1
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 22nd day of January, 1998, between
ICARUS International, Inc., a Maryland corporation and ICARUS Corporation, a
Maryland Corporation both companies referred to herein collectively as (both
companies referred to herein collectively as the "Corporation"), and Xxxxxxx X.
Xxxxxx, III (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently the Executive Vice President of the
Corporation who, in accordance with the policies established by the Board of
Directors of the Corporation (the "Board"), is responsible for the business
development, sales and marketing for the Corporation (the "Employer"); and
WHEREAS, the Employer desires to be ensured of the Executive's
continued active participation in the business of the Employer; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employer and in consideration of the Executive's agreement to remain in the
employ of the Employer pursuant to the terms and conditions hereof, the parties
desire to specify the terms and conditions of Executive's continuing employment
with the Corporation and to provide certain severance benefits which shall be
due the Executive in the event that his employment with the Employer is
terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) AFFILIATES. "Affiliates" of the Corporation, or a person
"affiliated" with the Corporation, are any persons or entities which, directly
or indirectly, through one or more intermediaries, controls or are controlled
by or are under common control with, the persons or entities specified.
(b) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the
average level of compensation paid to the Executive by the Employer or any
subsidiary thereof during the most recent five taxable years preceding the Date
of Termination (or such shorter period as the Executive was employed),
including Base Salary and bonuses or other compensation under any employee
benefit plans of the Employer.
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(c) BASE SALARY. "Base Salary" shall have the meaning set forth
in Section 3(a) hereof.
(d) CAUSE. Termination of the Executive's employment for "Cause"
shall mean termination because of willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order or material breach of any
provision of this Agreement. For purposes of this paragraph, no act or failure
to act on the Executive's part shall be considered "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Employer. Cause shall be determined in good faith by the affirmative vote of a
majority of the whole Board of Directors (excluding the Executive) after the
Executive has been provided the opportunity to make a presentation to the Board
which presentation to the Board may be with counsel.
(e) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of
the Corporation" shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"), or any successor thereto, whether or not the Corporation is
registered under Exchange Act; provided that, without limitation, such a change
in control shall be deemed to have occurred if (i) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act) other than the
Executive or the Corporation, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) during any period of twenty
four consecutive months, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period.
(f) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (i) if
the Executive's employment is terminated for Cause, Disability or for
Retirement, the date specified in the Notice of Termination, and (ii) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given or as specified in such Notice.
(h) DISABILITY. Termination by the Employer of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits
under the applicable long-term disability plan
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maintained by the Employer or any subsidiary or, if no such plan applies, which
would qualify the Executive for disability benefits under the Federal Social
Security System.
(i) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following
a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, the
failure to elect or to re-elect or to appoint or to
re-appoint the Executive to the office of Executive
Vice President of the Employer or a material adverse
change made by the Employer in the Executive's
functions, duties or responsibilities as
Executive Vice President of the Employer;
(ii) Without the Executive's express written consent, a
material reduction by the Employer in the Executive's
Base Salary as the same may be increased from time to
time or, except to the extent permitted by Section
3(b) hereof, a material reduction in the package of
fringe benefits provided to the Executive, taken as a
whole;
(iii) Without the Executive's express written consent, the
Employer requires the Executive to work in an office
which is more than 30 miles from the location of the
Employer's current principal executive office, except
for required travel on business of the Employer to an
extent substantially consistent with the Executive's
business travel obligations prior to the Change in
Control;
(iv) Any purported termination of the Executive's
employment for Cause, Disability or Retirement which
is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (k) below;
or
(v) The failure by the Employer to obtain the assumption
of and agreement to perform this Agreement by any
successor as contemplated in Section 13 hereof.
(j) IRS. "IRS" shall mean the Internal Revenue Service.
