EMPLOYMENT AGREEMENT
EXHIBIT
99.1
EMPLOYMENT
AGREEMENT (the “Agreement”), dated as of December 27, 2006, by and between
Arkados Group, Inc., a Delaware corporation (the “Company”), and Xxxxxxx
Xxxx-Xxxxx (the “Executive”).
W
I T N E S S E T H:
WHEREAS,
the Company and the Executive desire to enter into this Agreement as to the
terms of Executive’s employment with the Company;
NOW,
THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. Term
of Employment. Subject to the terms and conditions of this
Agreement, the Company hereby employs the Executive as VP of Finance and
Controller, and the Executive hereby agrees to serve the Company in such
capacity for the term commencing on January 15, 2007 (the “Effective Date”) and
ending December 31, 2007 (the “Initial Employment Term”), unless sooner
terminated as provided herein. Subject to Section 6 hereof, the
Initial Employment Term shall be automatically extended for additional
successive one (1) year periods (each, an “Additional Employment Term”) unless
the Company or Executive gives written notice of non-renewal to the other at
least sixty (60) days prior to the expiration of the Initial Employment Term
or
then Additional Employment Term (“Non-Renewal Notice”). The Initial
Employment Term and the Additional Employment Term(s) collectively shall be
referred to herein as the “Employment Term.”
2. Positions/Duties.
(a) Executive
shall serve as VP of Finance and Controller of the Company, and shall perform
such duties, consistent with her positions, as are assigned to the Executive
from time to time by the Company’s principal executive officer (“CEO”) and the
Company’s Board of Directors (“Board”). On or before March 30, 2007,
the Board shall determine whether the Executive shall assume the duties and
title of Chief Financial Officer and the Executive will accept such
responsibilities, if so assigned, including those relating to the certification
of periodic reports filed by the Company with the U.S. Securities and Exchange
Commission.
(b) Executive
shall report to the CEO. The Executive, at the reasonable request of the Board
of Directors of CDK (the “Board”), shall serve as an officer or director of the
Company or its subsidiaries and other entities in which the Company has
significant interest.
(c) During
the Employment Term, except during vacation periods or absences due to temporary
illness, Executive shall devote all of her business time and efforts to the
performance of her duties hereunder; provided, however, the Executive shall
be
permitted, to the extent that such activities do not create a conflict of
interest with the Company or materially interfere with the performance of her
duties and responsibilities hereunder, to manage her personal and family
financial affairs and to serve on civic, not-for-
profit
or
charitable industry boards and advisory committees. Executive may not
serve on any other boards of for-profit companies or advisory committees without
obtaining the prior written consent of the Board, which consent may be
unreasonably withheld for any reason in the Board’s sole
discretion. Except for business trips that shall be necessary or
desirable in the Company’s business, the Executive shall perform her duties and
responsibilities hereunder at the principal offices of the Company, or at such
other locations as the CEO reasonably deems necessary for the proper performance
of such duties and responsibilities.
3. Compensation. For
all services to be rendered by the Executive in any capacity during the
Employment Term, including, without limitation, services as an employee,
officer, director or member of any committee of the Company and its direct
or
indirect subsidiaries, divisions and affiliates, including duties of a chief
financial officer of a public company, the Executive shall be paid the following
compensation:
(a) Base
Salary. During the Employment Term, the Company shall pay the
Executive a base salary at the annual rate of $135,000 (“Base
Salary”), which shall be payable in accordance with the usual payroll practices
of the Company.
(b) Discretionary
Bonus. At the sole discretion of the Board, the Executive
may receive a bonus based upon performance.
(c) Stock
Options. Executive will be granted the following non-qualified
stock options pursuant to the Company’s 2004 Stock Option and Restricted Stock
Option Plan, or if such plan at the time of grant no longer has shares eligible
for grant, such other plan as the Company then adopts that permits the issuance
of non-qualified stock options (the “Plans”):
(i) An
initial seven-year option (the “Bonus Option”) to purchase up to 100,000 shares
of CDK common stock at an exercise price fixed as the fair market value of
the
Company’s common stock on the day preceding the grant. This initial
option shall vest and shall be exercisable by Executive in accordance with
the
Plans as follows: 33,333 on and after the first anniversary of the
Effective Date, 33,333 on and after the second anniversary of the Effective
Date, and 33,334 on and after the third anniversary of the Effective
Date.
