Exhibit 10.5
EMPLOYMENT AGREEMENT
BETWEEN
XXXXXXX.XXX, LTD.
AND
XXXXXXX XXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), effective as of the 6th
day of May, 1999 by and between XXXXXXX.XXX, LTD. a Delaware corporation having
its principal place of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Corporation") and XXXXXXX XXXXX, an individual residing at 00 Xxxxxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000 (the "Executive").
WITNESSETH THAT:
WHEREAS, the Corporation desires to employ the Executive on the
terms and conditions set forth in this Agreement; and
WHEREAS, the Executive desires to be employed by the Corporation on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I. EMPLOYMENT TERM AND DUTIES
SECTION 1.1 EMPLOYMENT. The Corporation hereby agrees to employ the
Executive, and the Executive hereby agrees to accept such employment, upon the
terms and conditions herein contained.
SECTION 1.2 TERM. The term of employment under this Agreement (the
"Employment Term") shall commence on May 6, 1999 (the "Effective Date"), and
shall continue until May 5, 2002. Thereafter, this Agreement shall automatically
renew for additional one-year terms with a
minimum increase of 10% per year unless the Corporation gives the Executive
written notice stating that it does not desire to renew at least six months
before the end of the term.
SECTION 1.3 DUTIES. During the Employment Term, the Executive shall serve
as Chief Financial Officer of the Corporation. The Executive shall perform such
duties as are reasonable and customary for an individual holding such office and
such other duties as are set forth in the Bylaws of the Corporation or as may be
agreed to from time to time by the Executive including, without limitation, (a)
being responsible for developing, subject to approval by the Board and the
President, overall financial strategy and planning; (b) developing the basic
financial objectives, policies, and operating procedures of the business and
submitting them to the President for approval; (c) implementing the financial
plans and policies adopted by the Board or the President through Executive's
personal efforts and through his delegation of the performance of duties to
subordinate employees of the Corporation and to other persons or companies; (d)
interpreting organizational policies and supervising the administration thereof
by subordinates and reviewing and approving proposed internal policies of
subordinate units; (e) supervising and directing the Corporation's financial
reporting and accounting functions; (f) preparing and presenting operating and
capital expenditure budgets for review and approval by the Board; and (g)
effectively managing and facilitating an initial public offering of the
Corporation's capital stock and/or other financing transactions. The Executive
shall devote substantially his full and exclusive professional time and
attention to performing his obligations hereunder. The Executive shall report
directly to the President and CEO of the Corporation.
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ARTICLE II. COMPENSATION
SECTION 2.1 BASIC COMPENSATION. During the Employment Term, the
Corporation shall pay to the Executive an annual base salary (which shall accrue
proportionately from day to day and shall be payable in accordance with the
Corporation's usual payroll practices with respect to officers of the
Corporation) of $175,000 (the "Basic Compensation").
SECTION 2.2 ANNUAL BONUS. In addition to Basic Compensation, the Executive
may also receive other bonus or incentive compensation and salary increases as
shall be determined by the Board of Directors of the Corporation (the "Board")
in accordance with applicable Corporation policies in effect at such time.
SECTION 2.3 BENEFITS. During the Employment Term, Executive shall be
entitled to participate in all benefit plans, if any, provided to other
similarly situated senior executives of the Corporation. The Corporation shall
be entitled to obtain key-man life insurance on the life of Executive with the
benefits thereof payable solely to the Corporation or its assigns, as the
Corporation shall determine, and Executive shall promptly submit to examinations
by medical personnel reasonably acceptable to Executive as the Corporation may
request to assist it in obtaining the key-man life insurance and shall otherwise
reasonably cooperate should the Corporation decide to obtain such insurance.
SECTION 2.4 VACATION. During the Employment Term, the Executive shall be
entitled to paid vacation in accordance with the most favorable plans, policies,
programs and practices of the Corporation as in effect generally with respect to
other executives of the Corporation.
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SECTION 2.5 STOCK OPTIONS.
(a) GRANT. The Corporation hereby grants to Executive a
non-qualified stock option ("NQSO") to purchase 15,000 shares of the
Corporation's Common Stock ("NQSO Shares") at a per-share price based on the
Corporation's fair market value as at March 31, 1999 (as determined by an
independent valuation company reasonably acceptable to the Corporation and the
Executive). This NQSO is granted subject to the terms and conditions set forth
below and in the Corporation's Stock Award Plan.
