EMPLOYMENT AGREEMENT
Exhibit
10.4
THIS EMPLOYMENT AGREEMENT (the
“Agreement”), dated as of March 24, 2009, between Xxxxx XxXxxxxxxxxx, an
individual (the “Executive”), and Xxxxx Corporation (“Xxxxx”), a New York
corporation, recites and provides as follows:
WHEREAS, Xxxxx desires to continue to
retain the services of Executive, and Executive desires to continue to be
employed by Xxxxx, all on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the
foregoing premises and the mutual covenants herein contained, Xxxxx and
Executive agree as follows:
1. EMPLOYMENT
PERIOD. Xxxxx hereby agrees to continue to employ Executive, and
Executive hereby agrees to continue to be employed by Xxxxx, in accordance with
the terms and provisions of this Agreement, for the period commencing on March
24, 2009 ("the Effective Date") and ending at midnight on March 23, 2012 (the
"Employment Period"). The Employment Period shall be renewed automatically for
successive and consecutive periods of three (3) years (each such period a
“Renewal Term”, and each such Renewal Term constituting part of the Employment
Period) commencing at the third (3rd)
anniversary of the Effective Date and on each subsequent third (3rd)
anniversary thereafter, unless written notice that employment of Executive under
this Agreement will not be extended is given by either the Employee or the
Company not less that sixty (60) days prior the expiration of the then current
Employment Period.
2.
TERMS OF EMPLOYMENT.
(A) POSITION
AND DUTIES.
(i) During
the Employment Period, Executive shall serve as the Executive Vice President of
Xxxxx, and perform such duties and functions commensurate with such title as the
Board of Directors of Xxxxx (the “Board”), shall reasonably
determine. Executive’s services shall be performed principally at
Xxxxx’x headquarters in Lake Success, New York. However, from time to
time, Executive may also be required by his job responsibilities to travel on
Xxxxx business, and Executive agrees to do so. Executive shall not be
required to relocate from the Lake Success, New York area unless Xxxxx relocates
its corporate headquarters, in which event Executive may be required to relocate
to such location.
(ii) During
the Employment Period, Executive agrees to devote his full-time attention to the
business and affairs of Xxxxx and/or its subsidiaries. Executive’s
employment under this Agreement shall be Executive’s exclusive employment during
the Employment Period. Executive may not engage, directly or
indirectly, in any other business, investment, or activity that interferes with
Executive's performance of Executive's duties hereunder, is contrary to the
interest of Xxxxx or any of its subsidiaries, or requires any significant
portion of Executive's business time. The foregoing notwithstanding,
the parties recognize and agree that Executive may engage in personal
investments, other business activities and civic, charitable or religious
activities which do not conflict with the business and affairs of Xxxxx or
interfere with Executive's performance of his duties
hereunder. Executive may not serve on the board of directors of any
entity other than Xxxxx during the Employment Period without the written
approval of the Board. Executive shall be permitted to retain any
compensation received for approved service on any unaffiliated corporation's
board of directors.
(B) COMPENSATION.
(i) Base
Salary. During the Employment Period, Executive shall receive
a base salary ("Base Salary"), which shall be paid in equal installments on a
biweekly basis, at the rate of Two Hundred Seventy Nine Thousand Nine Hundred
Forty Five Dollars ($279,945) per annum. This base salary may be adjusted
annually at the discretion of Xxxxx’x Compensation Committee, with approval by
the Board.
(ii) Bonus. In
addition to Executive’s Base Salary, Executive may be granted bonus(es) at the
discretion of Xxxxx’x Compensation Committee, with approval by the
Board.
(iii) Expenses. During
the Employment Period, Executive shall be entitled to receive reimbursement or
seek direct payment to vendors for all employment-related expenses incurred by
Executive in accordance with the policies, practices and procedures of Xxxxx as
in effect generally from time to time after the Effective Date with respect to
executives of Xxxxx.