(ii) The
Board, in its sole discretion, may grant such additional options to Executive
as
it deems appropriate.
(d) Incentive
Compensation. During the Employment Term, the Executive shall be
eligible to receive an annual discretionary bonus based on the attainment of
performance goals reasonably established by the Board (or the Compensation
Committee thereof), in its sole discretion.
4. Executive
Benefits and Vacation.
(a) During
the Employment Term, the Executive shall be entitled to participate in all
Executive benefit plans, fringe benefits and perquisites generally provided
to
senior Executives of the Company, and to the same extent as any and all
Executive benefit programs of the Company from time to time in effect are
generally available to the
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Company’s
senior executive, including, but not limited to health (which shall include
an
annual physical and which shall cover the Executive’s dependents and a 401(k)
plan, when available. The waiting period for health insurance will be
waived, or if it cannot under the terms of the Company’s plan be waived, the
Company will bear the cost of continuing Executive’s former employer’s coverage
pursuant to COBRA.
(b) During
the Employment Term, the Executive shall be entitled to three weeks paid
vacation each calendar year in accordance with the Company’s policies in effect
from time to time. Up to five unused vacation days may be carried
forward to the following year of the Term and salary for up to five unused
days
shall be payable upon the Termination or Expiration of this Agreement. Such
vacation days shall be used at times and dates reasonably acceptable to the
Company and the Executive.
5. Business
Expenses. The Company shall reimburse Executive for the
reasonable travel, entertainment and other business expenses incurred by
Executive in the performance of her duties hereunder, in accordance with the
Company’s normal expense reimbursement policies applicable to its Executives in
general and to Executives of the same or equivalent rank.
6. Termination.
(a) The
employment of the Executive under this Agreement shall terminate upon the
earliest to occur of any of the following events:
(i) the
death
of the Executive;
(ii) the
termination of the Executive’s employment by the Company due to the Executive’s
Disability pursuant to Section 6(b) hereof;
(iii) the
termination of employment following a Change of Control without cause pursuant
to Section 6(c) hereof;
(iv) the
voluntary resignation by the Executive pursuant to Section 6(d)
hereof;
(v) the
termination of the Executive’s employment by the Company for Cause pursuant to
Section 6(e) hereof;
(vi) the
termination of the Executive’s employment by the Company without Cause pursuant
to Section 6(f) hereof; or
(vii) at
the
end of the Employment Term following the giving of a timely Non-Renewal Notice
by either party.
(b) Disability. If
by reason of physical or mental illness or incapacity the Executive has been
unable to carry out her material duties pursuant to this Agreement (with
reasonable accommodation) for more than 90 consecutive days during any rolling
12-month period, the Company may terminate Executive’s employment for
“Disability.” Such
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termination
shall be upon 30 days written notice given within a reasonable time following
the Executive’s Disability.
(c) Termination
on Change of Control. The Executive’s employment hereunder may be
terminated by the Company (or an entity that is a successor to the Company)
by
written notice to the Executive upon the occurrence of a Change of Control.
For
purposes of this Agreement, “Change of Control” means (i) the acquisition,
directly or indirectly, following the date hereof by any person (as such term
is
defined in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as
amended), in one transaction or a series of related transactions, of securities
of the Company representing in excess of fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities if such person or her
or its affiliate(s) do not own in excess of 50% of such voting power on the
date
of this Agreement, or (ii) the sale or transfer by the Company (whether direct
or indirect, by sale of assets or stock, merger, consolidation or otherwise)
of
all or substantially all of its business and/or assets in one transaction or
series of related transactions (other than a merger effected exclusively for
the
purpose of changing the domicile of the Company).
