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EXHIBIT 10.8
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, (this "Agreement"), is made and entered into
this day of , 1998 by and between Xxxxxx Xxxxxxxx (the
"Executive") and American Bank Note Holographics, Inc., a Delaware corporation
(the "Company").
R E C I T A L
WHEREAS, the Company desires to retain the Executive to render executive
and managerial services and the Executive desires to render such services; and
WHEREAS, the Company and the Executive desire to set forth herein the terms
and conditions on which the Company will employ the Executive, and the Executive
will accept employment with the Company.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises set forth in this
Agreement and intending to be legally bound, Executive and the Company agree as
follows:
SECTION 1. EMPLOYMENT. The Company hereby employs Executive and Executive
hereby accepts such employment and agrees to render services to the Company,
upon the terms and conditions set forth in this Agreement.
SECTION 2. POSITION AND DUTIES. Executive shall assume the responsibilities
and perform the duties of Chairman of the Board of Directors (the "Board") and
Chief Executive Officer of the Company. Executive agrees to devote a sufficient
portion of his business time, attention, skill and best efforts to the diligent
performance of his duties hereunder and shall be loyal to the Company and its
affiliates and subsidiaries, and use his best efforts to further their
interests. In the performance of his duties, Executive agrees to abide by and
comply with all policies, practices, handbooks, procedures and guidelines which
are now in effect or which the Company may adopt, modify, supplement or change
from time to time.
SECTION 3. TERM OF EMPLOYMENT. (a) The term of employment hereunder shall
commence on July , 1998 and shall continue thereafter until the earlier of (i)
December 31, 2000 or (ii) termination pursuant to Section 10 hereof (the
"Employment Term"). This Agreement shall be automatically renewed for an
additional period of two years, unless the Company gives written notice at least
six (6) months prior to the end of the Employment Term of its election to
terminate such employment at the end of such Employment Term. Notwithstanding
the foregoing, if the Executive's employment is terminated pursuant to Section
10 of this agreement, the automatic renewal provided herein shall be of no
further effect as of the date of the termination.
(b) In the event Executive's employment is not renewed, the Company will
pay to the Executive an amount equal to the average earnings of the Executive
for the prior two years (including Salary, Bonus and the value of options to
purchase shares of Common Stock previously granted).
SECTION 4. EXCLUSIVITY. Except in connection with the Executive's duties for
American Banknote Corporation, during the term of Executive's employment with
the Company, Executive shall not without the prior written consent of the Board
(i) perform any managerial, sales, marketing or technical services directly or
indirectly for any person or entity competing directly or indirectly with the
Company or any of its subsidiaries in the holography business; (ii) perform any
such services for any entity owned, directly or indirectly, by anyone competing,
either directly or indirectly, with the Company or any of its subsidiaries in
the holography business; (iii) on his own behalf or that of any other person or
entity, compete, either directly or indirectly, with the Company or any of its
subsidiaries, to sell any products or services marketed or offered by the
Company or any of its subsidiaries; (iv) engage or become interested, directly
or indirectly, as owner, employer, partner, consultant, through stock ownership
(except ownership of less than one percent of the
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number of shares outstanding of any securities which are listed for trading on
any securities exchange, provided that the specific nature and amount of the
investment, if over $10,000, shall be immediately disclosed to the Company in
writing), investment of capital, lending of money or property, or otherwise
either alone or in association with others, in the operation of any type of
business or enterprise which conflicts or interferes with the performance of
Executive's services hereunder or (v) engage in any activities which could
reasonably be deemed to be a conflict of interest with his duties hereunder or
his obligations to the Company.
SECTION 5. COMPENSATION AND BENEFITS.
(a) Salary. As compensation for the performance of the Executive's
services hereunder, during the Employment Term, the Company will pay to the
Executive (i) an annual base salary of $1.00 per annum (the "Salary") and (ii)
an annual bonus (the "Bonus") based on performance measures of the Company
including but not limited to pre-tax earnings, return on equity, increase in
share price and increases in sales, payable at the sole discretion of the Board
or a committee designated by the Board to make such determination (the
"Compensation Committee"), provided however, that any Bonus in excess of
$999,999 is paid pursuant to the attainment of pre-established target
performance measures of the Company in accordance with the Bonus Plan of the
Company as in effect on , 1998 which may be amended from time to
time or terminated by the independent directors of the Company, or an option or
long-term incentive plan which qualifies as a "performance based" plan in
accordance with Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"). Any bonus for which the Executive shall be eligible, shall be
determined from time to time by the Board (or the Compensation Committee) in its
sole discretion. The Executive's Salary will be payable in accordance with the
customary payroll practices of the Company for its senior management personnel.
