EXHIBIT 10.32
EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
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This Employment and Non-Interference Agreement, dated as of April 23, 1998
(this "Agreement"), by and among Xxxxxx X. Xxxxxx, Xx. (the "Executive"),
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Crystaloid Technologies, Inc., a Delaware corporation (the "Company") and a
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wholly-owned subsidiary of Xxxxxxx Products, Inc., a Delaware corporation (the
"Parent"), and Parent.
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W I T N E S S E T H:
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WHEREAS, the Company wishes to obtain the future services of the Executive
for the Company; and
WHEREAS, the Executive is willing, upon the terms and conditions herein set
forth, to provide services hereunder; and
WHEREAS, Parent and the Company wishes to secure the Executive's non-
interference, upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment
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Subject to Section 3, the Company hereby employs Executive, and Executive
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agrees to accept such employment, during the Term of Employment (as defined in
Section 3(a)), as President of the Company and to undertake such duties and
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responsibilities as may be reasonably assigned to Executive from time to time by
the Board of Directors of the Company or the appropriately authorized and
designated officers of the Company or the Parent.
2. Extent of Employment
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(a) During the Term of Employment, the Executive shall perform his
obligations hereunder faithfully and to the best of his ability at the principal
executive offices of the Company in Hudson, Ohio, under the direction of the
Board of Directors of the Company, and shall abide by the rules, customs and
usages from time to time established by each of the Parent and the Company.
(b) During the Term of Employment, the Executive shall devote
substantially all of his business time, energy and skill as may be reasonably
necessary for the performance of
his duties, responsibilities and obligations hereunder (except for vacation
periods and reasonable periods of illness or other incapacity), consistent with
past practices and norms in similar positions.
(c) Nothing contained herein shall require Executive to follow any
directive or to perform any act which would violate any laws, ordinances,
regulations or rules of any governmental, regulatory or administrative body,
agent or authority, any court or judicial authority, or any public, private or
industry regulatory authority (collectively, the "Regulations"). Executive
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shall act in good faith in accordance with all Regulations.
3. Term of Employment; Termination
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(a) The "Term of Employment" shall commence on the date hereof and shall
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continue for a term of four years (the "Initial Term"), subject to automatic
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renewal for additional periods of one (1) year after the Initial Term (the
"Additional Terms") unless at least ninety (90) days prior to the scheduled
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expiration date of the Initial Term or subsequent Additional Term, either the
Executive or the Company notifies the other of its decision not to renew. Should
the Executive's employment by the Company be earlier terminated pursuant to
Section 3(b) or by the Executive pursuant to Section 3(c), the Term of
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Employment shall end on the date of such earlier termination.
(b) Subject to the payments contemplated by Section 3(e), the Term of
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Employment may be terminated at any time by the Company:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability
Executive is unable to perform, and does not perform, substantially all of
his duties hereunder for a continuous period of ninety (90) days as
certified in writing by an experienced, recognized physician specializing
in such disabilities, which physician shall be reasonably acceptable to the
Company and the Executive;
(iii) for Cause (as defined in Section 3(d));
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(iv) upon the continuous poor or unacceptable performance of the
Executive's duties to the Company, in the sole judgment of the Board of
Directors of the Company, which has remained uncured for a period of thirty
(30) days after delivery of written notice by the Company to the Executive
of such dissatisfaction with Executive's performance and specifying the
Company's points of dissatisfaction; or
(v) for any other reason or no reason, it being understood that no
reason is required.
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Executive acknowledges that no representations or promises have been made
concerning the grounds for termination or the future operation of the Company's
business, and that nothing contained herein or otherwise stated by or on behalf
of the Company modifies or amends the right of the Company to terminate
Executive at any time, with or without Cause. Termination shall become
effective upon the delivery by the Company to the Executive of notice specifying
such termination and the reasons therefor (i.e., Section 3(b)(i)-(v)), subject
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to the requirements for advance notice and an opportunity to cure provided in
this Agreement, if and to the extent applicable.
