EMPLOYMENT AGREEMENT
AGREEMENT, dated as of January 1, 2009, between Research
Frontiers Incorporated, a Delaware corporation with principal
executive offices at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxx
Xxxx 00000-0000 (the "Company"), and Xxxxxx X. Xxxxxx,
residing at [address] ("Employee").
W I T N E S S E T H
WHEREAS, the Company desires to employ Employee upon
the terms and subject to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises, the
mutual promises, covenants, and conditions herein contained
and for other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto intending to be legally bound hereby agree as follows:
Section 1. Employment.
The Company hereby agrees to continue to employ Employee,
and Employee hereby agrees to continue to serve the Company,
all upon the terms and subject to the conditions set forth in this
Agreement.
Section 2. Capacity and Duties.
(a) Employee is and shall be employed in the capacity of
President and Chief Executive Officer of the Company and shall
have the duties, responsibilities, and authorities normally
performed by the president and chief executive officer of a
company, including responsibility for the overall and day-to-day
operation of the Company, the hiring and termination of
employees of the Company who are not officers of the
Company, and such other duties, responsibilities, and authorities
as are assigned to him by the Board of Directors of the
Company (the "Board") so long as such additional duties,
responsibilities, and authorities are consistent with Employee's
position and level of authority as President and Chief Executive
Officer of the Company. Employee shall also serve as
Treasurer, Secretary, and General Counsel of the Company (or
any combination of the foregoing) if requested to do so by the
Board. Employee in carrying out his duties under this
Agreement shall report solely to the Board. Notwithstanding
the foregoing, after a Non-Extension Notice (as hereinafter
defined) is delivered, Employee shall (i) resign from such
offices then held by Employee with the Company or its
subsidiaries as shall be requested by the Board and shall no
longer have the duties, responsibilities, and authorities
associated with the offices from which he has resigned, (ii)
report to such person or persons as the Board may specify, and
(iii) perform such transitional duties, responsibilities, and
authorities as may be reasonably assigned to him by the Board.
(b) Employee shall devote substantially all of his business
time and attention to promote and advance the business of the
Company, except that Employee shall be permitted to (i) serve
on the boards of directors of other corporations not engaged in
competition with the Company and the boards of trade
associations and charitable organizations, (ii) engage in
charitable activities and community affairs, (iii) manage his
personal investments and affairs, and (iv) teach or lecture;
provided in each case that (A) such activities do not materially
interfere with the proper performance of Employee's duties and
responsibilities as the Company's President and Chief Executive
Officer and (B) in the case of each activity described in clauses
(i), (ii), and (iv), such activity is approved in advance by the
Board, such approval not to be unreasonably withheld, except
that, if all of activities described in clauses (i), (ii), and (iv)
involve in the aggregate less than ten hours per month of
Employee's time, such advance approval shall not be required
but Employee shall promptly notify the Board of the nature of
such activities.
(c) If (i) Employee is serving on the Board on the date a
Non-Extension Notice is delivered or at a time that he is no
longer employed by the Company and (ii) (A) a Change of
Control (as hereinafter defined) has not occurred or (B)
Employee's employment has been terminated by the Company
pursuant to Section 9(c) or Employee, in breach of this
Agreement, has terminated his employment prior to the
Scheduled Date of Termination (as hereinafter defined) other
than pursuant to Section 9(d), Employee shall promptly resign
from the Board if he is requested to do so by the Board.
Section 3. Term of Employment.
The term of employment of Employee by the Company
pursuant to this Agreement shall be for the period (the
"Employment Period") commencing as of the date hereof and
ending on December 31, 2013, unless further extended or sooner
terminated in accordance with the provisions of this Agreement.
On December 31, 2013, and on each subsequent December 31,
the Employment Period shall be automatically extended for one
additional year unless, not later than 90 days prior to such date,
the Company shall have delivered to Employee or Employee
shall have delivered to the Company written notice (a
"Non-Extension Notice") that the Employment Period shall not
be further extended.
