EXHIBIT 10.11
EMPLOYMENT AGREEMENT
AGREEMENT made this 23rd day of October, 2000, by and between
XXXXXX.XXX LTD., a Delaware corporation (the "Company"), and XXXXX XXXXXXXX
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive and the
Executive wishes to accept such employment upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive during the Term specified
in paragraph 2, and the Executive agrees to accept such employment, upon the
terms and conditions hereinafter set forth.
2. TERM
Subject to paragraphs 6 and 7 below and the other terms and
conditions of this Agreement, the Executive's employment by the Company shall be
for a term commencing on November 1, 2000 and expiring on the close of business
on November 1, 2003 (the "Initial Term"); provided, however, that the term of
the Executive's employment by the Company shall be automatically renewed for
successive three-year periods thereafter (each, an "Additional Term") unless and
until either party shall give to the other no more than 270 days and no less
than 6 months advance written notice of expiration of the term (a "Notice of
Non-Renewal ") (the Initial Term and any Additional Terms are collectively
referred to as the " Term"). The Company shall have the right at any time during
such notice period (the "Notice Period" ), to relieve the Executive of his
offices, duties and responsibilities and to place him on a paid leave-of-absence
status, provided that during such notice period the Executive shall remain a
full-time employee of the Company and shall continue to receive his salary
compensation and other benefits as provided in this Agreement. The effective
date of the termination of the Executive's employment with the Company,
regardless of the reason therefor (including without limitation death), is
referred to in this Agreement as the "Date of Termination."
3. DUTIES AND RESPONSIBILITIES
(a) During the Term, the Executive shall have the position of Vice
President, General Counsel. The Executive shall report to the Chief Financial
Officer of the Company (the "CFO"), at such times and in such detail as the CFO
shall require.
(b) The Executive shall perform such executive and managerial duties
and responsibilities customary to his offices and as are necessary to the
operations of the Company and its subsidiaries and as may be assigned to him
from time to time by or under authority of the CFO or the Chief Executive
Officer of the Company ("CEO"), consistent with his position as designated in
paragraph 3(a) above.
(c) The Executive (i) will use his best efforts to ensure that the
Company and its subsidiaries comply on a timely basis with all budgetary and
reporting requirements requested by the CEO and/or CFO and (ii) will not incur
obligations on behalf of the Company or any subsidiary other than in the
ordinary course of business or enter into any transaction on behalf of the
Company or any subsidiary not in the ordinary course of business without the
written approval of the CEO.
(d) The Executive's employment by the Company shall be full-time and
exclusive, and during the Term, the Executive agrees that he will (i) devote all
of his business time and attention, his best efforts, and all of his skill and
ability to promote the interests of the Company and its subsidiaries, (ii) carry
out his duties in a competent and professional manner, and (iii) work with other
employees of the Company and its subsidiaries in a competent and professional
manner. Notwithstanding the foregoing, the Executive shall be permitted to
engage in charitable and civic activities, and manage his personal passive
investments, provided that such passive investments are not in a company which
transacts business with the Company or one of its subsidiaries or engages in
business competitive with that conducted by the Company or one of its
subsidiaries (or, if such company does transact business with the Company or a
subsidiary or does engage in a competitive business, it is a publicly held
corporation of which the Executive owns less than 1/4 of 1% of its outstanding
shares); provided, that such activities (individually or collectively) do not
interfere with the performance of the Executive's duties and responsibilities
under this Agreement.
(e) During the Term, the Executive's services hereunder shall be
performed at the offices of the Company in New York, New York, subject to
necessary travel requirements of his position and duties hereunder.
4. COMPENSATION
(a) As compensation for his services hereunder and in consideration
of his non-solicitation/non-servicing and non-disclosure covenants as set forth
in paragraph 8 below, during the Term the Company shall pay the Executive in
accordance with its normal payroll practices an annualized base salary of
$215,000. The Executive's base salary may be increased (but not decreased) by or
under the authority of the CFO in accordance with the then salary review policy
of the Company and within the guidelines and budgetary procedures of the
Company.
(b) In addition to the salary compensation set forth in clause (a),
during the Term the Executive shall be eligible to receive an annual
discretionary bonus up to $100,000. The discretionary bonus will be contingent
upon the Executive's performance, measured in part against the performance
objectives delineated by the CFO. If the Executive receives a discretionary
bonus in any given year, it will be payable on the anniversary of his start
date. Nonetheless, no bonus payments will be made unless the Executive is an
active employee in good standing with the Company.