(iv) Vacation. During
the Employment Period, Executive shall be entitled to paid vacation as set forth
in Xxxxx’x Company Manual, which may be used in accordance with the policies,
programs and practices of Xxxxx, which are in effect generally from time to time
after the Effective Date with respect to other executives of Xxxxx.
(v) Sick
Leave. During the Employment Period, Executive shall be
entitled to be paid sick leave in accordance with the policies, programs and
practices of Xxxxx, which are in effect generally from time to time after the
Effective Date with respect to other executives of Xxxxx.
(vi) Car
Allowance. During the Employment Period, Executive shall be
entitled to a car allowance in accordance with Xxxxx’x car allowance policy, in
lieu of expenses associated with the operation of his own automobile. In the
alternative, in accordance with Xxxxx’x car allowance policy, Xxxxx may provide
Executive with the private use of a company owned or leased vehicle (if leased,
the lease cost up to the amount of the car allowance) and all expenses related
to such use (including, without limitation, gas and maintenance expenses) shall
be borne by Xxxxx.
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(vii)
Other
Benefits. During the Employment Period, Executive shall be
entitled to such health insurance and other benefits, as are provided generally
to other executives at Xxxxx, in accordance with the policies, programs and
practices of Xxxxx which are in effect from time to time after the Effective
Date.
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3.
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EARLY
TERMINATION OF EMPLOYMENT.
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(A) DEATH
OR DISABILITY. Executive’s employment shall terminate automatically
upon Executive’s death during the Employment Period. In the event
that Executive is disabled, as a result of mental or physical condition or
illness, and as such cannot perform the material functions of his job, even with
reasonable accommodation, for a total of ninety (90) consecutive days or for a
total of six (6) months (whether or not such six (6) months is consecutive)
during any twelve (12) consecutive month period, Executive’s employment may be
terminated by Xxxxx upon Xxxxx’x reasonable and good faith determination that
Executive is so disabled (“Disability Effective Date”). In the event
that Xxxxx intends to terminate the employment of Executive because of
disability, Xxxxx shall give the Executive no less than thirty (30) days’ prior
written notice of Xxxxx’x intention to terminate Executive’s
employment. In the event that Executive denies that he is disabled
from performing the material functions of his job, Executive may, within thirty
(30) days of the date of notice of Xxxxx’x intention to terminate, request that
his disability be determined by an independent, licensed physician selected by
Xxxxx or its insurers and acceptable to Executive, Executive’s acceptance of the
physician not to be unreasonably withheld. Promptly following such
request by Executive, Xxxxx shall arrange for an examination of Executive and
Executive shall cooperate fully in such examination. Executive shall remain
employed under all the terms, provisions and conditions of this Agreement, until
the physician determines in writing whether Executive is disabled from
performing the material functions of his job. In the event that the
physician determines that Executive is not disabled from performing the material
functions of his job, Executive shall continue with his employment under this
Agreement. In the event that the physician determines that Executive
is disabled from performing the material functions of his job, Executive’s
employment shall terminate upon such determination.
(B)
CAUSE. Xxxxx may terminate Executive’s employment during the
Employment Period for Cause by giving written notice to
Executive. For purposes of this Agreement, "Cause" shall mean and be
limited to (i) the conviction of Executive for committing an act of fraud,
embezzlement, theft or other act constituting a felony, or the guilty or nolo contendere plea of
Executive to such a felony; (ii) Xxxxx’x good faith determination corroborated
by independent evidence, or Executive’s admission, of Executive's performance of
any act or his failure to act, for which if he were prosecuted and convicted,
would amount to a felony involving money or property of Xxxxx or its
subsidiaries, or which would constitute a felony in the
jurisdiction where the act or failure to act has occurred; (iii)
material failure, neglect, or refusal by Executive properly to discharge,
perform or observe any or all of Executive’s job duties, provided Executive has
been given written notice of such failure, neglect or refusal, and has not cured
such within ten (10) days thereafter; or (iv) material breach of any of the
representations, warranties or covenants set forth in Sections 6 or 7 of this
Agreement.