Section 4. Compensation.
During the Employment Period, subject to all the terms and
conditions of this Agreement and as compensation for all
services to be rendered by Employee under this Agreement, the
Company shall pay to or provide Employee with the following:
(a) Base Salary. The Company shall pay to Employee a base
salary at the annual rate of at least $425,000, payable at such
intervals (at least monthly) as salaries are paid generally to other
executive officers of the Company.
(b) Bonus. Employee shall be eligible for a potential annual
bonus in an aggregate amount of at least $150,000 upon the
achievement of realistic and achievable goals. Not later than
April 30 of 2009, and not later than March 15 of each
subsequent year, the Board shall determine in good faith, after
consultation with Employee, the goals for that year's bonus,
which goals shall be specified in writing. The Board may, in its
sole discretion, provide for a series of separate and independent
goals to be met during the year, each of which is associated with
its own potential bonus. Any bonus (including any bonus
associated with a separate and independent goal) for any year
shall be payable to Employee as soon as practicable after it is
determined whether the applicable goals have been achieved.
(c) Equity Incentive Awards. In recognition of Employee's
assumption of the title and duties of Chief Executive Officer and
the services performed by Employee during 2008, as of January
1, 2009, the Company granted Employee 150,000 shares (the
"Restricted Shares") of Restricted Stock under the Company's
2008 Equity Incentive Plan (the "Plan"). The Restricted Period
(as defined in the Plan) shall lapse as to 1/36 of the Restricted
Shares on the last day of each of the first 36 months during the
Employment Period, subject to forfeiture of the Restricted
Shares as set forth in the Plan and the accelerated lapse of the
Restricted Period as set forth herein. In addition to the
Restricted Shares, the committee established by the Board to
administer the Plan may grant Employee additional equity
incentive awards under the Plan or otherwise from time to time
based upon his performance. Any such additional equity
incentive awards shall be of a type and amount commensurate
with Employee's position and consistent with the type and
amount of equity incentive awards granted to the Company's
other officers, directors, and employees.
(d) Vacation. Employee shall be entitled to annual paid
vacation of 20 business days, which shall accrue in accordance
with the policies of the Company in effect from time to time.
Vacation days not used in the year earned may be carried into
the first quarter of the subsequent year. For any vacation day
not used prior to the end of the first quarter of the year
subsequent to the year earned, Employee shall be paid an
amount equal to his annual base salary in the year earned
divided by 260.
(e) Employee Benefit Plans. Employee shall be entitled to
participate in all employee benefit plans maintained by the
Company for its senior executives or employees for which he is
eligible.
(f) Withholding. Employee authorizes the Company to make
any and all applicable tax withholdings from any compensation
payable or provided to Employee hereunder.
(g) Disability Payments. Any compensation payable or
provided to Employee hereunder shall be reduced by the sum of
the amounts, if any, payable to Employee under disability
benefit plans of the Company.
Section 5. Expenses.
The Company shall reimburse Employee for all reasonable
expenses (including, but not limited to, business travel and
entertainment expenses) incurred by him in connection with his
employment hereunder in accordance with the written policy
and guidelines established by the Company for executive
officers.
Section 6. Patents.
Any interest in patents, patent applications, inventions,
trademarks, trademark applications, copyrights, developments,
processes, or other intellectual property ("Inventions") which
Employee now or hereafter during the period he is employed by
the Company under this Agreement or otherwise may own or
develop relating to the fields in which the Company may then
be engaged shall belong to the Company; and forthwith upon
request of the Company Employee shall execute all such
assignments and other documents and take all such other action
as the Company may reasonably request in order to vest in the
Company all his right, title, and interest in and to the Inventions
free and clear of all liens, charges, and encumbrances.
Section 7. Non-Competition, Non-Solicitation.