(c) Executive will receive 100,000 Company stock options. These
stock options will be granted with a strike price set at the value of the stock
at the market's close on the Executive's start date. The stock options will vest
over a three year period, with one-third vesting on each of the three
anniversaries of Executive's start date with the Company, unless the Company
experiences a change in control, in which case Executive's stock options will
fully vest upon that change of control. However, if Executive's employment
terminates prior to November 1, 2003, Executive will not be entitled to the
stock options which have not vested as of the Date of Termination. Executive
shall be eligible for additional stock options at the sole discretion of the CEO
throughout his career with the Company based upon Executive's performance.
(d) The bonuses provided in this paragraph 2 for the Executive shall
be in lieu of participation by the Executive in any other Company-sponsored
bonus plan or program.
5. EXPENSES; FRINGE BENEFITS
(a) The Company agrees to pay or to reimburse the Executive for all
reasonable, ordinary and necessary documented business or entertainment expenses
incurred during the Term in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect. The
Executive, as a condition precedent to obtaining such payment or reimbursement,
shall provide to the Company any and all statements, bills or receipts
evidencing the travel or out-of-pocket expenses for which the Executive seeks
payment or reimbursement, and any other information or materials, as the Company
may from time to time reasonably require.
(b) During the Term, the Executive and, to the extent eligible, his
dependents, shall be entitled to participate in and receive all benefits under
any welfare benefit plans and programs made available generally to the Company's
senior executives or to its employees (including without limitation, medical,
disability and life insurance programs, accidental death and dismemberment
protection and business travel insurance), subject, however, to the generally
applicable eligibility and other provisions of the various plans and programs in
effect from time to time.
(c) During the Term, the Executive shall be eligible to participate
in all retirement plans and programs (including without limitation any profit
sharing/401(k) plan) and stock option and restricted stock plans made available
generally to the Company's senior executives or to its employees generally,
subject, however, to the generally applicable eligibility and other provisions
of the various plans and programs in effect from time to time. In addition,
during the Term, the Executive shall be entitled to receive fringe benefits and
perquisites in accordance with the plans, practices, programs and policies of
the Company from time to time in effect which are made available generally to
the Company's senior executives or to its employees generally.
(d) The Executive shall be entitled to 4 weeks paid vacation
annually (on a non-cumulative basis, except as otherwise provided under standard
Company policy), to be taken at such time(s) as shall not, in the reasonable
judgment of the CEO and/or the CFO, materially interfere with the Executive's
fulfillment of his duties hereunder, and shall be entitled to as many holidays,
sick days and personal days as are in accordance with the Company's policy then
in effect generally for its employees.
6. TERMINATION
(a) The Company, by direction of the CFO, shall be entitled to
terminate the Term and to discharge the Executive for "cause" effective upon the
giving of written notice. The term "cause" shall be limited to the following
grounds:
(i) the Executive's failure or refusal to perform his duties and
responsibilities as set forth in paragraph 3 hereof other than by reason of his
disability (as defined in paragraph 7 below), or the failure of the Executive to
devote his attention exclusively to the business and affairs of the Company and
its subsidiaries in accordance with the terms hereof (other than by reason of
his disability), in each case if such failure or refusal is not cured within 30
days after written notice thereof to the Executive by the Company;
(ii) the misappropriation of the funds or property of the Company or any
subsidiary or affiliate;
(iii) use of alcohol or illegal drugs, interfering with the performance of
the Executive's obligations under this Agreement, continuing after written
warning;
(iv) conviction in a court of law of, or entering a plea of guilty or no
contest to, any felony or any crime involving moral turpitude, dishonesty or
theft;
(v) nonconformance with the Company's standard business practices and
policies;
(vi) the commission in bad faith by the Executive of any act which injures
or could reasonably be expected to injure the reputation, business or business
relationships of the Company or any subsidiary; and
(vii) any breach (not covered by any of the clauses (i) through (vi)
above) of any term, provision or condition of this Agreement, if such breach is
not cured (if curable) within 30 days after written notice thereof to the
Executive by the Company.
Any notice required to be given by the Company pursuant to clause (i) or (vii)
above shall specify the specific nature of the claimed breach and the manner in
which the Company requires such breach to be cured (if curable).