(c) Subject to the payments contemplated by Section 3(e), the Term of
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Employment may be terminated at any time by the Executive:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability
Executive is unable to perform, and does not perform, substantially all of
his duties hereunder for a continuous period of ninety (90) days as
certified in writing by an experienced, recognized physician specializing
in such disabilities, which physician shall be reasonably acceptable to the
Company and the Executive;
(iii) as a result of a material reduction in Executive's authority,
perquisites, salary, position or responsibilities (other than such a
reduction which affects all of the Company's senior executives on a
substantially equal or proportionate basis) or the Company's willful,
material violation of its obligations under this Agreement, in each case,
after thirty (30) days prior written notice to the Company and its Board of
Directors and the Company's failure thereafter to cure such reduction or
violation; or
(iv) voluntarily or for any reason not referred to in clauses (i)
through (iii), or no reason, in each case, after ninety (90) days prior
written notice to the Company.
(d) For the purposes of this Section 3:
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"Cause" shall mean any of the following: (i) Executive's conviction for
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any crime or criminal offense involving the unlawful theft or conversion of
substantial monies or other property or any other felony (other than a criminal
offense arising solely under a statutory provision imposing criminal liability
on the Executive on a per se basis due to the offices held by the Executive),
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including fraud or embezzlement; (ii) Executive's breach of any of his fiduciary
duties to the Company or its stockholders or making of a willful
misrepresentation or omission which breach, misrepresentation or omission would
reasonably be expected to materially adversely affect the business, properties,
assets, condition (financial or other) or prospects of the Parent or the
Company; (iii) Executive's willful, continual and material neglect or failure to
discharge his duties, responsibilities or obligations prescribed by Sections 1
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and 2 (other than arising solely due to physical or mental disability); (iv)
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Executive's habitual drunkenness or substance abuse which materially interferes
with
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Executive's ability to discharge his duties, responsibilities or obligations
prescribed by Sections 1 and 2; (v) Executive's willful and material breach of
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any non-competition or confidentiality agreement with the Company, including
without limitation, those set forth in Sections 7 and 8 of this Agreement; and
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(vi) Executive's gross neglect of his duties and responsibilities, as determined
by the Company.
(e) In the event Executive's employment is terminated pursuant to Section
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3(b)(i), 3(b)(ii), 3(b)(v), 3(c)(i), 3(c)(ii) or 3(c)(iii), the Company will pay
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to Executive (or his estate or representative) the full amounts to which he
would be entitled under Section 4(a) and customary benefits as provided for in
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Section 6 for the period from the date of termination to the second anniversary
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of such termination. In the event Executive's employment is terminated pursuant
to Section 3(b)(iv), the Company will pay to Executive the full amounts to which
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he would be entitled under Section 4(a) and customary benefits as provided for
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in Section 6 for the period from the date of termination until thirty (30) days
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after the date of such termination. In the event Executive's employment is
terminated pursuant to Section 3(b)(iii) or 3(c)(iv), there will be no amounts
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owing by the Company to the Executive under Section 4 or any other provision of
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this Agreement, from and after the date of termination. If the Company makes any
payments required by this Section 3(e), such payments will constitute severance
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and liquidated damages, and the Company will not be obligated to pay any further
amounts to Executive under this Agreement or otherwise be liable to Executive in
connection with his termination.
(f) All determinations pursuant to this Section 3 (other than pursuant to
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Section 3(b)(ii) or 3(c)(ii)) shall be made by the Company's Board of Directors,
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in its sole discretion, whose decision shall be final, conclusive and binding.
(g) Termination of the Term of Employment will not terminate the parties'
respective obligations under Sections 7, 8, 10 through 20, or any other
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provisions not associated specifically with the Term of Employment.
(h) In the event the Term of Employment is terminated and the Company is
obligated to make payments pursuant to Section 3(e), Executive will not be
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obligated to seek or obtain alternative employment; provided, however, if he
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nevertheless thereafter obtains alternative employment, then if and to the
extent Executive obtains such employment, the Company's obligation to provide
insurance coverage and benefits, if any, under Section 3(e), will be mitigated
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and reduced by and to the extent of Executive's insurance coverage and benefits
under such alternative employment during the period for which such insurance and
benefits are owed by the Company pursuant to Section 3(e). Moreover, in the
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event that, after the Restricted Period pursuant to Section 8(a), Executive is
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employed by or engaged in a Competitive Business as contemplated by Section
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8(a)(i), then the Company will thereupon cease and will be no longer obligated
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to make any payments otherwise required under Section 3(e).
