EMPLOYMENT AGREEMENT
EXHIBIT
10.3
This
EMPLOYMENT AGREEMENT was executed on August 21, 2007, by and between Advaxis,
Inc., a Delaware corporation (the “Company”).
and
Xxxxxx Xxxxx (“Executive”).
WITNESSETH:
WHEREAS,
Executive and the Company desire to set forth in this Agreement the terms and
conditions of Executive’s employment with the Company;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
promises contained herein and for other good and valuable consideration, the
Company and Executive hereby agree as follows:
16. Agreement
to Employ; No Conflicts
Upon
the
terms and subject to the conditions of this Agreement, the Company hereby agrees
to employ Executive, and Executive hereby accepts employment with the Company.
Executive represents that (a)
Executive is entering into this Agreement voluntarily and that Executive’s
employment hereunder and compliance with the terms and conditions hereof will
not conflict with or result in the breach by Executive of any agreement to
which
Executive is a party or by which Executive is bound, (b)
Executive has not, and in connection with Executive’s employment with the
Company will not, violate any non-solicitation, non-competition or other similar
restrictive covenant by which Executive is bound, and (c)
in
connection with Executive’s employment with the Company Executive will not use
any confidential or proprietary information Executive may have obtained in
connection with employment with any prior employer in violation of any
nondisclosure covenant or agreement by which Executive is bound.
17. Term;
Position and Responsibilities
(a) Term
of Employment.
Unless
Executive’s employment shall sooner terminate pursuant to Section 4, the Company
shall employ Executive for a term commencing as of December 15, 2006 (the
“Commencement
Date”)
and
ending on the second anniversary thereof (the “Initial
Term”).
Effective upon the expiration of the Initial Term and of each Additional Term
(as defined below), Executive’s employment hereunder shall be deemed to be
automatically extended, upon the same terms and conditions (subject to any
adjustment made pursuant to the terms hereof), for an additional 12-month period
(each, an “Additional
Term”),
in
each such case, commencing upon the expiration of the Initial Term or the then
current Additional Term, as the case may be, unless, at least 90 days prior
to
the expiration of the Initial Term or such Additional Term, either party shall
give written notice to the other (a “Non-Extension
Notice”)
of
such party’s intention not to extend the term hereof. A Non-Extension Notice
shall not constitute a notice of the termination of Executive’s employment by
the Company unless such notice specifically provides for such termination of
employment and the specific date thereof. The period during which Executive
is
employed pursuant to this Agreement shall be referred to as the “Employment
Period”.
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(b) Position
and Responsibilities.
During
the Employment Period, Executive shall serve as Chairman of the Board and Chief
Executive Officer of the Company, shall
be
a member of the Board of Directors of the Company and shall have such duties
and
responsibilities as are customarily assigned to individuals serving in such
positions and such other duties consistent with Executive’s titles and positions
as the Company’s Board of Directors (the “Board”)
specifies from time to time. Executive shall report directly to the Board.
Executive shall devote all of Executive’s skill, knowledge and working time to
the conscientious performance of the duties and responsibilities of such
positions, all in a manner consistent with Executive’s position as a senior
executive of the Company, except for authorized vacation or personal time,
absence for sickness or similar disability, time spent as a Board member on
private or public companies, as agreed with the Compensation Committee of the
Board, and time spent performing services for any charitable, religious or
community organizations so long as such services do not materially interfere
with the performance of Executive’s duties hereunder.
The
Board has agreed to allow the Executive to serve on the following Boards:
Alteon, MD Offices, Opt-e-scrip, Healogix, and Mayan Pigments (as
Chairman).
(c) Additional
Board Nominee.
Executive may nominate one additional Board Member of his choice, and subject
to
Board agreement, which will not be unreasonably withheld, and subject to the
bylaws of the Company and subject to the vote of shareholders in the annual
election of members of the, such nominee shall join as a Board member. The
right
to nominate such additional Board member shall end when employee's employment
term ends.
(d) Capital
Investment.
Employee will invest up to $500,000 personally in the Company, of which up
to
$300,000 shall be funded in year 2006 and up to $200,000 shall be invested
by
July 2007.
18. Compensation.
(a) Base
Salary.