(b) Provided that the Executive is not then otherwise in breach of
this Agreement, the Executive shall be entitled to terminate this Agreement and
the Term hereunder for "Good Reason" at any time during the Term by written
notice to the Company. "Good Reason" shall be limited to a breach by the Company
of a material term of this Agreement, which breach remains uncured for a period
of 30 days after written notice of such breach from the Executive to the Company
(such notice to specify the specific nature of the claimed breach and the manner
in which the Executive requires such breach to be cured).
(c) In the event of the termination of the employment of the
Executive with the Company as a result of a termination pursuant to a Notice of
Non-Renewal under paragraph 2 above, a voluntary resignation by the Executive,
termination by the Company for "cause", or as a result of termination due to
death or disability, the Executive shall be entitled to the following payments
and benefits, subject to any appropriate offsets, as permitted by applicable
law, for debts or money due to the Company or a subsidiary or affiliate thereof
(collectively, "Offsets"):
(i) unpaid salary compensation and any unused accrued vacation only
through, and any unpaid reimbursable expenses outstanding as of, the Date of
Termination;
(ii) all benefits, if any, that had accrued to the Executive through the
Date of Termination under the plans and programs described in paragraphs 5(b)
and (c) above, or any other applicable plans
and programs in which he participated as an employee of the Company, and all
amounts earned, accrued or owing to the Executive through the Date of
Termination under any incentive compensation plan or program in which he
participated as an employee of the Company, in the manner and in accordance with
the terms of such plans and programs; and
(iii) the right to exercise any vested option shall be determined in
accordance with the terms of the plan under which such option was granted.
In the event of the termination of the Executive's employment as a result of a
termination pursuant to a Notice of Non-Renewal properly given under paragraph 2
above, a voluntary resignation by the Executive, termination by the Company for
"cause," death or disability, except as provided in this paragraph 6(c), OR
OTHERWISE PROVIDED BY LAW, the Company shall have no further liability to the
Executive or the Executive's heirs, beneficiaries or estate for damages,
compensation, benefits, severance, indemnities or other amounts of whatever
nature, directly or indirectly, arising out of or otherwise related to this
Agreement and the Executive's employment or cessation of employment with the
Company.
(d) The Company shall have the right at any time during the Term to
terminate the employment of the Executive "without cause" by giving written
notice to the Executive indicating that the Company has terminated the Agreement
"without cause" under this paragraph 6(d) and setting forth the Date of
Termination. It is understood and agreed that a termination pursuant to a Notice
of Non-Renewal properly given pursuant to paragraph 2 shall not be deemed to be
a termination "without cause". In the event of a termination by the Company
"without cause" or a termination by the Executive for "Good Reason," the
Executive shall be entitled to continue to receive from the Company, subject to
any Offsets, the following:
(i) as severance compensation, his then applicable base salary for NINE
months following the Date of Termination;
(ii) any unpaid reimbursable expenses outstanding, and any unused accrued
vacation, as of the Date of Termination;
(iii) all benefits, if any, that had accrued to the Executive through the
Date of Termination under the plans and programs described in paragraphs 5(b)
and (c) above, or any other applicable benefit plans and programs in which he
participated as an employee of the Company, and all amounts earned, accrued or
owing to the Executive through the Date of Termination under any incentive
compensation plan in which he participated as an employee of the Company, in the
manner and in accordance with the terms of such plans and programs;
(iv) continued participation on the same basis (including without
limitation, cost contributions) as the other senior executives of the Company in
all medical, dental, disability and life insurance coverage (such benefits
collectively called the "Continued Plans") in which he was participating on the
Date of Termination (as such Continued Plans are from time to time in effect at
the Company) until the earlier of (x) the end of the period that he receives
severance compensation payments under clause (i) of this paragraph 6(d) or (y)
the date, or dates, he is entitled to receive coverage and benefits under the
same type of plan of a subsequent employer; provided, however, if the Executive
is precluded from continuing his participation in any Continued Plan, the
after-tax economic equivalent of the benefits provided under the Continued Plan
in which he is unable to participate, for the period specified above, it being
understood that the economic equivalent of a benefit foregone shall be deemed
the lowest cost that would be incurred by the Executive in obtaining such
benefit himself on an individual basis, and payment of such after-tax economic
benefit shall be made quarterly in advance; and
(v) the right to exercise any vested option shall be determined in
accordance with the terms of the plan under which such option was granted;
provided, however, that the vesting of those options theretofore granted to the
Executive and which would have vested during the twelve month period
following the Date of Termination as set forth in Section 6(d), shall be
accelerated to precede the Date of Termination.
