Exhibit 6.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 22nd day of November, 2000 by and between Xxxxxxxx.xxx, Inc., a Nevada
corporation (hereinafter, the "Company"), and Xxxxxx Xxxxx (hereinafter,
"Executive"), to be effective as of the date hereof (the "Effective Date").
WHEREAS Executive is Vice President of the Company; and
WHEREAS the Company desires to retain Executive as Vice President of
the Company, and Executive is willing to serve as such, all in accordance with
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. EMPLOYMENT. On and after the date hereof, Executive shall continue
to be employed as Vice President of the Company. Executive's responsibilities
under this Agreement shall be in accordance with the policies and objectives
established by the Board of Directors of the Company (the "Board"). Executive
will report directly to the Chief Executive Officer of the Company.
2. EMPLOYMENT PERIOD. This Agreement will begin on the Effective Date
and, unless earlier terminated in accordance with Section 5 hereof, will expire
on the first anniversary of the Effective Date (the "Employment Period").
3. EXTENT OF SERVICE. During the Employment Period, and excluding any
periods of vacation and sick leave to which Executive is entitled, Executive
agrees to devote reasonable attention and time during normal business hours to
the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to Executive hereunder, to use
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it will not be a violation of
this Agreement for Executive to (a) serve on corporate, civic or charitable
boards or committees, and (b) manage personal investments, so long as such
activities do not significantly interfere with the performance of Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Period, the Company will
pay to Executive a base salary in the amount of US$150,000 per year ("Base
Salary"), less normal withholdings, payable in equal monthly or more frequent
installments as are customary under the Company' payroll practices from time to
time.
(b) ANNUAL BONUS. Executive shall be entitled to an annual bonus in
such amount as may be determined by the Board in its discretion.
(c) EMPLOYEE BENEFIT PLANS. During the Employment Period, the
Company shall provide to Executive, at the Company's sole cost and expense,
comprehensive medical and dental insurance (including coverage of Executive's
spouse and dependents, if any) disability insurance coverage that provides
benefits, in the event of disability, equal to at least 60% of Base Salary, and
life insurance on the life of Executive equal to at least 5 times Base Salary.
During the Employment Period, Executive shall be eligible to participate in all
pension, welfare, incentive compensation, and other employee benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies, including, without limitation, medical, prescription, dental,
disability, group life, accidental death and travel accident insurance plans and
programs on the same basis and to the same extent as other senior executives of
the Company.
(d) MONTHLY ALLOWANCE. During the Employment Period, the Company
shall provide to Executive a monthly car allowance in the amount of $1,000.
(e) EXPENSES. During the Employment Period, Executive will be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company and its affiliates.
(f) FRINGE BENEFITS. During the Employment Period, Executive will be
entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for senior
executives of the Company.
(g) VACATION. During the Employment Period, Executive will be
entitled to four weeks of paid vacation annually.
5. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Executive's employment will terminate
automatically upon Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of Executive has occurred
during the Employment Period (pursuant to the definition of Disability set forth
below), it may give to Executive written notice in accordance with Section 14(d)
hereof of its intention to terminate Executive's employment. In such event,
Executive's employment will terminate effective on the 30th day after receipt by
Executive of such written notice, provided that, within the 30 days after such
receipt, Executive shall not have returned to full-time performance of
Executive's duties. For purposes of this Agreement, "Disability" means the
existence of any physical or mental condition of Executive that results in
Executive's receipt of long-term disability benefits under the long term
disability insurance coverage provided to Executive pursuant to Section 4(c)
hereof.
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(b) TERMINATION FOR CAUSE. The Company may terminate Executive's
employment during the Employment Period for Cause. The effective date of any
such termination shall be the date specified by the Company, which date may be
any date on or after the date notice of such termination is provided to
Executive.
(c) TERMINATION WITHOUT CAUSE. The Company may terminate the
employment of the Executive hereunder without Cause for any reason by providing
Executive with a written notice of termination at least thirty (30) days prior
to the effective date of such termination.