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(i) In the event the Term of Employment is terminated and the Company is
obligated to make payments pursuant to Section 3(e), Executive hereby waives any
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and all claims against the Company, the Parent and their respective officers,
directors, employees, agents, or representatives, stockholders and affiliates
relating to his employment during the term hereof and this Agreement.
4. Compensation.
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(a) During the Term of Employment, the Company shall pay compensation to
Executive as base compensation for his services hereunder, in bi-weekly
installments, a base salary at a rate of $90,000 per annum. Such amounts may be
adjusted at the discretion of the Company based upon a review of Executive's
performance by the Company which will take place on or about April 1 of each
year.
(b) An annual bonus compensation based on Executive's performance as
determined and approved by the Board of Directors. Such bonus will be at the
full discretion of the Board of Directors, and may not be paid at all.
Executive acknowledges that no bonus has been agreed upon or promised. If the
Board of Directors decides to pay a bonus, it is to be paid within thirty (30)
days after the issuance of audited financial statements for the Company.
5. Reimbursement of Expenses
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During the Term of Employment, the Company shall reimburse Executive for
documented travel, entertainment and other expenses reasonably incurred by
Executive in connection with the performance of his duties hereunder and, in
each case, in accordance with the rules, customs and usages promulgated by the
Company from time to time in effect.
6. Benefits
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During the Term of Employment, the Executive shall be entitled to
perquisites, paid vacations and benefits (including health, short and long term
disability, pension and life insurance benefits consistent with past practice,
or as increased from time to time) established from time to time, by the Board
of Directors for executives of the Company, subject to the policies and
procedures in effect regarding participation in such benefits.
7. Confidential Information
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(a) Executive acknowledges that his employment hereunder gives him access
to Confidential Information relating to the Companies' Business and its
customers which must remain confidential. Executive acknowledges that this
information is valuable, special, and a unique asset of the Companies' Business,
and that it has been and will be developed by the Companies at considerable
effort and expense, and if it were to be known and used by others
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engaged in a Competitive Business, it would be harmful and detrimental to the
interests of the Companies. In consideration of the foregoing and this
Agreement, Executive hereby agrees and covenants that, during and after the Term
of Employment, Executive will not, directly or indirectly in one or a series of
transactions, disclose to any person, or use or otherwise exploit for the
Executive's own benefit or for the benefit of anyone other than the Companies,
any Confidential Information (as defined in Section 9), whether prepared by
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Executive or not; provided, however, that any Confidential Information may be
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disclosed to officers, representatives, employees and agents of the Companies
who need to know such Confidential Information in order to perform the services
or conduct the operations required or expected of them in the Business (as
defined in Section 9). Executive shall use his best efforts to prevent the
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removal of any Confidential Information from the premises of the Company, except
as required in his normal course of employment by the Company. Executive shall
use commercially reasonable efforts to cause all persons or entities to whom any
Confidential Information shall be disclosed by him hereunder to observe the
terms and conditions set forth herein as though each such person or entity was
bound hereby. Executive shall have no obligation hereunder to keep confidential
any Confidential Information if and to the extent disclosure of any thereof is
specifically required by law; provided, however, that in the event disclosure is
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required by applicable law, the Executive shall provide the Company with prompt
notice of such requirement, prior to making any disclosure, so that the Company
may seek an appropriate protective order. At the request of the Company,
Executive agrees to deliver to the Company, at any time during the Term of
Employment, or thereafter, all Confidential Information which he may possess or
control. Executive agrees that all Confidential Information of the Companies and
its subsidiaries (whether now or hereafter existing) conceived, discovered or
made by him during the Term of Employment exclusively belongs to the Companies
(and not to Executive). Executive will promptly disclose such Confidential
Information to the Company and perform all actions reasonably requested by the
Company to establish and confirm such exclusive ownership.
(b) The terms of this Section 7 shall survive the termination of this
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Agreement regardless of who terminates this Agreement, or the reasons therefor.