(b) Benefits. During the Employment Term, the Executive shall be eligible
to participate, on the same basis and subject to the same qualifications as
other senior management personnel of the Company, in any pension, profit
sharing, savings, bonus, life insurance, health insurance, hospitalization,
dental, drug prescription, disability, accidental death and dismemberment and
other benefit plans and policies as may from time to time be in effect with
respect to senior management personnel of the Company (collectively, the
"Benefits"). The Executive shall also be entitled to vacation days (including
the right to accrue unused vacation time from year to year), holidays and sick
days in accordance with the policies of the Company as may be in effect from
time to time; provided however, that upon termination of Executive's employment
for any reason (including resignation by the Executive), the Company shall pay
Executive for accrued vacation time unused as of the last date of employment, on
a pro rated basis calculated on the basis of the Executive's Salary and Bonus in
effect on the date of termination.
(c) Stock Options. Upon the occurrence of an initial public offering of
the Company's common stock, par value $0.01 per share (the "Common Stock") , the
Executive shall be granted stock options to purchase up to 400,000 shares of the
Common Stock, pursuant to the Company's 1998 Incentive Stock Option Plan, dated
as of July , 1998 (the "1998 Plan"), at an exercise price equal to the initial
public offering price. The options and any shares of Common Stock underlying the
options may be subject to certain restrictions as disclosed in the 1998 Plan.
Subsequent grants of options to purchase equity in the Company during the
Employment term will be made at the sole discretion of the Board or the
Compensation Committee.
(d) Expenses. The Company will pay or promptly reimburse the Executive for
all reasonable out-of-pocket business, entertainment and travel expenses
incurred by the Executive in the performance of his duties hereunder upon
presentation of appropriate supporting documentation and otherwise in accordance
with the expense reimbursement policies of the Company in effect from time to
time.
(e) Taxes and Withholdings. All appropriate deductions, including federal,
state and local taxes and social security, shall be deducted from any amount
paid by the Company to the Executive hereunder in conformity with applicable
laws.
SECTION 6. CONFIDENTIALITY. The Executive acknowledges and agrees that (a) in
connection with his employment by the Company, the Executive will be involved in
the Company's and its subsidiaries' (if any) operations; (b) in order to permit
him to carry out his responsibilities, the Company may disclose, to the
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Executive, in strict confidence, or the Executive may develop, confidential
proprietary information and trade secrets of the Company and its affiliates,
including without limitation (i) unpublished information with respect to the
Company concerning marketing or sales plans, operational techniques, strategic
plans and the identity of suppliers and supply contacts; (ii) unpublished
financial information with respect to the Company, including information
concerning revenues, profits and profit margins; (iii) internal confidential
manuals and memos; and (iv) "material inside information" as such phrase is used
for purposes of the Securities Exchange Act of 1934, as amended (collectively,
"Confidential Information"); and (c) the Company and its affiliates derive
significant economic value and competitive advantage by reason of the fact that
such Confidential Information, in whole or in part, is not generally known or
readily ascertainable by the Company's or its affiliates' actual or potential
competitors and, as such, constitutes the Company's and its affiliates' valuable
trade secrets.
In addition to any obligations set forth herein, and in recognition of the
foregoing acknowledgments, for himself and on behalf of his affiliates, the
Executive agrees that he will not, directly or indirectly, use, disseminate or
disclose, any Confidential Information (other than for the legitimate business
purposes of the Company), and that he will not knowingly permit any of his
affiliates to, directly or indirectly, use, disseminate or disclose, any
Confidential Information. At the end of the Employment Term, the Executive
agrees to deliver immediately to the Company the originals and all copies of
Confidential Information in his possession or control, whether in written form,
on computers or discs or otherwise.
The restrictions set forth in this Section 6 shall not apply to those
particular portions of Confidential Information, if any, that (a) have been
published by any of the Company or any of its affiliates in a patent, article or
other similar tangible publication or (b) become available to the Executive from
a source other than the Company, provided that the source of such Confidential
Information was not known by the Executive, after reasonable inquiry, to be
bound by a confidentiality agreement with or other obligation of confidentiality
to the Company or any of its affiliates.
