EXHIBIT 10.1
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of the 31st day of January, 2002 by SVT
Inc., a Delaware corporation ("Company"), and Mr. Xxxxxx Xxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive currently is the Chief Executive Officer of the
SanVision Technology Inc., a New Jersey corporation ("SanVision");
WHEREAS, E-Newco, Inc. ("E-Newco"), Company (under its prior name "SWWT,
Inc.") and SanVision have entered into a Second Amended and Restated Agreement
and Plan of Merger dated as of December 18, 2001 (the "Purchase Agreement"),
pursuant to which E-Newco will merge into SanVision, SanVision being the
surviving corporation (the "Acquisition");
WHEREAS, Company desires to continue the employment of the Executive and to
enter into an employment agreement embodying the terms of such continued
employment (this "Agreement");
WHEREAS, the Executive desires to enter into this Agreement and to accept
such employment, subject to the terms and provisions of this Agreement and
subject to the occurrence of the Closing (as such term is defined in the
Purchase Agreement).
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. Definitions.
"Base Salary" shall mean the Executive's base salary payable in accordance
with Section 4 below.
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"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean that the Board concludes, in good faith and after
conducting a reasonable investigation and providing the Executive a reasonable
opportunity to be heard, that: (i) the Executive engaged in conduct which is a
felony under the laws of the United States or any state or political subdivision
thereof; (ii) the Executive engaged in conduct relating to the Company
constituting material breach of fiduciary duty, willful misconduct (including
acts of employment discrimination or sexual harassment) or fraud; (iii) the
Executive breached his obligations or covenants under Section 11 or 12 of this
Agreement in any material respect; or (iv) the Executive failed, willfully or
through gross negligence, to follow a proper directive of the Board within the
scope of Executive's duties (which shall be capable of being performed by the
Executive with reasonable effort) after written notice from the Board specifying
the performance required and Executive's failure to perform within 30 days after
such notice.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Date of Termination" shall mean the effective date of the Executive's
termination of employment for any reason other than the non-renewal of the Term
of Employment.
"Disability" or "Disabled" shall mean the failure of Executive due to
illness, injury, or physical or mental incapacity to carry out effectively
Executive's duties with respect to the Company for a period of six consecutive
months or nine months in any eighteen-month consecutive period.
"Effective Date" shall mean the Closing, as such term is defined in the
Purchase Agreement.
"Good Reason" shall mean (i) the failure of the Company to pay any Base
Salary, bonus payment or additional compensation or benefits hereunder in
accordance with this Agreement, (ii) the assignment to Executive without
Executive's prior written consent of duties substantially inconsistent with his
title, (iii) any material adverse change in Executive's duties, responsibilities
or title without Executive's prior written consent, or (iv) the relocation of
Executive's principal place of performance hereunder to a location more than 25
miles from its location immediately before the Effective Date.
"Minimum Bonus" shall mean the minimum bonus payable in accordance with
Section 5 below.
"Operating Income" shall mean the net operating income, if any, of the
Company for a fiscal year, prior to the recognition of any extraordinary items
of income or expense, as determined by the Company's independent auditors in
accordance with generally accepted accounting principles.
"Performance Bonus" shall mean the performance bonus, if any, payable in
accordance with Section 5 below.
"Term of Employment" shall mean the period specified in Section 2 below.
2. Term of Employment.
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The Company hereby employs the Executive, and the Executive hereby accepts
such employment, for the period commencing on the Effective Date and ending six
years after the Effective Date, subject to earlier termination of the Term of
Employment by the Company or the Executive in accordance with the terms of this
Agreement.
3. Position, Duties and Responsibilities.
On or about the Effective Date and continuing for the remainder of the Term
of Employment, the Executive shall be employed as the Chief Executive Officer of
the Company. The Executive shall serve the Company and its affiliates
faithfully, conscientiously and to the best of the Executive's ability, shall
promote the interests and reputation of the Company and its affiliates and shall
perform his duties hereunder in accordance with the policies and procedures of
the Company as in effect from time to time. Executive shall be responsible for
managing the business, operations and financial affairs of the Company. Unless
prevented by sickness or Disability, the Executive shall devote substantially
all of the Executive's time, attention, knowledge, energy and skills, during
normal working hours, and at such other times as the Executive's duties may
reasonably require, to the duties of the Executive's employment; provided,
however, that this Agreement shall not be interpreted as prohibiting the
Executive from, in accordance with the policies and procedures of the Company,
managing his personal affairs, engaging in charitable or civic activities or,
subject to prior approval of the Company and any regulatory or self-regulatory
process which may be required, serving as a director of any other corporation or
business entity not affiliated with or in competition with the Company or its
affiliates, so long as such activities do not interfere in any material respect
with the performance of the Executive's duties and responsibilities hereunder.