(b) VESTING TERM. The NQSO shall be exercisable for a period
of 10 years from the date of this Agreement and shall become exercisable as to
the number of NQSO Shares over the term at the times indicated below:
Number of Shares On or After
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625 June 5, 1999
625 July 6, 1999
625 August 6, 1999
625 September 6, 1999
625 October 6, 1999
625 November 6, 1999
625 December 6, 1999
625 January 6, 2000
625 February 6, 2000
625 March 6, 2000
625 April 6, 2000
625 May 6, 2000
3,750 May 6, 2001
3,750 May 6, 2002
Except that if prior to May 6, 2000 there shall be a closing of a
firm commitment underwritten registered public offering of the Corporation's
Common Stock, all NQSO Shares that are due to vest on or before May 6, 2000
shall vest as of the date of such closing.
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(c) REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS OF
THE EXECUTIVE UPON EXERCISE OF NQSO. The Executive agrees that in the event that
the Corporation and the Corporation's counsel deem it necessary or advisable in
the exercise of their discretion, the issuance of NQSO Shares may be conditioned
upon the Executive's making certain representations, warranties, covenants and
acknowledgments relating to compliance with applicable securities laws.
(d) SHAREHOLDERS AGREEMENT. The Executive acknowledges and agrees
that upon exercise of this NQSO, in whole or in part, the NQSO shares will be
subject to that certain Shareholders Agreement dated as of February 22, 1997 (as
the same may be amended, supplemented and/or superseded, the "Shareholders
Agreement"), a copy of which is on file at the Corporation's corporate office
(to the extent it may then be in effect generally). Accordingly the Executive
agrees to be bound by the Shareholders Agreement upon exercise of this NQSO, as
if signatory thereto.
(e) EXPIRATION UPON A TERMINATION.
(i) If the Executive's employment with the Corporation is
terminated by the Corporation for "Cause" during the Employment Term, the term
of the NQSO shall be deemed to have automatically expired immediately upon such
termination of the Executive for "Cause" as defined in Section 4.1(c).
(ii) If the Executive's employment with the Corporation is
terminated without Cause, for Good Reason or upon the Executive's death,
Executive shall be entitled to exercise the NQSO granted hereunder, to the
extent the right to so exercise had accrued at the
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date of termination and had not been previously exercised, for a period of
thirty days after such termination date, subject to all other provisions hereof.
(f) NON TRANSFERABILITY. The NQSO shall not be transferable by the
Executive otherwise than by will or the applicable laws of descent and
distribution and shall be exercisable during the Executive's lifetime only by
the Executive.
(g) TAX OBLIGATIONS. The Executive acknowledges that the transfer of
any NQSO Shares in accordance with this Agreement may have federal, state or
local tax implications for the Executive and the Executive understands that the
Corporation is not undertaking to bear any obligation of the Executive so
created. The Executive acknowledges and agrees that any and all such tax
obligations shall be the sole responsibility of the Executive and the
Corporation makes no warranties regarding the income tax consequences or any
other aspect of the NQSO.
(h) STOCK CERTIFICATES' RESTRICTIVE LEGENDS. Stock certificates
evidencing NQSO Shares may bear such restrictive legends as the Corporation and
Corporation's counsel deem necessary or advisable.
(i) NO TAX OR OTHER ADVICE. The Executive acknowledges that he has
not relied on, and none of the Corporation or any of its representatives has
given, any representations or warranties, or any advice, with respect to the
income tax or other consequences of the transactions contemplated by this
Agreement. The Executive represents that he has sufficient knowledge, and or has
consulted his own advisors, with respect to such consequences.
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ARTICLE III. BOARD SEAT
During the Employment Term, the Corporation shall use its best
efforts to nominate Executive for election as a member of and Chairman of the
Board and cause Executive to be elected thereto.
ARTICLE IV. TERMINATION OF EMPLOYMENT
SECTION 4.1 EVENTS OF TERMINATION.
(a) DEATH. The Executive's employment shall terminate automatically
upon the Executive's death.
(b) WITHOUT CAUSE. Notwithstanding any other provision hereunder,
the Corporation shall have the right to terminate the Executive's employment
hereunder without "Cause" (as defined in Section 4.1(c)) at any time during the
Employment Term for any reason in the sole discretion of the Corporation upon
not less than ninety (90) days' notice to the Executive.
