EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.34
This
employment agreement (the “Agreement”) is made this 19th day of December 2005,
by and between I.C. Xxxxxx & Company LP, a Delaware limited partnership (the
“Company”), and Xxxxx X. Xxxxx, (the “Executive”).
1. |
Definitions.
The following terms, as used herein, have the following
meanings:
|
(a) |
Agreement
has the meaning attributed thereto in the
preamble;
|
(b) |
Base
Salary
shall mean $275,000, provided, however, that in the event the Board
or the
Compensation Committee thereof increases the amount of the Base
Salary at
any time during the Term, the term “Base Salary” shall mean, from and
after the effective date of each such increase, $275,000 plus the
aggregate amount of all such increases therein made on or prior
to such
effective date;
|
(c) |
Board
shall mean the Board of Directors of
Xxxxxx;
|
(d) |
Cash
Flow Target
has the meaning attributed thereto in Section 5(b)(ii);
|
(e) |
Cause
has the meanings attributed thereto in Section 10(a);
|
(f) |
Change
of Control
has the meanings attributed thereto in Section 14(a);
|
(g) |
Common
Stock
shall mean Xxxxxx’ common stock, par value $.0001 per
share;
|
(h) |
Company
has the meaning attributed thereto in the
preamble;
|
(i) |
EBIT
Target
has the meaning attributed thereto in Section 5(b)(i);
|
(j) |
Effective
Date
shall mean December 27, 2005;
|
(k) |
Executive
has the meaning attributed thereto in the
preamble;
|
(l) |
Initial
Term
has the meaning attributed thereto in Section 3;
|
(m) |
Inventory
Turns Target
has the meaning attributed thereto in Section 5(b)(iii);
|
(n) |
Xxxxxx
has the meaning attributed thereto in Section 2;
|
(o) |
Xxxxxx
Financial Statements
shall mean the audited consolidated financials statements included
in
Xxxxxx’ Annual Report on SEC Form 10-K, as filed by Xxxxxx with the SEC
for the year in question;
|
(p) |
Notice
has the meaning attributed thereto in Section 16(a);
|
(q) |
Option
has the meaning attributed thereto in Section 6;
|
(r) |
Option
Plan
shall mean Xxxxxx’ Amended and Restated Omnibus Stock Option Plan, as
amended;
|
(s) |
Option
Term
has the meaning attributed thereto in Section 6;
|
(t) |
Renewal
Term
has the meaning attributed thereto in Section 3;
|
(u) |
SEC
shall mean the United States Securities and Exchange
Commission;
|
(v) |
Severance
Payment Period
has the meaning attributed thereto in Section 11;
|
(w) |
Severance
Payments
has the meaning attributed thereto in Section 11;
|
(x) |
Term
has the meaning attributed thereto in Section 3;
and
|
(y) |
Termination
Date
shall mean in the context of a termination of the Executive’s
employment:
|
(i) |
for
Cause, the date on which any of the events specified in Section
10(a)
shall occur; or
|
(ii) without
Cause:
(1) the
date of
the Executive’s death;
(2) if
due to the
Executive’s continuous and uninterrupted inability to perform his duties and
responsibilities under this Agreement for a period of not less than180 days,
the
181st day after the date on which such period commenced;
(3) the
last date
of the then current Initial Term of Renewal Term, as the case may be, if
either
party gives timely notice to the other of its or his intention not to extend
the
Agreement beyond the end of such Initial Term or Renewal Term; or
(4) the
61st day
after the date upon which notice of termination of the Agreement is given
by the
Company to the Executive pursuant to Section 11
hereof,
or by the Executive to the Company pursuant to Section 12
hereof,
as the case may be; or
(iii) as
a result
of the Executive’s resignation for good cause pursuant to Section 13
of this
Agreement, the 31st day after the date upon which notice of termination of
the
Agreement is given by the Executive to the Company;
(iv) as
a result
of or in connection with a Change of Control:
(1) on
the date
when the Company gives notice of the termination of the Executive’s employment,
if such employment is terminated other than for Cause by the Company within
90
days prior to a Change of Control;
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(2) on
the date
when the Company (or its successor corporation) gives notice of the termination
of the Executive’s employment, if such employment is terminated other than for
Cause at any time after a Change of Control; or
(3) on
the date
when the Executive gives notice of his resignation, provided, that such notice
is given not more than 90 days following a Change of Control.