In connection with a termination by theCompany "without cause" or by the
Executive for "Good Reason", except as provided in this paragraph 6(d), the
Company shall have no further liability to the Executive or the Executive's
heirs, beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amounts of whatever nature, directly or indirectly, arising
out of or otherwise related to this Agreement and the Executive's employment or
cessation of employment with the Company.
The making of any severance payments and providing the other benefits as
provided in this paragraph 6(d) is conditioned upon the Executive signing a
general release of the Company and its subsidiaries and affiliates, and its and
their respective successors and assigns, officers directors, employees, agents,
attorneys and representatives, of any claims (including claims of
discrimination) relating to the Executive's employment with the Company or the
termination thereof; except such release shall preserve the Executive's rights
with respect to the payments and benefits to be received pursuant to this
paragraph 6(d) and the Executive's rights of indemnification under the Company's
organizational documents and any separate director or officer indemnification
agreement with the Company to which he may be a party. If the Executive breaches
any provisions of such release or the provisions of paragraph 8 of this
Agreement, in addition to any other remedies at law or in equity available to
it, the Company may cease making any further severance payments and providing
the other benefits provided for in this paragraph 6(d), without affecting its
rights under this Agreement or the release .
7. DISABILITY; DEATH
In the event the Executive shall be unable to perform his duties
hereunder by virtue of illness or physical or mental incapacity or disability
(from any cause or causes whatsoever) in the manner and to the extent required
hereunder prior to the commencement of such disability (all such causes being
herein referred to as "disability") and the Executive shall fail to perform such
duties for periods aggregating 270 days, whether or not continuous, in any
continuous period of 360 days, the Company shall have the right to terminate the
Executive's employment hereunder as at the end of any calendar month during the
continuance of such disability upon at least 30 days' prior written notice to
him. In the event of the Executive's death, the Date of Termination shall be the
date of such death.
8. NON-SOLICITATION/NON-SERVICING AGREEMENT
AND PROTECTION OF CONFIDENTIAL INFORMATION
(a) The Executive acknowledges (i) the highly competitive nature of
the Company's business and the industry in which the Company competes; (ii) that
as a key executive of the Company he has participated in and will continue to
participate in the servicing of current clients of the Company and/or the
solicitation of prospective clients of the Company, through which, among other
things, the Executive has obtained and will continue to obtain knowledge of the
"know-how" and business practices of the Company, in which matters the Company
has a substantial proprietary interest; (iii) that his employment hereunder
requires the performance of services which are special, unique, extraordinary
and intellectual in character, and his position with the Company placed and
places him in a position of confidence and trust with the clients and employees
of the Company; and (iv) that his rendering of services to the clients of the
Company necessarily requires the disclosure to the Executive of confidential
information (as defined in paragraph 8(b) below) of the Company. In the course
of the Executive's employment with the Company, the Executive has and will
continue to develop a personal relationship with the clients of the Company and
a knowledge of those clients' affairs and requirements, and that the
relationship of the Company with its established clientele has been and will
continue to be placed in the Executive's hands in confidence and trust. The
Executive consequently agrees that it is reasonable and necessary for the
protection of the confidential information, goodwill and business of the Company
that the Executive make the covenants contained herein and that the Company
would not have entered into this Agreement unless the covenants set forth in
this paragraph 8 were contained in this Agreement. Accordingly, the Executive
agrees that during the period that he is employed by the Company and thereafter
through the later of November 1, 2003 or two years after the Date of
Termination, he shall not, as an individual, consultant, partner, shareholder,
employee or in any other capacity whatsoever, or in association with any other
person, business or enterprise, except on behalf of the Company, directly or
indirectly, and regardless of the reason for his ceasing to be employed by the
Company:
(i) attempt in any manner to solicit or accept from any client business of
the type performed by the Company or to persuade any client to cease to do
business or to reduce the amount of business which any such client has
customarily done or is reasonably expected to do with the Company, whether or
not the relationship between the Company and such client was originally
established in whole or in part through his efforts; or
(ii) employ as an employee or retain as a consultant any person who is
then or at any time during the preceding twelve months was an employee of or
exclusive consultant to the Company, or persuade or attempt to persuade any
employee of or exclusive consultant to the Company to leave the employ of the
Company or to become employed as an employee or retained as a consultant by
anyone other than the Company or,
(iii) render to or for any client any services of the type rendered by the
Company.