The Executive, in carrying out his duties under this Agreement, shall report to
the Board.
4. Base Salary.
During the Term of Employment, the Executive shall be paid an
annualized Base Salary of not less than $500,000, payable in cash in accordance
with the regular payroll practices of the Company as in effect from time to
time.
5. Bonus Payments.
During the Term of Employment, the Executive shall be eligible to
participate in the annual bonus plan or program, if any, applicable to similarly
situated senior executives of the Company as established and in effect from time
to time. Notwithstanding the foregoing, for each fiscal year of the Company
ending during the Term of Employment, the Executive shall be paid a guaranteed
minimum bonus (a "Minimum Bonus") under such plan or program equal to 50% of the
Executive's Base Salary. In addition, for each fiscal year of the Company ending
during the Term of Employment, the Executive shall be paid a performance bonus
(a "Performance Bonus") under such plan or program equal to the amount, if any,
determined in accordance with the following schedule:
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------------------------------------------------------------ ---------------------------------------------------------
Percentage of Target Operating Income Attained for Fiscal Amount of Performance Bonus Payable for Fiscal Year
Year
------------------------------------------------------------ ---------------------------------------------------------
Less than 80% Determined by Board in its sole discretion
------------------------------------------------------------ ---------------------------------------------------------
At least 80% but less than 85% 50% of Base Salary
------------------------------------------------------------ ---------------------------------------------------------
At least 85% but less than 90% 70% of Base Salary
------------------------------------------------------------ ---------------------------------------------------------
At least 90% but less than 95% 85% of Base Salary
------------------------------------------------------------ ---------------------------------------------------------
At least 95% but less than 100% 95% of Base Salary
------------------------------------------------------------ ---------------------------------------------------------
At least 100% 100% of Base Salary plus 10% of amount of Operating
Income in excess of 100% of target Operating Income
------------------------------------------------------------ ---------------------------------------------------------
For this purpose, target Operating Income shall be $1.2 million for the
fiscal year ending in 2002, thereafter increasing by $100,000 per year through
the fiscal year ending in 2007.
The Minimum Bonus and Performance Bonus, if any, for each fiscal year
during the Term of Employment shall be payable in accordance with the regular
payroll practices of the Company applicable to similarly situated senior
executives of the Company, as in effect from time to time.
6. Employee Benefit Programs.
(a) During the Term of Employment, the Executive shall be eligible to
participate in the various employee welfare and pension benefit plans, programs
and/or arrangements applicable to similarly situated senior executives of the
Company, subject to and in accordance with the terms and conditions of such
plans, programs and arrangements as in effect from time to time.
(b) During the Term of Employment, the Executive shall be eligible to
participate in the equity compensation plans applicable to similarly situated
senior executives of the Company, subject to and in accordance with the terms
and conditions of such plans as in effect from time to time.
7. Reimbursement of Business Expenses.
During the Term of Employment, the Executive is authorized to incur
reasonable business expenses in carrying out his duties and responsibilities
under this Agreement, and the Company shall reimburse him for all such
reasonable business expenses reasonably incurred in connection with carrying out
the business of the Company, subject to and in accordance with the terms and
conditions of the policies applicable to similarly situated senior executives of
the Company, regarding such expenses as in effect from time to time.
8. Perquisites.
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During the Term of Employment, the Executive shall be entitled to
participate in any fringe benefits plans, programs and/or arrangements
applicable to similarly situated senior executives of the Company, subject to
and in accordance with the terms and conditions of such arrangements as in
effect from time to time.
9. Vacation.
During the Term of Employment, the Executive shall be entitled to the
number of paid vacation days and floating holidays that is consistent with those
provided to similarly situated senior executives of the Company, and in no event
less than the number of such days provided to the Executive immediately before
the Effective Date, subject to and in accordance with the vacation and holiday
policies of the Company as in effect from time to time.