(c) CAUSE. The Corporation may terminate the Executive's employment
during the Employment Term for Cause. For purposes of this Agreement, "Cause"
shall mean: (i) gross negligence or willful misconduct of the Executive in the
performance of any of his duties under this Agreement, (ii) the failure by the
Executive to perform his duties hereunder; (iii) any embezzlement or
misappropriation of funds or property or intellectual property of the
Corporation; (iv) any conviction or plea of guilty or NOLO CONTENDERE in
connection with fraud or any crime that constitutes a felony in the jurisdiction
involved; and (v) any material breach by the
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Executive of the terms of this Agreement, which is not cured within thirty (30)
days of notice of the breach given by the Corporation.
(d) GOOD REASON. The Executive may terminate his employment during
the Employment Term for Good Reason upon thirty (30) days' notice to the
Corporation as long as such notice is given within ninety (90) days of the date
Executive becomes aware of the occurrence of any of the events specified below.
For purposes of this Agreement, "Good Reason" shall mean the occurrence, without
the Executive's express written consent, of any one or more of the following
events:
(i) A material change in the Executive's titles or duties
described in Section 1.3, or any removal of the Executive from, or any failure
to re-elect the Executive to, any of such positions.
(ii) A failure by the Corporation to pay Executive's Basic
Compensation, not caused by Executive, which failure to pay is not cured within
30 days after written notice from Executive.
(iii) The filing of a voluntary or involuntary petition of
bankruptcy by or against the Corporation or the insolvency of the Corporation.
(iv) A Change of Control as defined in Section 4.2(c) below.
(v) Removal of Executive from the Board.
(vi) Executive is forced to work outside of the New York
metropolitan area on a permanent basis.
(vii) The Corporation breaches any material term hereof, after
an opportunity to cure.
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(e) WITHOUT GOOD REASON. The Executive may terminate his employment
during the Employment Term without Good Reason upon thirty (30) days notice to
the Corporation.
SECTION 4.2 TERMINATION PROCEDURES AND CERTAIN DEFINITIONS.
(a) NOTICE OF TERMINATION. Any termination by the Corporation for
Cause or without Cause or by the Executive for Good Reason or without Good
Reason, shall be communicated by Notice of Termination to the other party. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such notice,
specifies the termination date. The failure by the Executive or the Corporation
to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Corporation, respectively, hereunder or preclude the
Executive or the Corporation, respectively, from asserting the fact or
circumstance in enforcing the Executive's or the Corporation's rights hereunder.
The Executive's continued employment with the Corporation after a Notice of
Termination is provided shall not constitute consent to, or a waiver of any
rights with respect to, any circumstance constituting Good Reason hereunder.
(b) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Corporation for Cause, the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be, (ii) if the Executive's
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employment is terminated by the Corporation other than for Cause or death, the
Date of Termination shall be the date not less than ninety (90) days after the
date on which the Corporation notifies the Executive of such termination, (iii)
if the Executive terminates his employment for Good Reason, the Date of
Termination shall be the date, not less than thirty (30) days after the date on
which the Executive notifies the Corporation of such termination, and (iv) if
the Executive's employment is terminated by reason of death, the Date of
Termination shall be the date of death of the Executive.
(c) CHANGE OF CONTROL. A "Change of Control" shall have occurred
if:
(i) any "person" within the meaning of Section 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), other than the
Corporation, a subsidiary of the Corporation, any employee benefit plan
sponsored by the Corporation or any subsidiary of the Corporation, Xxxxxxx
Xxxxxxx or an underwriter who has acquired securities for the purpose of
distributing them in a firmly underwritten public offering, becomes the
"beneficial owner" as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of 49% or more of the combined voting power of the securities of the
Corporation entitled to vote in an election of directors to the Board; or
(ii) a merger or equivalent combination occurs after which 49%
or more of the voting stock of the surviving corporation is held by persons
other than former stockholders of the Corporation; or
(iii) the sale, assignment, transfer or other disposition of
assets of the Corporation having a value in excess of 49% of the total assets of
the Corporation.
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SECTION 4.3 OBLIGATIONS OF THE CORPORATION ON TERMINATION.
(a) TERMINATION UPON DEATH. If the Executive's Employment is
terminated upon his death:
(i) IN GENERAL. The Corporation shall immediately pay the
Executive in cash the amount of Basic Compensation previously earned but not yet
paid.