(d) TERMINATION BY EXECUTIVE. Executive may terminate his employment
hereunder by providing the Company with a written notice of termination at least
thirty (30) days prior to the effective date of such termination.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF EMPLOYMENT.
(a) TERMINATION BY THE COMPANY WITHOUT CAUSE PRIOR TO A CHANGE IN
CONTROL. If Executive's employment is terminated by the Company without Cause
prior to a Change in Control, the Company shall: (i) pay to Executive a lump sum
severance payment, in cash, without discount, equal to the product of (A) the
number of days remaining in the Employment Period from and after the Date of
Termination, and (B) Executive's Base Salary at the rate in effect immediately
prior to the Date of Termination divided by 365; and (ii) continue to provide to
Executive, at the Company's sole cost and expense, the insurance coverage
described in the first sentence of Section 4(c) hereof for the remainder of the
Employment Period and for 1 year thereafter as if Executive continued to be
employed by the Company at Executive's Base Salary. The Company shall also be
obligated to pay Executive his Accrued Compensation and timely pay or provide to
Executive any Other Benefits to which Executive is entitled.
(b) VOLUNTARY RESIGNATION OTHER THAN AFTER A CHANGE IN CONTROL FOR
GOOD REASON. If Executive's employment is terminated by Executive other than for
Good Reason after a Change in Control (and other than by reason of Executive's
death or Disability), the Company shall pay to Executive his Accrued
Compensation and shall timely pay or provide to Executive any Other Benefits to
which Executive is entitled.
(c) TERMINATION AFTER A CHANGE IN CONTROL OTHER THAN FOR CAUSE OR
FOR GOOD REASON. If Executive's employment is terminated upon or after a Change
in Control either by the Company without Cause or by Executive for Good Reason
(and in either case, other than by reason of Executive's death or Disability),
the Company shall pay or provide to Executive to the payments and benefits
described in the following provisions of this Section 6(c):
(i) LUMP-SUM SEVERANCE PAYMENT. The Company shall pay to
Executive a lump sum severance payment, in cash, without discount,
equal to three (3) times the sum of (A) Executive's annual Base Salary
at the rate
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in effect immediately prior to the Date of Termination (not taking into
account any reduction in Base Salary that would constitute Good
Reason), and (B) Executive's Average Bonus. For purposes of this
Agreement, Executive's "Average Bonus" means the average of Executive's
annual bonuses paid by the Company or any of its affiliates for the two
fiscal years during which Executive has been employed by the Company or
any of its affiliates immediately preceding the fiscal year in which
the Date of Termination occurs;
(ii) VESTING OF OPTIONS. Any and all options to purchase
common stock of the Company then held by Executive will, to the extent
not already vested, become fully vested as of the Date of Termination
and shall be fully exercisable at any time thereafter prior to the
respective expiration dates of such options, and any provision
contained in the plans(s) and/or agreement(s) otherwise governing the
terms of such options that are inconsistent therewith are hereby
modified to the extent necessary to provide for such vesting.
(iii) CONTINUED BENEFITS. For a thirty-six (36) month period
after the Date of Termination (the "Benefits Period"), the Company
shall provide Executive with group term life insurance, health
insurance, accident and long-term disability insurance benefits
(collectively, "Welfare Benefits") substantially similar in all
respects to those that Executive was receiving immediately prior to the
Date of Termination (not taking into account any reduction in such
Welfare Benefits that would constitute Good Reason). During the
Benefits Period, Executive will be entitled to elect to change his
level of coverage and/or his choice of coverage options (such as
Executive only or family medical coverage) with respect to the Welfare
Benefits to be provided by the Company to Executive to the same extent
that actively employed senior executives of the Company are permitted
to make such changes; provided, however, that in the event of any such
changes Executive shall pay the amount of any cost increase that would
actually be paid by an actively employed senior executive of the
Company by reason of making the same changes in his or her level of
coverage or coverage options;
(iv) ACCRUED COMPENSATION AND OTHER BENEFITS. To the extent
not theretofore paid or provided, the Company shall timely pay or
provide to Executive his Accrued Compensation and any Other Benefits to
which Executive is entitled.