2. Employment.
The Company hereby employs the Executive as its Executive Vice President
and
Chief Financial Officer. The Executive will provide his services hereunder
principally at the Company’s offices in New York, New York, and occasionally at
the Company’s offices in Baltimore, Maryland as and when the requisites of his
employment activities so require. The Executive shall report to the Chief
Executive Officer of the Company’s parent, I.C. Xxxxxx & Company, Inc.
(“Xxxxxx”).
3. Term.
This
Agreement shall become effective on the Effective Date and shall continue
until
December 31, 2008 (the “Initial Term”). This Agreement shall be automatically
extended for additional periods of one calendar year (each, a “Renewal Term”)
commencing with calendar year 2009 unless, on or before June 30 of the last
calendar year of the Initial Term or the then current Renewal Term, as the
case
may be, either party gives notice to the other of its or his intention not
to
extend the Agreement beyond the end of the Initial Term or the then current
Renewal Term. The Initial Term and all Renewal Terms taken together are
hereinafter collectively referred to as the “Term.”
4. Base
Salary.
The
Executive’s Base Salary during the Term shall be paid in accordance with the
Company’s normal payroll practices. The payment of the Executive’s Base Salary
and all other payments made and to be made to the Executive under this Agreement
shall be made net of all current and lawful withholdings and deductions,
including those for federal, state and local taxes. The Executive may be
considered for annual merit increases in his Base Salary based on the business
performance objectives of the Company or other goals as determined by the
Board
or the Compensation Committee thereof in its discretion.
5. Incentive
Compensation.
In
addition to his base salary, the Executive shall be entitled to receive
incentive compensation calculated and paid, as follows:
(a) Initial
Term
and all Renewal Terms. The Executive shall be eligible to receive the following
bonuses with respect to calendar years 2006, 2007, 2008 and each Renewal
Term:
(i) In
the event
that the earnings before interest and taxes achieved by Xxxxxx during any
of
such years shall be:
(1) not
less than
95% of, and not more than 110% of, the “EBIT Target” specified by the Company
for such year, the Company shall pay the Executive a bonus equal to the greater
of $57,750 or 21% of his Base Salary for such year;
(2) not
less than
111% of, and not more than 130% of, the “EBIT Target” specified by the Company
for such year, the Company shall pay the Executive a bonus equal to the greater
of $77,000 or 28% of his Base Salary for such year; or
-3-
(3) more
than
130% of the “EBIT Target” specified by the Company for such year, the Company
shall pay the Executive a bonus equal to the greater of $96,250 or 35% of
his
Base Salary for such year;
(ii) in
the event
that the increase in cash and cash equivalents reflected on the consolidated
statement of cash flows contained in Xxxxxx’ annual audited financial statements
for any of such years shall be:
(1) not
less than
95% of, and not more than 110% of, the “Cash Flow Target” specified by the
Company for such year, the Company shall pay the Executive a bonus equal
to the
greater of $46,200 or 16.8% of his Base Salary for such year;
(2) not
less than
111% of, and not more than 130% of, the “Cash Flow Target” specified by the
Company for such year, the Company shall pay the Executive a bonus equal
to the
greater of $61,600 or 22.4% of his Base Salary for such year; or
(3) more
than
130% of the “Cash Flow Target” specified by the Company for such year, the
Company shall pay the Executive a bonus equal to the greater of $77,000 or
28%
of his Base Salary for such year; and
(iii) in
the event
that the number of turns of the Company’s inventory during any of such years
shall be:
(1) not
less than
95% of, and not more than 110% of, the “Inventory Turns Target” specified by the
Company for such year, the Company shall pay the Executive a bonus equal
to the
greater of $11,550 or 4.2% of his Base Salary for such year;
(2) not
less than
111% of, and not more than 130% of, the “Inventory Turns Target” specified by
the Company for such year, the Company shall pay the Executive a bonus equal
to
the greater of $15,400 or 5.6% of his Base Salary for such year; or
(3) more
than
130% of the “Inventory Turns Target” specified by the Company for such year, the
Company shall pay the Executive a bonus equal to the greater of $19,250 or
7% of
his Base Salary for such year.