The foregoing restrictions on the disclosure of Confidential Information
set forth in this Section 6 shall not apply to those particular portions of
Confidential Information, if any, that are required to be disclosed in
connection with any legal process; provided that, at least ten (10) days in
advance of any required disclosure, or such lesser time as may be required by
circumstances, the Executive shall furnish the Company with a copy of the
judicial or administrative order requiring that such information be disclosed
together with a written description of the information proposed to be disclosed
(which description shall be in sufficient detail to enable the Executive and its
affiliates to determine the nature and scope of the information proposed to be
disclosed), and the Executive covenants and agrees to cooperate with the Company
and its affiliates to deliver the minimum amount of information necessary to
comply with such order.
This Section 6 shall survive any termination of this Agreement.
SECTION 7. COVENANT NOT TO COMPETE.
(a) Scope. In order to fully protect the Company's Confidential
Information, during the Employment Term and for a period of 1 year thereafter
(the "Non-competition Period"), the Executive shall not, except as authorized in
writing by the Board, directly or indirectly, render services to, assist,
participate in the affairs of, or otherwise be connected with, any person or
enterprise (other than the Company and its subsidiaries, if any), which person
or enterprise is engaged in, or is planning to engage in, and shall not
personally engage in, any business that is in any respect competitive with the
business of the Company or any of its subsidiaries, if any, with respect to any
products or services of the Company or any of its subsidiaries, if any, in any
capacity which would utilize the Executive's services with respect to any
products or services of the Company or any of its subsidiaries, if any, that
were within the Executive's management responsibility at any time within the
twelve (12) month period immediately prior to the termination of the Executive's
employment with the Company.
(b) Remedies. The parties recognize, acknowledge and agree that (i) any
breach or threatened breach of the provisions of this Section 7 shall cause
irreparable harm and injury to the Company and that money damages will not
provide an adequate remedy for such breach or threatened breach and (ii) the
duration, scope and geographical application of this Agreement are fair and
reasonable under the circumstances, and are
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reasonably required to protect the legitimate business interests of the Company.
Accordingly, Executive agrees that the Company shall be entitled to have the
provisions of this Agreement specifically enforced by any court having
jurisdiction, and that such a court may issue a temporary restraining order,
preliminary injunction or other appropriate equitable relief, without having to
prove the inadequacy of available remedies at law. In addition, the Company
shall be entitled to avail itself of all such other actions and remedies
available to it or any of its affiliates under law or in equity and shall be
entitled to such damages as it sustains by reason of such breach or threatened
breach. It is the express desire and intent of the parties that the provisions
of this Agreement be enforced to the full extent possible.
(c) Severability. If any provision of Section 7(a) is held to be
unenforceable because of the duration of such provision, the area covered
thereby or the scope of the activity restrained, the parties hereby expressly
agree that the court making such determination shall have the power to reduce
the duration and/or areas of such provision and/or the scope of the activity to
be restrained contained in such provision and, in its reduced form, such
provision shall then be enforceable. The parties hereto intend and agree that
the covenants contained in Section 7(a) shall be construed as a series of
separate covenants, one for each municipality, community or county included
within the area designated by Section 7(a). Except for geographic coverage, the
terms and conditions of each such separate covenant shall be deemed identical to
the covenant contained in Section 7(a). Furthermore, if any court shall refuse
to enforce any of the separate covenants deemed included in Section 7(a), then
such unenforceable covenant shall be deemed eliminated from the provisions
hereof to the extent necessary to permit the remaining separate covenants to be
enforced in accordance with their terms. The prevailing party in any action
arising out of a dispute in respect of any provision of this Agreement shall be
entitled to recover from the non-prevailing party reasonable attorneys' fees and
costs and disbursements incurred in connection with the prosecution or defense,
as the case may be, of any such action.
SECTION 8. RESPONSIBILITY UPON TERMINATION. Upon the termination of his
employment for any reason and irrespective of whether or not such termination is
voluntary on his part:
(a) The Executive shall advise the Company of the identity of his new
employer within ten (10) days after accepting new employment and further agrees
to keep the Company so advised of any change in employment during the
Non-competition Period;
(b) The Company in its sole discretion may notify any new employer of the
Executive that he has an obligation not to compete with the Company during the
Non-competition Period; and
(c) The Executive shall deliver to the Company any and all records, forms,
contracts, memoranda, work papers, customer data and any other documents
(whether in written form, on computers or discs or otherwise) which have come
into his possession by reason of his employment with the Company, irrespective
of whether or not any of said documents were prepared for him, and he shall not
retain memoranda in respect of or copies of any of said documents.