As used in this paragraph 8, the term "Company" shall mean the Company and each
of its subsidiaries and affiliates and the term "client" shall mean (1) anyone
who is a client of the Company on the Date of Termination or, if the Executive's
employment shall not have terminated, at the time of the alleged prohibited
conduct (any such applicable date being called the "Determination Date"); (2)
anyone who is a client of the Company at any time during the one year period
immediately preceding the Determination Date; (3) any prospective client to whom
the Company had made a new business presentation (or similar offering of
services) at any time during the one year period immediately preceding the
Determination Date, and (4) any prospective client to whom the Company made a
new business presentation (or similar offering of services) at any time within
six months after the Date of Termination. For purposes of this clause, it is
agreed that a "new business presentation or similar offering of services" or a
"discussion" does not include general mailings, telephone solicitations,
unsolicited credentials presentations not responding to requests for proposals
or incidental contacts. In addition, if the client is part of a group of
companies which conducts business through more than one entity, division or
operating unit, whether or not separately incorporated (a "Client Group"), the
term "client" as used herein shall include each entity, division and operating
unit of the Client Group where the same management group of the Client Group
has the decision making authority with respect to contracting for services of
the type rendered by the Company, but shall not include any part of the Client
Group where the management group is not the same management group that has the
decision making authority or significant influence with respect to contracting
for services of the type rendered by the Company.
(b) In the course of the Executive's employment with the Company he
will acquire and have access to confidential or proprietary information about
the Company and/or its clients, including but not limited to, trade secrets,
methods, models, passwords, access to computer files, financial information and
records, computer software programs, agreements and/or contracts between the
Company and its clients, client contacts, the marketing and/or creative policies
and ideas, advertising campaigns, media plans and budgets, practices, concepts,
strategies, and methods of operations, financial or business projections of the
Company, and information about or received from clients and other companies with
which the Company does business. The foregoing shall be collectively referred to
as "confidential information." The Executive is aware that the confidential
information is not readily available to the public and accordingly, the
Executive also agrees that he will not at any time (whether during the Term or
after termination of this Agreement), disclose to anyone any confidential
information, or utilize such confidential information for his own benefit, or
for the benefit of third parties. The Executive agrees that the foregoing
restrictions shall apply whether or not any such information is marked
"confidential." The term "confidential information" does not include information
which (i) becomes generally available to the public other than by breach of this
provision or (ii) the Executive learns from a third party who is not under an
obligation of confidence to the Company or a client of the Company or (iii) the
Executive's personnel files or personal materials. In the event that the
Executive becomes legally required to disclose any confidential information, he
will provide the Company with prompt notice thereof so that the Company may seek
a protective order or other appropriate remedy and/or waive compliance with the
provisions of this paragraph 8(b) to permit a particular disclosure. In the
event that such protective order or other remedy is not obtained, or that the
Company waives compliance with the provisions of this paragraph 8(b) to permit a
particular disclosure, the Executive will furnish only that portion of the
confidential information which he is legally required to disclose and, at the
Company's expense, will cooperate with the efforts of the Company to obtain a
protective order or other reliable assurance that confidential treatment will be
accorded the confidential information. The Executive further agrees that all
memoranda, disks, files, notes, records or other documents, whether in
electronic form or hard copy (collectively, the "material") compiled by him or
made available to him during his employment with the Company (whether or not the
material contains confidential information) shall be the property of the Company
and shall be delivered to the Company on the termination of the Executive's
employment with the Company or at any other time upon request. Except in
connection with the Executive's employment with the Company, the Executive
agrees that he will not make or retain copies or excerpts of the material.
(c) If the Executive commits a breach or is about to commit a
breach, of any of the provisions of paragraphs 8(a) or (b) above, the Company
shall have the right to SEEK TO have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction without being
required to post bond or other security and without having to prove the
inadequacy of the available remedies at law, it being acknowledged and agreed
that any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company. In addition, the Company may take all such other actions and remedies
available to it under law or in equity and shall be entitled to such damages as
it can show they have sustained by reason of such breach. IN ANY ACTION BROUGHT
BY THE COMPANY AGAINST EXECUTIVE UNDER THIS PARAGRAPH 8, EACH PARTY SHALL BE
RESPONSIBLE FOR AND SHALL BEAR ITS OWN LEGAL FEES AND OTHER EXPENSES.