Employee agrees that he will not during the period he is
employed by the Company under this Agreement or otherwise
and for a period of two years thereafter, directly or indirectly,
(a) solicit the employment of, or, except for terminations of
employees in the ordinary course of business during the period
Employee is employed by the Company under this Agreement
or otherwise, encourage to leave the employment of the
Company or any of its subsidiaries, any person employed by the
Company or any of its subsidiaries, (b) hire any employee or
former employee of the Company or any of its subsidiaries, (c)
compete with or be engaged in the same business as the
Company or any of its subsidiaries, (d) be employed by, or act
as consultant or lender to, or be a director, officer, or employee
of, any business or organization which, during the period
Employee is employed by the Company under this Agreement
or otherwise, directly or indirectly competes with or is engaged
in the same business as the Company or any of its subsidiaries,
or (e) have a greater than one percent interest as owner,
member, or partner of any business or organization which,
during the period Employee is employed by the Company under
this Agreement or otherwise, directly or indirectly competes
with or is engaged in the same business as the Company or any
of its subsidiaries.
Section 8. Confidential Information.
All confidential information which Employee may now possess,
may obtain during or after the Employment Period, or may
create prior to the end of the period he is employed by the
Company under this Agreement or otherwise relating to the
business of the Company or of any its licensees, customers, or
suppliers shall not be published, disclosed, or made accessible
by him to any other person, firm, or corporation either during or
after the termination of his employment or used by him except
during the Employment Period in the business and for the
benefit of the Company, in each case without prior written
permission of the Company. Employee shall return all tangible
evidence of such confidential information to the Company prior
to or at the termination of his employment.
Section 9. Early Termination.
Employee's employment hereunder may be terminated prior to
December 31, 2013 or, if the Employment Period has been
extended to a date later than December 31, 2013, prior to such
later date (December 31, 2013 or such later date is hereinafter
referred to as the "Scheduled Date of Termination"), without
such termination constituting a breach of this Agreement only
under the following circumstances:
(a) Death. Employee's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of Employee's incapacity due to
physical or mental illness, Employee shall have been absent
from his duties hereunder on a full-time basis for at least 16
consecutive weeks and does not return to the performance of his
duties on a full-time basis within ten days after receipt of
written notice from the Company, the Company may terminate
Employee's employment hereunder.
(c) Cause. The Company may terminate Employee's
employment hereunder for Cause. For purposes of this
Agreement, "Cause" shall mean (i) gross negligence or willful
misfeasance demonstrated by Employee in the performance of
his material duties to the Company, (ii) refusal by Employee to
perform reasonable material lawful duties which are consistent
with Employee's position and role and are assigned to him by
the Board, which refusal continues uncured for 30 days after
receipt of written notice from the Company, (iii) Employee's
engaging in any act of fraud, dishonesty, or moral turpitude that
has or is likely to have a material adverse affect on the business
of the Company or the reputation of the Company or Employee,
(iv) Employee's breaching in any material respect any material
provision of this Agreement, the Research Frontiers
Incorporated Employee Proprietary Information & Invention
Agreement executed by Employee on or about February 20,
1998 (the "1998 Agreement"), or the employee policies and
procedures of the Company, which breach is not cured within 30
days after receipt of written notice from the Company, (v)
Employee's conviction of, or entering into a plea of guilty or
nolo contendere (or its equivalent) to, a felony, or (vi)
Employee's material violation of any federal, state, or local law
applicable to the Company or any of its subsidiaries or their
respective businesses; provided that (A) no act, or failure to act,
by Employee that is specifically authorized pursuant to a
resolution duly adopted by the Board shall constitute Cause and
(B) Cause will not exist unless and until the Company has
delivered to Employee a copy of a resolution duly adopted by at
least two-thirds of the Board (excluding Employee) at a meeting
of the Board called and held for such purpose (after reasonable
notice to Employee and an opportunity for Employee and his
counsel to be heard before the Board) finding that, in the good
faith opinion of the Board, an event described in one or more of
clauses (i) through (vi) above has occurred and specifying the
particulars thereof in detail.
