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EXHIBIT 10.4
FORM OF
EMPLOYMENT AGREEMENT
Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company") and
Xxxxxxx X. Xxxxx ("Executive") enter into this Employment Agreement as of
July 7, 1999 (the "Agreement"), effective as of the Effective Date.
WHEREAS, Company is planning an initial public offering of its stock,
and has begun to take the necessary steps in furtherance of this course of
action;
WHEREAS, as a condition to taking the Company public, the parties have
agreed to enter into a new Employment Agreement;
WHEREAS, the Company desires to employ Executive upon the terms and
subject to the conditions of this Agreement; and
WHEREAS, Executive desires to be employed by the Company upon the terms
and subject to the conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth below, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Executive hereby
covenant and agree as follows:
1. Definitions. For purposes of this Agreement, the following
capitalized terms shall have the following meanings, and all other capitalized
terms used in this Agreement but not defined in this paragraph 1 shall have the
meanings assigned elsewhere in this Agreement:
"Base Salary" means $200,000.
"Cause" means:
(i) Executive's conviction of (or plea of no contest or
similar plea to) a felony;
(ii) Executive's intentional continuing refusal to
substantially perform his obligations and duties under this
Agreement (except by reason of incapacity due to illness or
accident) if he (a) shall have failed to remedy the alleged
breach caused by such conduct within 30 days from the date
written notice is given by the Company demanding that he
remedy the alleged breach caused by such conduct, or (b) shall
have failed to take reasonable steps in good faith to that end
during such 30-day period, provided that after the end of such
30-day period there shall have been delivered to Executive a
certified copy of a resolution of the Board of Directors of
the Company, taken at a meeting of the Board of Directors at
which Executive,
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together with his counsel, is given the opportunity to be
heard, finding that Executive was guilty of intentional
continuing refusal to substantially perform his obligations
and duties under this Agreement and specifying the details
thereof, and that Executive has failed to take reasonable
steps in good faith to remedy the alleged breach caused by
such conduct,
(iii) Executive engaged in willful fraud or defalcation,
either of which involved funds or other assets of the Company;
or
(iv) upon Executive's breach of any material term of this
Agreement (including, but not limited to, the noncompete and
confidentiality provisions in paragraphs 7 and 8).
"Change in Control" means and shall be deemed to occur:
(i) in the event any "person" (as such term is used in
paragraphs 13(d) and 14(d) of the Exchange Act) (other than
Xxxxxx X. Xxxxx and his affiliates) or more than one such
person acting as a group, other than a trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of the securities of the Company, in a transaction or a series
of transactions, representing thirty percent (30%) or more of
the combined voting power of the Company's then outstanding
securities ordinarily having the right to vote for the
election of directors of the Company;
(ii) during any period of two consecutive years during the
Employment Period, individuals who at the beginning of the
Employment Period constitute the Board of Directors of the
Company cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election
by the Company's stockholders, of each director who was not a
director at the beginning of the Employment Period has been
approved in advance by directors representing at least
two-thirds of the directors then in office who were (A)
directors at the beginning of the Employment Period, or (B)
previously approved in accordance with this subparagraph (ii);
(iii) the Company sells or otherwise disposes of all or
substantially all of its assets; and
(iv) the Company participates in a merger or consolidation
and, immediately following the consummation of such merger or
consolidation, the Company's stockholders prior to such merger
or consolidation do not own 50% or more of the voting shares
of stock of the surviving or successor corporation.
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"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Compensation Committee" means the applicable compensation committee of
the Board of Directors of the Company.
"Disabled" or "Disability" means a determination, made at the request
of Executive or upon the reasonable request of the Company set forth in
a notice to Executive, by a physician selected by the Company and
Executive, that Executive is unable to perform his duties as specified
in this Agreement and in all reasonable medical likelihood such
inability will continue for a period in excess of 180 days, or for
shorter periods aggregating to more than 180 days in any consecutive
nine-month period.
"Effective Date" shall be the closing date of the Company's initial
public offering pursuant to the S-1 Registration Statement with the
Securities and Exchange Commission on May ____, 1999.
"Employment Period" means the term of Executive's employment pursuant
to the provisions of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor thereto.