10. Termination of Employment.
(c) Termination of Employment Due to Death. In the event of the Executive's
death during the Term of Employment, the Term of Employment shall end as of the
date of the Executive's death and his estate and/or beneficiaries, as the case
may be, shall thereupon be entitled to the following:
Base Salary earned but not paid prior to the date of his death;
all Minimum Bonuses and Performance Bonuses, if any, under Section 5 with
respect to any fiscal years prior to the year of his death which have not yet
been paid;
a pro rata Minimum Bonus under Section 5 for the fiscal year in which the
Executive's death occurs;
any amounts earned, accrued or owing to the Executive but not yet paid
under Section 6, 7, 8 or 9 above, subject to the terms and conditions of
applicable benefit plans and programs; and
such other or additional benefits, if any as are provided under applicable
plans, programs and/or arrangements of the Company.
Termination of Employment Due to Disability. If the Executive's employment
is terminated due to Disability during the Term of Employment, by the Company or
the Executive, the Term of Employment shall end as of the Date of Termination
and the Executive shall thereupon be entitled to the following (in addition to
the benefits due him under the then current disability program of the Company):
(1) Base Salary earned but not paid prior to the Date of Termination;
(2) all Minimum Bonuses and Performance Bonuses, if any, under
Section 5 with respect to any fiscal years prior to the year of
his termination which have not yet been paid;
(3) a pro rata Minimum Bonus under Section 5 for the fiscal year in
which the Executive's disability occurs;
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(4) any amounts earned, accrued or owing to the Executive but not yet
paid under Section 6, 7, 8 or 9 above, subject to the terms and
conditions of applicable benefit plans and programs; and
(5) such other or additional benefits, if any, as are provided under
applicable plans, programs and/or arrangements of the Company.
In no event shall a termination of the Executive's employment for
Disability occur unless the Party terminating his employment gives written
notice to the other Parties in accordance with Section 22 below.
Termination of Employment by the Company for Cause. The Company may
terminate the Executive's employment for Cause during the Term of Employment
upon written notice to the Executive. If the Executive's employment is so
terminated by the Company, the Term of Employment shall end as of the Date of
Termination and the Executive shall thereupon be entitled to the following:
(6) Base Salary earned but not paid prior to the Date of Termination;
Any amounts earned, accrued or owing to the Executive but not yet paid
under Section 6, 7 or 9 above, subject to the terms and conditions of applicable
benefit plans and programs; and
such other or additional benefits, if any, as are provided under applicable
plans, programs and/or arrangements of the Company.
Termination of Employment by the Company Without Cause. The Company may
terminate the Executive's employment without Cause during the Term of Employment
upon written notice to the Executive. If the Executive's employment is so
terminated by the Company, other than due to death or Disability, the Executive
shall thereupon be entitled to the following:
(7) Base Salary earned but not paid prior to the Date of Termination;
all Minimum Bonuses and Performance Bonuses, if any, under Section 5 with
respect to any fiscal years prior to the year of his termination which have not
yet been paid;
a cash amount equal to the product of the greater of (A) the number of
annual periods, and any fraction thereof, remaining in the Term of Employment,
and (B) 1.0, times the Executive's Base Salary (based on the Base Salary in
effect on the Date of Termination), payable immediately in a lump sum in
accordance with the regular withholding practices of the Company as in effect
from time to time;
any amounts earned, accrued or owing to the Executive but not yet paid
under Section 6, 7, 8 or 9 above, subject to the terms and conditions of
applicable benefit plans and programs; and
a pro rata Minimum Bonus and Performance Bonus, if any, under Section 5 for
the fiscal year in which the Executive's termination occurs;
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continued participation, as if he were still an employee, in the medical,
dental, hospitalization and life insurance plans, programs and/or arrangements
and in the other employee benefit and perquisite plans, programs and/or
arrangements of the Company in which he was participating on the Date of
Termination until the earlier of:
(A) the end of the 12-month period following the Date of Termination;
or
(B) the date, or dates, the Executive receives equivalent coverage
and benefits under the plans, programs and/or arrangements of a
subsequent employer (such coverage and benefits to be determined
on a coverage-by-coverage or benefit-by-benefit basis);
provided, however, that:
(X) if the Executive is (i) precluded from continuing his
participation in any employee benefit or perquisite plan, program
or arrangement as provided in this Section 10(d)(6) because he is
not an employee of the Company, and (ii) not receiving equivalent
coverage and benefits through a subsequent employer, he shall be
provided with the after-tax economic equivalent of the benefits
provided under the plan, program or arrangement in which he is
unable to participate for the period specified in this Section
10(d)(6);
(Y) the economic equivalent of any benefit foregone shall be deemed
to be the lowest cost that would be incurred by the Executive in
obtaining such benefit himself on an individual basis; and
(Z) payment of such after-tax economic equivalent shall be made
quarterly in advance; and
such other or additional benefits, if any, as are provided under applicable
plans, programs and/or arrangements of the Company.