(d) Voluntary
Resignation by the Executive without Good Reason. The Executive
may voluntarily resign without Good Reason upon 60 days prior written notice
to
the Company.
(e) Termination
for Cause. (i) The Company may terminate this Agreement for Cause
by giving written notice in accordance with subsection (ii) below within 15
days
after the occurrence of the Cause event, unless such circumstances are fully
corrected by the Executive as provided in subsection (ii) below. For
purposes of this Agreement, the term “Cause” shall mean any of the following
acts or events: (A) the Executive’s gross negligence, gross
dereliction of duty, willful misconduct or repeated material failure of
Executive to render services to the Company in accordance with her assigned
duties; (B) the Executive’s conviction of, or plea of nolo contendere,
to a felony (other than a felony involving a traffic violation); (C) the
Executive’s disloyalty, dishonesty or the commission by Executive of an act of
fraud, embezzlement or willful disregard of the rules or policies of the
Company, any of which results in loss, damage or injury to the Company, whether
directly or indirectly; (D) a material breach by the Executive of any provision
of this Agreement or any other material breach of any agreement entered into
with the Company; (E) sexual harassment by the Executive which has been
reasonably substantial and in violation of the Company’s then existing policy
regarding sexual harassment and substantiated by an independent investigation
of
an investigator mutually selected by the Company and the Executive. In the
event
the parties are unable to mutually agree upon an investigator to conduct the
investigation, then the Company shall select an investigator, the Executive
shall select and investigator and the investigators selected by the Company
and
the Executive shall mutually select a third investigator. The mutually selected
investigator selected by the Company and the Executive, or in the event the
Company and Executive were unable to agree on an investigator, the three
investigators shall cause to be conducted a full and complete investigation
into
the allegations of sexual abuse, using generally accepted investigatory
procedures, to determine the validity of the sexual harassment allegations
and
render a written report to both the Company and the Executive. In the event
the
independent investigation determines that the Executive engaged in reasonably
substantial sexual harassment in violation of the Company’s then existing policy
regarding sexual
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harassment,
such determination shall constitute “cause” for termination; (F) the willful and
malicious physical destruction of substantial property or asset(s) of the
Company by, or caused by, the Executive; (G) appropriation of business
opportunities of the Company by the Executive for the direct or indirect
personal gain of the Executive or members of her family without the prior
written consent of the Board; or (H) the Executive causing the Company to enter
into transactions or arrangements with the Executive, in her capacity as an
individual and not as an Executive of the Company, or a person or entity
affiliated therewith, which results in direct or indirect personal gain to
the
Executive or members of her family without the prior written consent of the
Board, provided, however, that this shall not include the employment of the
Executive by the Company or its affiliates. For purposes of this
paragraph, no act, or failure to act, on the Executive’s part shall be
considered “willful” unless such act, or failure to act, is in bad faith or
without reasonable belief that her action or omission was in the best interests
of the Company.
(ii) The
Company shall provide the Executive with a written notice of termination for
Cause, which shall indicate the specific termination provision in subsection
(i)
relied upon and shall set forth in reasonable detail the facts and circumstances
which provide for a basis for termination for Cause. The date of
termination for a termination for Cause shall be the date indicated in the
notice of termination. The Executive shall have 15 days from the
receipt of such notice of termination to cure the facts and circumstances
leading to the giving of such notice.
(f) Termination
without Cause. Except as otherwise provided herein, the Company
may terminate the Executive’s employment upon 30 days prior written notice to
the Executive for reasons other than Cause (and other than by reason of the
Executive’s Disability).
7. Consequences
of Termination of Employment.
(a) Death. If
the Executive’s employment is terminated by reason of the Executive’s death, the
Employment Term shall terminate without further obligations to the Executive’s
legal representatives under this Agreement except for: (i) any bonus
if declared or earned but not yet paid for a completed fiscal year (the “Unpaid
Bonus”), any amount of Base Salary earned but unpaid, through the date of the
Executive’s death, and any unreimbursed business expenses payable pursuant to
Section 5, which amounts shall be promptly paid in a lump sum to Executive’s
estate (collectively the “Accrued Amounts”); and (ii) any other amounts or
benefits owing to the Executive under the then applicable Executive benefit
or
equity plans of the Company in accordance with the terms of such
plans.