"Good Reason" means:
(i) a Change in Control of the Company;
(ii) a decrease in the total amount of Executive's Base Salary
below the amount in effect on the date hereof;
(iii) a reduction in Executive's title, a material reduction
in his authority, duties or job responsibilities, a material
adverse change in his working conditions (including the
relocation of Executive's office more than 40 miles from the
Company's present executive offices), without Executive's
consent, as determined by Executive in his reasonable
judgment;
(iv) a failure by the Company to comply with any material
provision of this Agreement if the Company shall have failed
to remedy the alleged breach within 60 days from the date
written notice of such noncompliance is given by Executive to
the Company; or
(v) any purported termination of Executive's employment which
is not effected pursuant to a proper Notice of Termination
(and for purposes of this Agreement no such purported
termination shall be effective).
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"Notice of Termination" means a written notice of either the Company or
Executive, as applicable, setting forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination.
"Termination Date" means the effective date of employment termination.
2. Term of Employment. The Company shall employ Executive, and
Executive shall be employed by the Company and shall provide services to the
Company upon the terms and conditions hereinafter set forth. The initial term of
Executive's employment with the Company shall continue, unless earlier
terminated pursuant to Section 5 hereof, through December 31, 2001 (the
"Employment Period"); provided, however, that after expiration of the initial
term, the Employment Period shall automatically be renewed each January 1 for
successive one-year terms unless the Company or Executive delivers written
notice to the other party at least sixty (60) days preceding the expiration of
the initial term or any one-year extension date of the intention not to extend
the term of this Agreement.
3. Performance of Duties. Executive shall have the title of Executive
Vice President of the Company, and he shall possess such powers and perform such
duties as are normally incident to such position, as provided in the By-laws of
the Company and in accordance with the General Corporation Law of the State of
Delaware. During this period, Executive agrees that he shall perform his duties
faithfully and efficiently subject to the direction of the President and the
Board of Directors of the Company, and the Company agrees that Executive shall
be required to report to the President and to the Board of Directors.
Executive agrees that during the Employment Period he shall devote substantially
his full business time to business affairs of the Company, provided, however,
that notwithstanding any other provision hereof, Executive may serve in any
capacity with any civic, educational and charitable organization provided, in
each case, such activities do not materially interfere with the performance of
his duties hereunder, and such service is consistent with all Company policies
and procedures regarding such service. Executive shall be entitled to retain all
compensation (whether in the form of cash, equity securities or perquisites)
paid or delivered to Executive in connection with such civic, educational or
charitable activities. Executive agrees that Executive shall not, without the
prior consent of the Board of Directors of the Company (which consent shall not
be unreasonably withheld), agree to serve on any boards of directors other than
the boards of directors upon which Executive presently serves.
4. Compensation. For services rendered by Executive, and upon the
condition that Executive fully and faithfully perform all of his duties and
obligations set forth herein, Executive shall be compensated for his services as
follows:
a. Base Salary. Executive shall receive an annual salary,
payable in monthly or more frequent installments, in accordance with
the usual payroll practice of the Company, in an amount equal to
$________ (the "Base Salary"), less income tax withholdings and
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other normal employee deductions. The Base Salary shall be reviewed
annually as of the end of each fiscal year commencing January 1, 2002
by the Compensation Committee, and may, at the sole discretion of the
Compensation Committee, be increased by an amount that it deems
appropriate, If the Base Salary is increased by the Compensation
Committee, it shall not be decreased thereafter during the Employment
Period.
b. Bonus. Executive shall receive bonus payments in accordance
with any arrangements or bonus plans established by the Company, in
such amounts and upon such terms as are determined by the Compensation
Committee.
c. Management Stock Option Plan. Should the Company establish
a stock option plan or plans with respect to which senior executives of
the Company participate and which excepts other employees of the
Company generally, Executive shall be entitled to participate in such
plans in the same manner as other senior executives of the Company.
d. Benefits. During his employment with the Company,
Executive shall be entitled to participate, to the extent he meets all
eligibility requirements of general application, in any and all
employee benefit plans, programs and arrangements which are now or
hereafter adopted by the Company to provide benefits for its employees,
including, but not limited to, medical and hospitalization, group term
life insurance, disability, and retirement plans. Additionally,
Executive shall receive such other benefits as Company may make
generally available to its senior executive officers.
e. Vacation. Executive shall be entitled to _______weeks of
paid vacation, in accordance with the policy of the Company in effect
from time to time, to be taken at times agreeable to both the Executive
and the Company.
f. Travel and Expenses. The Company shall reimburse Executive
for the reasonable and necessary business expenses incurred by him in
connection with the performance of his duties and obligations as set
forth herein consistent with any existent Company policy with respect
to same. Reimbursement shall be made upon the presentation by Executive
to the Company of reasonably detailed statements of such expenses.