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(C) GOOD
REASON. Executive may terminate his employment for Good Reason by giving written
notice to Xxxxx. For purposes of this Agreement, "Good Reason" shall mean, in
the absence of the consent of the Executive, a reasonable determination by the
Executive that any of the following has occurred:
(i) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive’s position (including title and reporting requirements,
authority, duties or responsibilities as contemplated by Section 2(A) of this
Agreement), or any other action by Xxxxx which results in a material diminution
in such position, authority, duties or responsibilities excluding for this
purpose an isolated and insubstantial action not taken in bad faith and which is
remedied by Xxxxx promptly after receipt of written notice thereof given by the
Executive;
(ii) following
a “Change of Control” (as hereinafter defined) or in the sixty (60) day period
immediately preceding a Change in Control (provided that Xxxxx had prior
knowledge during the period of the Change of Control), Xxxxx (a) reduces
Executive’s Base Salary, in one or a series of reductions, in excess of twenty
(20%) percent from Executive’s average Base Salary for the three (3) year period
immediately preceding the Change in Control or (b) requires Executive to
relocate from the Lake Success, New York area; or
(iii) any
failure by Xxxxx to comply with any of the provisions of this Agreement
applicable to Xxxxx, provided Xxxxx has been given written notice of such
failure, neglect or refusal, and has not cured such within ten (10) days
thereafter, other than any isolated and insubstantial failure not occurring in
bad faith and which is remedied promptly after written notice thereof from
Executive.
(D)
TERMINATION FOR OTHER REASONS. Xxxxx may terminate the employment of Executive
without Cause by giving written notice to Executive at least thirty (30) days
prior to the Date of Termination. Executive may resign from his employment
without Good Reason hereunder by giving written notice to Xxxxx at least thirty
(30) days prior to the Date of Termination.
(E) NOTICE
OF TERMINATION. Any termination shall be communicated by Notice of Termination
to the other party. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so
indicated, and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than fifteen (15) days after the giving of such notice, unless
otherwise required by Section 3(F)). The failure by Executive or Xxxxx to set
forth in the Notice of Termination any fact or circumstance shall not waive any
right of Executive or Xxxxx hereunder or preclude Executive or Xxxxx
from asserting such fact or circumstance in enforcing Executive's or Xxxxx'x
rights hereunder.
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(F)
DATE OF TERMINATION. "Date of Termination" shall mean (i) if Executive's
employment is terminated by Xxxxx for Cause, or by Executive for Good Reason,
(a) the date of delivery of written notice, if by personal delivery or overnight
carrier, (b) the next day after the date of transmission of written notice, if
transmitted by facsimile or e-mail, or (c) three (3) calendar days after the
date of mailing of written notice, if transmitted by first class mail; provided,
however, if a cure period applies, then the Date of Termination shall mean the
expiration date of said cure period if the breach is not cured; (ii) if
Executive’s employment is terminated by reason of Executive’s death or
disability, the date of death, or the effective date of disability as provided
herein above; or (iii) if Executive's employment is terminated by Xxxxx other
than for Cause, death, or Disability or by Executive other than for Good Reason,
the Date of Termination shall be the 30th day following the transmission of
Notice of Termination as specified in (D) of this
section.
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4.
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OBLIGATIONS
OF XXXXX UPON EARLY TERMINATION.
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(A)
WITHOUT CAUSE BY XXXXX OR FOR GOOD REASON BY EXECUTIVE. If, during the
Employment Period, Xxxxx shall terminate Executive's employment without Cause or
Executive shall terminate employment for Good Reason:
(i) Xxxxx
shall pay to Executive, within thirty (30) days after the Date of Termination,
any accrued base salary, vacation pay, expense reimbursement and any other
entitlements accrued by Executive under Section 2(B), to the extent not
previously paid (the sum of the amounts described in this subsection shall be
hereinafter referred to as the “Accrued Obligations”).
(ii) Xxxxx
shall continue to pay to Executive, in regular bi-weekly installments
Executive’s Base Salary under the Agreement for the duration of the Employment
Period. If Executive commences employment with another employer, or
if Executive engages in other work for compensation, then Xxxxx’x obligation to
pay bi-weekly installments shall be reduced or eliminated to the extent
Executive receives compensation from the other work other than with
Xxxxx.