As
compensation for the services to be performed by Executive during the Employment
Period, the Company shall pay Executive a base salary at an annualized rate
of
two hundred fifty thousand dollars ($250,000), payable in installments on the
Company’s regular payroll dates, but no less frequently than monthly (as the
same may be adjusted from time to time as provided below, the “Base
Salary”).
Such
Base Salary will be increased to $350,000 per annum upon the successful raise
of
$4,000,000 by the Company. The Board shall review Executive’s Base Salary
annually to determine, in its sole discretion, whether and by what amount,
if
any, such Base Salary should be increased.
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(b) Stock
Grants and Stock Options.
Company
shall grant Executive 1,500,000 common shares of which 750,000 common shares
shall be granted upon the successful raise of $4,000,000 and 750,000 shares
shall be granted upon a successful raise of an additional $6,000,000.
Company
shall grant Executive 2,400,000 options priced at the day price as of December
15, 2006, to be vested at 100,000 shares per month over two years.
The
Company will grant Employee an additional grant of 1,500,000 shares if the
Company stock price (adjusted for any splits) is $.40 or higher for 40
consecutive business days.
In
the
event of merger of the Company which is a change of control or a sale of the
company while Executive is employed, all options will be awarded and
vested..
(c) Employee
Benefits.
During
the Employment Period, Executive shall be entitled to participate in the
pension, retirement, savings, medical, disability and other welfare benefit
plans maintained by the Company for its senior executives in accordance with
the
terms thereof, as the same may be amended and in effect from time to time.
Family health insurance will be provided at no cost to the
Executive.
(d) Expenses.
The
Company shall reimburse Executive for reasonable travel, lodging, meal and
other
reasonable expenses incurred by Executive in connection with Executive’s
performance of services hereunder, upon submission of evidence, reasonably
satisfactory to the Company, of the incurrence and purpose of each such expense
and otherwise in accordance with the Company’s business travel and expense
reimbursement policy applicable to its senior executives as in effect from
time
to time.
(e) Vacation.
During
the Employment Period, Executive shall be entitled to four weeks of paid
vacation on an annualized basis, in accordance with the Company’s vacation
policy for senior executives.
19. Termination
of Employment.
(a) Termination
Due to Death or Disability.
Executive’s employment hereunder may be terminated by the Company in the event
of Executive’s Disability (as defined below) and shall terminate upon
Executive’s death. For purposes of this Agreement, “Disability” shall mean a
physical or mental disability that prevents the performance by Executive of
Executive’s duties hereunder for a period of 90 consecutive days or longer or
for 180 days or more in any period of 24 consecutive months.
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(b) Termination
by the Company for Cause.
The
Company may terminate Executive’s employment hereunder for Cause (as defined
below) at any time. “Cause” shall mean (i)
Executive having been convicted of, or entering a plea of guilty or nolo
contendere to, a crime that constitutes a felony or a misdemeanor involving
moral turpitude (or comparable crime in any jurisdiction that uses a different
nomenclature), (ii)
gross
negligence or willful misconduct on the part of Executive in the performance
of
Executive’s duties hereunder, (iii)
material breach by Executive of this Agreement, (iv)
a
material violation by Executive of a Company policy, (v)
failure
by Executive to timely comply in all material respects with a lawful direction
or instruction given to Executive by the Board, or (vi)
any
other action that is willful on the part of Executive and materially detrimental
to the Company or any of its affiliates;
provided
that, in
the case of clauses (ii) through and including (vi) above, the Company shall
have given Executive written notice of such event, which notice shall specify
in
reasonable detail the basis for such termination, and, if such event is
reasonably capable of being cured, Executive shall not have cured such event
to
the reasonable satisfaction of the Company within 30 days from Executive’s
receipt of such notice.
(c) Termination
by Company Without Cause.
The
Company may terminate Executive’s employment hereunder Without Cause at any time
by written notice to Executive. A termination “Without Cause” shall mean a
termination of Executive’s employment by the Company other than as a result of
Executive’s Disability or for Cause. A Non-Extension Notice delivered by the
Company or Termination pursuant to Section 4(a) shall not constitute a
termination of Executive’s employment hereunder by the Company Without Cause
unless such notice specifically provides for such termination of employment
and
the specific date thereof.
(d) Termination
by Executive.