(ii) SEVERANCE BENEFITS. The Corporation shall pay the
Executive his Basic Compensation for the remainder of the Employment Term (the
"Severance Period") or one year of Basic Compensation, whichever is greater,
payable in accordance with the Corporation's usual payroll practices. Any
amounts payable under this Agreement shall be paid to Executive's estate.
(b) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If Executive's
employment is terminated without Cause or for Good Reason:
(i) IN GENERAL. The Corporation shall immediately pay the
Executive in cash the amount of Basic Compensation previously earned but not yet
paid.
(ii) SEVERANCE BENEFITS. The Corporation shall pay the
Executive either his Basic Compensation for the remainder of the Employment Term
(the "Severance Period") or one year of Basic Compensation, which ever is
greater, payable in a lump sum within thirty (30) days following said
termination.
(iii) STOCK OPTIONS; RESTRICTED STOCK. Upon the Date of
Termination, when Executive is terminated without Cause or for Good Reason (i)
all options to purchase stock of the Corporation held by Executive shall become
immediately exercisable as to all shares of
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stock which are subject thereto and shall remain exercisable for the remainder
of the term thereof.
(c) TERMINATION FOR CAUSE OR TERMINATION WITHOUT GOOD REASON. In
case of a Termination for Cause or Termination without Good Reason, the
Executive shall be entitled to his Basic Compensation accrued to the Date of
Termination and any other benefits or awards vested prior to such date. Except
as otherwise provided in this Agreement or under any employee benefit plan
maintained by the Corporation, the Corporation shall have no further obligations
to the Executive.
(d) GROSS UP PAYMENTS.
(i) If, on account of the termination of the Executive
following a Change in Control, the "Severance Payment" (as defined below) paid
by the Corporation to the Executive pursuant to this Agreement constitutes an
"excess parachute payment" within the meaning of Section 280G of the Code
subject to the tax imposed by Section 4999 of the Code (the "Excise Tax"), then
the Corporation shall pay to the Executive an additional amount (the "Gross Up
Payment") such that the amount paid or transferred to the Executive after
deduction of any Excise Tax on the Severance Payment, and any federal, state and
local income tax, employment tax and Excise Tax upon the Gross Up Payment, shall
be equal to the Severance Payment. For purposes of this Section 4.3(d) only,
"Severance Payment" shall mean any payment or other benefit paid pursuant to
this Agreement.
(ii) For purposes of determining whether any portion of a
Severance Payment will be subject to the Excise Tax and the amount of such
Excise Tax, (A) the Severance Payment and payments provided for in Section
4.3(d)(i) shall be treated as "parachute payments"
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within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280(G)(b)(1) of the Code shall be
treated as subject to the Excise Tax, unless and to the extent that tax counsel
selected by the Corporation's independent auditors and acceptable to the
Executive is of the opinion that the Severance Payment (in whole or in part)
does not constitute a "parachute payment" or such "excess parachute payment" (in
whole or in part) represents reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code in excess of the
allocable base amount within the meaning of Section 280G(b)(3) of the Code, or
the Severance Payment is otherwise not subject to the Excise Tax, (B) the amount
of the Severance Payment that is treated as subject to the Excise Tax shall be
equal to the lesser of (X) the total amount of the Severance Payment and (Y) the
amount of "excess parachute payments" within the meaning of Section 280G(b)(1)
of the Code (after applying clause (A) above), (C) any Gross Up Payment pursuant
to Section 4.3(d)(i) shall be treated as subject to the Excise Tax in its
entirety and (D) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Corporation's independent auditors in
accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
(iii) If in circumstances described in Section 4.3(d)(i), by
reason of the filing by the Executive of an amended tax return, an audit by the
Internal Revenue Service or other taxing authority, or a final determination by
a court of competent jurisdiction, it is determined that "excess parachute
payments" exceeding those previously reported in his tax returns were received
by the Executive and as a result an additional Excise Tax (the "Additional
Excise Tax") shall become due, the Corporation shall pay the Executive an
additional amount (the "Subsequent Gross Up Payment") such that the amount paid
or transferred to the Executive,
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after deduction of (A) any Additional Excise Tax and (B) on an after tax basis,
any interest, additions and penalties with respect to the Additional Excise Tax
and (C) any federal, state and local income tax, employment tax and Excise Tax
upon the Subsequent Gross Up Payment and (D) the payments provided for in
Section 4.3(d)(i), shall be equal to the Severance Payment.