(d) DISABILITY. If Executive's employment is terminated by reason of
Executive's Disability during the Employment Period, the Company shall pay to
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Executive his Accrued Compensation and timely pay or provide any Other Benefits
to which Executive is entitled.
(e) DEATH. If Executive's employment is terminated by reason of
Executive's death during the Employment Period, the Company shall pay to
Executive's estate Executive's Accrued Compensation and timely pay or provide
any Other Benefits to which Executive's beneficiaries or estate are entitled
under the terms of the plans, programs, policies, agreements and contracts under
which such Other Benefits are provided.
(f) TERMINATION FOR CAUSE. If Executive's employment is terminated
for Cause during the Employment Period, this Agreement will terminate without
further obligations to Executive, other than for payment of any Accrued
Compensation and the timely payment or provision of any Other Benefits to which
Executive is entitled.
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that, (i)
Executive becomes entitled to severance benefits or any other benefits or
payments in connection with a Change in Control, whether pursuant to the terms
of this Agreement or otherwise (collectively, the "Total Benefits") and (ii) any
of the Total Benefits will be subject to the excise tax (the "Excise Tax")
imposed pursuant to Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), the Company shall pay to Executive an additional amount
(the "Gross-Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the Total Benefits and any federal, state and
local income taxes, Excise Tax, and FICA and Medicare withholding taxes upon the
payment provided for by this Section 7, will be equal to the Total Benefits. For
purposes of determining whether any of the Total Benefits will be subject to the
Excise Tax and the amount of such Excise Tax, the amount of the Total Benefits
that will be treated as subject to the Excise Tax shall be equal to the amount
of the Total Benefits reduced by the amount of such Total Benefits that, in the
opinion of tax counsel selected by the Company ("Tax Counsel") and reasonably
acceptable to Executive are not excess parachute payments (within the meaning of
Section 280G(b)(1) of the Code).
For purposes of this Section 7, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Excise Tax is payable and state and local income
taxes at the highest marginal rate of taxation in the state and locality of
Executive's residence on the Date of Termination, net of the reduction in
federal income taxes that could be obtained from deduction of such state and
local taxes (calculated by assuming that any reduction under Section 68 of the
Code in the amount of itemized deductions allowable to Executive applies first
to reduce the amount of such state and local income taxes that would otherwise
be deductible by Executive). Except as otherwise provided herein, all
determinations required to be made under this Section shall be made by Tax
Counsel.
In the event that the Excise Tax is subsequently determined to be less
than the amount taken into account hereunder at the time of termination of
Executive's
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employment, Executive shall repay to the Company, at the time the amount of such
reduction in Excise Tax is fully determined, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up Payment
attributable to the Excise Tax, federal, state and local income taxes and FICA
and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by
Executive to the extent that such repayment results in a reduction in Excise
Tax, FICA and Medicare withholding taxes and/or a federal, state or local income
tax deduction) 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 of
the termination of Executive's employment (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 to
Executive in respect of such excess (plus any interest, penalties or additions
payable by Executive with respect to such excess) at the time that the amount of
such excess is finally determined.
8. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which Executive may qualify, nor shall anything herein limit such rights
as Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts that are vested benefits or that Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or any of its affiliated companies at
or subsequent to the Date of Termination will be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
9. CONFIDENTIAL INFORMATION. At all times while Executive is employed
by the Company and thereafter, Executive will hold in strict confidence, and not
use, except for the benefit of the Company, or disclose to any third party other
than as may be authorized by the Company, any "Confidential Information."