Executive may terminate Executive’s employment hereunder with or without “Good
Reason” (as defined below); provided
that
Executive shall have given Company written notice, which notice shall, in the
event of a termination with Good Reason, specify in reasonable detail the basis
for, such termination. “Good Reason” shall mean the occurrence of any of the
following events, without Executive’s consent, and the failure of the Company to
correct any such event set forth in Executive’s notice of termination
contemplated above within 30 days of the Company’s receipt of such notice:
(i)
the
assignment to Executive of duties that are significantly different from, and
that result in a material diminution of, the duties provided for in Section
2(b), (ii)
a
breach by the Company of its obligations to pay compensation due to Executive
under this Agreement, (iii)
the
Company’s ceasing to provide Executive with the title of Chief Executive
Officer, (iv) the Company’s ceasing to provide Executive with the title of
President unless the person then serving as President shall be obligated to
report directly to Executive, (v) the Company’s requiring Executive to report to
any person in the Company other than the Board, or (v) a relocation of
Executive’s principal place of business to a place that is more than 50 miles
from the greater New York City metropolitan area.
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(e) Notice
of Termination.
Any
termination of Executive’s employment by Company pursuant to Section 4(b), 4(c)
or 4(d), or by Executive pursuant to Section 4(e) shall be communicated by
a
written Notice of Termination addressed to the other party to this Agreement.
A
“Notice of Termination” shall mean a notice stating that Executive’s employment
with Company has been or will (subject to any applicable cure period) be
terminated and the specific provisions of this Section 4 under which such
termination is being effected.
(f) Date
of Termination.
As used
in this Agreement, the term “Date of Termination” shall mean (i)
if
Executive’s employment is terminated by Executive’s death, the date of
Executive’s death, (ii)
if
Executive’s employment is terminated by the Company, the latest of (A)
the
date on which Notice of Termination is given as contemplated by Section 4(e),
(B)
the
date of termination specified in such notice and (C)
the
date any applicable cure period ends (if such matter is not cured within such
period), (iii) if Executive’s employment is terminated by Executive without Good
Reason, the date on which Notice of Termination is given as contemplated by
Section 4(e), and (iv)
if
Executive’s employment is terminated by Executive for Good Reason, the date the
cure period ends (if such matter is not cured within such period).
(g) Resignation
upon Termination.
Effective as of any Date of Termination, Executive shall resign, in writing,
from all Board of Director memberships and other positions then held by
Executive with the Company and its affiliates.
(h) Cessation
of Professional Activity.
Upon
delivery of a Notice of Termination by any party, the Company may relieve
Executive of Executive’s responsibilities and require Executive to immediately
cease all professional activity on behalf of the Company. In addition, in the
event that the Board reasonably believes that Executive has engaged in improper
conduct that has or would cause substantial harm to the Company, the Board
may
relieve Executive of Executive’s responsibilities during the pendency of any
investigation (but in no event more than 30 days) it commissions to determine
whether Executive’s employment may be terminated for Cause. Prior to the
relevant Date of Termination, the Company shall compensate the Executive in
accordance with this Agreement during any period of cessation of the Executive’s
professional activity in accordance with this Section 4(h), as if no such
cessation occurred.
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20. Payments
Upon Certain Terminations.
(a) General.
If,
during the Employment Period, the Executive's employment terminates for any
reason, the Executive (or Executive’s estate, beneficiaries or legal
representative) shall be entitled to receive (i)
any
earned or accrued but unpaid Base Salary through the Date of Termination
(including with respect to unused vacation time, other than in the case of
a
termination for Cause), (ii)
(A)
any
earned but unpaid annual bonus with respect to any fiscal year of the Company
ending prior to the Date of Termination, and (B)
with
respect to the fiscal year of the Company in which the Date of Termination
occurs. Except as provided in paragraph (b) below, no other compensation shall
be paid to Executive upon Termination.
(b) Limited
Severance Payment.
In the
event of termination of Executive’s Employment hereunder by the Company
following the $4 million raise, Employee will also receive 1 year's severance
at
his then payment level.
(c) No
Duplication of Benefits.
In the
event of Executive’s termination of employment during the Employment Period for
any reason, the sole payments or obligations of the Company are provided for
in
this Section 5. In the event that Executive is entitled to payment under any
plan, policy, program or practice of the Company relating to severance, any
such
payment shall reduce the amounts otherwise payable hereunder.