(iv) Any Gross Up Payment required hereunder shall be made at
least ten days prior to the due date (without regard to extensions) of the
Executive's federal income tax return for the year with respect to which the
"excess parachute payment" is deemed made under the Code. Any Subsequent Gross
Up Payment required hereunder shall be made to the Executive within 30 days
after the amount thereof is determined. Notwithstanding the two immediately
preceding sentences, the Executive shall pay any federal, state and local tax or
taxes and employment taxes required to be withheld from the Executive's wages
(within the meaning of Section 3121 and 3402 of the Code) with respect to the
"excess parachute payment" and any such tax or taxes paid by the Corporation to
the Internal Revenue Service or state or local taxing authority shall constitute
payment to the Executive.
(v) If the Excise Tax is finally determined (whether by the
filing of an amended tax return by the Executive, by audit of the Internal
Revenue Service or other taxing authority, or by a final determination of a
court of competent jurisdiction) to be less than the amount paid to or on behalf
of the Executive under the provisions of Sections 4.3(d)(i)-(iv) and the
overpayment is refunded to the Executive, the Executive shall repay to the
Corporation, promptly following the receipt of the refund, the portion of the
Gross Up Payment (and/or Subsequent Gross Up Payment) attributable to such
reduction of the Excise Tax (plus the portion attributable to federal, state and
local income tax and employment taxes imposed on the portion
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being repaid by the Executive but only to the extent that the repayment may
result in a tax benefit to the Officer under Section 1341 of the Code and
similar provisions of applicable state and local law).
(vi) The provisions of this Section 4.3(d) shall inure to the
benefit of the Executive during the Employment Term regardless of whether or not
his employment is terminated, and if the Executive's employment is terminated,
the rights and obligations of the Executive and the Corporation under this
Section 4.3(d) shall survive the termination of this Agreement.
ARTICLE V. PURPOSE
SECTION 5.1 PURPOSE. The Corporation recognizes that the Executive is a
key executive of the Corporation and is expected to be a factor in the growth
and success of the Corporation. The Corporation also recognizes that the
continued success of the Corporation depends, to a significant degree, upon the
effective performance of the Executive's duties as set forth in this Agreement.
Therefore, one of the primary purposes of this Agreement is to provide for the
long-term financial security of the Executive and his family so that he will be
better able to direct his undivided attention to the successful performance of
his duties on behalf of the Corporation.
SECTION 5.2 NON-COMPETE AND CONFIDENTIALITY. Except as to such actions
within the ordinary course of the Executive's employment by the Corporation
which the Executive in good faith believes to be in the best interests of the
Corporation, the Executive shall not at any time during the Employment Term or
two years thereafter, without the prior written consent of the
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Corporation: (i) request or advise any supplier, or other person, firm,
partnership, association, corporation or business organization, entity or
enterprise having business dealings with the Corporation or any subsidiary or
affiliate of the Corporation to withdraw, curtail or cancel such business
dealings; (ii) disclose to any third party including, but not limited to, any
competitor or potential competitor of the Corporation or any subsidiary or
affiliate of the Corporation any trade secret, know-how or knowledge relating to
costs, products, equipment, merchandising and marketing methods, business plans,
or research results used by, or useful to, the Corporation or any subsidiary or
affiliate of the Corporation or other confidential information of the
Corporation (the "Confidential Information"); (iii) induce or attempt to
influence any executive of the Corporation or any subsidiary or affiliate of the
Corporation to terminate, or in any way violate the terms of, his or her
employment; or (iv) engage directly or engage indirectly in any business in
competition with the business of the Corporation or its subsidiaries, provided,
however, that the ownership by Executive of not more than 5% of the equity
securities of any company or similar business venture shall not be deemed a
violation of this Section 5.2(iv). For purposes of this Section 5.2,
Confidential Information shall not include: (a) information that is in the
public domain; provided that Executive was not responsible for the disclosure to
the public; (b) information that was already known to Executive prior to his
employment by the Corporation; and (c) information required to be disclosed in
connection with any judicial or administrative proceeding or inquiry; provided
that Executive shall notify the Corporation as promptly as practicable of such
proceeding or inquiry and cooperate with the Corporation in taking legally
available steps to resist or narrow the required disclosure.
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ARTICLE VI. MISCELLANEOUS
SECTION 6.1 ENFORCEABILITY. If the scope of any provision of this
Agreement is too broad to permit enforcement of such provision to its fullest
extent, then such provision shall be enforced to the maximum extent permitted by
applicable law, and, if necessary, the scope of any such provision may be
judicially modified (to the extent necessary in any proceeding brought to
enforce such provision) and thereafter fully enforced.
