
other persons on behalf of any such person, firm or corporation, or assist any
such person, firm or corporation in taking such action; or
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(iv) directly or indirectly solicit, raid, entice or induce any
person, firm or corporation who or which on the date hereof is, or at the time
during his employment with the Company or Xxxxxxxxx shall be, a customer of the
Company or Xxxxxxxxx to become a customer for the same or similar products
which it purchased from the Company or Xxxxxxxxx, of any other person, firm or
corporation, and the Employee shall not approach any such customer for such
purpose or authorize or knowingly approve the taking of such actions by any
other person.
9. REMEDIES. The Employee hereby acknowledges that in the event of a
breach or threatened breach by him of the provisions of Section 6, 7 or 8 of
this Agreement, the Company or Xxxxxxxxx would suffer irreparable harm for
which there would be no adequate remedy at law. Accordingly, the Employee
agrees that in such event, in addition to any other remedies which the Company
or Xxxxxxxxx may have in law or in equity for money damages or other relief,
the Company or Xxxxxxxxx shall be entitled to temporary and/or injunctive
relief, without the necessity of proving damages, to enforce the provisions
hereof.
10. BOARD OF DIRECTORS. The Employee shall be elected as a member of the
Board and to the executive committee of the Company, if any, during the term
(including any renewals thereof) of this Agreement. All material decisions
regarding the Business (as defined in the Purchase Agreement) of the Company,
including the possible relocation of the Business following the Closing, shall
be taken by the Board and executive committee of the Company thereof, if any.
In addition, the parties anticipate, without intending to be legally bound
hereby, that the Employee's counsel will be sought on all material business
matters relating to the Business of the Company following the Closing (as
defined in the Purchase Agreement).
11. SUCCESSORS. This Agreement is personal to the Employee and without the
prior written consent of the Company shall not be assignable by the Employee.
The Company may assign its rights and obligations hereunder, provided that the
Company will require the assignee to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such assignment had taken place.
12. BINDING ARBITRATION. In the event that the Company and the Employee
cannot agree on an interpretation of any provision of this Agreement, or in the
event that either of the parties fails to make any payments or otherwise
fulfill any obligations required by the terms of this Agreement, the Company
and the Employee agree to resolve any such dispute through arbitration in New
York, New York under the rules then obtaining of the American Arbitration
Association in the State of New York.
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13. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
(b) The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.
(c) All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been given if sent by facsimile
transmission, delivered by overnight or other carrier service, or mailed,
certified first class mail, postage prepaid, return receipt requested, to the
parties hereto at the following addresses:
If to the Company, to:
Integrated Technology Holdings Corp.
00000 Xxxxxxxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Telecopier:
If to the Employee, to:
Xxxxxx Xxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
or to such other address as either party shall have furnished to the other in
accordance herewith.
(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(e) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
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(f) A party's failure to insist upon strict compliance with any
provision hereof shall not be deemed to be a waiver of such provision or any
other provision thereof.
(g) This Agreement embodies the entire agreement between the Company
and the Employee and supersedes all prior agreements and understandings, oral
or written, with respect to the subject matter hereof.
(h) This Agreement has been duly authorized by all required action on
behalf of the Company, is a valid and binding obligation of the Company, is
enforceable against the Company in accordance with its terms, and does not
violate the Company's Certificate of Incorporation, by-laws, or any material
agreement to which the Company is a party or by which it may be bound, or any
laws or regulations applicable to the Company.
(i) This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which, together, shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the Employee has hereunto set his hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
INTEGRATED TECHNOLOGY
HOLDINGS CORP.
By:
------------------------------------
Zivi X. Xxxxxx
President
EMPLOYEE
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Xxxxxx Xxxxxxx
The undersigned, Xxxxxxxxx Industries, Inc., hereby
guarantees all payments and obligations of the Company and its assignees under
this Agreement. Nothing herein shall constitute a waiver by Xxxxxxxxx
Industries, Inc. of any defense that the Company may have as a result of a
breach by the Employee of his obligations under this Agreement.
XXXXXXXXX INDUSTRIES, INC.
By:
------------------------------------
Zivi X. Xxxxxx
President and
Chief Executive Officer