(i) “EBIT
Target”
shall mean the amount that the Company shall designate as the earnings before
interest and taxes that Xxxxxx must achieve in order for the Executive to
earn
the bonus described in Section 5(a)(i)
of this
Agreement;
(ii) “Cash
Flow
Target” shall mean the amount that the Company shall designate as the cash
provided by operating activities that Xxxxxx must achieve in order for the
Executive to earn the bonus described in Section 5(a)(ii)
of this
Agreement; and
(iii) “Inventory
Turns Target” shall mean the number of turns of the Company’s inventory that
Xxxxxx must achieve, as designated by the Company, in order for the Executive
to
earn the bonus described in Section 5(a)(iii)
of this
Agreement.
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(d) Calculation
of the Targets. Determination of the achievement of:
(i) the
EBIT
Target shall be made by adding the sum of the interest expense net of interest
income, and income tax expense (but not income tax benefit) reflected on
the
consolidated statement of operations contained in Xxxxxx Financial Statements
for the year in question from the line item entitled “net income” on such
consolidated statement of operations;
(ii) the
Cash
Flow Target shall be made by reference to the line item entitled “cash provided
by operating activities” reflected on the consolidated statement of cash flows
contained in the Xxxxxx Financial Statements for the year in question;
and
(iii) the
Inventory Turns Target shall be made by reference to the quotient obtained
by
dividing:
(1) the
cost of
goods sold reflected on the consolidated statement of operations contained
in
the Xxxxxx Financial Statements for the year in question by
(2) the
quotient derived by dividing the sum of the beginning and ending inventories
for
the year in question, as determined by reference to the notes to the Xxxxxx
Financial Statements for such year, by the number 2.
(e) Payment
of
Incentive Compensation. Each of the incentive compensation amounts described
in
Section 5(a)
which
shall be payable for any calendar year during the Term shall be paid on July
1
of the immediately succeeding year, provided, that, except in the case of
the
termination of the Executive’s employment (i) as a result of the Company’s
election not to renew this Agreement at the end of the Initial Term or any
Renewal Term; or (ii) without cause pursuant to Section 11
hereof,
the Executive shall be actively employed by the Company on the date of such
payment.
(i) the
Company
shall pay guaranteed incentive compensation of $96,250 for the year 2006
to the
Executive on April 15, 2006;
(ii) the
amount of such guaranteed incentive compensation shall be deducted from any
incentive compensation for the year 2006 in excess of such amount that the
Executive would otherwise be entitled to receive;
(iii) in
the
event that the aggregate amount of the incentive compensation for the year
2006
that the Executive shall be entitled to receive pursuant to Sections
5(a)(i),
(ii)
and (iii) hereof shall be greater than $96,250, the Company shall pay the
difference between such aggregate amount and $96,250 to the Executive. Payment
of such amount shall be made in accordance with the provisions of Section
5(e)
of this
Agreement; and
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(iv) in
the event
that the Termination Date occurs in 2006, and the aggregate amount of the
incentive compensation for such year that the Executive would be entitled
to
receive pursuant to Sections 5(a)(i),
(ii)
and (iii) hereof shall not be greater than $96,250, the Company shall have
no
obligation to pay any further incentive compensation to the Executive
hereunder.