21. Restrictive
Covenants
(a) Restrictive
Covenants.
Executive acknowledges and agrees that the Company has a legitimate interest
in
being protected from Executive’s being employed by, or providing services to, an
entity that competes with the Company or its affiliates. Executive and the
Company have considered carefully how best to protect the legitimate interests
of the Company and its affiliates without unreasonably restricting the economic
interests of Executive, and hereby agree to the following restrictions as the
most reasonable and equitable under the circumstances. During the Employment
Period and for a period of twelve (12) months following the date of termination
or expiration of the Employment Period, or, if Executive’s employment is
terminated by the Company for Cause or for Executive’s Disability, or by
Executive without Good Reason or if Executive provides a Non-Extension Notice
in
accordance with the terms of Section 2(a), twelve (12) months following the
date
of termination or expiration of the Employment Period (the “Restriction
Period”), Executive will not anywhere in the United States of America or
anywhere else the Company or any of its affiliates does business, directly
or
indirectly (whether as sole proprietor, partner or venturer, stockholder,
director, officer, employee or consultant or in any other capacity as principal
or agent or through any person, subsidiary or employee acting as nominee or
agent):
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(i) Engage
in, or have any interest in any person, firm, corporation, business or other
entity other than the Company (as an officer, director, employee, agent,
stockholder, or other security holder, creditor, consultant or otherwise) that
that are competitive with those being developed by or is otherwise engaged
in
the development and/or marketing of listeria based cancer vaccines, or other
products offered by the Company or its affiliates on or prior to the date of
termination or expiration of the Employment Period.
(ii) Solicit
or hire employees of the Company or its affiliates (or persons who at any time
within the six months preceding the date of termination or expiration of the
Employment Period were employees of the Company or its affiliates), or solicit
employees of the Company or its affiliates to terminate their employment with
the Company or its affiliates. In entering into this agreement, the parties
recognize and agree that it is necessary to maintain a stable workforce to
enable the Company to maintain its business.
Notwithstanding
anything to the contrary contained herein, (i) Executive, directly or
indirectly, may own publicly traded stock constituting less than one percent
(1%) of the outstanding shares of such class of stock of any corporation that
engages in any business activity that is the same as, similar to or competitive
with, the business of the Company or its affiliates, if, and as long as,
Executive is not an officer, director, employee or agent of, or consultant
or
advisor to, or has any other relationship or agreement with such corporation,
(ii) the Restriction Period shall end at any time, after the date of termination
or expiration of the Employment Period, that (A) the Company shall have breached
its obligation to make cash payments to Executive pursuant to the provisions
of
Section 5(a) or Section 5(b)(i) and such breach shall not have been cured by
the
Company within fifteen (15) days after the Company shall have received from
Executive written notice of such breach (which notice shall specify the basis
of
such breach in reasonable detail) or (B) the Company is in breach in any
material respect of any of its other obligations under Section 5, (iii) if
the
Company provides a Non-Extension Notice in accordance with the terms of Section
2(a), the Restriction Period shall end on the last day of the Employment Period
unless, at any time, the Company terminates Executive’s employment hereunder for
Cause, and (iv) no provision contained in this Section 6(a) shall be interpreted
in such a manner as would prohibit Executive from performing Executive’s duties
(as an officer, director, employee, consultant or agent of the Company) owed
to
the Company during or after the Employment Period.
(b) Confidential
Information.