(iii) Xxxxx
shall continue to provide benefits to Executive at least equal to those which
would have been provided to him in accordance with the plans, programs,
practices and policies which are generally applicable to other peer executives,
for the duration of the Employment Period (the “Welfare Benefit Continuation”).
Executive’s rights under Xxxxx’x benefit plans of general application shall be
determined under the provisions of those plans. If Executive commences
employment with another employer and is eligible to receive medical or other
welfare benefits under another employer-provider plan, the medical and other
welfare benefits to be provided by Xxxxx as described herein shall
terminate.
(iv) In
addition to the items specified in 4(A)(i) to (iii), Xxxxx may, in its
discretion, negotiate other mutually agreeable severance arrangements with
Executive in accordance with Section 4(F) below.
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(B)
DEATH. If Executive's employment is terminated by reason of Executive's death
during the Employment Period, this Agreement shall terminate without further
obligation to Executive's legal representatives under this Agreement, other than
for payment of Accrued Obligations (which shall be paid to Executive's estate or
beneficiary, as applicable, in a lump sum in cash within thirty (30) days of the
Date of Termination).
(C) CAUSE
BY XXXXX OR WITHOUT GOOD REASON. If Executive's employment shall be terminated
for Cause by Xxxxx or Executive terminates his employment without Good Reason
during the Employment Period, this Agreement shall terminate without further
obligations to Executive other than the obligation to pay to Executive the
Accrued Obligations and the amount of any compensation previously deferred by
Executive, in each case to the extent theretofore unpaid, all of which shall be
paid in cash within thirty (30) days of the Date of Termination.
(D) DISABILITY. If
Executive's employment shall be terminated by reason of Executive's disability
during the Employment Period, this Agreement shall terminate without further
obligation to Executive, other than for payment of Accrued Obligations and the
timely payment or provision of the Welfare Benefit Continuation. Accrued
Obligations shall be paid to Executive in a lump sum in cash within thirty (30)
days of the Date of Termination. Executive shall be entitled after the
Disability Effective Date to receive disability and other benefits as in effect
at the Disability Effective Date with respect to other peer executives of Xxxxx
and their families. In addition, Xxxxx shall continue to pay to
Executive in regular biweekly installments, Executive’s base salary under the
Agreement for a period of six (6) months following termination.
(E) WELFARE
BENEFIT CONTINUATION. In the event that Xxxxx is obligated hereunder to pay
Welfare Benefit Continuation to Executive following termination of Executive’s
employment, Xxxxx may satisfy its obligation to pay the medical insurance
component of the Welfare Benefit Continuation by advancing COBRA payments for
the benefit of Executive.
(F) NON-RENEWAL. In
the event that Xxxxx elects to not have this Agreement automatically renew in
accordance with the provisions of Section 1 hereof after the expiration of the
Employment Period (as the same may be extended by any Renewal Term), and
Executive does not remain in the employment of Xxxxx as an employee at will or
otherwise, or Executive’s employment is terminated by Xxxxx during the
Employment Period without cause or by Executive with Good Reason, then in any of
such events Xxxxx intends to continue its past practice of negotiating
appropriate, mutually agreeable severance arrangements for Xxxxx
executives. As in the past, Xxxxx shall have discretion as to the amount
of severance pay and related benefits that will be provided, as well as the
terms and conditions of such agreements, which severance arrangements shall be
in addition to, and not in lieu of, any severance compensation and benefits
expressly provided for in this Agreement.
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5.