SECTION 6.2 WORKS FOR HIRE. Executive agrees that all improvements in the
Corporation's method of conducting its business as well as all inventions
conceived of or developed by Executive related directly or indirectly to the
Corporation's business during the Employment Term, the negotiation thereof or
the period of six months after the expiration or termination of this Agreement,
regardless of the time and place made, and all proprietary rights therein, shall
belong exclusively to the Corporation as works-for-hire, having been specially
commissioned by the Corporation, and Executive will promptly disclose such work
product to the Chairman of the Board of the Corporation. To the extent necessary
to supplement the foregoing, Executive hereby transfers and assigns to the
Corporation the proprietary rights in perpetuity in all such work product and
all rights therein of any kind in all media now or hereafter known. In addition
to the rights granted to the Corporation in this Section 5.2, Executive agrees
that all patents related directly or indirectly to the Corporation's business
obtained by or issued in the name of Executive during the Employment Term are
property of the Corporation. Executive further agrees to assign any such patents
to the Corporation without payment of any additional compensation other than the
compensation specified in Article II above.
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SECTION 6.3 REMEDIES. The parties acknowledge that the remedy at law for
any breach of any party's obligations hereunder would be inadequate and consent
to the granting of temporary and permanent injunctive relief in any proceeding
brought to enforce any of such provisions without the necessity of proof of
actual damages; provided, however, that the foregoing shall not be construed to
limit any other right or remedy available to the Corporation or the Executive at
law or in equity, and all such rights and remedies shall be cumulative to the
extent permitted by applicable law, and the exercise of any one or more of such
rights or remedies shall be without prejudice to the exercise of any other such
right or remedy.
SECTION 6.4 ASSIGNMENT BY THE EXECUTIVE; SUCCESSORS.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Corporation shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) Except as is otherwise herein expressly provided, this Agreement
shall inure to the benefit of and be binding upon the Corporation, its
successors and assigns, and upon the Executive, his spouse, heirs, executors and
administrators, provided, however, that the obligations of the Executive
hereunder shall not be delegated.
(c) The Corporation will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if no such
succession had taken place. As used in this Agreement, "Corporation" shall mean
Corporation as
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hereinbefore defined and any successor to its business or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of law, or
otherwise.
SECTION 6.5 WAIVER. Failure of either party hereto to insist upon strict
compliance by the other party with any term, covenant or condition hereof shall
not be deemed a waiver of such term, covenant or condition, nor shall any waiver
or relinquishment or failure to insist upon strict compliance with any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 6.6 SURVIVAL. Notwithstanding the expiration or termination of
this Agreement, Sections 4.3, 5.2 and 6.2 shall survive.
SECTION 6.7 NOTICE. Except as otherwise provided in Section 4.2(a) hereof,
any notice required or desired to be given pursuant to this Agreement shall be
sufficient if in writing sent by registered or certified mail to the addresses
set forth above or to such other address as any party hereto may designate in
writing, transmitted by hand delivery or by registered or certified mail to the
other; provided, the failure by the Executive to observe the notice provisions
hereof shall not in any way limit, reduce or effect the Executive's rights and
benefits hereunder.
SECTION 6.8 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to any otherwise applicable choice of law rules.
SECTION 6.9 TAXES. The Corporation may deduct from all amounts paid under
this Agreement all federal, state, local and other taxes required by law to be
withheld with respect to such payments.
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SECTION 6.10 ENTIRE AGREEMENT. The parties hereto agree that this
Agreement (together with, to the extent benefits or rights are otherwise
affected by this Agreement, any employee benefit plan maintained or sponsored by
the Corporation) contains the entire understanding and agreement between them
and supersedes all previous agreements and arrangements, if any, relating to the
employment of the Executive. This Agreement shall not be amended, modified or
supplemented in any respect except by an agreement in writing signed by the
Executive and the Corporation.
SECTION 6.11 COUNTERPARTS. This Agreement may be signed in counterparts,
each of which shall be an original, and all of which, taken together shall be
deemed to be one instrument.
IN WITNESS WHEREOF, the Corporation and the Executive have duly
executed this Agreement as of the day and the year first above written.
XXXXXXX.XXX, LTD. EXECUTIVE
By: /s/ /s/
-------------------------- ------------------------------
Name: Xxxxxxx Xxxxx
Title:
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