Executive acknowledges and agrees that all nonpublic information concerning
the
business of the Company or any of its affiliates including without limitation,
nonpublic information relating to its or its affiliates’ products, customer
lists, pricing, trade secrets, patents, business methods and cost data, business
plans, strategies, drawings, designs, nonpublic information regarding product
development, marketing plans, sales plans, manufacturing plans, management
organization (including but not limited to nonpublic data and other information
relating to members of the Board, the Company or any of their affiliates or
to
management of the Company or any of its affiliates), operating policies or
manuals, financial records, design or other nonpublic financial, commercial,
business or technical information (i)
relating to the Company or any of its affiliates or (ii)
that
the Company or any of its affiliates may receive belonging to suppliers,
customers or others who do business with the Company or any of its affiliates
(collectively, the “Confidential
Information”))
is
and shall remain the property of the Company. Executive recognizes and agrees
that all of the Confidential Information, whether developed by Executive or
made
available to Executive, other than (i) information that is generally known
to
the public, (ii) information already properly in Executive’s possession on a
non-confidential basis from a source other than the Company or its affiliates,
which source to Executive’s knowledge is not prohibited from disclosing such
information by a legal, contractual or other obligation of confidentiality
to
the Company or its affiliates, or (iii) information that can be demonstrated
by
Executive to have been independently developed by Executive without the benefit
of Confidential Information from the Company or its affiliates, is a unique
asset of the business of the Company, the disclosure of which would be damaging
to the Company. Accordingly, Executive agrees to use such Confidential
Information only for the benefit of the Company. Executive agrees that during
the Employment Period and until the sixth anniversary of the date of termination
or expiration Executive’s employment with the Company or its affiliates,
Executive will not directly or indirectly, disclose to any person or entity
any
Confidential Information, other than information described in clauses (i),
(ii)
and (iii) above, except as may be required in the ordinary course of business
of
the Company or as may be required by law or government authority. If disclosure
of any Confidential Information is requested or required by legal process,
civil
investigative demand, formal or informal governmental investigation or
otherwise, Executive agrees (i) to notify the Company promptly in writing so
that the Company may seek a protective order or other appropriate remedy, and
to
cooperate fully, as may be reasonably requested by the Company, in the Company’s
efforts to obtain such a protective order or other appropriate remedy, and
(ii)
shall comply with any such protective order or other remedy if obtained.
Information concerning the business of the Company or any of its affiliates
that
becomes public as a result of Executive’s breach of this Section 6(b) shall be
treated as Confidential Information under this Section 6(b).
Notwithstanding any provision herein to the contrary, Executive may disclose
the
terms of this Agreement to the extent necessary to enforce its rights under
this
Agreement.
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(c) Ownership
of Developments.
Executive agrees that the Company shall own all right, title and interest
(including patent rights, copyrights, trade secret rights, mask work rights
and
other rights throughout the world) in any inventions, works of authorship,
mask
works, ideas or information made or conceived or reduced to practice, in whole
or in part, by Executive (either alone or with others) during the Employment
Period (collectively “Developments”); provided, however, that the Company shall
not own any right, title and/or interest in any Developments for which no
equipment, supplies, facility or trade secret information of the Company or
its
affiliates was used and which were developed entirely on Executive’s time, and
(A) which do not relate (I) to the business of the Company or its affiliates
or
(II) to the Company’s or its affiliates’ actual or demonstrably anticipated
research or development, or (B) which do not result from any work performed
by
Executive for the Company or its affiliates. Subject to the foregoing, Executive
will promptly and fully disclose to the Company, or any persons designated
by
it, any and all Developments made or conceived or reduced to practice or learned
by Executive, either alone or jointly with others during the Employment Period.
Executive hereby assigns all right, title and interest in and to any and all
of
these Developments owned by the Company in accordance with this paragraph to
the
Company. Executive shall further assist the Company, as reasonably requested
by
Company and at Company’s sole expense, to further evidence, record and perfect
such assignments, and to perfect, obtain, maintain, enforce, and defend any
rights specified to be so owned or assigned. Executive hereby irrevocably
designates and appoints the Company and its agents as attorneys-in-fact to
act
for and on the Executive’s behalf to execute and file any document and to do all
other lawfully permitted acts to further the purposes of the foregoing terms
of
this Section 6(c) with the same legal force and effect as if executed by the
Executive. In addition, and not in contravention of any of the foregoing, the
Executive acknowledges that all original works of authorship which are made
by
Executive (solely or jointly with others) for business use specifically by
the
Company or its affiliates during the Employment Period and which are protectable
by copyright are “works made for hire,” as that term is defined in the United
States Copyright Act (17 USCA, § 101).
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(d) Return
of Documents.
In the
event of the termination of Executive’s employment for any reason, Executive
shall deliver to the Company (i) all of the property of each of the Company
and
its affiliates received at any time by Executive (to the extent not previously
returned to the Company) and (ii)
all the
documents and data of any nature and in whatever medium of each of the Company
and its affiliates received at any time by Executive (to the extent not
previously returned to the Company), and Executive shall not take any such
property, documents or data or any reproduction thereof, or any documents
containing or pertaining to any Confidential Information; provided,
however,
the
foregoing shall not limit any rights or obligations with respect to any such
property, documents, data or reproductions thereof that Executive may have
as a
shareholder, creditor, consultant and/or director of the Company.