(g) Pro-Ration
of
Incentive Compensation in Certain Circumstances. In the event that the
Executive’s employment under this Agreement shall be terminated without cause
pursuant to Section 11
hereof,
any incentive compensation that otherwise would have become due and payable
to
the Executive with respect to the year during which the Termination Date
shall
occur, pursuant to the provisions of Section 5(a)
hereof,
shall be calculated by multiplying the total amount of the incentive
compensation payable pursuant to Sections 5(a)(i),
(ii)
and (iii) for the year in question by a fraction, the numerator of which
shall
be the number of days that shall have elapsed between the beginning of such
year
and the Termination Date, and the denominator of which shall be
360.
6. Stock
Options.
In
addition to his base salary, and the incentive compensation entitlements
described in Section 5,
the
Executive also shall receive a non-qualified stock option (the “Option”) to
purchase 100,000 shares of Common Stock, pursuant to the Option Plan. The
Option
shall be granted under, and shall be subject to all of the terms and conditions
of, the Option Plan. Any unexercised portion of the Option shall be exercisable
for a period of five years commencing on the Effective Date (the “Option Term”),
provided that (i) the Executive shall have been in the continuous employ
of the
Company during the period commencing on the Effective Date and continuing
through each date on which Executive exercises the Option or the last date
of
the Initial Term, whichever shall occur first; and (ii) the Executive’s
employment shall not be terminated for “Cause” (as such term is hereinafter
defined) at any time during the Option Term. The Option shall be exercisable
at
the price per share which must be applied to all non-qualified stock options
granted under the Option Plan on the Effective Date. The Executive’s right to
purchase Common Stock pursuant to the Option shall vest ratably on the first,
second and third anniversaries, of the Effective Date. The Option shall further
provide that, in the event that that:
-6-
(a) either
party
gives notice to the other of its or his intention not to extend the Agreement
beyond the end of the Initial Term, and the Executive shall be employed by
the
Company on the last day of the Initial Term, he shall be entitled to exercise
the Option, and purchase any and all shares that remain issuable thereunder,
during the six month period ending on June 30, 2009; or
(b) the
Executive’s employment shall be terminated for any reason other than for “Cause”
or as a result of the Executive’s death, he (or his estate, as the case may be)
shall be entitled to exercise the Option, to the extent that it shall have
vested on the Termination Date, and purchase any and all shares that remain
issuable thereunder, during the one year period ending on the date immediately
preceding the first anniversary of the Termination Date or such shorter period
as shall remain until the expiration date of the Option.
7. Benefits.
During
the Term, the Executive shall also be entitled to participate in or receive
benefits under all of the Company’s benefit plans, programs, arrangements and
practices, including pension, disability, and group life, sickness, accident
or
health insurance programs, if any, as may be established from time to time
by
the Company for the benefit of executive employees serving in similar capacities
with the Company (and/or its affiliates), in accordance with the terms of
such
plans, as amended by the Company from time to time; it being understood that
there is no assurance with respect to the establishment of such plans or,
if
established, the continuation of such plans during the term of this
Agreement.
(a) The
Executive
shall be entitled to a total of four weeks of vacation each year, such vacation
to be in accordance with the terms of the Company’s announced policy for
executive employees, as in effect from time to time. The Executive may take
his
vacation at such time or times as shall not interfere with the performance
of
his duties under this Agreement.
(b) The
Executive
shall be entitled to paid sick leave and holidays in accordance with the
Company’s announced policy for executive employees, as in effect from time to
time.
9. Expenses.
The Company shall reimburse the Executive for all reasonable expenses incurred
in connection with his duties on behalf of the Company, (including, in the
case
of air travel in excess of 500 miles, business class service, if offered
and
available on flights to the destination in question, and first class service
if
business class is not so offered and/or available) provided that the Executive
shall keep, and present to the Company, records and receipts relating to
reimbursable expenses incurred by him. Such records and receipts shall be
maintained and presented in a format, and with such regularity, as the Company
reasonably may require in order to substantiate the Company’s right to claim
income tax deductions for such expenses. Without limiting the generality
of the
foregoing, the Executive shall be entitled to reimbursement for any
business-related travel, business-related entertainment, and other costs
and
expenses reasonably incident to the performance of his duties on behalf of
the
company.