(b) Disability. If
Executive’s employment is terminated by the Company by reason of the Executive’s
Disability, the Executive shall be entitled to receive the payments and benefits
provided for in subsection (c) below.
(c) Termination
as a Result of a Change of Control. If the Executive’s employment
is terminated by the Company following a Change of Control without cause, then
the Executive shall receive the following payments and benefits from the
Company: (A)
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continued
payment of the Executive’s Base Salary in effect at the date of termination for
three (3) months, which shall be payable in equal, consecutive monthly
installments commencing on the date of termination; (B) payment of the
Executive’s (and her dependents’) Consolidated Omnibus Budget and Reconciliation
Act of 1985, as amended (“COBRA”) coverage premiums to the extent, and so long
as, they remain eligible for COBRA for up to three (3) months, provided,
however, such payments shall cease if the Executive becomes eligible to receive
medical coverage from a subsequent employer; and (C) any other amounts or
benefits owing to the Executive under the then applicable Executive benefit
or
equity plans of the Company, in accordance with the terms of such
plans. The Executive shall also promptly receive the Accrued Amounts
from the Company.
(d) Termination
for Cause; Voluntary Resignation; or Non-Extension of Employment
Term. If the Executive’s employment hereunder is terminated by
the Company for Cause, by the Executive without Good Reason or as a result
of
non-extension of the Employment Term, the Executive shall be entitled to receive
only the Accrued Amounts from the Company. The Executive’s rights
under all Executive benefit and equity plans shall be determined in accordance
with the applicable plan.
8. No
Mitigation; No Offset. In the event of any termination of
employment hereunder, the Executive shall be under no obligation to seek other
employment and there shall be no offset against any amounts due the Executive
under this Agreement on account of any remuneration attributable to any
subsequent employment that the Executive may obtain. Any amounts due
under Section 9 are in the nature of severance payments and are not in the
nature of a penalty. Such amounts are inclusive, and in lieu of, any
amounts payable under any other salary continuation or severance arrangement
of
the Company and to the extent paid or provided under any other such arrangement,
shall be offset from the amount due hereunder.
9. Restrictive
Covenants. Executive acknowledges and agrees that as a result of
her employment by the Company, the Executive will have the opportunity to obtain
confidential information as to the Company and its affiliates, that they will
suffer substantial damage, which would be difficult to ascertain, if the
Executive should use such confidential information, and that because of the
nature of the information that will be known to the Executive it is necessary
for the Company and its affiliates to be protected by the confidentiality
restrictions set forth herein. Executive further acknowledges and
agrees with the Company that, as a result of her employment by the Company,
the
Executive will have the opportunity to develop relationships with existing
Executives, customers and other business associates of the Company, which
relationships constitute “goodwill” of the Company and its affiliates, and the
Executive acknowledges and agrees that the Company and its affiliates would
be
irreparably damaged if the Executive were to take actions that would damage
or
misappropriate such “goodwill.”