(e) Notification.
Executive will inform any prospective subsequent employer during the Restriction
Period of the substance of the terms and conditions of the restrictive covenants
set forth in this Section 6.
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(f) Affiliates.
Notwithstanding anything to the contrary in this Section 6, for the purposes
of
this Section 6, no stockholder of the Company, other than a stockholder that
is
a holding company of the Company, shall be deemed to be an “affiliate” of the
Company.
22. Injunctive
Relief with Respect to Covenants; Certain Acknowledgments; Etc.
(a) Injunctive
Relief.
Executive acknowledges and agrees that the covenants, obligations and agreements
of Executive contained in Section 6 of this Agreement relate to special, unique
and extraordinary matters and that a violation on the Executive’s part of any of
the terms of such covenants, obligations or agreements will cause immeasurable
and irreparable injury to the Company for which adequate remedies are not
available at law. Therefore, Executive agrees that the Company shall be entitled
to an injunction, restraining order or such other equitable relief (without
the
requirement to post bond unless required by applicable law) as a court of
competent jurisdiction may deem necessary or appropriate to restrain Executive
from committing any violation of such covenants, obligations or agreements.
These injunctive remedies are cumulative and in addition to any other rights
and
remedies the Company may have.
(b) Blue
Pencil.
Executive agrees that in the event that any court of competent jurisdiction
shall finally hold that any provision of Section 6 hereof is void or constitutes
an unreasonable restriction against Executive, the provisions of such Section
6
shall not be rendered void but shall apply to such extent as such court may
determine constitutes a reasonable restriction under the
circumstances.
(c) Certain
Acknowledgements.
Executive acknowledges and agrees that Executive will have a prominent role
in
the management of the business, and the development of the goodwill, of the
Company and its affiliates and will establish and develop relations and contacts
with the principal customers and suppliers of the Company and its affiliates
in
the United States of America and the rest of the world, all of which constitute
valuable goodwill of, and could be used by Executive to compete unfairly with,
the Company and its affiliates and that (i)
in the
course of Executive’s employment with the Company, Executive will obtain
confidential and proprietary information and trade secrets concerning the
business and operations of the Company and its affiliates in the United States
and the rest of the world that could be used to compete unfairly with the
Company and its affiliates; (ii)
the
covenants and restrictions contained in Section 6 are intended to protect the
legitimate interests of the Company and its affiliates in their respective
goodwill, trade secrets and other confidential and proprietary information;
(iii)
Executive desires and agrees to be bound by such covenants and restrictions;
and
(iv)
the
compensation to be provided to Executive are adequate consideration for the
restrictive covenants provided in Section 6.
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23. Miscellaneous
(a) Binding
Effect; Assignment.
This
Agreement shall be binding on and inure to the benefit of the Company, and
its
respective successors and permitted assigns. This Agreement shall also be
binding on and inure to the benefit of Executive and Executive’s heirs,
executors, administrators and legal representatives. This Agreement shall not
be
assignable by any party hereto without the prior written consent of the other
parties hereto, except as provided pursuant to this Section 8(a). The Company
may effect such an assignment without prior written approval of Executive upon
the transfer of all or substantially all of its business and/or assets (by
whatever means), provided
that the
successor to the Company shall expressly assume and agree in writing to perform
this Agreement.
(b) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. All prior correspondence and proposals (including
but not limited to summaries of proposed terms) and all prior promises,
representations, understandings, arrangements and agreements relating to such
subject matter (including but not limited to those made to or with Executive
by
any other person) are merged herein and superseded hereby.
(c) GOVERNING
LAW, JURISDICTION.
(i) THIS
AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED
UNDER, THE LAW OF THE STATE OF NEW JERSEY APPLICABLE TO AGREEMENTS OR
INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.