Payment of the Base Salary shall not in any way limit or reduce any other
obligation of the Company pursuant to this Agreement, and no other compensation,
benefit, or payment hereunder shall in any way limit or reduce the obligation of
the Company to pay Executive's Base Salary, except that, for the period
commencing on the date Executive becomes Disabled and ending on the Termination
Date, the Base Salary shall be reduced by any amounts that are payable to
Executive prior to or during such period under any disability benefit plan of
the Company in which Executive participates.
5. Termination. Executive's employment hereunder shall terminate at the
end of the Employment Period. In addition, the Employment Period may be
terminated at any time as provided herein. After Notice of Termination has been
delivered, and prior to the Termination Date,
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Executive shall make reasonable efforts to cooperate with Company in achieving a
transition of Executive's duties and responsibilities.
a. Cause. The Employment Period may be terminated at the
option of the Company for Cause effective upon the date stated in the
Notice of Termination to Executive.
b. Death. The Employment Period will terminate automatically
effective upon Executive's death.
c. Disability. In the event Executive becomes Disabled (as
such term is hereinafter defined) during the Employment Period, and the
Company is unable to make a reasonable accommodation which would enable
Executive to continue to perform the essential functions of his
employment position with the Company, the Employment Period may be
terminated at the option of Executive or the Company effective 30 days
after a Notice of Termination is given (provided that Executive shall
not have returned to the performance of his duties on a full-time basis
during such 30-day period). Unless otherwise agreed by Executive and
the Board of Directors, the determination by the physician selected by
Company and Executive that Executive is Disabled shall be binding upon
the Company and Executive.
d. Voluntary Resignation. Executive may resign his employment
at any time with or without Good Reason, effective upon Notice of
Termination (which shall state whether such resignation is with Good
Reason) given by Executive to the Company.
e. Termination without Cause by the Company. The Company may
terminate Executive's employment at any time, effective upon Notice of
Termination (which shall state that such termination is without Cause)
given by the Company to Executive.
If, within 30 days after any Notice of Termination for Cause is given by the
Company, Executive notifies the Company that a dispute exists concerning the
termination, then the Termination Date shall be the date (the "Final
Determination") as determined either by mutual written agreement of the parties,
by a binding and final arbitration award or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal therefrom having
expired and no appeal having been perfected). Notwithstanding the foregoing, the
Company shall not be prohibited from removing Executive from his position with
the Company pending the Final Determination provided that such removal is
without prejudice to Executive's rights to receive all benefits from the Company
to which he may be entitled upon the Final Determination.
6. Separation Benefits. Executive shall be entitled to receive
separation benefits upon such events and in such amounts as are set forth in
this Section 6.
a. Termination Without Cause or for Good Reason. In the event
that Executive's employment with the Company is terminated at any time
during the
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Employment Period by the Company without Cause, or by Executive for
Good Reason, then Executive (or if he shall have died after termination
but prior to payment, his surviving spouse, or if he leaves no spouse,
his personal representative, as successor in interest) shall be paid by
the Company an amount equal to the product of Executive's Base Salary
in effect as of the Date of Termination, multiplied by two, payable in
cash in a lump sum on or before the fifteenth day following the Date of
Termination.
b. Termination Upon Death. If the Employment Period is
terminated by Executive's death, the Company shall pay Executive's
surviving spouse, or if he leaves no spouse, his personal
representative, as successor in interest, (i) an amount equal to the
then current Base Salary (paid in one lump sum payment on or before the
fifteenth day following the date of Executive's death), and (ii) any
death benefit payable under any employee benefit plans, programs and
arrangements of the Company in which Executive is a participant on the
date of his death.
c. Termination Upon Disability. If the Employment Period is
terminated in accordance with the terms of paragraph 5(c) because of
Executive's Disability, the Company shall pay to Executive (or in the
event of Executive's death after finding of Disability, his surviving
spouse, or if he leaves no spouse, his personal representative, as
successor in interest) all compensation and benefits specified under
paragraph 4 herein, for a period of one year from the Date of
Termination, payable in the same manner as if the Employment Period had
not been terminated.