(k) NOTICE OF TERMINATION. Any purported termination of the
Executive's employment by the Employer for any reason, including without
limitation for Cause, Disability or Retirement, or by the Executive for any
reason, including without limitation for Good Reason, shall be communicated by
a written "Notice of Termination" to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for
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termination of Executive's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Employer's termination of Executive's employment for Cause for
which the Date of Termination may be the date of the notice; and (iv) is given
in the manner specified in Section 10 hereof.
(l) RETIREMENT. "Retirement" shall mean voluntary termination by
the Executive in accordance with the Employer's retirement policies, including
early retirement, generally applicable to the Employer's salaried employees.
(m) SUBSIDIARY. "Subsidiary" shall mean any subsidiary of the
Corporation.
2. TERM OF EMPLOYMENT.
(a) The Employer hereby employs the Executive as Executive Vice
President, and Executive hereby accepts said employment and agrees to
render such services to the Employer, on the terms and conditions set forth in
this Agreement. Unless extended as provided in this Section 2, this Agreement
shall terminate five (5) years after the date first above written; provided,
however, this Agreement shall be automatically renewed on its anniversary date
("Annual Renewal Date") each year for one (1) additional year so that this
Agreement shall continue in effect for a period ending five (5) years from each
Annual Renewal Date unless either party shall give written notice of
non-renewal, in accordance with Section 14 hereof to the other party at least
thirty (30) days prior to an Annual Renewal Date, in which event this Agreement
shall continue in effect for a term ending on the fifth consecutive Annual
Renewal Date immediately following such notice. Reference herein to the term
of this Agreement shall refer both to the initial term and any successive term
as the context requires.
(b) During the term of this Agreement, the Executive shall perform
such executive services for the Employer as is consistent with his title of
Executive Vice President and as directed, from time to time, by the Board of
Directors and/or the President and Chief Executive Officer, including but not
limited to, the supervision of the Corporation's business development,
marketing and sales operations. The Executive shall devote his full time,
attention and energies to the business of the Corporation and shall not, during
the term hereof (as defined in Section 2(a)), be employed or involved in any
other business activity, whether or not such activity is pursued for gain,
profit or other pecuniary advantage, except for (i) volunteer services for or
on behalf of such religious, educational, non-profit and/or other eleemosynary
organization as Executive may wish to serve, (ii) service as a director of as
many as three (3) for-profit business activities, and (iii) such other
activities as may be specifically approved by the Board of Directors (without
the Executive's participation or vote). This restriction shall not, however,
preclude the Executive from employment in any capacity with affiliates of the
Corporation, nor shall any remuneration from such affiliates
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be considered in calculating the Base Salary (as defined in Section 3(a)) due
to Executive hereunder.
3. COMPENSATION AND BENEFITS.
(a) For services rendered hereunder by the Executive, the Employer
shall compensate and pay Executive for his services during the term of
this Agreement at a minimum base salary of one hundred twenty-five thousand
dollars ($125,000.00) per year ("Base Salary"), which may be increased from
time to time in such amounts as may be determined by the Board of Directors of
the Employer. In addition to his Base Salary, the Executive shall receive a
cash bonus for fiscal 1998, payable in May 1998 (on a date in May 1998
determined by management) in the amount of one hundred twenty-five thousand
dollars ($125,000.00) and a cash bonus for the fiscal years 1999, 2000 and 2001
to be based upon performance objectives to be determined by and between the
Board of Directors (or the Compensation Committee thereof) and the Executive
prior to the commencement of each such fiscal year, using quarterly goals and
based upon targeted revenue and earnings growth of the Corporation, strategic
alliances or acquisitions and the Executive's management of the Corporation's
affairs, payable quarterly throughout the fiscal year, provided that the goals
are successfully attained. In addition to any bonus paid or should the Board of
Directors not provide any bonus to Executive for any year, the Executive's
Base Salary shall automatically be increased by the amount of the prior
year's increase in the "Consumer Price Index for all Urban Consumers
(1982-84=100), Washington, D.C. Area, All Items," as published by the United
States Department of Labor, Bureau of Labor Statistics (the "CPI").