(ii) EACH
PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE COURTS OF THE STATE
OF
NEW JERSEY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW
JERSEY IN NEWARK, NEW JERSEY AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL
JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY
WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT THE SUCH COURTS ARE AN
INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 8(h) HEREOF, SUCH SERVICE
TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
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(iii) EACH
OF
THE PARTIES WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH
OF
THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS
AND
(II) ACKNOWLEDGES THAT EACH SUCH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO
THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS PARTY BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
(d) Taxes.
Notwithstanding any provision to the contrary, the Company shall have the power
to withhold from (and thereby reduce) any payments due to the Executive under
this Agreement, or (to the extent that taxes are under-withheld on amounts
previously paid by the Company to the Executive or taxes are due on income
taxable to the Executive without the receipt of sufficient cash) require
Executive to remit to the Company promptly upon notification of the amount
due,
an amount, determined within the Company’s reasonable discretion and upon
written notice (including pay stubs) to Executive, in each case as necessary
to
satisfy all of the Company’s obligations regarding Federal, state, local and
foreign withholding tax requirements (including, without limitation, social
security, employment and similar payroll deductions) with respect to the
Executive’s compensation pursuant to this Agreement and/or with respect to any
payment of cash, or issuance or delivery of any other property hereunder to
Executive or any third party, for the account or benefit of the Executive,
and
the Company may defer any such payment of cash or issuance or delivery of such
other property for a reasonable period until such requirements are satisfied,
at
which time all deferred payments shall be promptly remitted to the
Executive.
(e) Amendments.
No
provision of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is approved by the Board or a person
authorized thereby and is agreed to in writing by Executive and, in the case
of
any such modification, waiver or discharge affecting the rights or obligations
the Company, is approved by the Board or a person authorized thereby. No waiver
by any party hereto at any time of any breach by any other party hereto of,
or
compliance with, any condition or provision of this Agreement to be performed
by
such other party shall be deemed a waiver of similar or dissimilar provisions
or
conditions at the same or at any prior or subsequent time. No waiver of any
provision of this Agreement shall be implied from any course of dealing between
or among the parties hereto or from any failure by any party hereto to assert
its rights hereunder on any occasion or series of occasions.
12
(f) Insurance.
(i) The
Company may at its discretion and at any time apply for and procure as owner
and
for its own benefit and at its own expense, insurance on the life of Executive
in such amounts and in such form or forms as the Company may choose. Executive
shall cooperate with the reasonable requests of the Company in procuring such
insurance and shall, at the reasonable request of the Company, submit to such
medical examinations, supply such information and execute such documents as
may
be required by the insurance company or companies to whom the Company has
applied for such insurance. Executive shall have no interest whatsoever in
any
such policy or policies.
(ii) Beginning
on the Commencement Date and thereafter through the remainder of the Employment
Period, the Company shall provide Directors and Officers liability insurance
coverage for the Executive similar to that provided to officers and directors
of
other portfolio companies of North Castle Partners III, L.P.
(g) Severability.
In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
(h) Notices.
Any
notice or other communication required or permitted to be delivered under this
Agreement shall be (i)
in
writing, (ii)
delivered personally, by courier service or by certified or registered mail,
first-class postage prepaid and return receipt requested, (iii)
deemed
to have been received on the date of delivery or, if so mailed, on the third
business day after the mailing thereof, and (iv)
addressed as follows (or to such other address as the party entitled to notice
shall hereafter designate in accordance with the terms hereof):
(i) If
to the
Company, to it at its then current headquarters, Attention: Chairman of the
Board.
(ii) if
to
Executive, to Executive at Executive’s residential address as then on file with
the Company, with a copy to :
Tel:
Fax:
Attn:
13
Copies
of
any notices or other communications given under this Agreement shall also be
given to:
Tel:
Fax:
Attn:
and
to:
Fax:
Attn:
(i) Headings.
The
section and other headings contained in this Agreement are for the convenience
of the parties only and are not intended to be a part hereof or to affect the
meaning or interpretation hereof.
(j) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
[REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS HEREOF, the parties have executed this Agreement as of the date and
year
first above written.
| |
|
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| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Chairman of Compensation Committee
|
||
|
EXECUTIVE
|
||
|
/s/
Xxxxxx Xxxxx
|
||
|
Xxxxxx Xxxxx |
||
|
Chief
Executive Officer and Chairman of the
Board
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||
15
[SIGNATURE
PAGE TO EMPLOYMENT AGREEMENT]
16