SECTION 9. NONSOLICITATION. The Executive agrees that during the term of his
employment with the Company and for a period of twelve (12) months thereafter,
he will not, and will not assist any of his affiliates to, directly or
indirectly, recruit or otherwise solicit or induce any executive, customer,
subscriber or supplier of the Company or any of its subsidiaries about whom or
which he gained Confidential Information while at the Company to terminate its
employment or arrangement with the Company or any of its subsidiaries, otherwise
change its relationship with the Company or any of its subsidiaries, or
establish any relationship with the Executive or any of his affiliates for any
business purpose deemed materially competitive with the business of the Company
or any of its subsidiaries, if any.
SECTION 10. TERMINATION.
(a) Termination for Cause. Notwithstanding anything contained herein to
the contrary, the Board may terminate the Executive's employment with the
Company for cause. For purposes of this Agreement, the term "cause" shall mean,
but is not limited to, the occurrence of any one or more of the following (i)
the commission of any act of willful and material fraud, embezzlement or
misappropriation on the part of Executive, (ii) any act or omission which
constitutes a willful and material breach by Executive of this
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Agreement, including a refusal or failure by Executive to perform his duties and
obligations hereunder, (iii) Executive has been convicted of a crime, which
conviction has, or is reasonably likely to have a material adverse effect on the
Company, or its business or will prevent the Executive from performing his
duties for a sustained period of time, (iv) Executive becomes Disabled (as
hereinafter defined), or (v) the death of Executive; provided however, that
"cause" shall not include any act or omission by the Executive undertaken in the
good faith exercise of the Executive's business judgment as Chief Executive
Officer or in good faith reliance on the advice of counsel. For purposes of this
Agreement, "Disabled" shall mean Executive's inability, due to illness, accident
or any other physical or mental condition, to fully perform the essential
functions of his position or this Agreement for more than 26 weeks consecutively
or for intermittent periods aggregating 39 weeks during any 78-week period
during the Employment term, except as otherwise required by law.
If, during the Employment Term the Company terminates the Executive's
employment pursuant to clauses (i), (ii) or (iii) of this paragraph (a), then,
from and after the date of such termination, the Executive shall (a) have no
right to receive any further Salary or Bonus hereunder; (b) cease to be covered
under or be permitted to participate in any Benefits (except payments due to the
Executive or the Executive's beneficiaries or representatives under any
applicable life or disability insurance plans or policies) and (c) shall have no
right to purchase shares of the Common Stock pursuant to the 1998 Plan.
If during the Employment Term the Company terminates the Executive
employment pursuant to clause (iv) or (v) of this paragraph (a), (a) the Company
shall continue to pay the Executive (or his beneficiaries, as applicable) Salary
then in effect, together with any Bonus, which may have accrued or which
otherwise would have been granted by the Board had the Executive not been
terminated, for a period of six months following the date the Executive's
termination is effective (the "Termination Date") in accordance with the
customary payroll practices of the Company for its senior management personnel,
and (b) the Executive shall be entitled to all rights with respect to any
options granted or Common Stock purchased under the 1998 Plan for a period of
one year following the Termination Date.
(b) Termination Without Cause. The Company shall have the right to
terminate this Agreement and the employment of Executive with the Company for
any reason or no reason and without cause upon written notice to Executive of
such termination; provided that (i) the Company shall continue to pay to the
Executive the Salary then in effect, together with any Bonus which may have
accrued or which otherwise would have been granted by the Board had the
Executive not been terminated for two years following the Termination Date, in
accordance with the customary payroll practices of the Company for its senior
management personnel, (ii) the Company shall continue any benefits in which the
Executive then participates on the same basis of participation and subject to
all terms and conditions of such plans as applied prior to such termination, and
(iii) the Executive shall be entitled to all rights with respect to any options
granted or Common Stock purchased under the 1998 Plan for a period of 2 years
from the Termination Date.