(d) Good Reason. Employee may terminate his employment
hereunder for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (i) the Company's breaching in any
material respect any material provision of this Agreement (and it
is agreed that Sections 2(a) and 11(a) are each a material
provision of this Agreement for these purposes), (ii) a change in
Employee's daily work location to a place that is greater than 50
miles from both (A) Employee's place of residence on the date
hereof and (B) the Company's place of business on the date
hereof in Woodbury, New York, other than such a change that
occurs after a Non-Extension Notice is delivered, or (iii) the
failure of the Board (or a committee of the Board) to nominate
Employee to serve as a director of the Company, other than such
a failure that occurs after a Non-Extension Notice is delivered;
provided in each case that Employee shall have provided written
notice to the Company of the existence of such breach, change,
or failure and the Company shall not have remedied such
breach, change, or failure within 30 days of receipt of such
notice.
(e) Notice of Early Termination. Any termination of
Employee's employment by the Company pursuant to Section
9(b) or 9(c) or by Employee pursuant to Section 9(d) shall be
communicated by a Notice of Early Termination to the other
party hereto. For purposes of this Agreement, a "Notice of
Early Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for early termination
under the provision so indicated.
(f) Date of Early Termination. "Date of Early Termination"
shall mean (i) if Employee's employment is terminated pursuant
to Section 9(a), the date of his death, (ii) if Employee's
employment is terminated pursuant to Section 9(b), 9(c), or
9(d), the date specified in the Notice of Early Termination,
which shall not be earlier than the date on which the Notice of
Early Termination is given, or (iii) if, in breach of this
Agreement, Employee's employment is terminated prior to the
Scheduled Date of Termination for any other reason, the date on
which Employee's employment is terminated.
Section 10. Compensation Upon Early Termination or
Expiration of the Employment Period.
(a) If Employee's employment is terminated pursuant to
Section 9(a), Employee's devisee, legatee, or other designee or,
if there be no such devisee, legatee, or other designee,
Employee's estate (such devisee, legatee, designee, or estate is
hereinafter referred to as "Employee's Beneficiary") shall be
entitled to receive (i) Employee's base salary and benefits
accrued and unpaid through the Date of Early Termination, (ii)
any unpaid bonus that Employee is eligible to receive on his
Date of Early Termination, (iii) any reimbursement Employee is
entitled to receive for expenses incurred prior to the Date of
Early Termination, and (iv) any benefits to which Employee or
Employee's Beneficiary is entitled pursuant to any insurance or
other benefit or incentive plan or arrangement of the Company
(collectively, "Accrued Obligations"). In addition, (v) the
Company shall pay to Employee's Beneficiary Employee's base
salary for the period commencing on the Date of Early
Termination and ending on the six month anniversary of the
Date of Early Termination, payable in the manner it would have
been paid if Employee had not died, and (vi) if on his Date of
Early Termination Employee is not eligible to receive a bonus
(including any bonus associated with a separate and independent
goal) for any year but has made substantial progress towards
earning such bonus, the Board will in good faith determine if
Employee's Beneficiary should be paid all or a portion of such
bonus.
(b) If Employee's employment is terminated by the Company
pursuant to Section 9(b), the Company shall pay to Employee
the Accrued Obligations. In addition, (i) the Company shall pay
to Employee the amount, if any, by which (A) his base salary
for the period commencing on the Date of Early Termination
and ending on the six month anniversary of the Date of Early
Termination exceeds (B) the sum of (I) the amount of base
salary received by Employee with respect to the period he was
disabled and (II) the sum of the amounts, if any, payable to
Employee under disability benefit plans of the Company, which
amount shall be payable in equal installments over the period
commencing on the Date of Early Termination and ending on
the six month anniversary of the Date of Early Termination at
such intervals (at least monthly) as salaries are paid generally to
executive officers of the Company and (ii) if on his Date of
Early Termination Employee is not eligible to receive a bonus
(including any bonus associated with a separate and independent
goal) for any year but has made substantial progress towards
earning such bonus, the Board will in good faith determine if
Employee should be paid all or a portion of such bonus.