d. Additional Separation Benefit. For a period of three years
following (i) the full completion of the Employment Period or (ii)
following the Date of Termination of the Employment Period for any
reason other than termination by the Company for Cause or termination
by Executive for other than Good Reason, the Company shall permit, at
the Company's expense, Executive, his spouse and dependents, as
applicable (the "Benefit Participants"), to participate in all group
medical health insurance plans and employee benefit plans, programs and
arrangements now or hereafter made available to the senior executive
employees of the Company (the "Plans") (including but not limited to
such Plans in which Executive was entitled to participate immediately
prior to the Date of Termination), in the same manner provided to its
other senior executive employees; provided, however, that this
paragraph 6(d) shall not apply in the event that (i) the Company shall
hereafter terminate the applicable Plan, or (ii) the participation of
the Benefit Participants in such Plan is prohibited by law or, if
applicable, would disqualify such Plan as a tax qualified plan pursuant
to the Code, or (iii) the participation of the Benefit Participants
violates the general terms and provisions of such applicable Plan. In
the event that any of the Benefit Participants' participation in such
Plans is prohibited by law or, if applicable, would disqualify the Plan
as a tax qualified plan, or the participation of the Benefit
Participants violates the general terms and provisions of such
applicable Plan, the Company shall permit the Benefit Participants to
acquire substantially comparable coverage or benefits, at the Company's
expense, from a source of Executive's or his spouse's choosing,
provided,
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however, that if provision of such coverage or benefit would result in
a cost of excess of 130% of the cost to the Company if provided under a
Company Plan, the Company may satisfy its obligations under this
paragraph 6(d) by contributing to the Benefit Participants 130% of the
cost to the Company under the Company Plans. Notwithstanding the
foregoing, in no event will the Benefit Participants receive from the
Company the coverage and benefits contemplated by this paragraph 6(d)
if the Benefit Participants receive such coverage and benefits from any
other source.
e. Excise Tax Gross-Up. If Executive becomes entitled to one
or more payments (with a "payment" including, but not limited to, the
vesting of an option or other non-cash benefit or property), whether
pursuant to the terms of this Agreement or any other plan, arrangement,
or agreement with the Company or any affiliated company (the "Total
Payments"), which are or become subject to the tax imposed by Section
4999 of the Code (or any similar tax that may hereafter be imposed)
(the "Excise Tax"), the Company shall pay to Executive at the time
specified below an additional amount (the "Gross-Up Payment") (which
shall include, but not be limited to, reimbursement for any penalties
and interest that may accrue in respect of such Excise Tax) such that
the net amount retained by Executive, after reduction for any Excise
Tax (including any penalties or interest thereon) on the Total Payments
and any federal, state and local income or employment tax and Excise
Tax on the Gross-Up Payment provided for by this subparagraph (e), but
before reduction for any federal, state, or local income or employment
tax on the Total Payments, shall be equal to the sum of (a) the Total
Payments, and (b) an amount equal to the product of any deductions
disallowed to Executive for federal, state, or local income tax
purposes because of the inclusion of the Gross-Up Payment in
Executive's adjusted gross income multiplied by the highest applicable
marginal rate of federal, state, or local income taxation,
respectively, for the calendar year in which the Gross-Up Payment is to
be made.
For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such
Excise Tax:
i. The Total Payments shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning
of Section 280G(b)(1) of the Code shall be treated as subject
to the Excise Tax, unless, and except to the extent that, in
the written opinion of independent compensation consultants or
auditors of nationally recognized standing ("Independent
Advisors") selected by the Company and reasonably acceptable
to Executive, the Total Payments (in whole or in part) do not
constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning
of Section 280G(b)(4) of the Code in excess of the base amount
within the meaning of Section 280G(b)(3) of the Code or are
otherwise not subject to the Excise Tax;
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ii. The amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the
lesser of (A) the total amount of the Total Payments or (B)
the total amount of excess parachute payments within the
meaning of Section 280G(b)(1) of the Code (after applying
clause (i) above); and
iii. The value of any non-cash benefits or any
deferred payment or benefit shall be determined by the
Independent Advisors in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed (A) to pay federal income
taxes at the highest marginal rate of federal income taxation for the
calendar year in which the Gross-Up Payment is to be made; (B) to pay
any applicable state and local income taxes at the highest marginal
rate of taxation for the calendar year in which the Gross-Up Payment is
to be made, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes if paid
in such year (determined without regard to limitations on deductions
based upon the amount of Executive's adjusted gross income); and (C) to
have otherwise allowable deductions for federal, state, and local
income tax purposes at least equal to those disallowed because of the
inclusion of the Gross-Up Payment in Executive's adjusted gross income.