(a) Confidential
Information. During and after the Employment Term, the Executive
shall not (except in connection with the performance of her duties hereunder)
disclose to any third-party any Confidential Information (as defined below)
relating to the Company or its affiliates (and their respective businesses)
that
was obtained by the Executive during her employment by the Company, and shall
not use such Confidential Information for
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her
own
benefit if such use would violate the provisions of Section 9(d). For
purposes of this Agreement, Confidential Information means: (i) any information
which is proprietary or unique to the Company or its affiliates (or their
businesses), whether or not identified as being confidential, including, but
not
limited to, trade secret information, matters of a technical nature such as
processes, systems, functional specifications, blueprints, computer programs,
know-how, improvements, discoveries, designs, inventions, devices, techniques,
data and formulas, research subjects and results; (ii) information of a
strategic nature, including, but not limited to, any information with respect
to
marketing methods, plans and strategies, distribution channels, forecasts,
products, operations, revenues, unpublished financial statements, expenses,
budgets, projections, profits, sales, key personnel, customers (including
customer lists and customer contacts), suppliers, costs and pricing policies;
(iii) information as to Executives and consultants, including, but not limited
to, capabilities, competence, status with the Company and compensation levels;
and (iv) any information, whether communicated to Executive in written,
electronic or oral form, where the Company or an affiliate has indicated the
confidential nature of such information to the
Executive. Confidential Information shall not include information:
(x) that is otherwise public knowledge or known within the applicable industry,
(y) that has become available to the Executive on a non-confidential basis
from
a source which is not prohibited from disclosing such information to the
Executive by a legal, contractual or fiduciary obligation to the Company, or
(z)
compelled to be disclosed pursuant to the order of a court or other governmental
or legal body having jurisdiction over such matter. In the event the
Executive is compelled by order of a court or other governmental or legal body
to communicate or divulge any Confidential Information other than as permitted
herein, the Executive shall promptly notify the Company’s General Counsel or
Board of any such order so that the Company may seek a protective
order.
(b) Return
of Company Property. Upon termination of the Executive’s
employment with the Company, or at any time as the Company may request, the
Executive shall promptly deliver to the Company, as requested, all documents
(whether prepared by the Company, an affiliate, the Executive or a third party)
relating to the Company, any affiliate of the Company or any of their businesses
or property, which were delivered to or acquired by the Executive by or on
behalf of the Company or any of its affiliates, but other than documents
provided to the Executive in her capacity as a participant in any Executive
benefit plan of the Company and any agreement by and between Executive and
the
Company with regard to the Executive’s employment or severance.
(c) Non-Competition. During
the Employment Term and for the one-year period immediately thereafter (the
“Covenant Period”), Executive shall not, directly or indirectly, as an
individual proprietor, partner, stockholder, officer, Executive, director,
joint
venturer, investor, lender, consultant or in any capacity whatsoever, engage
in
any Competitive Activity within the United States and any other geographical
area in which the Company or any of its affiliates is then engaged in a
Competitive Activity. As
used
herein, “Competitive Activity” means researching,
designing, manufacturing, marketing, or selling semiconductors
for high-speed transmission of multimedia, voice, and data traffic over AC
electrical wires or any related business activity which the Company or its
affiliates begins within 6 months after the end of the Employment
Term. Nothing herein shall prevent the Executive from: (i) a
passive ownership interest of not more than three percent (3%) of the
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total
outstanding stock of a publicly held company; or (ii) engaging in any
Competitive Activity with the prior written consent of the Board.
(d) Non-solicitation/Nondisparagement. Executive
agrees that during the Covenant Period, the Executive shall not, directly or
indirectly, either for himself or for any other person or entity: (i) hire,
retain, recruit, solicit or induce any non-clerical Executive of the
Company or any affiliate to terminate (or otherwise reduce) their relationship
with the Company or any affiliate; (ii) solicit or induce any person or entity
(including, without limitation, any customer or supplier) to terminate, or
otherwise to cease, reduce, or diminish in any way its relationship (or
prospective relationship) with the Company or any affiliate; or (iii) make
any
disparaging statements concerning the Company or any affiliate or their
officers, directors or Executives, to the public or any vendor, supplier,
customer, distributor, Executive, consultant or other business associate of
the
Company or affiliate of the Company. During the Covenant Period,
neither the Company nor its affiliates shall make any disparaging statements
concerning the Executive to the public or any vendor, supplier, customer,
distributor, Executive, consultant or other business associate of the Company
or
affiliate of the Company.
(e) Injunctive
Relief, etc. Executive understands that the foregoing
restrictions may limit the Executive’s ability to earn a livelihood in a
business similar to the business of the Company, but the Executive nevertheless
believes that the Executive will receive sufficient consideration and other
benefits as provided hereunder to clearly justify such restrictions which,
in
any event (given the Executive’s education, skills and ability), the Executive
does not believe would prevent her from otherwise earning a living.