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RIGHTS
AND OBLIGATIONS UPON A CHANGE IN
CONTROL
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In the event that following a “Change
in Control” (as defined in this Section 5) of Xxxxx during the Employment
Period: (a) the Executive is terminated without Cause within two (2) years after
the occurrence of a Change of Control, (b) the Executive terminates his
employment for Good Reason within two (2) years after the occurrence of a Change
of Control; or (c) Xxxxx or its successor elects to not have this Agreement
automatically renew on the first anniversary of the Agreement’s term following
the Change of Control, then Xxxxx shall pay the Executive an amount equal to:
(i) all Accrued Obligations; (ii) two (2) times the Executive’s Base Salary in
effect immediately prior to his termination and (iii) the amount of bonus, if
any, paid to the Executive for the fiscal year preceding the Change in Control.
Such payment shall be made in a lump sum payable on the date which is thirty
(30) days after the date of termination. Xxxxx shall also continue for such
period to permit the Executive to receive or participate at Xxxxx’x expense in
all fringe benefits available to him pursuant to Section 2 above for a period of
two (2) years after the termination of his employment; provided, however, in no event
shall the amount paid to the Executive pursuant to this Section 5 exceed the
maximum payment permitted by Section 280G of the Internal Revenue Code of 1986,
as amended (the “Code”) or then applicable law, and to the extent any “excess
parachute payment,” as that phrase is defined in Section 280G(b) of the Code or
then applicable law, would result from the provisions of this Section 5, then
the amount the Executive would otherwise receive shall be reduced so that no
“excess parachute payment” is made by Xxxxx or received by the
Executive.
A “Change in Control” of Xxxxx shall be
deemed to have occurred as of the first day that any one or more of the
following conditions shall have occurred:
(i)
any person (a
“Person”), as such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act (the “Act”) (other than (A) Xxxxx and/ or its wholly owned
subsidiaries; (B) any “employee stock ownership plan” (as that term is defined
in Code Section 4975(e)(7)) or other employee benefit plan of Xxxxx and any
trustee or other fiduciary in such capacity holding securities under such plan;
(C) any corporation owned, directly or indirectly, by the shareholders of Xxxxx
in substantially the same proportions as their ownership of stock of Xxxxx; or
(D) any other Person, who, within the one (1) year prior to the event which
would otherwise be a Change in Control, was an executive officer of the
Company), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under
the Act), directly or indirectly, of securities of Xxxxx representing 20% or
more of the combined voting power of Xxxxx’x then outstanding securities, or
such lesser percentage of voting power (but not less than 15%) as determined by
the Independent Directors of Xxxxx. For purposes hereof, Independent Director
shall be determined under the rules of The Nasdaq Stock Market;
(ii)
during any two
(2) year period the following persons shall cease for any reason to constitute
at least a majority of the Board of Directors: (i) directors of Xxxxx in office
at the beginning of such period and (ii) any new director whose election by the
Board of Directors, or whose nomination for election, was approved by a vote of
at least two-thirds of the directors still in office who were directors at the
beginning of the two (2) year period. Provided, however, any new director shall
not include a director designated by a Person who has entered into an agreement
with Xxxxx to effect a transaction described in subsections (i) or
(iii) hereof,
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(iii) the
consummation of (A) a consolidation or merger of Xxxxx in which Xxxxx is not the
continuing or surviving corporation or otherwise does not have control over the
combined entity or pursuant to which Xxxxx’x common stock would be converted
into cash, securities, and/or other property, other than a merger of Xxxxx in
which holders of common stock immediately prior to the merger have the same
proportionate ownership of voting securities of the surviving corporation
immediately after the merger as they had in the common stock immediately before;
or
(iv) any
sale, lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all or substantially all the assets or earning power of
Xxxxx; or
(v) Xxxxx’x
shareholders or Xxxxx’x Board of Directors approve the liquidation or
dissolution of Xxxxx.
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6.
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CONFIDENTIAL
INFORMATION.