(b) During the term of the Agreement, Executive shall be entitled
to participate in and receive the benefits of any pension or other retirement
benefit plan, the 401(k) plan, profit sharing, stock option, employee stock
ownership, or other plans, benefits and privileges given to employees and
executives of the Employer, to the extent commensurate with his then duties and
responsibilities, as fixed by the Board of Directors of the Employer. The
Employer shall not make any changes in such plans, benefits or privileges which
would adversely affect Executive's rights or benefits thereunder, unless such
change occurs pursuant to a program applicable to all executive officers of the
Employer and does not result in a proportionately greater adverse change in the
rights of or benefits to Executive as compared with any other executive officer
of the Employer. Nothing paid to Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of the base salary payable to Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, Executive shall be entitled
to four (4) weeks (20 working days) paid vacation in each calendar year to be
taken and determined in accordance with the vacation policies and procedures as
established from time to time
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by the Board of Directors of the Employer. Executive shall also be entitled to
all paid holidays to which similarly situated executives and key management
employees of the Corporation are entitled. The Executive shall be entitled to
paid leave due to physical illness in each calendar year to be taken and
determined in accordance with the policies and procedures as established from
time to time by the Board of Directors. Executive shall not be entitled to
receive any additional compensation from the Employer for failure to take a
vacation, or failure to use "sick days," nor shall Executive be able to
accumulate unused vacation or "sick" time from one year to the next, except to
the extent authorized by the Board of Directors of the Employer.
4. EXPENSES. The Employer shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Employer, including,
but not by way of limitation, traveling expenses, and all reasonable
entertainment expenses (whether incurred at the Executive's residence, while
traveling or otherwise), subject to such reasonable documentation and other
limitations as may be established by the Board of Directors of the Employer.
If such expenses are paid in the first instance by Executive, the Employer
shall reimburse the Executive therefor.
5. TERMINATION.
(a) The Employer shall have the right, at any time upon prior
Notice of Termination, to terminate the Executive's employment hereunder for
any reason, including without limitation termination for Cause, Disability or
Retirement, and Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by
the Employer for Cause or (ii) Executive terminates his employment hereunder
other than for Good Reason, Executive shall have no right pursuant to this
Agreement to compensation or other benefits for any period after the applicable
Date of Termination.
(c) In the event that (i) Executive's employment is terminated by
the Employer for other than Cause, including termination due to Disability,
Retirement or the Executive's death, or (ii) such employment is terminated by
the Executive due to a material breach of this Agreement by the Employer, which
breach has not been cured within fifteen (15) days after a written notice of
non-compliance has been given by the Executive to the Employer, then the
Employer shall, subject to the provisions of Section 6 hereof, if applicable,
(A) Pay to the Executive, in a lump sum or in thirty-six
(36) equal monthly installments (at the Executive's option) beginning with the
first business day of the month following the Date of Termination, a cash
severance amount equal to three (3) times the Executive's Average Annual
Compensation, and
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(B) Maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of employment pursuant
hereto prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another employer (provided that the Executive is
entitled under the terms of such employment to benefits substantially similar
to those described in this subparagraph (B)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate immediately
prior to the Date of Termination (other than stock option and restricted stock
plans of the Employer), provided that in the event that the Executive's
participation in any plan, program or arrangement as provided in this
subparagraph (B) is barred or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are materially reduced,
the Employer shall arrange to provide the Executive with benefits substantially
similar to those which the Executive was entitled to receive under such plans,
programs and arrangements immediately prior to the Date of Termination.