"Confidential Information" means any information (including any tangible
embodiments thereof) used in the Company's business that is disclosed by the
Company to Executive, developed by Executive for the Company, or to which
Executive otherwise has access while employed by the Company, directly or
indirectly, whether in writing, orally, by observation or in any other form or
manner. Confidential Information includes, but is not limited to, information
concerning the Company's research or development efforts, methods, trade
secrets, technical data, designs, know-how, inventions, discoveries, processes,
technology, engineering information, government classified information, computer
software, product or marketing plans, information concerning the Company's
vendor or customer relationships or finances, cost and price information,
investments, and other information concerning the Company's business operations
or affairs. Confidential Information includes information that the Company has
received, or in the future will receive, from third parties to the same extent
it includes information developed by or for the Company. Upon the termination of
Executive's employment and at any other time upon the Company's request,
Executive
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will deliver to the Company (and not retain any copies of, recreate or deliver
to anyone else or use) any and all embodiments of Confidential Information,
records, notes, correspondence, reports, manuals, software, passwords, keys,
entry cards, identification cards, Company-provided credit cards, computers and
other equipment, data (including digital data on Company-provided computers) and
any other documents or property, including copies of any of the foregoing,
provided by the Company, developed by Executive in whole or in part in
connection with Executive's employment by the Company, or otherwise belonging to
the Company. Executive will not improperly use or disclose to the Company any
confidential or proprietary information or trade secrets of any other employer,
person or entity, and will not bring onto the premises of the Company any
unpublished document or confidential or proprietary information belonging to any
such employer, person or entity unless consented to in writing by such employer,
person or entity.
10. OWNERSHIP OF INVENTIONS AND DEVELOPMENTS
(a) DISCLOSURE AND ASSIGNMENT OF INVENTIONS AND DEVELOPMENTS.
Executive agrees to promptly and fully communicate in writing to the Company (to
such department or officer of the Company and in accordance with such procedures
as the Company may direct from time to time) any and all inventions,
discoveries, concepts, improvements, processes, technology, know-how, trade
secrets, works of authorship and other developments, including machines,
manufactures, compositions of matter, software, products, documentation, data,
designs, flow charts, specifications and mask works, whether or not patentable
or copyrightable, that are solely or jointly conceived, developed or reduced to
practice by Executive if they (i) were conceived, developed or reduced to
practice by Executive in the performance of Executive's duties for the Company
or during normal working hours; (ii) were conceived, developed or reduced to
practice by Executive using Confidential Information or Company equipment,
supplies, facilities, personnel, software or other resources; (iii) relate to
the Company's business or actual or demonstrably anticipated research or
development of the Company; or (iv) result from any work performed by Executive
for the Company (collectively, the "Developments"). Executive acknowledges that
all Developments that are works of authorship will be deemed "works made for
hire" prepared for and owned by the Company, within the meaning of the copyright
laws of the United States and any similar laws of other jurisdictions. Executive
agrees to, and does hereby, irrevocably assign to the Company or its designee,
to the extent not already vested in the Company, (i) all of Executive's right,
title and interest in and to such Developments, including any patent rights,
trade secret rights, copyrights, mask work rights and all other proprietary
rights therein that may be secured in any place under laws now or hereafter in
effect; (ii) all claims, demands and causes of action arising out of or relating
to infringements of such Developments; (iii) the right to apply for and obtain
patents, copyrights and other intellectual property protection for such
Developments.
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(b) EXECUTION OF DOCUMENTS. During the period of Executive's
employment and thereafter, Executive agrees to execute patent applications and
applications for copyright or mask work registration, and execute assignments
and such other documents and take such other actions considered advisable by the
Company or its counsel to convey to the Company, apply for, prosecute, maintain,
perfect, enforce or defend patents, copyright or mask work registrations or
other intellectual property protection for, or otherwise protect, any
Developments to which the Company has rights under this Agreement in the United
States, other countries, or both, as the Company may deem advisable. The Company
will bear the cost thereof.