In the event that the Excise Tax is subsequently determined to be less
than the amount taken into account hereunder at the time the Gross-Up
Payment is made, Executive shall repay to the Company at the time that
the amount of such reduction in Excise Tax is finally determined (but,
if previously paid to the taxing authorities, not prior to the time the
amount of such reduction is refunded to Executive or otherwise realized
as a benefit of Executive) the portion of the Gross-Up Payment that
would not have been paid if such Excise Tax had been applied in
initially calculating the Gross-Up Payment, plus interest on the amount
of such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the
amount taken into account hereunder at the time the Gross-Up Payment is
made (including by reason of any payment the existence or amount of
which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional Gross-Up Payment in respect of such
excess (plus any interest and penalties payable with respect to such
excess) at the time that the amount of such excess is finally
determined.
The Gross-Up Payment provided for above shall be paid
on the 30th day (or such earlier date as the Excise Tax becomes due and
payable to the taxing authorities) after it has been determined that
the Total Payments (or any portion thereof) are subject to the Excise
Tax; provided, however, that if the amount of such Gross-Up Payment or
portion thereof cannot be finally determined on or before such day, the
Company shall pay to Executive on such day an estimate, as determined
by he Independent Advisors, of the minimum amount of such payments and
shall pay the remainder of such payments (together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code), as soon as the
amount thereof can be determined. In the event that the amount of the
estimated payments
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exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company to Executive, payable on
the fifth day after demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code). If more than
one Gross-Up Payment is made, the amount of each Gross-Up Payment shall
be computed so as not to duplicate any prior Gross-Up Payment. The
Company shall have the right to control all proceedings with the
Internal Revenue Service that may arise in connection with the
determination and assessment of any Excise Tax and, at its sole option,
the Company may pursue or forego any and all administrative appeals,
proceedings, hearings, and conferences with any taxing authority in
respect of such Excise Tax (including any interest or penalties
thereon); provided, however, that the Company's control over any such
proceedings shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder, and Executive shall be entitled to
settle or contest any other issue raised by the Internal Revenue
Service or any other taxing authority. Executive shall cooperate with
the Company in any proceedings relating to the determination and
assessment of any Excise Tax and shall not take any position or action
that would materially increase the amount of any Gross-Up Payment
hereunder.
7. Noncompetition. During the Employment Period and continuing until
the second anniversary thereof, Executive shall not, without the prior written
authorization of the Board of Directors of the Company, (i) directly or
indirectly render services of a business, professional or commercial nature
(whether for compensation or otherwise) to any person or entity competitive or
adverse to the Company's business welfare, (ii) engage in any activity, whether
alone, as a partner, or as an officer, director, employee, consultant,
independent contractor, or stockholder in any other corporation, person, or
entity which is competitive with or adverse to the Company's business welfare,
(iii) hire or solicit for hire any of the Company's employees, prospective
employees or consultants (iv) solicit the business of any client of the Company,
or any prospective client of the Company that had been serviced or solicited by
the Company during the two (2) years preceding Executive's termination, or (v)
enter into any agreements with any supplier of the Company regarding the sale or
distribution of products of the supplier.
In the event that Executive's employment with the Company is terminated by
Executive or the Company at any time, for any reason whatsoever, the Company
shall have the right to inform any of Executive's future employers or
prospective employers of the existence of this Section 7 of the Agreement. This
Section 7 shall not, however, prevent Executive from investing in securities
issued by any such competitive or adverse corporation provided the holdings
thereof by Executive do not constitute more than three percent of any one class
of such securities.
8. Confidentiality.
a. Disclosure and Use. Executive shall not disclose or use, or
authorize anyone else to disclose or use, at any time, either during or
after the Employment Period, any trade secrets or other confidential
information of the Company of which Executive is or becomes informed or
aware of prior to or during the Employment Period, except (i) as may be
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required for Executive to perform his duties and obligations under this
Agreement, (ii) to the extent such information has been disclosed to
Executive by a third party who is not affiliated with the Company or
which otherwise becomes generally available to the public, (iii)
information which must be disclosed as a result of a subpoena or other
legal process, provided that the Company is given reasonable notice and
an opportunity to obtain a protective order, or (iv) unless Executive
shall first secure the Company's prior written authorization. This
paragraph shall survive the termination of this Employment Period,
whether by lapse of time or otherwise, and shall remain in effect and
be enforceable against Executive for as long as any such Company trade
secrets or confidential information retains commercial value. Executive
shall execute additional agreements and confirmations of his
obligations to the Company concerning such non-disclosure of Company
trade secrets and other confidential information as the Company may
require from time to time, provided that the execution of such
additional agreements and confirmations are (i) reasonable and (ii) are
required of all other senior executive employees of the Company under
similar circumstances.