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(A) “Confidential Information”
means any information concerning or referring in any way to the business of
Xxxxx disclosed to or acquired by the Executive through or as a consequence of
the Executive’s employment with Xxxxx. For purposes of this Agreement,
Confidential Information consists of information proprietary to Xxxxx which is
not generally known to the public and which in the ordinary course of business
is maintained by Xxxxx as confidential. By way of example and without
limitation, Confidential Information consists of computer software, trade
secrets, patents, inventions, copyrights, techniques, designs, and other
technical information in any way concerning or referring to scientific,
technical or mechanical aspects of Xxxxx’x products, concepts, processes,
machines, engineering, research and development. Confidential Information also
includes, without limitation, information in any way concerning or referring to
Xxxxx’x business methods, business plans, forecasts and projections, operations,
organizational structure, finances, customers, funding, pricing, costing,
marketing, purchasing, merchandising, sales, products, product information,
suppliers, customers, employees or their compensation, data processing, software
and all other information designated by Xxxxx as “confidential.” Confidential
Information shall not include any information or material that is or becomes
generally available to the public other than as a result of a wrongful
disclosure by (x) a person otherwise bound to the provisions hereof, or (y) any
person bound by a duty of confidentiality or similar duty owed to Xxxxx.
(B)
DUTY OF CONFIDENTIALITY. Executive will maintain in confidence and
will not, directly or indirectly, disclose or use (or allow others working with
or related to Executive to disclose or use), either during or after the term of
this Agreement, any Confidential Information belonging to Xxxxx, whether in
oral, written, electronic or permanent form, except solely to the extent
necessary to perform services on behalf of Xxxxx. In this regard, Executive is
expressly authorized to release confidential information to relevant
governmental agencies if counsel to Xxxxx reasonably determines that it is in
the best interest of Xxxxx. Upon termination of this Agreement, or at
the request of Xxxxx prior to its termination, Executive shall deliver forthwith
to Xxxxx all original Confidential Information (and all copies thereof) in
Executive’s possession or control belonging to Xxxxx and all tangible items
embodying or containing Confidential Information.
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(C) DOCUMENTS,
RECORDS, ETC. All documents, records, data, equipment and other
physical property, whether or not pertaining to Confidential Information, which
are furnished to Executive by Xxxxx or are produced by Executive in connection
with Executive’s services will be and remain the sole property of
Xxxxx. Executive will return to Xxxxx forthwith all such materials
and property upon the termination of this Agreement or sooner if requested by
Xxxxx.
(D)
ASSIGNMENT OF RIGHTS. Executive shall make full and prompt disclosure
to Xxxxx of any and all designs, intellectual property, software, inventions,
discoveries, or improvements (individually and collectively, "Inventions") made
by Executive as a result or product of his employment relationship with
Xxxxx. Executive hereby assigns to Xxxxx without additional
compensation the entire worldwide right, title and interest in and to such
Inventions, and related intellectual property rights and without limitation all
copyrights, copyright renewals or reversions, trademarks, trade names, trade
dress rights, industrial design, industrial model, inventions, priority rights,
patent rights, patent applications, patents, design patents and any other rights
or protections in connection therewith or related thereto, for exploitation in
any form or medium, of any kind or nature whatsoever, whether now known or
hereafter devised. To the extent that any work created by Executive
can be a work for hire pursuant to U.S. Copyright Law, the parties deem such
work a work for hire and Executive should be considered the author
thereof. Executive shall, at the request of Xxxxx, without additional
compensation from time to time execute, acknowledge and deliver to Xxxxx such
instruments and documents as Xxxxx may require to perfect, transfer and vest in
Xxxxx the entire right, title and interest in and to such
inventions. In the event that Executive does not timely perform such
obligations, Executive hereby makes Xxxxx and its officers his attorney-in-fact
and gives them the power of attorney to perform such obligations and to execute
such documents on Executive’s behalf. Executive shall cooperate with
Xxxxx upon Xxxxx’x request and at Xxxxx’x cost but without additional
compensation in the preparation and prosecution of patent, trademark, industrial
design and model, and copyright applications worldwide for protection of rights
to any Inventions.