(c) INVENTIONS AND DEVELOPMENTS RETAINED. This Agreement does not
apply to any Developments Executive made before Executive's employment with the
Company. To clearly establish Executive's rights, Executive has previously
notified the Company in writing of any Developments, whether or not patentable
or copyrightable and whether or not reduced to practice, made by Executive prior
to Executive's employment with the Company that are owned by Executive (rather
than by Executive's employer(s), if any), together with the approximate dates of
their creation.
11. MITIGATION. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not Executive obtains other employment.
12. CERTAIN LEGAL EXPENSES. The Company shall pay to Executive all
reasonable legal fees and expenses incurred by Executive in contesting or
disputing in good faith any termination of employment hereunder that occurs
after a Change in Control or in seeking to obtain or enforce any right or
benefit provided by this Agreement in connection with Executive's termination of
employment hereunder after a Change in Control or in connection with any tax
audit or proceeding to the extent attributable to the application of Section
4999 of the Code to any payment or benefit provided hereunder. Such payments
shall be made within five (5) business days after delivery of Executive's
respective written requests for payment accompanied with such evidence of fees
and expenses incurred as the Company reasonably may require.
13. ASSIGNMENT; SUCCESSORS.
(a) ASSIGNMENT BY EXECUTIVE. The obligations of Executive hereunder
are personal and may not be assigned or delegated by Executive or transferred in
any manner whatsoever, nor are such obligations subject to involuntary
alienation, assignment or transfer.
(b) SUCCESSORS. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company
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would be required to perform it if no such succession had taken place. As used
in this Agreement, "the Company" means the Company as herein before defined and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law or otherwise.
14. MISCELLANEOUS.
(a) GOVERNING LAW. Except to the extent preempted by federal law and
without reference to principles of conflict of laws, the laws of the State of
Florida will govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(b) CAPTIONS. The captions in this Agreement are not part of the
provisions hereof and shall have no force or effect.
(c) AMENDMENTS AND MODIFICATIONS. This Agreement may not be amended
or modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives, which writing makes
specific reference to this Agreement.
(d) NOTICES. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company: Xxxxxxxx.xxx, Inc.
000 Xxxxx Xxxx Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to Executive: Xxxxxx Xxxxx
C/O 000 Xxxxx Xxxx Xxxxxx Xxxx,
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications will be effective when
actually received by the addressee.
(e) SEVERABILITY. If any provision or covenant, or any part thereof,
of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which will remain in full force and effect.
(f) WITHHOLDING. the Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(g) WAIVER. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(h) TIMING OF PAYMENTS. The payments provided for in Sections 6 and
7 shall be made within 30 days after the Date of Termination, provided, however,
that (i) Other Benefits shall be paid in accordance with the terms of the
applicable plans, programs, policies, contracts, and agreements providing for
such Other Benefits, and (ii) if the amounts of such payments cannot be finally
determined on or before such date, the Company shall pay to Executive on such
day an estimate, as determined in good faith by the Company, 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 from the
Date of Termination to the payment of such remainder) as soon as the amount
thereof can be determined but in no event later than the 45th day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to Executive, payable on the fifth (5th)
business day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code from the Date of Termination to
the repayment of such excess).
(i) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the Company and Executive with respect to the subject matter hereof and
it supersedes and invalidates any previous employment or severance agreements or
contracts between them. No representations, inducements, promises or agreements,
oral or otherwise, that are not embodied herein shall be of any force or effect.
15. CERTAIN DEFINITIONS.
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(a) "ACCRUED COMPENSATION" means all amounts of compensation for
services rendered by Executive to the Company or any affiliate that have been
earned or accrued through the Date of Termination but that have not been paid as
of the Date of Termination, including (i) Base Salary, (ii) reimbursement (in
accordance with the Company' expense reimbursement policy) for reasonable and
necessary business expenses incurred by Executive on behalf of the Company
during the period ending on the Date of Termination, and (iii) vacation pay.