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(a) Notwithstanding
the
provisions of Section 3
of this
Agreement, the Executive’s employment (and all of his rights and benefits under
this Agreement) shall terminate immediately and without further notice upon
the
occurrence of any one or more of the following events (each of which
individually, and all of which collectively, shall be hereinafter referred
to as
“Cause”):
(i) the
Executive
(i) is guilty of a criminal offense involving moral turpitude, (ii) is guilty
of
or has engaged in criminal or dishonest conduct pertaining to the business
or
affairs of the Company (including, without limitation, fraud and
misappropriation), (iii) has engaged in any act or omission the intended
or
likely consequence of which is material injury to the Company’s business,
property or reputation (iv) has been grossly negligent or has engaged in
willful
misconduct, the likely consequence of which is material injury to the Company’s
business; or
(ii) the
Executive
persists, for a period of 15 days after receipt of written notice from the
Company, in willful breach in the performance of his duties under this
Agreement.
(b) Upon
a
termination of the Executive’s employment for Cause, the Company shall pay the
Executive his base salary through the Termination Date, and the Executive
shall
immediately thereafter forfeit all rights and benefits he otherwise would
have
been entitled to receive under this Agreement, or otherwise including, but
not
limited to, any right to (i) receive compensation and incentive compensation
pursuant to Sections 4,
5
and
7
of this
Agreement, except to the extent that such benefits shall have vested and
continue after the termination of the Executive’s employment under the terms of
the applicable benefit plans and programs; and (ii) exercise any then
unexercised portion of the Option. The Company and the Executive thereafter
shall have no further obligations under this Agreement except as otherwise
provided in this Section and in Section 13 of this Agreement.
11. Termination
of Employment by the Company Without Cause.
Notwithstanding the provisions of Section 3
of this
Agreement, the Company may elect (a) not to renew this Agreement at the end
of
the Initial Term or any Renewal Term; or (b) to terminate the Executive’s
employment as provided under this Agreement, at any time, for reasons other
than
for Cause by notifying the Executive in writing of such termination. If the
Executive’s employment is terminated pursuant to this Section 11,
the
Company shall pay severance payments to the Executive in an aggregate amount
equal to the Base Salary that was in effect on the date immediately preceding
the Termination Date, less all tax and other withholdings required to be
made in
accordance with the Company’s normal payroll practices (the “Severance
Payments”). The Severance Payments shall be made in substantially equal
installments in accordance with the Company’s normal payroll practices then in
effect during the six month period commencing on the first day of the seventh
month following the month in which the Termination Date occurs (such six
month
period is referred to herein as, the “Severance Payment Period”). In addition to
the foregoing payments, the Executive’s participation in all of the Company’s
benefit plans, programs, arrangements and practices, including all disability,
medical, life insurance and similar programs, but excluding the Option Plan
and
any pension, 401-K or similar retirement income or profit sharing plans,
shall
continue during 12 month period commencing on the first day of the month
immediately following the Termination Date. The termination of the Executive’s
employment as a result of the Executive’s Death, or by the Company as a result
of his continuous and uninterrupted inability to perform his duties and
responsibilities under this Agreement, on behalf of the Company for a period
of
not less than180 days from the first day of such inability to perform his
duties, shall be considered to be a termination without cause hereunder by
the
Company.
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12. Termination
of Employment by the Executive Without Cause.