(d) In the event that Executive's employment is terminated by the
Executive for Good Reason subsequent to Change in Control, then the Employer
shall:
(A) Pay to the Executive, in a lump sum payable within
five business days following the Date of Termination, a cash severance amount
equal to five (5) times the Executive's Average Annual Compensation, and
(B) Maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of employment pursuant
hereof prior to the Notice of Termination or (ii) the date of the Executive's
full-time employment by another employer (provided that the Executive is
entitled under the terms of such employment to benefits substantially similar
to those described in this subparagraph (B)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate immediately
prior to the Date of Termination (other than stock option and restricted stock
plans of Employer), provided that in the event the Executive's participation in
any plan, program or arrangement is discontinued or the benefit thereunder are
materially reduced, the Employer shall arrange to provide the Executive with
benefits substantially similar to those which the Executive was entitled to
receive under such plans, programs and arrangements immediately prior to the
Date of Termination.
6. ADDITIONAL BENEFITS UNDER CERTAIN CIRCUMSTANCES.
(a) If the Executive becomes liable, in any taxable year, for the
repayment of an excise tax under Section 4999 of the Code on account of any
payments to the Executive pursuant to Section 5, and the Employer chooses not
to contest the liability or has exhausted
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all administrative and judicial appeals contesting the liability, the Employer
shall pay the Executive (i) an amount equal to the excise tax for which the
Executive is liable under Section 4999 of the Code, (ii) the federal, state,
and local income taxes, and interest if any, for which the Executive is liable
on account of the payments pursuant to item (i), and (ii) any additional excise
tax under Section 4999 of the Code and any federal, state and local income
taxes for which the Executive is liable on account of payments made pursuant to
items (i) and (ii).
(b) This Section 6(b) applies if the amount of payments to the
Executive under Section 6(a) has not been determined with finality by the
exhaustion of administrative and judicial appeals. In such circumstances, the
Employer and the Executive shall, as soon as practicable after the event or
series of events have occurred giving rise to the imposition of the excise tax,
cooperate in determining the amount of the Executive's excise tax liability for
purposes of paying the estimated tax. The Executive shall thereafter furnish
to the Employer or its successors a copy of each tax return which reflects a
liability for an excise tax under Section 4999 of the Code at least thirty (30)
days before the date on which such return is required to be filed with the IRS.
The liability reflected on such return shall be dispositive for the purposes
hereof unless, within twenty (20) days after such notice is given, the Employer
furnishes the Executive with a letter of the auditors or tax advisor selected
by the Employer indicating a different liability or that the matter is not free
from doubt under the applicable laws and regulations and that the Executive
may, in such auditor's or advisor's opinion, cogently take a different
position, which shall be set forth in the letter with respect to the payments
in question. Such letter shall be addressed to the Executive and state that he
is entitled to rely thereon. If the Employer furnishes such a letter to the
Executive, the position reflected in such letter shall be dispositive for
purposes of this Agreement, except as provided in Section 6(c) below.
(c) Notwithstanding anything in this Agreement to the contrary, if
the Executive's liability for the excise tax under Section 4999 of the Code for
a taxable year is subsequently determined to be less than the amount paid by
the Employer pursuant to Section 6(a), the Executive shall repay the Employer
at the time that the amount of such excise tax liability is finally determined,
the portion of such income and excise tax payments attributable to the
reduction (plus interest on the amount of such repayment at the rate provided
on Section 1274(b)(2)(B) of the Code) and if the Executive's liability for the
excise tax under Section 4999 of the Code for a taxable year is subsequently
determined to exceed the amount paid by the Employer pursuant to Section 6(a),
the Employer shall make an additional payment of income and excise taxes in the
amount of such excess, as well as the amount of any penalty and interest
assessed with respect thereto at the time that the amount of such excess and
any penalty and interest is finally determined.
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7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the amount of
any benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended
to exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
8. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employer may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.