(d) The parties acknowledge that (i) the type and periods of
restriction imposed in the provisions of paragraphs 8(a) and (b) above are fair
and reasonable and are reasonably required in order to protect and maintain the
proprietary interests of the Company described above, other legitimate business
interests of the Company and the goodwill associated with the business of the
Company, (ii) that the business of the Company currently extends throughout the
United States and other areas of the world, and that the Executive will engage
in such business pursuant to the terms of this Agreement throughout the United
States and other areas of the world, and (iii) that the time, scope, geographic
area
and other provisions of this paragraph 8 have been specifically negotiated by
sophisticated commercial parties. It is further understood and agreed that the
clients of the Company may be serviced from any location and accordingly it is
reasonable that the covenants set forth herein are not limited by narrow
geographic area but instead by the location of such clients and potential
clients. The Executive specifically acknowledges that his being restricted from
soliciting clients and servicing clients and prospective clients as contemplated
by AND DEFINED in this Agreement will not prevent him from being employed or
earning a livelihood in the type of business conducted by the Company. If any of
the covenants contained in paragraphs 8(a) or (b), or any part thereof, is held
to be unenforceable by reason of its extending for too great a period of time or
over too great a geographic area or by reason of its being too extensive in any
other respect, the parties agree (x) such covenant shall be interpreted to
extend only over the maximum period of time for which it may be enforceable
and/or over the maximum geographic areas as to which it may be enforceable
and/or to the maximum extent in all other respects as to which it may be
enforceable, all as determined by the court making such determination and (y) in
its reduced form, such covenant shall then be enforceable, but such reduced form
of agreement shall only apply with respect to the operation of this paragraph 8
in the particular jurisdiction in which such adjudication is made.
9. INTELLECTUAL PROPERTY
During the Term, the Executive will disclose to the Company all ideas,
inventions and business plans developed by him during such period which relate
directly or indirectly to the business of the Company and its subsidiaries,
including without limitation, any design, logo, slogan, advertising campaign or
any process, operation, product or improvement which may be patentable or
copyrightable. The Executive agrees that all patents, licenses, copyrights,
tradenames, trademarks, service marks, planning, marketing and/or creative
policies, advertising campaigns, media campaigns, and budgets, practices,
concepts, strategies, and methods of operations, financial or business
projections, designs, logos, slogans and business plans developed or created by
the Executive in the course of his employment hereunder, either individually or
in collaboration with others, will be deemed works for hire and the sole and
absolute property of the Company. The Executive agrees, that at the Company's
request and expense, he will take all steps necessary to secure the rights
thereto to the Company by patent, copyright or otherwise.
10. ENFORCEABILITY
The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other party's
right to enforce the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by any party of the breach of any provision
hereof be taken or held to be a waiver of any subsequent breach of such
provision or as a waiver of the provision itself.
11. ASSIGNMENT
This Agreement is a personal contract and the Executive's rights and
obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company.
12. MODIFICATION
This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the CEO and the Executive.
13. SEVERABILITY; SURVIVAL
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall nevertheless be binding upon
the parties with the same effect as though the invalid or unenforceable part had
been severed and deleted. The respective rights and obligations of the parties
hereunder shall survive the termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
14. LIFE INSURANCE
The Executive agrees that the Company shall have the right to obtain
life insurance on the Executive's life, at the sole expense of the Company, as
the case may be, and with the Company as the sole beneficiary thereof. The
Executive shall (a) cooperate fully in obtaining such life insurance, (b) sign
any necessary consents, applications and other related forms or documents and
(c) at the Company's expense, take any required medical examinations.
15. NOTICE
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon personal delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission (if electronically confirmed) or prepaid overnight
courier service, and in each case, addressed as follows:
IF TO THE EXECUTIVE:
Xxxxx Xxxxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
IF TO THE COMPANY:
XXXXXX.XXX LTD.
00 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
SEYFARTH XXXX
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without application of conflict of law
provisions applicable therein.
17. NO CONFLICT
The Executive represents and warrants that he is not subject to any
agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
18. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company
and the Executive with respect to the subject matter hereof, and all prior
agreements, plans and arrangements relating to the employment of the Executive
by the Company are nullified and superseded hereby.
19. HEADINGS
The headings contained in this Agreement are for reference purposes
only, and shall not affect the meaning or interpretation of this Agreement.
20. MISCELLANEOUS
(a) The Company 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.
(b) Following the date hereof and regardless of any dispute that may
arise in the future, the Executive will not disparage the Company; and the
Company will not disparage the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
XXXXXX.XXX LTD.
By:
-----------------------------
Xxxxxxx Xxxxxxx Date
Chief Financial Officer
EXECUTIVE
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Xxxxx Xxxxxxxx Date
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