(c) Termination Upon Change of Control or Resignation for Good Reason. In
the event Executive's employment is terminated by the Company subsequent to a
Change of Control (as hereinafter defined) or the Executive resigns from the
Company for Good Reason (as hereinafter defined) within one year following a
Change of Control, the Company will pay the Executive (i) a severance amount of
$1,000,000 and (ii) an amount equal to (a) two times the Executive's Salary for
the year in which the Change of Control occurs plus (b) two times the amount of
the Bonus most recently paid to the Executive. To the extent that such amounts
are in excess of the amount allowable as a deduction under Section 280(g) of the
Code, or are subject to excise tax pursuant to Section 4999 of the Code, the
Company will gross-up any additional amounts due.
(d) Resignation. Executive shall have the right to terminate this
Agreement and his employment with the Company upon thirty (30) days prior
written notice to the Company. Except if the Executive's resignation is for Good
Reason in accordance with paragraph (c) above, from and after the date of such
resignation, Executive shall (i) have no right to receive any further Salary or
bonus hereunder; (ii) cease to be covered under or by permitted to participate
in any Benefits (except payments due the Executive or the Executive's
beneficiaries or representatives under any applicable life or disability
insurance plans or policies); and (iii) forfeit any and all non-vested options
granted or non-vested Common Stock purchased under the 1998 Plan.
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(e) Definitions. For purposes of this Section 10 the terms listed below
shall mean the following:
(i) "Change in Control" shall mean:
(a) the direct or indirect acquisition, whether by sale, merger,
consolidation, or purchase of assets or stock, by any person,
corporation, or other entity or group thereof of the beneficial
ownership (as that term is used in Section 13(d)(1) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder) of shares in the Company which, when added to
any other shares the beneficial ownership of which is held by the
acquiror, shall result in the acquirer's having more than 20% of the
votes that are entitled to be cast at meetings of stockholders as to
matters on which all outstanding shares are entitled to be voted as a
single class; provided however, that such acquisition shall not
constitute a Change of Control for purposes of this Agreement if prior
to such acquisition a resolution declaring that the acquisition shall
not constitute a Change of Control is adopted by the Board with the
support of a majority of the Board members who either were members of
the Board for at least two years prior to the date of the vote on such
resolution or were nominated for election to the Board by at least
two-thirds of the directors then still in office who were members of the
Board at least two years prior to the date of the vote on such
resolution; and provided further, that neither the Company, nor any
person who as of July , 1998 was a director or officer of the Company,
nor any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, nor any corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the same
proportions as their ownership of shares of the Company shall be deemed
to be an "acquirer" for purposes of this Section.
(b) the election during any two-year period to a majority of the
seats on the Board of Directors of the Company of individuals who were
not members of the Board at the beginning of such period unless such
additional or replacement directors were approved by at least 80% of the
continuing directors.
(c) shareholder approval of a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets.
(ii) "Good Reason" shall mean the occurrence of (a) a material breach
of this Agreement by the Company, (b) the assignment to the Executive of
duties inconsistent with his position as described in Section 2 herein, or
any significant adverse alteration in the status or conditions of the
Executive's employment or in the nature of the Executive's responsibilities
as described in Section 2 herein, (c) the Company's requiring the
relocation of the Executive's office to a site more than 20 miles from the
Executive's office is presently located, or (d) the failure of the Company
to continue to provide Executive with benefits substantially similar to
those described in this Agreement or to continue in effect any benefit or
stock option plan which is material to the Executive's compensation,
including but not limited to, the 1998 Plan; provided however, Executive
shall not be deemed to have Good Reason to terminate his employment if the
reason for such termination is remedied prior to the date of termination
specified in the notice of termination pursuant to Section 10(d) herein.
SECTION 11. AUTHORITY. Executive represents and warrants that he has the
ability to enter into this Agreement and perform all obligations hereunder, and
that there are no restrictions on Executive or any obligations owed by him to
third parties which are reasonably likely, in any way, to detract from or
adversely affect his performance hereunder.
SECTION 12. MISCELLANEOUS.
(a) Separate Agreements. The covenants of Executive contained in this
Agreement shall survive any termination of this Agreement and shall be construed
as separate agreements independent of any other agreement, claim, or cause of
action of Executive against the Company, whether predicated on this Agreement or
otherwise. The covenants contained in this Agreement are necessary to protect
the legitimate business interests of the Company.