Termination of Employment by the Executive for Good Reason. The Executive
may terminate his employment for Good Reason during the Term of Employment upon
at least 15 days prior written notice to the Company which specifically
identifies the basis for such Good Reason. The Executive's employment shall
terminate upon the date specified in his notice of termination. If the Company
disputes the existence of Good Reason, the issue of whether Good Reason exists
shall promptly be submitted to arbitration in accordance with Section 21. If the
arbitrator or arbitrators conclude that Good Reason does not exist, the
Executive shall be treated as having terminated his employment hereunder without
Good Reason on the date specified in his notice of termination. Upon the
termination of the Executive's employment by the Executive for Good Reason, the
Executive shall be entitled to the same payments and benefits as provided
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in Section 10(d) above; provided, however, that if the Executive terminates his
employment for Good Reason based on a reduction in his Base Salary, then the
Base Salary to be used in determining the salary continuation payments in
accordance with Section 10(d)(3) above shall be the Base Salary in effect
immediately prior to such reduction.
Voluntary Termination of Employment by the Executive Without Good Reason.
If the Executive voluntarily terminates his employment without Good Reason
during the Term of Employment, other than a termination of employment due to
death or Disability, the Executive shall thereupon be entitled to the same
payments and benefits as provided in Section 10(c) above. A termination of the
Executive's employment under this Section 10(f) shall be effective upon 30 days
prior written notice to the Company and shall not be deemed a breach of this
Agreement.
Expiration of Term of Employment. If the Term of Employment expires in
accordance with Section 2 above, the Executive shall thereupon be entitled to
the same payments and benefits as provided in Section 10(c) above.
General Release by Executive. Notwithstanding any provision of this
Agreement to the contrary, the Executive acknowledges and agrees that the
obligation of the Company to pay any compensation and benefits under this
Section 10 is expressly conditioned upon the Executive's timely execution of and
agreement to be bound by a general release of any and all claims (other than
claims for compensation and benefits payable under this Section 10 and claims
under the Purchase Agreement) arising out of or relating to the Executive's
employment and termination of employment. Such general release shall be made in
a form satisfactory to the Company in substantially the form attached hereto and
shall run to the Company, its affiliates, and their respective officers,
directors, employees, agents, successors and assigns.
11. Confidentiality.
(d) Except as required by law, the Executive will not, whether during or
after the termination or cessation of his employment hereunder, reveal to any
person, association or company any of the trade secrets or confidential
information concerning the organization, business, or finances of the Company so
far as they have come or may come to his knowledge, except as may be required in
the ordinary course of performing his duties as an employee of the Company or
except as may be in the public domain through no fault of the Executive or as
required to be disclosed by law or court order, and the Executive shall keep
secret all matters entrusted to him and shall not use or attempt to use any such
information in any manner which may injure or cause loss or may be calculated to
injure or cause loss whether directly or indirectly to the Company.
The Executive acknowledges and agrees that during his employment hereunder
he shall not make, use, or permit to be used any notes, memoranda, drawings,
specifications, programs, data, or other materials of any nature relating to any
matter within the scope of the business of the Company or concerning any of its
dealings or affairs otherwise than for the benefit of the Company. The Executive
further acknowledges and agrees that he shall not, after the termination of his
employment hereunder, use or permit to be used any such notes, memoranda,
drawings, specifications, programs, data, or other materials, it being agreed
that any of the foregoing shall be and remain the sole and exclusive property of
the Company and that
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immediately upon the termination or cessation of his employment he shall deliver
all of the foregoing, and all copies thereof, to the Company, at its main
office.