(f) Notwithstanding
the foregoing, if at any time a court holds that the restrictions provided
herein are unreasonable or otherwise unenforceable under circumstances then
existing, the parties hereto agree that the maximum period, scope or geographic
area determined to be reasonable under such circumstances by such court shall
be
substituted for the stated period, scope or area provided herein.
(g) In
the
event of a breach or potential breach of this Section 9, the Executive
acknowledges that the Company and its affiliates will be caused irreparable
injury and that money damages may not be an adequate remedy and agree that
the
Company and its affiliates shall be entitled to injunctive relief (in addition
to its other remedies at law) to have the provisions of this Section 9
enforced. In the event of a material breach of this Section 9 by the
Executive, the Executive shall pay to the Company, as liquidated damages, an
amount equal to the payments, if any, made to the Executive received pursuant
to
Section 7 (other than Accrued Amounts), and neither party shall have any further
obligation to the other party under this Agreement.
10. Assignment
of Inventions.
(a) The
Executive acknowledges and agrees that all ideas, methods, inventions,
discoveries, improvements, work products or developments, whether patentable
or
unpatentable, that relate to the Executive’s work with the Company, made or
conceived by the Executive, solely or jointly with others, while employed by
the
Company (collectively,
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“Inventions”),
shall belong exclusively to the Company (or its designee), whether or not patent
applications are filed thereon; provided that any such Inventions which are
made, disclosed, reduced to tangible or written form or description or are
reduced to practice by the Executive any time within one year after the
Employment Term and which pertain to the business carried on or products or
services being sold or developed by the Company or any of its affiliates at
the
time of the expiration or termination of the Employment Term and which were,
or
are derived from, Inventions worked on or developed by the Executive while
employed by the Company, shall be presumed to have been made during such
employment.
(b) The
Executive shall assign to the Company such Inventions and all patents that
may
issue thereon in any and all countries, whether during or subsequent to the
Employment Term, together with the right to file, in the Executive’s name or in
the name of the Company (or its designee), applications for patents and
equivalent rights (the “Applications”). The Executive shall, at any
time during and subsequent to the Employment Term, make such applications,
sign
such papers, take all rightful oaths, and perform all acts as may be reasonably
requested from time to time by the Company with respect to the Inventions,
and
the Executive shall also execute assignments to the Company (or its designee)
of
the Applications, and give the Company and its attorneys all reasonable
assistance (including the giving of testimony) to obtain the Inventions for
its
benefit; provided, however, the Executive shall be reasonably compensated for
her time and reimbursed for any out-of-pocket expenses incurred (including
reasonable attorneys’ fees) in rendering such assistance or giving or
preparing to give such testimony. The Executive shall also provide
any information, such as passwords or codes, necessary to allow the Company
to
fully utilize its property.
(c) The
Inventions will be deemed Work for Hire, as such term is defined under the
copyright law of the United States, on behalf of the Company, and the Executive
agrees that the Company will be the sole owner of the Inventions, and all
underlying rights therein, in all media now known or hereinafter devised,
throughout the universe and in perpetuity without any further obligations to
the
Executive. If the Inventions, or any portion thereof, are deemed not
to be Work for Hire, the Executive hereby irrevocably conveys, transfers and
assigns to the Company, all rights, in all media now known or hereinafter
devised, throughout the universe and in perpetuity, in and to the Inventions,
including without limitation, all of the Executive’s rights, title and interests
in the copyrights (and all renewals, revivals and extensions thereof) to the
Inventions, including without limitation, all rights of any kind or any nature
now or hereafter recognized, including without limitation, the unrestricted
right to make modifications, adaptations and revisions to the Inventions, to
exploit and allow others to exploit the Inventions and all rights to xxx at
law
or in equity for any infringement, or other unauthorized use or conduct in
derogation of the Inventions, known or unknown, prior to the date hereof,
including without limitation the right to receive all proceeds and damages
therefrom. In addition, the Executive hereby waives any so-called
“moral rights” with respect to the Inventions.