(E)
INJUNCTIVE RELIEF. Executive acknowledges that a violation or
attempted violation on Executive’s part of any agreement in this Section 6 will
cause irreparable damage to Xxxxx, and accordingly, Executive agrees that Xxxxx
shall be entitled as a manner of right to an injunction from any court of
competent jurisdiction restraining any violation or further violation of such
agreement by Executive without the obligation of posting a bond; such right to
an injunction, however, shall be cumulative and in addition to whatever other
remedies that Xxxxx may have. Terms and agreements set forth in this
Section 6 shall survive the expiration or termination of this Agreement for any
reason. The existence of any claim of Executive, whether predicated
on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Xxxxx of the covenants contained in this Agreement.
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(F) This
Agreement supersedes any previous Confidentiality and Non-Disclosure Agreement
between the Executive and Xxxxx.
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7.
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NON-COMPETE;
NON-SOLICITATION.
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(A)
NON-COMPETE. For a period commencing on the
Effective Date hereof and ending one (1) year after the date Executive ceases to
be employed by Xxxxx (the "Non-Competition Period"), Executive shall not,
directly or indirectly, either for himself or any other person, own, manage,
control, materially participate in, invest in, permit his name to be used by,
act as consultant or advisor to, render material services for (alone or in
association with any person, firm, corporation or other business organization)
or otherwise assist in any manner any business which is a competitor of a
substantial portion of Xxxxx’x business or of the business of any subsidiary of
Xxxxx (collectively, a "Competitor"). Nothing herein shall prohibit
Executive from being a passive owner of not more than five percent (5%) of the
equity securities of a Competitor which is publicly traded, so long as he has no
active participation in the business of such Competitor.
(B)
NON-SOLICITATION. During the Non-Competition Period, Executive shall
not, directly or indirectly, (i) induce or attempt to induce or aid others in
inducing anyone working at Xxxxx to cease working at Xxxxx, or in any way
interfere with the relationship between Xxxxx and anyone working at Xxxxx except
in the proper exercise of Executive’s authority or (ii) in any way interfere
with the relationship between Xxxxx and any customer, supplier, licensee or
other business relation of Xxxxx.
(C)
SCOPE. If, at the time of enforcement of this Section 7, a court
shall hold that the duration, scope, area or other restrictions stated herein
are unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope, area or other restrictions reasonable under such
circumstances shall be substituted for the stated duration, scope, area or other
restrictions.
(D)
INDEPENDENT AGREEMENT. The covenants made in this Section 7 shall be
construed as an agreement independent of any other provisions of this Agreement,
and shall survive the termination of this Agreement. Moreover, the
existence of any claim or cause of action of Executive against Xxxxx or any of
its affiliates, whether or not predicated upon the terms of this Agreement,
shall not constitute a defense to the enforcement of these
covenants.
(E) NON-PAYMENT. The
material failure of Xxxxx to make any payments due to Executive under this
Agreement within fifteen (15) days written notice from Executive of such failure
shall be a defense to the enforceability of this Section 7 and shall xxx Xxxxx
from enforcing the provisions of this Section 7 against Executive until such
time as all sums lawfully due to Executive under this Agreement are paid to
Executive.
(F) This
Agreement supersedes any previous Confidentiality and Non-Disclosure Agreement
between the Executive and Xxxxx.
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8.
ARBITRATION. No dispute between Xxxxx (or any of its officers,
directors, employees, subsidiaries or affiliates) and Executive, which is in any
way related to the employment of Executive (including but not limited to claims
of wrongful termination; racial, sexual, age or other discrimination or
harassment; defamation; and other employment-related claims or allegations)
shall be the subject of a lawsuit filed in state or federal court. Instead, any
such dispute shall be submitted to binding arbitration before the American
Arbitration Association (“AAA”) or any other individual or organization on which
the parties agree or which a court may appoint. Notwithstanding the above,
either Xxxxx or Executive may file with an appropriate state or federal court a
claim for injunctive relief in any case where the filing party seeks provisional
injunctive relief or where permanent injunctive relief is not available in
arbitration. The filing of a claim for injunctive relief in state or
federal court shall not allow either party to raise any other claim outside of
arbitration. It is understood that both sides are hereby waiving the right to a
jury trial.