b. Return of Materials. Upon termination of his employment for
any reason, Executive (or in the event of termination due to
Executive's death, his surviving spouse or personal representative, as
applicable) shall promptly deliver to the Company all materials of a
secret or confidential nature relating to the Company's business, which
are in the possession or under the control of Executive.
9. Inventions. Executive hereby assigns to the Company all of his
rights, title, and interest in and to all inventions, discoveries, processes,
designs, and other intellectual property, including but not limited to trade
secrets, copyrights, patents, trademarks and trade names (collectively
hereinafter referred to as "Inventions"), and all improvements on existing
Inventions made or discovered by Executive during the term of his employment by
the Company. Promptly upon the development or making of any such Invention or
improvement thereon, Executive shall disclose the same to the Company and shall
execute and deliver to it such reasonable documents as it may request to confirm
the assignment of Executive's rights therein and, if requested, shall assist the
Company in applying for copyright, patent or trademark protection and
prosecuting any patents which may be available in respect thereof. The Company
acknowledges and hereby notifies Executive that this paragraph 9 does not apply
to an Invention for which no equipment, supplies, facility or trade secret
information of the Company was used and which was developed entirely on
Executive's own time, unless (a) the Invention relates to (i) the business of
the Company, or (ii) the Company's actual or demonstrably anticipated research
or development, or (b) the Invention results from any work performed by
Executive for the Company.
10. Remedies. If, at any time, Executive violates to any material
extent any of the covenants or agreements set forth in paragraphs 7, 8 or 9, the
Company shall have the right to terminate all of its obligations to make further
payments under this Agreement. Executive acknowledges that the Company would be
irreparably injured by a violation of paragraphs 7, 8 or 9, that damages for
such a breach are not easily calculated, and that any remedy at law would be
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inadequate. Therefore, Executive agrees that the Company shall be entitled to an
injunction restraining Executive from any actual or threatened breach of
paragraphs 7, 8 or 9 or to any other appropriate equitable remedy without any
bond or other security being required.
It is expressly understood between the parties that this injunctive or equitable
relief shall not be Employer's exclusive remedy for breach of this Agreement.
Without limitation, in the event of any breach by Executive of paragraphs 7, 8
or 9 of this Agreement, such Executive shall not be entitled to receive any
salary payments or any other compensation beyond the date of such breach to
which he would otherwise be entitled, and Executive shall be obligated to repay
to Employer salary payments received by him at any time after the occurrence of
such breach.
11. Resolution of Disputes.
a. In the event of any controversy among the parties hereto
arising out of, or relating to, this Agreement (other than a
controversy arising out of or relating to paragraphs 7, 8 or 9 hereof),
which cannot be settled amicably by the parties, such controversy shall
be finally settled by arbitration conducted expeditiously in accordance
with the American Arbitration Association Commercial Arbitration Rules
and the Supplementary Procedures for Large, Complex Disputes, by an
independent arbitrator. Either the Company or Executive may institute
such arbitration proceeding by giving written notice to the other
party. A hearing shall be held by the arbitrator in the City of
Chicago, Illinois, and a decision of the matter submitted to the
arbitrator shall be rendered promptly in accordance with the rules of
the American Arbitration Association. The prevailing party shall be
entitled to all costs and expenses with respect to such arbitration,
including reasonable attorneys' fees. The decision of the arbitrator
shall be final and binding upon all parties hereto. Judgment upon the
award rendered may be entered in any court having jurisdiction thereof.
b. Notwithstanding the foregoing, Executive acknowledges and
agrees that the Company may seek in a court of competent jurisdiction
an injunction prohibiting Executive's breach or alleged breach of
paragraphs 7, 8 and 9.
12. Legal Fees. Should any litigation or arbitration be commenced
concerning any provision of this Agreement or Executive's employment or
termination of employment, the prevailing party shall be entitled, in addition
to such other relief as may be granted, to its attorneys' fees and costs
incurred by reason of such litigation or arbitration.