(d) The
Executive hereby waives any and all currently existing and future monetary
rights in and to the Inventions and all patents that may issue thereon,
including, without limitation, any rights that would otherwise accrue to the
Executive’s benefit by virtue of the Executive being an Executive of, or other
service provider to, the Company.
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11. Cooperation. The
Executive agrees that during, and within two (2) years after, the Employment
Term, the Executive shall, at the reasonable request of the Company, render
cooperation that is necessary or advisable, in the Company’s good faith
discretion, in connection with any litigation or claim involving the Company
(or
any affiliate) or any of their directors, officers, Executives, shareholders,
agents, representatives, consultants, clients or vendors, in which the Executive
may have knowledge of the subject matter of the dispute; provided that the
Company shall reasonably compensate the Executive for her time, and reimburse
the Executive for any out-of-pocket expenses (including reasonable attorneys’
fees) incurred, in connection with such cooperation.
12. Arbitration.
All
disputes and controversies arising under or in connection with this Agreement,
other than the seeking of injunctive or other equitable relief pursuant to
Section 9 hereof, shall be settled by arbitration conducted before one (1)
arbitrator sitting in Somerset County, New Jersey, or such other location agreed
by the parties hereto, in accordance with the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association then in
effect. The determination of the arbitrator shall be final and
binding on the parties. Judgment may be entered on the award of the
arbitrator in any court having proper jurisdiction. All expenses of
such arbitration, including the fees and expenses of the counsel of the
Executive, shall be borne by each respective party.
13. Miscellaneous.
(a) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without reference to
principles of conflict of laws.
(b) Entire
Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of Executive by
the
Company and supersedes any prior agreements between the Company and Executive
regarding same. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth herein and
therein. This Agreement may not be altered, modified, or amended
except by written instrument signed by the parties hereto.
(c) No
Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
of
such party’s rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this
Agreement. Any such waiver must be in writing and signed by the
Executive or an authorized officer of the Company, as the case may
be.
(d) Assignment. This
Agreement shall not be assignable by Executive, provided that any amount due
Executive hereunder shall, in the event of her death, be paid to her estate
or
her designated beneficiary. This Agreement shall be assignable by the
Company only to an acquirer of all or substantially all of the assets of the
Company,
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provided
such acquirer promptly assumes all of the obligations hereunder of the Company
in a writing delivered to the Executive.
(e) Successors;
Binding Agreement; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees legatees and permitted assignees of the parties hereto.
(f) Communications. For
the purpose of this Agreement, notices and all other communications provided
for
in this Agreement shall be in writing and shall be deemed to have been duly
given: (i) when faxed or personally delivered or (ii) one (1) business day
after
being sent by reputable “overnight” courier, postage prepaid, addressed to the
addresses set forth below or to such other address as any party may have
furnished to the other in writing in accordance herewith. Notice of
change of address shall be effective only upon receipt.
If
to the Executive, to
Xxxxxxx
Xxxx-Xxxxx
__________________
__________________
Fax:
______________
If
to the
Company, to:
000
Xxx
Xxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Fax: (000)
000-0000
with
a
copy to:
Xxxxxx
& Xxxxxxxxx LLP
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000
Fax: (000)
000-0000
(g) Withholding
Taxes. The Company may withhold from any and all amounts payable
under this Agreement such Federal, state and local taxes as may be required
to
be withheld pursuant to any applicable law or regulation.
(h) Survivorship. The
respective rights and obligations of the parties hereunder, including, without
limitation, Sections 9 and 11 hereof, shall survive the termination of the
Executive’s employment to the extent necessary to the agreed preservation of
such rights and obligations.
11
(i) Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
(j) Headings. The
headings of the sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of
any
provision of this Agreement.
[SIGNATURE
PAGE FOLLOWS]
12
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
ARKADOS,
INC.
/s/
Xxxx Lognivov
By:
______________________________
Name: Xxxx
Xxxxxxxx
Title: President
/s/
Xxxxxxx Xxxx-Xxxxx
______________________________
Xxxxxxx
Xxxx-Xxxxx
13