(a) The Executive hereby acknowledges and recognizes the highly
competitive nature of the business of the Corporation and accordingly agrees
that, during the term of this Agreement and, in consideration of the receipt of
any payment pursuant to this Agreement, for a period of two years following the
date of termination of the Executive's employment under this Agreement, unless
otherwise agreed to in writing by the Corporation, the Executive shall not,
either directly or indirectly, in any manner or capacity, whether as principal,
agent, partner, officer, director, employee, joint venturer, salesman, or
corporate shareholder or otherwise for the benefit of any Person (as defined
below), (i) render services to, or solicit the rendering of services to, any
Person in competition with the business of the Corporation, which then is, or
at any time during a period of one year prior to the termination of the
Executive's employment under this Agreement (the "Termination Date"), was a
Customer (as defined below) of the Corporation, or (ii) solicit the rendering
of services to any Person of any kind whatsoever which is then or has been at
any time during a period of one year prior to the Termination Date a Customer,
employee, salesperson, agent or representative of the Corporation in any manner
which interferes or might interfere with the relationship of the Corporation
with such Person, or in an effort to obtain such Person as a customer,
supplier, employee, salesperson, agent or representative of any business in
competition with the Corporation, or (iii) for a period of two years following
the Termination Date, hire or participate in the hiring by any Person of an
employee of the Corporation. In order to assure strict compliance with the
foregoing, and in recognition of the compensation to be paid by Employer to
Executive on the termination of this Agreement, Executive grants to Employer
the sole and absolute right to determine whether any employment or services
anticipated to be undertaken by Executive during said period of time as
outlined above, is or may be in violation of the foregoing provisions and
Executive agrees to notify Employer, in writing, fourteen (14) days prior to
undertaking any
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employment or services within the said time period, regardless of the nature
thereof, of the name and address of any such intended employer, proposed job
title, proposed job description and salary, and the business of the prospective
employer. If, within such fourteen (14) day period, Employer shall object on
reasonable grounds to such anticipated employment in writing to Executive,
Executive agrees not to accept the same or in any manner directly or indirectly
render services to any such prospective employer.
"Person" means any individual, trust, partnership, corporation,
limited liability company, association, or other legal entity.
"Customer" means any Person with which the Corporation or any
subsidiary is currently engaged to provide goods or services, has been engaged
to provide goods or services within twelve (12) months prior to the Termination
Date, or actively marketed, discussed a project with, negotiated with, provided
a bid to or otherwise communicated with in an effort to obtain an engagement to
provide goods or services sold by the Corporation or any subsidiary within
twelve (12) months prior to the Termination Date.
(b) It is expressly understood and agreed that although the
Executive and the Corporation consider the restrictions contained in Section
9(a) of this Agreement reasonable for the purpose of preserving for the
Corporation its good will and other proprietary rights, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in Section 9(a) of this Agreement is an
unreasonable or otherwise unenforceable restriction against the Executive, the
provisions of Section 9(a) of this Agreement shall not be rendered void but
shall be deemed amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or indicate to be
reasonable.
10. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive
acknowledges that the Corporation's trade secrets, as they may exist from time
to time, and confidential information concerning its products, programs,
technical information, procurement and sales activities and procedures,
identity of customers and potential customers, business plans, promotion and
pricing techniques, and credit and financial data concerning customers are
valuable, special and unique assets of the Corporation. In light of the highly
competitive nature of the industry in which the Corporation's business is
conducted, the Executive agrees that all knowledge and information described in
the preceding sentence not in the public domain and heretofore or in the future
obtained by the Executive shall be considered confidential information.
Executive agrees that he will not disclose any or such secrets, processes or
information to any Person or other entity for any reason or purpose whatsoever,
except as necessary in the performance of his duties as an employee of or
consultant to the Corporation and then only upon a written confidentiality
agreement in such form and content as requested by the Corporation from time to
time, nor shall the Executive make use of any such secrets, processes or
information (other than information in the public domain) for his own purposes
or for the benefit of himself, any Person or other
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entity (except the Company and its subsidiaries) under any circumstances. The
provisions contained in this Section 10 shall also apply to information
obtained by the Executive with respect to any future subsidiary of the
Corporation.