The arbitration shall be initiated in
Nassau County, New York and shall be administered by AAA under its commercial
arbitration rules before a single arbitrator that shall be mutually agreed upon
by the parties hereto. If the parties cannot agree on a single
arbitrator, then an arbitrator shall be selected in accordance with the rules of
AAA. The arbitration must be filed within one (1) year of the act or
omission which gives rise to the claim. Each party shall be entitled
to take one deposition, and to take any other discovery as is permitted by the
Arbitrator. In determining the extent of discovery, the Arbitrator shall
exercise discretion, but shall consider the expense of the desired discovery and
the importance of the discovery to a just adjudication.
The Arbitrator shall render an award
which conforms to the facts, as supported by competent evidence (except that the
Arbitrator may accept written declarations under penalty of perjury, in addition
to live testimony), and the law as it would be applied by a court sitting in the
State of New York. The cost of arbitration shall be advanced equally
by the parties; however, the Arbitrator shall have the power, in his discretion,
to award some or all of the costs of arbitration and reasonable attorneys’ fees
to the prevailing party. Any party may apply to a court of competent
jurisdiction for entry of judgment on the arbitration award.
9.
NO CONFLICTING OBLIGATIONS OF EXECUTIVE.
Executive represents and warrants that
he is not subject to any duties or restrictions under any prior agreement with
any previous employer or other person or entity, and that he has no rights or
obligations which may conflict with the interests of Xxxxx or with the
performance of Executive’s duties and obligations under this
Agreement. Executive agrees to notify Xxxxx immediately if any such
conflicts occur in the future.
10.
SUCCESSORS.
(A)
This Agreement is personal to Executive and shall not be assignable by
Executive.
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(B)
This Agreement shall inure to the benefit of Xxxxx and its successors and
assigns. Xxxxx may assign this Agreement to any successor or
affiliated entity, subsidiary, sibling, or parent company.
11. MISCELLANEOUS
(A)
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without reference to the principles of conflict of
laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement contains the
full and complete understanding between the parties hereto and supersedes all
prior understandings, whether written or oral pertaining to the subject matter
hereof. This Agreement may not be amended or modified otherwise than
by written agreement executed by Executive and by the designated representative
of the Board.
(B) All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, or by facsimile, or by e-mail, or by
hand delivery to such address as either party shall have furnished to the other
in writing in accordance herewith. Notice may be given to Xxxxx or
Executive as follows:
|
Executive:
|
Xxxxx:
|
|
Xxxxx
XxXxxxxxxxxx
|
Xxxxxxx
X. Xxxxxxxx
|
|
00
Xxxxxxxx Xxxxx
|
Chairman
and CEO
|
|
Xxxxxxx,
XX 00000
|
Xxx
Xxxxxx Xxxx
|
|
Xxxx
Xxxxxxx, XX 1104
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Notice
to Xxxxx also must be given to:
|
|
|
Xxxxxxx
X. Xxxxxxx, Esq.
|
|
|
Xxxxxxx
& Xxxxxxxxx, LLP
|
|
|
00
Xxxxxx Xxxx Xxxx
|
|
|
Xxxxx
Xxxx, Xxx Xxxx 00000
|
|
|
Facsimile:
(000) 000-0000
|
(C) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(D) Xxxxx
may withhold from any amounts payable under this Agreement such federal, state
or local taxes as shall be required to be withheld pursuant to any applicable
law or regulation.
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(E) The
failure of either party to insist upon strict compliance with any provision of
this Agreement, or the failure to assert any right either party may have
hereunder, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
IN WITNESS WHEREOF, Executive
has hereunto set Executive’s hand and, pursuant to the authorization from its
Board of Directors, Xxxxx has caused these presents to be executed in its name
on its behalf, all as of the day and year first above written.
|
XXXXX
CORPORATION,
|
EXECUTIVE
|
|||
|
a
New York Corporation
|
||||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | /s/ Xxxxx XxXxxxxxxxxx | ||
|
Name:
Xxxxxxx Xxxxxxxx
|
XXXXX
XXXXXXXXXXXX
|
|||
|
Its: Chief
Executive Officer
|
||||
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