8. Non-Interference
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(a) Executive acknowledges that the services to be provided give him the
opportunity to have special knowledge of the Companies and its Confidential
Information and the capabilities of individuals employed by or affiliated with
the Company and that interference in these relationships would cause irreparable
injury to the Company. In consideration of this Agreement, Executive covenants
and agrees that:
(i) From the date hereof through the date that is 24 months after the
termination of the Term of Employment (the "Restricted Period"), Executive
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will not, without the express written approval of the Board of Directors of
the Company, anywhere in the Market, directly or indirectly, in one or a
series of transactions, own, manage, operate, control, invest or acquire an
interest in, or otherwise engage or
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participate in, whether as a proprietor, partner, stockholder, lender,
director, officer, employee, joint venturer, investor, lessor, supplier,
customer, agent, representative or other participant, in any business which
competes, directly or indirectly, with the Business in the Market
("Competitive Business") without regard to (A) whether the Competitive
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Business has its office, manufacturing or other business facilities within
or without the Market, (B) whether any of the activities of the Executive
referred to above occur or are performed within or without the Market or
(C) whether the Executive resides, or reports to an office, within or
without the Market; provided, however, that (x) the Executive may, anywhere
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in the Market, directly or indirectly, in one or a series of transactions,
own, invest or acquire an interest in up to one percent (1%) of the capital
stock of a corporation whose capital stock is traded publicly, or that (y)
Executive may accept employment with a successor company to the Company.
(ii) During the Restricted Period (which shall not be reduced by any
period of violation of this Agreement by Executive or period which is
required for litigation to enforce the rights hereunder), Executive will
not without the express prior written approval of the Board of Directors of
the Company (A) directly or indirectly, in one or a series of transactions,
recruit, solicit or otherwise induce or influence any proprietor, partner,
stockholder, lender, director, officer, employee, sales agent, joint
venturer, investor, lessor, supplier, customer, agent, representative or
any other person which has a business relationship with the Company or had
a business relationship with the Company within the 24 month period
preceding the date of the incident in question, to discontinue, reduce or
modify such employment, agency or business relationship with the Company,
or (B) employ or seek to employ or cause any Competitive Business to employ
or seek to employ any person or agent who is then (or was at any time
within 24 months prior to the date the Executive or the Competitive
Business employs or seeks to employ such person) employed or retained by
the Company. Notwithstanding the foregoing, nothing herein shall prevent
the Executive from providing a letter of recommendation to an employee with
respect to a future employment opportunity.
(iii) The scope and term of this Section 8 would not preclude
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Executive from earning a living with an entity that is not a Competitive
Business.
(b) In the event that Executive breaches his obligations in any material
respect under Section 7 or this Section 8, the Company, in addition to pursuing
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all available remedies under this Agreement, at law or otherwise, and without
limiting its right to pursue the same shall cease all payments to the Executive
under this Agreement or any other agreement.
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(c) The terms of this Section 8 shall survive the termination of this
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Agreement regardless of who terminates this Agreement, or the reasons therefor.
9. Definitions
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"Business" means any business conducted, or engaged in, by the Companies
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prior to the date hereof or at any time during the Term of Employment.
"Cause" is defined in Section 3(c).
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"Companies" means Parent and its successors or any of its direct or
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indirect subsidiaries (including the Company), now or hereafter existing.
"Company" is defined in the introduction.
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"Competitive Business" is defined in Section 8(a)(i).
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"Confidential Information" means any confidential information including,
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without limitation, any study, data, calculations, software storage media or
other compilation of information, patent, patent application, copyright,
trademark, trade name, service xxxx, service name, "know-how", trade secrets,
customer lists, details of client or consultant contracts, pricing policies,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans or any portion or phase of any
scientific or technical information, ideas, discoveries, designs, computer
programs (including source of object codes), processes, procedures, formulas,
improvements or other proprietary or intellectual property of the Companies,
whether or not in written or tangible form, and whether or not registered, and
including all files, records, manuals, books, catalogues, memoranda, notes,
summaries, plans, reports, records, documents and other evidence thereof. The
term "Confidential Information" does not include, and there shall be no
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obligation hereunder with respect to, information that becomes generally
available to the public other than as a result of a disclosure by the Executive
not permissible hereunder or information acquired by the Executive completely
independently, related in no way to the Business and due in no part whatsoever
to his position with the Company.
"Executive" means Xxxxxx X. Xxxxxx, Xx. or his estate, if deceased.
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"Market" means any county in the United States of America and each similar
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jurisdiction in any other country in which the Business was conducted by or
engaged in by the Companies prior to the date hereof or is conducted or engaged
in, or is proposed to be conducted or engaged in, by the Companies at any time
during the Term of Employment.
"Parent" is defined in the introduction.