Notwithstanding the provisions of Section 3
of this
Agreement, the Executive may terminate this Agreement at any time by giving
the
Chief Executive Officer of the Company written notice of his intention to
terminate this Agreement, at least 60 days prior to the effective date of
such
termination. Upon expiration of such 60 day notice period (or such earlier
date
as may be approved by the Board), the termination of this Agreement by the
Executive shall become effective (and such effective date shall be deemed
to be
the Termination Date). Upon the Termination Date, the Company’s obligations
under Sections 4,
5
and
7
of this
Agreement, shall immediately expire, and all entitlements to receive any
of the
benefits, vested and unvested, that the Executive may have been entitled
to
receive from the Company pursuant to this Agreement or otherwise prior to
the
Termination Date shall thereupon be terminated. In the event that the Executive
gives notice, on or before December 31, 2006, of his intention to terminate
this
Agreement, he shall be obligated to repay to the Company all sums that he
shall
have received pursuant to Sections 5(f)
and (g)
hereof.
(a) Notwithstanding
the
provisions of Section 3
of this
Agreement, the Executive shall have the right to terminate his employment
with
the Company not later than three (3) months following the occurrence, without
the Executive’s prior written consent, of any of the following
occurrences:
(i) Any
material
adverse change or reduction in the functions, duties or responsibilities
of the
Executive, or elimination of any office or executive position he currently
holds
in the Company or Xxxxxx, including, but not limited to, the removal of the
Executive from, or failure to reappoint or reelect the Executive to, any
such
position during the Term.
(ii) Any
reduction
in the Executive’s Base Salary or any material adverse change in the benefits
that the Executive shall be entitled to receive pursuant to Section 7
of this
Agreement.
(iii) Any
requirement imposed upon the Executive to work primarily at a location, other
than in the New York City metropolitan area, that is more than 100 miles
from
the Executive’s residence in Newtown, Pennsylvania, or such other location at
which the Executive may reside during the Term, provided that such other
location shall not be more than 100 miles from the Company’s office in the New
York metropolitan area.
(b) Notwithstanding
anything to the contrary set forth in Sections 11
or
14
of the
Agreement, in the event that the Executive gives notice to the Company of
his
election to terminate this Agreement for any of the reasons set forth in
Section
13(a)
hereof,
the Company shall pay Severance Payments to the Executive in substantially
equal
installments in accordance with the Company’s normal payroll practices then in
effect during the Severance Payment Period. In addition to the foregoing
payments, the Executive’s participation in all of the Company’s benefit plans,
programs, arrangements and practices, including all disability, medical,
life
insurance and similar programs, but excluding the Option Plan and any pension,
401-K or similar retirement income or profit sharing plans, shall continue
during 12 month period commencing on the first day of the month immediately
following the Termination Date.
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14. Change
of
Control.
(a) Anything
elsewhere contained in this Agreement to the contrary notwithstanding, if
Executive’s employment is terminated:
(i) other
than
for Cause by the Company within 90 days prior to a “Change of Control” (as
defined herein), or
(ii) other
than
for Cause by the Company (or its successor corporation) at any time after
a
Change of Control, or
(iii) as
a result
of Executive’s resignation within 60 days following a Change of Control,
such
termination of employment shall be deemed to be a termination of Executive’s
employment by the Company without Cause, and he will thereupon be entitled
to
receive the payments and benefits that would be due to him upon such occurrence
pursuant to the provisions of Section 11
hereof.
(b) For
purposes
of this Agreement, a “Change of Control” shall occur if:
(i) any
“Person”
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act
of 1934, as amended), other than François Girbaud, Marithé Bachellerie and/or
any Person directly or indirectly controlled by either or both of them, is
or
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of Xxxxxx representing 50% or more
of the
total voting power represented by Xxxxxx’ then outstanding voting securities;
(ii) any
merger or
consolidation of Xxxxxx with any other Person that has been approved by the
stockholders of Xxxxxx, other than a merger or consolidation which would
result
in the voting securities of Xxxxxx outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving Person) more than fifty percent (50%)
of
the total voting power represented by the voting securities of Xxxxxx or
such
surviving Person outstanding immediately after such merger or consolidation,
or
the stockholders of Xxxxxx approve a plan of complete liquidation of Xxxxxx;
or
(iii) any
sale,
merger, dissolution or other disposition of the Company; or
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(iv) any
sale or
other disposition, in one transaction or a series of related transactions,
of
all or substantially all the Company’s assets; or
(v) a
change in
the composition of the Board occurring within a two-year period, as a result
of
which fewer than a majority of the directors are Incumbent Directors. “Incumbent
Directors” will mean directors who either 1) are directors of Xxxxxx as of the
Effective Date, or 2) are elected, or nominated for election, to the Board
with
the affirmative votes of at least a majority of the Incumbent Directors at
the
time of such election or nomination. For purposes of the preceding, individuals
who are elected pursuant to clause 2) also shall be considered Incumbent
Directors.