(c) If Employee's employment is terminated by the Company
pursuant to Section 9(c) or if Employee, in breach of this
Agreement, shall terminate his employment prior to the
Scheduled Date of Termination other than pursuant to Section
9(d), the Company shall pay to Employee the Accrued
Obligations.
(d) If the Company, in breach of this Agreement, shall
terminate Employee's employment prior to the Scheduled Date
of Termination other than pursuant to Section 9(b) or 9(c) or if
Employee shall terminate his employment pursuant to Section
9(d), then
(i) the Company shall pay to Employee the Accrued
Obligations;
(ii) if on his Date of Early Termination Employee is not
eligible to receive a bonus (including any bonus associated with
a separate and independent goal) for any year but has made
substantial progress towards earning such bonus, the Board will
in good faith determine if Employee should be paid all or a
portion of such bonus;
(iii) the Company shall pay as severance pay to Employee his
base salary for the period commencing on the Date of Early
Termination and ending on the Scheduled Date of Termination,
payable in the manner it would have been paid if his
employment had not so terminated; provided that (A) except as
set forth in clause (B) below, in no event shall the Company pay
such severance pay to Employee for less than one year or more
than three years and (B) if the Date of Early Termination occurs
within three months prior to, or 12 months following, a Change
of Control, the Company shall pay such severance pay to
Employee for the period commencing on the Date of Early
Termination and ending on the later of (I) the Scheduled Date of
Termination and (II) the third anniversary of the Date of Early
Termination; and
(iv) the Restricted Period shall lapse with respect to all
Restricted Shares and any additional equity incentive awards
granted to Employee under the Plan or otherwise shall
immediately become fully vested.
For purposes of this Agreement, a "Change in Control" shall
mean a change in control of the Company of a nature that would
be required to be reported in response to Item 5.01 of Current
Report on Form 8-K pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (or any successor form), other
than a change of control resulting in control of the Company by
Employee or a group including Employee.
(e) If the Scheduled Date of Termination occurs as a result of
a Non-Extension Notice delivered by the Company to Employee
and Employee is not otherwise employed by the Company after
the Scheduled Date of Termination, the Company shall pay
Employee (i) Employee's base salary and benefits accrued and
unpaid through the Scheduled Date of Termination, (ii) any
unpaid bonus that Employee is eligible to receive on the
Scheduled Date of Termination, (iii) any reimbursement
Employee is entitled to receive for expenses incurred prior to
the Scheduled Date of Termination, and (iv) any benefits to
which Employee is entitled pursuant to any insurance or other
benefit or incentive plan or arrangement of the Company
(collectively, "Scheduled Date of Termination Accrued
Obligations"). In addition, (v) the Company shall pay as
severance pay to Employee his base salary for the period
commencing on the Scheduled Date of Terminations and ending
on the one year anniversary of the Scheduled Date of
Termination, payable in the manner it would have been paid if
his employment had not so terminated, and (vi) if on the
Scheduled Date of Termination Employee is not eligible to
receive a bonus (including any bonus associated with a separate
and independent goal) for any year but has made substantial
progress towards earning such bonus, the Board will in good
faith determine if Employee should be paid all or a portion of
such bonus.
(f) If the Scheduled Date of Termination occurs as a result of a
Non-Extension Notice delivered by Employee to the Company
and Employee is not otherwise employed by the Company after
the Scheduled Date of Termination, the Company shall pay
Employee the Scheduled Date of Termination Accrued
Obligations.
(g) Notwithstanding anything in the foregoing to the contrary,
(i) it is intended that the amounts payable to Employee under
Sections 10(d)(iii) and 10(e) shall be exempt from Section 409A
("Section 409A") of the Internal Revenue Code of 1986, as
amended (the "Code"), or satisfy the safe harbor set forth in
Treasury Regulations section 1.409A-1(b)(9)(iii) to the
maximum extent permitted. To the extent such amounts
payable under Sections 10(d)(iii) and 10(e) are not exempt and
exceed the applicable safe harbor amount, the excess amount
shall be treated as deferred compensation under Section 409A
and as such shall be payable to Employee in the manner it
would have been paid if his employment had not terminated.