12. Prohibited Activity.
(e) The Executive covenants and agrees that during the Term of Employment
and during the period ending on the first anniversary of the date of his
termination of employment, he shall not at any time, without the prior written
consent of the Company, directly or indirectly, whether for his own account or
as a shareholder (other than as permitted by Section 12(c) below), partner,
joint venturer, employee, consultant, lender, advisor, and/or agent, of any
person, firm, corporation, or other entity:
(8) engage in activities or businesses that are substantially in
competition with the Company or any of its affiliates (in each
case for the purposes of this Section 12, the term "Company"
shall be deemed to include any successor entity to the Company)
("Competitive Activities"), including (A) engaging in consulting
activities, except that if any activities or businesses were not
engaged in by the Company during the period of time that the
Executive was employed by the Company and are not engaged in by
the Company at the time the Executive's employment by the Company
is terminated (collectively "Permitted Activities"), the
Executive may engage in any Permitted Activities notwithstanding
anything contained in this Agreement, (B) soliciting any customer
or prospective customer of the Company or any of its affiliates
to purchase any goods or services of the type provided by the
Company or any of such affiliates, as applicable, from anyone
other than the Company or any of such affiliates, as applicable,
and (C) assisting any person or entity in any way to do, or
attempt to do, anything prohibited by clause (A) or (B) above;
(9) perform any action, activity or course of conduct that is
substantially detrimental to the business of the Company or any
of its affiliates (other than engaging in Permitted Activities)
or business reputation of the Company or any of its affiliates;
or
(10) establish any new business that engages in Competitive
Activities.]
(f) The Executive also covenants and agrees that during the Term of
Employment and during the period ending on the first anniversary of the date of
the termination of his employment, he shall not at any time, without the prior
written consent of the Company, directly or indirectly, whether for his own
account or as a shareholder (other than as permitted by Section 12(c) below),
partner, joint venturer, employee, consultant, lender, advisor, and/or agent, of
any person, firm, corporation, or other entity, solicit, recruit or hire any
persons who are then (or who were during the immediately preceding three months)
employees of the Company or any of its affiliates, or solicit or encourage any
employee of the Company or any of its affiliates to leave the employment of the
Company or any of such affiliates, as applicable.
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(g) Notwithstanding anything to the contrary contained in this Section 12,
the Company hereby agrees that the foregoing covenant shall not be deemed
breached by the Executive as a result of the ownership by such Executive of less
than an aggregate of 5% of any class of stock of a corporation engaged, directly
or indirectly, in Competitive Activities; provided that such stock is listed on
a national securities exchange or is quoted on the NASDAQ National Market
System.
(h) The Executive declares that the foregoing time limitations are
reasonable and properly required for the adequate protection of the business and
the goodwill of the Company. In the event any such time limitation is deemed to
be unreasonable by any court of competent jurisdiction, the Executive agrees to
the reduction of such time limitation to such period which such court shall deem
reasonable.
(i) The Parties acknowledge that in the event of a breach or threatened
breach of Section 12(a) or 12(b) above, the Company shall not have an adequate
remedy at law. Accordingly, in the event of any breach or threatened breach of
Section 12(a) or 12(b) above, the Company shall be entitled to such equitable
and injunctive relief as may be available to restrain the Executive and any
business, firm, partnership, individual, corporation or entity participating in
the breach or threatened breach from the violation of the provisions of Section
12(a) or 12 (b) above. Nothing in this Agreement shall be construed as
prohibiting the Company from pursuing any other remedies available at law or in
equity for breach or threatened breach of Section 12(a) or 12(b) above,
including the recovery of damages.
13. Assignability; Binding Nature.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Executive)
and assigns. The rights or obligations of the Company under this Agreement may
not otherwise be assigned or transferred by the Company, except that such rights
or obligations may be assigned or transferred pursuant to a merger,
consolidation or reorganization in which the Company is not the continuing
entity, or the sale or liquidation of all or substantially all of the assets of
the Company; provided, however, that the assignee or transferee is the successor
to all or substantially all of the assets of the Company, and such assignee or
transferee assumes the liabilities, obligations and duties of the Company as
contained in this Agreement, either contractually or as a matter of law.
14. Representation.
The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. The Executive represents and warrants
that no agreement exists between him and any other person, firm or organization
that would be violated by the performance of his obligations under this
Agreement.
15. Entire Agreement.
This Agreement contains the entire understanding and agreement between the
Parties concerning the subject matter hereof and, subject to the occurrence of
the Effective Date,
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supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the Parties with respect thereto.
16. Amendment or Waiver.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Executive and an officer of the Company
specifically authorized to execute such amendment by the Board. No waiver by any
Party of any breach by another Party of any condition or provision contained in
this Agreement to be performed by such other Party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive and
an officer of the Company specifically authorized to execute such waiver by the
Board.