13. Executive's Representations and Warranties. Executive hereby
represents, warrants, and covenants that:
(a) Executive has no actual or potential conflict of interest
performing Executive's obligations and duties hereunder, will avoid any
such conflict during the Employment Period and will immediately report
any such conflict to the Company;
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(b) the execution, delivery, and performance of this Agreement
by Executive will not violate any law, order, regulation, agreement,
contract, promise or duty by which Executive is bound;
(c) this Agreement is duly executed and is valid and binding
on Executive in accordance with its terms; and
(d) the Inventions developed by Executive for, or delivered by
Executive to, the Company do not and will not infringe upon any third
party trade secrets, copyrights, patents, trademarks or similar
proprietary rights. Executive hereby indemnifies and holds harmless the
Company and its directors, officers, employees, affiliates, agents,
representatives, successors and assigns for any breach of the foregoing
representation and warranty. The foregoing indemnity shall survive any
termination of this Agreement or the Employment Period for any reason.
14. Amendment and Termination. This Agreement may not be amended or
canceled except by written instrument signed by both parties and approved by the
Board of Directors or a committee thereof.
15. Modification and Waiver of Breach. No waiver or modification of
this Agreement shall be binding unless it is in writing, signed by the parties
hereto. The waiver by Company or Executive of any term or breach of this
Agreement shall not prevent a subsequent enforcement of such term or any other
term and shall not be deemed to be a waiver of any subsequent breach.
16. Notice. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed given or delivered and
received (i) when delivered personally (which shall be deemed to include
delivery via express courier such as Federal Express), or (ii) three days after
having been sent by registered or certified mail, return receipt requested, or
(iii) upon receipt when sent by facsimile, telegram or telex followed by a
confirmation letter sent by registered or certified mail, return receipt
requested, addressed as follows:
If to the Company: Xxxxxxxxxx.xxx, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
With a Copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
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Facsimile: (000) 000-0000
If to Executive: Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Either the Company or Executive may, at any time, by notice to the other,
designate another address for service of notice on such party.
17. Non-assignment. The interests of Executive under this Agreement are
not subject to the claims of his creditors and may not be voluntarily or
involuntarily assigned, alienated or encumbered. Company may assign its rights,
duties or obligations under this Agreement to any person with whom it has merged
or consolidated, or to whom it has transferred all, or substantially all, of its
assets.
18. Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed (i) modified
only to the extent necessary to render such provision valid, or (ii) not
applicable to given circumstances, or (iii) excised from this Agreement, as the
situation may require, and this Agreement shall be construed and enforced as if
such provision had been included herein as so modified in scope or application,
or had not been included herein, as the case may be. Should this Agreement, or
any one of more of the provisions hereof, be held to be invalid, illegal or
unenforceable within any governmental jurisdiction or subdivision thereof, the
Agreement or any such provision or provisions shall not as a consequence thereof
be deemed to be invalid, illegal or unenforceable in any other governmental
jurisdiction or subdivision thereof.
19. Successors. This Agreement shall be binding upon, and inure to the
benefit of the parties and their permitted successors and assigns. Nothing in
this Agreement, express or implied, is intended or shall be construed to confer
upon any person, other than the parties and their respective successors and
assigns permitted by this Agreement, any right, remedy or claim under, or by
reason of, this Agreement.
20. Entire Agreement. This Agreement constitutes the entire agreement
between Company and Executive with respect to the subject matter hereof. This
Agreement supersedes any prior agreement made between the parties.
21. Counterparts. The Agreement may be executed in two or more
counterparts, any one of which shall be deemed an original and all of which
taken together shall constitute a single instrument.
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22. Governing Law. This Agreement, and all matters or disputes relating
to the validity, construction, performance or enforcement hereof, shall be
governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
23. Effective Date. This Agreement shall be effective on the Effective
Date. If the initial public offering is not consummated, this Agreement shall be
null and void.
24. EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE
PROVISIONS OF THIS AGREEMENT. HE ALSO ACKNOWLEDGES THAT HE HAS HAD THE
OPPORTUNITY TO AND HAS REVIEWED THE TERMS AND CONDITIONS OF THIS AGREEMENT.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date written above.
XXXXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
XXXXXX X. Xxxxx
President and Chief Executive Officer
EXECUTIVE
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Xxxxxxx X. Xxxxx
Executive Vice President
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