Employee and the Company agree that any such amounts and
excess amounts are intended to be paid in compliance with
Section 409A, Treasury Regulations section 1.409A-1(b)(9)(iii),
and any future guidance issued thereunder; and
(ii) if, at the time of Employee's termination of employment
with the Company, Employee is considered a "specified
employee" (as such term is defined in Treasury Regulations
section 1.409A-1(i)(1)) and it is necessary to postpone the
commencement of any payments or benefits otherwise payable
under this Agreement as a result of such termination of
employment to prevent any accelerated or additional tax under
Section 409A, then the Company will postpone the
commencement of the payment of any such payments or
benefits hereunder (without any reduction in such payments or
benefits ultimately paid or provided to Employee), until the first
date that occurs after the date that is six months following
Employee's separation of service with the Company (or
Employee's death, if earlier).
(h) Except as provided in this Section 10 and Section 22,
Employee shall not be entitled to any payments or benefits from
the Company upon the termination of this Agreement (i) prior to
the Scheduled Date of Termination, whether such termination is
pursuant to Section 9 or in breach of this Agreement, or (ii) on
the Scheduled Date of Termination, whether the Scheduled
Date of Termination occurs as a result of a Non-Extension
Notice delivered by the Company to Employee or delivered by
Employee to the Company. Without limiting the generality of
the foregoing, the payments and other benefits provided for in
Section 10(d) shall be Employee's sole remedy for any breach
or alleged breach of this Agreement by the Company. Nothing
contained herein shall preclude the Company from pursuing,
either during or after the Employment Period, any remedy for
any breach or alleged breach of this Agreement by Employee.
(i) Notwithstanding anything herein to the contrary, in the
event that Employee would otherwise have received any
payments or distributions, whether payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise, that constitute "parachute payments" within the
meaning of Section 280G of the Code (the "Parachute
Payments"), Employee shall receive the greater net after-tax
amount (taking into account all applicable taxes payable by the
Executive, including any excise tax imposed under Section 4999
of the Code (the "Excise Tax")) of (i) the Parachute Payments
and (ii) an amount equal to the Parachute Payments reduced by
the smallest amount necessary to take the Parachute Payments
under the Excise Tax threshold.
(j) Upon the termination of this Agreement for any reason, if
Employee does not continue to be employed by the Company
after such termination, Employee shall be under no obligation to
seek other employment and there shall be no offset against any
amounts due to him under this Agreement on account of any
remuneration or benefits provided to him as the result of
employment by another employer which complies with the
provisions of Section 7.
Section 11. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all
or substantially all of the business and/or assets of the
Company, by written agreement in form and reasonably
substance satisfactory to Employee, to expressly assume and
agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if
no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined
and any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this
Section 11(a) or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
(b) Employee's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, such rights
shall not be subject to commutation, encumbrance, or the claims
of Employee's creditors, and any attempt to do any of the
foregoing shall be void. The provisions of this Agreement shall
be binding upon and inure to the benefit of Employee and his
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees, and shall
be binding upon and inure to the benefit of the Company and its
successors under Section 11(a). If Employee should die while
any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this
Agreement to Employee's Beneficiary.
Section 12. No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this
Agreement (except as provided in Section 11).
Section 13. Equitable and Other Relief.