17. Severability.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
18. Survivorship.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment to the extent necessary to
the intended preservation of such rights and obligations.
19. Beneficiaries/References.
The Executive shall be entitled, to the extent permitted under any
applicable law and under the terms of any applicable plan or program, to select
and change a beneficiary or beneficiaries to receive any compensation or benefit
payable hereunder following the Executive's death by giving the Company written
notice thereof. In the event of the Executive's death or a judicial
determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative.
20. Governing Law/Jurisdiction.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York without reference to
principles of conflict of laws.
21. Resolution of Disputes.
Any disputes arising under or in connection with this Agreement shall be
resolved by binding arbitration, to be held in [New York, New York] in
accordance with the rules and procedures of the American Arbitration Association
(the "AAA"). The Company and the Executive will each select an arbitrator, and a
third arbitrator will be selected jointly by the arbitrators selected by the
Company and the Executive within 15 days after demand for arbitration is made by
a Party. If the arbitrators selected by the Company and the Executive are
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unable to agree on a third arbitrator within that period, then either the
Company or the Executive may request that the AAA select the third arbitrator.
The arbitrators will possess substantive legal experience in the principle
issues in dispute and will be independent of the Company and the Executive.
Except as otherwise provided in Section 26, each Party shall bear its own
expenses incurred in connection with arbitration and the fees and expenses of
the arbitrators shall be shared equally by the Company, on the one hand, and the
Executive, on the other hand, and advanced by them from time to time as
required. Except as may otherwise be agreed in writing by the Parties or as
ordered by the arbitrators upon substantial justification shown, the hearing for
the dispute will be held within 60 days of submission of the dispute to
arbitration. The arbitrators will render their final award within 30 days
following conclusion of the hearing and any required post-hearing briefing or
other proceedings ordered by the arbitrators. The arbitrators will state the
factual and legal basis for the award. The decision of the arbitrators will be
final and binding and not subject to judicial review and final judgment may be
entered upon such an award in any court of competent jurisdiction, but entry of
such judgment will not be required to make such award effective.
22. Notices.
If to the Company: SVT Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Executive: Mr. Xxxxxx Xxxxx
SVT, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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23. Confidentiality of Terms.
The Company shall cause its officers, directors, employees,
representatives, agents and affiliates, and the Executive shall cause his
representatives, agents and affiliates, to keep confidential the existence and
terms of this Agreement, except as required by applicable law, regulation or
legal process, and only after adequate notice is given to the non-disclosing
party so that it may seek an appropriate remedy or waive compliance with the
terms of this Section 23.
24. Headings.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
25. Gross-up Payment.
If in the opinion of tax counsel (from a major accounting firm not
affiliated with the Company) selected by the Executive and reasonably acceptable
to the Company, the Executive has or will receive any compensation or recognize
any income (whether or not pursuant to this Agreement or any plan or other
arrangement of the Company and whether or not the Employment Period or the
Executive's employment with the Company has terminated) which will constitute an
"excess parachute payment" within the meaning of Section 280G(b)(1) of the
Internal Revenue Code (the "Code") (or for which a tax is otherwise payable
under Section 4999 of the Code or any successor provision thereto), then the
Company shall pay the Executive an additional amount (the "Additional Amount")
equal to the sum of (i) all taxes (including any applicable interest and
penalties) payable by the Executive under Section 4999 of the Code with respect
to all such excess parachute payments and any such Additional Amount, plus (ii)
all federal, state and local income taxes (including any applicable interest and
penalties) payable by Executive with respect to any such Additional Amount. Any
amounts payable pursuant to this paragraph (v) shall be paid by the Company to
the Executive within 30 days of each written request therefor made by the
Executive.
26. Legal Fees.
Company shall be obligated to reimburse the Executive for any reasonable
legal fees incurred by Executive in connection with any action or proceeding to
enforce or contest this Agreement or his employment rights, regardless of which
party institutes the action or proceeding, provided that Executive prevails in a
majority of the material issues in dispute.
27. Mitigation.
Executive shall not be required to mitigate the amount of any payment
provided for pursuant to this Agreement by seeking other employment, and shall
not be required to mitigate the amount of any such payment if he does obtain
other employment.
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28. Counterparts.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
SVT INC.
By:/s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
/s/ Xxxxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxx
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