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(b) Entire Agreement. The parties hereto acknowledge and agree that this
Agreement supersedes all previous contracts and agreements between the Company
and Executive relating to the subject matter hereof and that any such previous
contracts or agreements shall become null and void upon execution of this
Agreement. This Agreement constitutes the complete agreement among the parties
hereto with respect to the subject matter hereof and no party has made or is
relying on any promises by any other party or their respective representatives
not contained in this Agreement.
(c) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. If any
provision of this Agreement is held to be unenforceable because of the duration
of such provision, the area covered thereby or the scope of the activity
restrained, the parties hereby expressly agree that the court making such
determination shall have the power to reduce the duration and/or areas of such
provision and/or the scope of the activity to be restrained contained in such
provision and, in its reduced form, such provision shall then be enforceable.
(d) Successor and Assigns.
(i) This Agreement is personal in nature and neither this Agreement nor any
rights or obligations arising hereunder may be assigned, transferred or pledged
by Executive. This Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
(ii) This Agreement shall be binding upon and inure to the benefit of the
Company and their successors. The rights and obligations of the Company pursuant
to this Agreement are freely assignable and transferable by Company without the
consent of Executive without his being relieved of any obligations hereunder,
including, without limitation, an assignment or transfer in connection with a
merger or consolidation of the Company, or a sale or transfer of all or
substantially all of the assets of the Company; provided, the provisions of this
Agreement shall be binding on and shall inure to the benefit of the surviving
business entity or the business entity to which such assets shall be transferred
and such successor shall expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such transaction had taken place.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law rules thereof.
(f) Amendment. No amendment, waiver, modification or change of any
provision of this Agreement shall be valid unless in writing and signed by both
parties; provided, that any such amendment, waiver, modification or change must
be consented to on behalf of the Company by the Board. The waiver of any breach
of any duty, term or condition of this Agreement shall not be deemed to
constitute a waiver of any preceding or succeeding breach of the same or any
other duty, term or condition of this Agreement.
(g) Notices. All notices and communications under this Agreement shall be
in writing and shall be personally delivered or sent by prepaid certified mail,
return receipt requested, or by recognized courier service, and addressed as
follows:
(i) If to the Company to:
American Bank Note Holographics, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Chief Operating Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the Executive to:
Xxxxxx Xxxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
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or to such other address as may be specified by notice of the parties.
(h) Arbitration. Except as provided for in Section 7(b), the Company and
Executive agree that any claim or controversy arising out of or relating to this
Agreement or any breach thereof ("Arbitrable Dispute") shall be settled by
arbitration if such claim or controversy is not otherwise settled; provided,
however, that nothing set forth herein shall in any way limit the Company's
ability to seek and obtain injunctive relief in aid of arbitration from any
court of competent jurisdiction. This arbitration agreement applies to, among
others, disputes about the validity, interpretation, or effect of this
Agreement. The arbitration shall take place in New York, New York, or such other
location as to which the parties may mutually agree. Except as expressly set
forth herein, all arbitration proceedings under this Section 10(h) shall be
undertaken in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA") then in force only before individuals who
are (i) lawyers engaged full-time in the practice of law and (ii) on the AAA
register of arbitrators. There shall be one arbitrator who shall be chosen in
accordance with the rules of the AAA. The arbitrator may not modify or change
this Agreement in any way and shall not be empowered to award punitive damages
against any party to such arbitration. Each party shall pay the fees of such
party's attorneys, the expenses of such party's witnesses, and any other
expenses that such party incurs in connection with the arbitration, but all
other costs of the arbitration, including the fees of the arbitrator, the cost
of any record or transcript of the arbitration, administrative fees, and other
fees and costs shall be paid in equal shares by Executive and the Company. The
party losing the arbitration shall reimburse the party who prevailed for all
expenses the prevailing party paid pursuant to the preceding sentence. Except as
provided for in Section 7(b), arbitration in this manner shall be the exclusive
remedy for any Arbitrable Dispute. Should Executive or the Company attempt to
resolve an Arbitrable Dispute by any method other than arbitration pursuant to
this Section, the responding party will be entitled to recover from the
initiating party all damages, expenses, and attorneys' fees incurred as a result
of that breach.
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(i) Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original but all of which will together constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
AMERICAN BANK NOTE HOLOGRAPHICS, INC.
By:
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Name:
Title:
XXXXXX XXXXXXXX
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