11. BUSINESS INFORMATION. Upon the termination of his employment
with the Corporation, Executive (or, as appropriate, his personal
representatives) shall deliver to the Corporation (without retaining copies of
the same), all plans, source codes, designs, customer lists, correspondence,
records, documents, accounts and papers of any description and any other
property of the Corporation within the possession or under the control of
Executive (or, as appropriate, his personal representatives) and relating to
the affairs and business of the Corporation, whether drafted, created or
compiled by Executive or received by Executive from other individuals or
entities (whether employees of or affiliated with the Corporation).
12. REMEDIES. The Executive acknowledges and agrees that the
Company's remedy at law for a breach or threatened breach of any of the
provisions of Section 9, Section 10 or Section 11 of this Agreement would be
inadequate and, in recognition of this fact, in the event of a breach or
threatened breach by the Executive of any of the provisions of Section 9,
Section 10 or Section 11 of this Agreement, it is agreed that, in addition to
any remedy at law, the Corporation shall be entitled to without posting any
bond, and the Executive agrees not to oppose the Corporation's request in the
nature of specific performance, temporary restraining order, temporary or
permanent injunction, or any other equitable relief or remedy which may then be
available, provided, however, nothing herein shall be deemed to relieve the
Corporation of its burden to prove grounds warranting such relief nor preclude
the Executive from contesting such grounds or facts in support thereof.
Nothing herein contained shall be construed as prohibiting the Corporation form
pursuing any other remedies available to it for such breach or threatened
breach.
13. ASSIGNABILITY. The Employer may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation
or other entity with or into which the Employer may hereafter merge or
consolidate or to which the Employer may transfer all or substantially all of
its assets, if in any such case said corporation or other entity shall by
operation of law or expressly in writing assume all obligations of the Employer
hereunder as fully as if it had been originally made a party hereto, but may
not otherwise assign this Agreement or its rights and obligations hereunder.
The Executive may not assign or transfer this Agreement or any rights or
obligations hereunder.
14. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by certified
or registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
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To the Employer: Board of Directors
ICARUS International, Inc.
One Central Plaza
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Chairman
With copies to: Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx, Xxxxx & Xxxxxxx
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
and
Xxxxxxx X. Xxxxxxx, Esq.
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
To the Executive: Xxxxxxx X. Xxxxxx, III
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
15. AMENDMENT; WAIVER. This Agreement supersedes and replaces the
Contract of Employment by and between the Executive and the Employer dated
August 1, 1981, which shall be, upon the execution of this Agreement,
terminated, null and void as of the date hereof. This Agreement represents the
entire agreement of the parties relating to subject matter hereof. No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the
Executive and such officer or officers as may be specifically designated by the
Board of Directors of the Employer to sign on its behalf. 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.
16. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Maryland.
17. NATURE OF OBLIGATIONS. The obligations of the Employer
hereunder are unsecured and the Executive represents a general creditor of the
Corporation for compensation which may be due and owing. Nothing contained
herein shall create or require the Employer to create a trust of any kind to
fund any benefits which may be
13
Xxxxxx Employment Agreement
Page 13
payable hereunder, and to the extent that the Executive acquires a right to
receive benefits from the Employer hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employer.
18. INTERPRETATION AND HEADINGS. This Agreement shall be
interpreted in order to achieve the purposes for which it was entered into.
The section headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
19. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect. With respect to Section 9 of this Agreement, in the event any court of
competent jurisdiction determines that such provisions are unreasonable or
contrary to law with respect to their time or geographic restriction, or both,
the parties hereto authorize such court to substitute restrictions as it deems
appropriate without invalidating such paragraph or this Agreement.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: ICARUS INTERNATIONAL, INC.
/s/ By: /s/
-------------------------- -------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
ICARUS CORPORATION
By: /s/
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
EXECUTIVE
By: /s/
-------------------------------------------
Xxxxxxx X. Xxxxxx, III