Since a breach of the provisions (the "Subject Provisions") of
Section 6, 7, or 8 or of the 1998 Agreement could not
adequately be compensated by money damages, the Company
shall be entitled, in addition to any other right and remedy
available to it, to an injunction restraining such breach or a
threatened breach, and in either case no bond or other security
shall be required in connection therewith, and Employee hereby
consents to the issuance of such injunction. Employee agrees
that the Subject Provisions are necessary and reasonable to
protect the Company in the conduct of its business. If any
restriction contained in any of the Subject Provisions shall be
deemed to be invalid, illegal, or unenforceable by reason of the
extent, duration, or geographical scope thereof, or otherwise,
then the court making such determination shall have the right to
reduce such extent, duration, geographical scope, or other
provisions thereof, and in its reduced form such restriction shall
then be enforceable in the manner contemplated thereby. If
Employee breaches any of his material obligations under the
Subject Provisions in any material respect, which breach is not
cured within 30 days after receipt of written notice from the
Company, notwithstanding anything to the contrary contained
herein, the Company shall have no further compensation or
benefit obligations to Employee pursuant to this Agreement.
The Subject Provisions shall survive any termination of this
Agreement.
Section 14. Representations and Warranties of Employee.
Employee represents and warrants to the Company that (a)
Employee is under no contractual or other restriction or
obligation which is inconsistent with the execution of this
Agreement, the performance of his duties hereunder, or the
other rights of the Company hereunder and (b) Employee is
under no physical or mental disability that would hinder his
performance of duties under this Agreement.
Section 15. Life Insurance.
If requested by the Company, Employee shall submit to such
physical examinations and otherwise take such actions and
execute and deliver such documents as may be reasonably
necessary to enable the Company, at its expense and for its own
benefit, to obtain life insurance on the life of Employee.
Section 16. Modification.
This Agreement and the 1998 Agreement set forth the entire
understanding of the parties with respect to the subject matter
hereof, supersede all existing agreements between them
concerning such subject matter (other than previously existing
equity awards made by the Company to Employee, except as
any such award may be modified by this Agreement), and may
be modified only by a written instrument duly executed by each
party.
Section 17. Notices.
Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against
receipt to the party to whom it is to be given at the address of
such party set forth in the preamble to this Agreement (or to
such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 17). Notice to
the estate of Employee shall be sufficient if addressed to
Employee as provided in this Section 17. Any notice or other
communication given by certified mail shall be deemed given at
the time of certification thereof, except for a notice changing a
party's address which shall be deemed given at the time of
receipt thereof.
Section 18. Waiver.
Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of
any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist
upon strict adherence to any term of this Agreement on one or
more occasions shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement. Any waiver must be
in writing.
Section 19. Headings.
The headings in this Agreement are solely for the convenience
of reference and shall be given no effect in the construction or
interpretation of this Agreement.
Section 20. Counterparts; Governing Law.
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but both of which together shall
constitute one and the same instrument. It shall be governed by
and construed in accordance with the laws of the State of New
York, without giving effect to conflict of laws.
Section 21. Section 409A Compliance.
This Agreement is intended to comply with the requirements of
Section 409A and the regulations issued thereunder. To the
extent of any inconsistencies with the requirements of Section
409A, this Agreement shall be interpreted and amended in order
to meet such Section 409A requirements. Notwithstanding
anything contained in this Agreement, it is the intent of the
Company to have this Agreement interpreted and construed to
comply with any and all provisions of Section 409A, including
any subsequent amendments, rulings, or interpretations from
appropriate governmental agencies. If, however, any benefit or
payment under this Agreement is deemed to not comply with
Section 409A, the Company and Employee agree to renegotiate
in good faith any such benefit or payment (including, without
limitation, as to the timing of any severance payments payable
hereunder) so that either (a) Section 409A will not apply or (b)
compliance with Section 409A will be achieved.
Section 22. Indemnification.
The Company shall indemnify and make permitted advances to
Employee on the same basis as it indemnifies and makes
permitted advances to its other directors and officers. The
Company shall not modify in a manner that is materially
adverse to Employee the basis on which it is obligated on the
date hereof to indemnity and advance expenses to Employee
unless the Company is legally required to do so. In addition,
Employee shall be entitled to the full protection of any
insurance policies which the Employer may elect to maintain
generally for the benefit of its directors and officers.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
Research Frontiers Incorporated
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, Chairman
4/28/2009
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
4/28/2009