(b) "CAUSE" means:
(i) the willful and continued failure of Executive to
substantially perform Executive's duties with the Company (other than
any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
delivered to Executive by the Board that specifically identifies the
manner in which the Board believes that Executive has not substantially
performed Executive's duties;
(ii) the willful engaging by Executive in illegal conduct or
gross misconduct that is materially and demonstrably injurious to the
Company;
(iii) personal dishonesty or breach of fiduciary duty to the
Company that in either case results or was intended to result in
personal profit to Executive at the expense of the Company; or
(iv) willful violation of any law, rule or regulation (other
than traffic violations, misdemeanors or similar offenses) or
cease-and-desist order, court order, judgment or supervisory agreement,
which violation is materially and demonstrably injurious to the
Company.
(c) "CHANGE OF CONTROL" means, and shall be deemed to have occurred,
if:
(i) any Person (within the meaning of Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), as
modified and used in Sections 13(d)(3) and 14(d) thereof, excluding
employee benefit plans of the Company or any of its affiliates, is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, directly or indirectly, of Company securities
representing twenty percent (20%) or more of the combined voting power
of the Company's then outstanding securities ("Voting Power") if, at
such time, the Voting Power represented by Company securities
beneficially owned by such Person exceeds the Voting Power represented
by the Company securities beneficially owned by Xxxxx Xxxx, Xxx Xxxxx
and Xxxxxxx Xxxxxxx;
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(ii) the Company consummates a merger, consolidation, share
exchange, division or other reorganization or transaction of the
Company (a "Fundamental Transaction") with any other corporation, other
than a Fundamental Transaction that results in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least sixty percent (60%)
of the combined Voting Power immediately after such Fundamental
Transaction of (A) the Company's outstanding securities, (B) the
surviving entity's outstanding securities, or (C) in the case of a
division, the outstanding securities of each entity resulting from the
division;
(iii) the shareholders of the Company approve a plan of
complete liquidation or winding-up of the Company or an agreement for
the sale or disposition (in one transaction or a series of
transactions) of all or substantially all of the Company's assets; or
(iv) during any period of twenty-four (24) consecutive months,
individuals who at the beginning of such period constituted the Board
(including for this purpose any new director whose election or
nomination for election by the Company's shareholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office
who were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board (excluding any
Board seat that is vacant or otherwise unoccupied).
(d) "GOOD REASON" means the occurrence during the Employment Period and
after a Change in Control of any of the following events:
(i) the assignment to Executive, without Executive's written
consent, of any duties inconsistent in any material respect with
Executive's position, authority, duties or responsibilities immediately
prior to the Change in Control or any other action by the Company that
results in a diminution in any material respect in such position,
authority, duties or responsibilities, excluding for this purpose an
isolated and inadvertent action not taken in bad faith that is remedied
by the Company promptly after receipt of notice thereof given by
Executive;
(ii) the Company's requiring Executive to be based at any
office or location that is more than fifty (50) miles from Executive's
office or location immediately prior to the Change in Control;
(iii) the failure by the Company (a) to continue in effect any
compensation or benefit plan in which Executive participates
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immediately prior to the Change in Control that is material to
Executive's total compensation, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made
with respect to such plan, or (b) to continue Executive's participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of Executive's participation relative to other
participants;
(iv) the failure by the Company to honor all the terms and
provisions of this Agreement, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof
given by Executive.
(e) "DATE OF TERMINATION" means the date as of which Executive's
employment terminates hereunder.
(f) "OTHER BENEFITS" means amounts or benefits required to be paid or
provided to Executive or that Executive is eligible to receive under any plan,
program, policy, contract, or agreement maintained by the Company or any of its
affiliates or to which the Company or any of its affiliates is a party.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
XXXXXXXX.XXX, INC.
By: Xxxxx Xxxx
Title: President & CEO
EXECUTIVE:
Xxxxxx Xxxxx
_______________________________
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