15. Confidential
Information.
The
Executive agrees that, during the term of his employment with the Company,
and
for a period of one year after the termination of his employment for any
reason
whatsoever (including the non-renewal of this agreement by either party),
he
shall not disclose to any person or use the same in any way, other than in
the
discharge of his duties under this Agreement in connection with the business
of
the Company, any trade secrets or confidential or proprietary information
of the
Company, including, without limitation, any information or knowledge relating
to
(i) the business, operations or internal structure of the Company, (ii) the
clients (or customers) or potential clients (or potential customers) of the
Company, (iii) any method and/or procedure (such as records, programs, systems,
correspondence, or other documents), relating or pertaining to projects
developed by the Company or contemplated to be developed by the Company,
or (iv)
the Company’s business, which information or knowledge the Executive shall have
obtained during the term of this Agreement, and which is otherwise of a secret
or confidential nature. Further, upon leaving the employ of the Company for
any
reason whatsoever, the Executive shall not take with her, without prior written
consent of the Company, any documents, forms or other reproductions of any
data
or any information relating to or pertaining to the Company, any clients
(or
customers) or potential clients (or potential customers) of the Company,
or any
other confidential information or trade secrets and will promptly return
any
such materials already in his possession to the Company. The provisions of
this
Section 15
shall
survive the termination of this Agreement.
16. Miscellaneous.
(a) Notices. Any
notice, demand, claim, or consent or other communication to be given hereunder
(“Notice”) shall be given in writing and shall be sent by overnight delivery
service, such as Federal Express, UPS or Airborne, and addressed, in the
case of
the Company, to its office in New York, New York, or in the case of the
Executive, to the last address that the Executive has given to the
Company.
(b) Benefit;
Non-Assignment. This
Agreement shall be binding upon and inure to the benefit of, the parties,
their
successors, assigns, personal representatives, distributes, heirs and legatees.
Neither party shall have the right to assign this Agreement, or to delegate
its
or his respective obligations hereunder, except that the Company may assign
this
Agreement and all of its rights hereunder to any parent or the Company, any
wholly owned subsidiary of such parent or to any successor in interest to
the
Company.
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(c) Governing
Law. This
Agreement shall be governed by, and construed and enforced in accordance
with,
the laws of the State of New York, without giving effect to the principles
of
conflicts of law thereof.
(d) Resolution
of
Disputes. Any
dispute regarding any aspect of this Agreement or any act which allegedly
has or
would violate any provision of this Agreement will be submitted to binding
arbitration. Such arbitration shall be conducted before a single arbitrator
sitting in New York, New York, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the award
of
the arbitrator in any court having competent jurisdiction. In any such
proceeding, the prevailing party shall be entitled to recover its legal fees
and
expenses from the losing party.
(e) Headings. The
headings used in this Agreement are solely for convenience of reference and
will
not be deemed to limit, characterize, or in any way affect any provision
of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no heading had been used.
(g) Execution
in
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original, and all of which, when taken together, shall be
deemed
to be one and the same instrument.
I. C. Xxxxxx & Company L.P. | ||
By: |
I.C.
Xxxxxx & Company, Inc.
Its
General Partner
|
|
By: | /s/ XXXXX X. XXXXX | |
|
||
Xxxxx X. Xxxxx, Chief Executive Officer | ||
/s/
Xxxxx X. Xxxxx
|
||
|
||
Xxxxx
X. Xxxxx
|
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