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"Regulations" is defined in Section 2(c).
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"Restricted Period" is defined in Section 8(a)(i).
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"Term of Employment" is defined in Section 3(a).
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10. Notice
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Any notice, request, demand or other communication required or permitted to
be given under this Agreement shall be given in writing and if delivered
personally, or sent by certified or registered mail, return receipt requested,
as follows (or to such other addressee or address as shall be set forth in a
notice given in the same manner):
If to Executive: Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxxx 00000
If to Company: Crystaloid Technologies, Inc.
c/x Xxxxxxx Products, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any such notices shall be deemed to be given on the date personally delivered or
such return receipt is issued.
11. Previous Agreements; Executive's Representation
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(a) Executive hereby cancels, voids and renders without force or effect
any previous employment or severance agreement by and between Executive and the
Company.
(b) Executive hereby warrants and represents to the Company that Executive
has carefully reviewed this Agreement and has consulted with such advisors as
Executive considers appropriate in connection with this Agreement, and is not
subject to any covenants, agreements or restrictions, including without
limitation any covenants, agreements or restrictions arising out of Executive's
prior employment which would be breached or violated
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by Executive's execution of this Agreement or by Executive's performance of his
duties hereunder.
12. Other Matters
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Executive agrees and acknowledges that the obligations owed to Executive
under this Agreement are solely the obligations of the Company, and that none of
the Companies' stockholders, directors, officers, affiliates, representatives,
agents or lenders will have any obligations or liabilities in respect of this
Agreement and the subject matter hereof.
13. Validity
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If, for any reason, any provision hereof shall be determined to be invalid
or unenforceable, the validity and effect of the other provisions hereof shall
not be affected thereby.
14. Severability
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Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein. If any court determines that any
provision of Section 8 or any other provision hereof is unenforceable and
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therefore acts to reduce the scope or duration of such provision, the provision
in its reduced form shall then be enforceable.
15. Waiver of Breach; Specific Performance
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The waiver by the Company or Executive of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any other breach of such other party. Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its respective
rights under this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of Sections 7 and 8 of this
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Agreement and that any party (and third party beneficiaries) may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions in order to enforce or
prevent any violations of the provisions of this Agreement.
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16. Assignment; Third Parties
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Neither the Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of his or
its respective rights or obligations hereunder, without the prior written
consent of the other; provided, however, that the Company may, upon prior
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written notice (i) assign any or all of its rights and interests hereunder to
one or more of its affiliates, (ii) designate one or more of its affiliates to
perform its obligations hereunder (in any or all of which cases the Company
nonetheless shall remain responsible for the performance of all of its
obligations hereunder) and (iii) grant a security interest in respect of its
rights hereunder to its lenders. The parties agree and acknowledge that each of
the Companies and their respective lenders are intended to be third party
beneficiaries of, and have rights and interests in respect of, Executive's
agreements set forth in Sections 7 and 8.
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17. Amendment; Entire Agreement
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This Agreement may not be changed orally but only by an agreement in
writing agreed to by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter of this Agreement, and supersedes and replaces all prior
Agreements, understandings and commitments with respect to such subject matter.
18. Litigation
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THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI, EXCEPT THAT NO DOCTRINE OF
CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF MISSOURI, AND NO
DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED BY THE LAWS OF ANY
OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT, MODIFICATION OR
REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE OF ANY FOREIGN JURISDICTION,
BE INTERPOSED IN ANY ACTION HEREON. EXECUTIVE AND THE COMPANY AGREE THAT ANY
ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT MAY BE
COMMENCED IN THE COURTS OF THE STATE OF MISSOURI OR THE UNITED STATES DISTRICT
COURTS IN ST. LOUIS, MISSOURI. EXECUTIVE AND THE COMPANY CONSENT TO SUCH
JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN SUCH COURTS AND WAIVE ANY
OBJECTIONS BASED UPON FORUM NON CONVENIENS. THE CHOICE OF FORUM SET FORTH IN
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THIS SECTION 18 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT
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OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER JURISDICTION.
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19. Further Action
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Executive and the Company agree to perform any further acts and to execute
and deliver any documents which may be reasonable to carry out the provisions
hereof.
20. Counterparts
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This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first written above.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
CRYSTALOID TECHNOLOGIES, INC.
By /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX PRODUCTS, INC.
By /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
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