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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 29th day of August, 1997 by and between
ME ACQUISITION CORP., a Delaware corporation (the "Company"), and Xxxxxxxxx
Xxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company, a wholly owned subsidiary of Norton
XxXxxxxxxx, Inc., a Delaware corporation ("Norton"), and certain other parties
(which parties include the Employee) simultaneously herewith are entering into
an Agreement of Purchase and Sale dated as of August 29, 1997 (the "Purchase
Agreement"), providing, inter alia, for the purchase by the Company of
substantially all of the assets of Miss Xxxxx, Inc., a Delaware corporation
("Miss Xxxxx"); and
WHEREAS, the Employee desires to continue in the employ of the
Company subsequent to the consummation of the transactions contemplated by the
Purchase Agreement; and
WHEREAS, in order to induce the Company to enter into, and to
consummate the transactions contemplated by, the Purchase Agreement, the
Employee desires to enter into this Agreement; and
WHEREAS, the Company desires to secure the employment of the
Employee with the Company subsequent to the consummation of the transactions
contemplated by the Purchase Agreement, and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement
(the "Term") shall commence on the Closing Date (as defined in the Purchase
Agreement) and, unless sooner terminated in accordance with this Agreement,
shall expire (a) if the Company does not attain EBITDA (as defined in the
Executive Bonus Plan, as defined in Section 3.2 below, except that EBITDA for
purposes of this Section 1.2 shall be determined after reduction for the Bonus
Pool (as defined in the Executive Bonus Plan) for the applicable fiscal year)
averaged for the fiscal years ending October 31, 1998 and November 6, 1999 of
$5,500,000 or more (the "EBITDA 2-Year Target"), on such date (the "Notice
Date"), not earlier than November 6, 1999, on which the Chairman of the Board,
the President or the Chief Financial Officer of Norton delivers to the Employee
a written statement that the EBITDA 2-Year Target has not been achieved (the
Closing Date through the Notice Date, hereinafter the "Initial Term"); or (b) if
the Company attains the EBITDA 2- Year Target, on October 31, 2001 (November 7,
1999 through October 31, 2001, hereinafter the "Extended Term").
2. Positions, Duties. The Employee shall serve in the position of
Executive Vice President - Woven Production of the Company. The Employee shall
perform, faithfully and diligently, such duties, and shall have such
responsibilities, appropriate to said position, as shall be assigned to her from
time to time by the Chief Executive Officer or Chief Operating Officer of the
Company. The Employee shall report to the Chief Executive Officer or Chief
Operating Officer of the Company. The Employee shall devote her complete and
undivided attention to the performance of her duties and responsibilities
hereunder during the normal working hours of executive employees of Norton.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance
by the Employee of the services set
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forth in Section 2 and her observance of the other covenants set forth herein,
the Company shall pay the Employee, and the Employee shall accept, a salary at a
rate of $266,000 per annum, payable in accordance with the standard payroll
practices of the Company. The salary set forth in this Section 3.1 shall be
reviewed annually during the Term by the Board of Directors of the Company in
consultation with the Chief Executive Officer and Chief Operating Officer of the
Company and shall be subject to upward adjustments, if any, as determined by the
Board of Directors of the Company in its discretion, in consultation with the
Chief Executive Officer and Chief Operating Officer of the Company.
3.2 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, (i) the Employee shall be eligible to participate in the ME
Acquisition Corp. Bonus Plan for Senior Executives (the "Executive Bonus Plan"),
a copy of which is attached hereto as Exhibit A and the terms of which are
incorporated herein by reference, (ii) the Employee shall be allocated a
percentage of the Bonus Pool (as defined in the Executive Bonus Plan) as shall
be determined by the Board in consultation with the Chief Executive Officer and
Chief Operating Officer of the Company, subject to the terms and conditions of
the Executive Bonus Plan and this Agreement and (iii) either (a) the Employee
shall receive a cash bonus in an amount which, net of taxes payable by the
Employee in respect of such amount, shall be equal to the amount which would
have been contributed on behalf of the Employee with respect to the Miss Xxxxx,
Inc. Profit Sharing Plan (the "Miss Xxxxx Plan"), as in effect on the date
hereof and as administered in accordance with the past practices of Miss Xxxxx,
which cash bonus shall be payable within 120 days following the close of each
full fiscal year of the Company ending during the Term or (b) the Employee shall
be eligible to participate in a tax-advantaged profit sharing plan of the
Company established on similar terms and conditions (including levels of
contributions) as the Miss Xxxxx Plan.
3.3 Stock Options.
(a) Grant. On the Closing Date, the Company shall cause to be
granted to the Employee by the Board of Directors of Norton as of the Closing
Date, options to purchase an aggregate of 10,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of Norton, at an exercise price per
share equal to the fair market value of the Common Stock on the Closing Date
(the "Options"). The Options shall be fully vested and exercisable on and after
the Closing Date.
(b) Term of Options. Except as provided below, the term of
the Options shall be ten years.
(i) If the Employee's employment with the Company terminates
pursuant to Section 6.1, is terminated by the Company or the Employee pursuant
to Section 6.2, is terminated by the Company pursuant to Section 6.4, is
terminated by the Employee pursuant to Section 6.6, or terminates for any other
reason (except as provided in clause (ii) below) the Options may be exercised by
the Employee (or her estate or legal representative) within one year after such
termination; and
(ii) In the event of termination of the employment of the
Employee with the Company (a) by the Company pursuant to Section 6.3 or (b) by
the Employee other than pursuant to Sections 6.1, 6.2 or 6.6, no Options shall
be exercisable.
(c) Adjustments. In the event of any dividend or other
distribution (whether in the form of cash, Common Stock, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Common Stock or other securities of Norton, issuance
of warrants or other rights to purchase Common Stock, the Board of Directors
shall, in such manner as it may deem equitable, adjust the number of shares of
Common Stock (or other securities or property) subject to the Options, the
exercise price with respect to any Options, or all of the foregoing.
(d) Registration of Shares. Norton shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
3.4 Bonus Options. During the Term, in addition to the salary
provided for in Section 3.1, the Employee
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shall be eligible to receive Bonus Options (as defined in the Executive Bonus
Plan) in accordance with the terms set forth in the Executive Bonus Plan.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by her in connection with the performance of her duties hereunder, upon
the presentation of proper accounts therefor in accordance with Norton's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by her in the ordinary and usual
course of business and in accordance with Norton's policies (in any case, as
such policies are adopted from time to time by the Compensation Committee of
Norton).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled
to participate in all employee benefit plans and programs offered by Norton,
subject to the provisions of such plans and programs as in effect from time to
time.
5.2 Vacation. During the Term, the Employee shall be entitled to
paid vacation in accordance with Norton's policy for its executive employees.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee (a) the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee and (b) any bonus
payable in accordance with the terms of the Executive Bonus Plan. Rights and
benefits of the estate or other legal representative of the Employee (a) with
respect to the Options or the Bonus Options shall be determined in accordance
with Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) under the
benefit plans and programs of the Company shall be determined in accordance with
the provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement.
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform her normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, the Company shall pay to the Employee
(a) the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and (b) any bonus payable
in accordance with the terms of the Executive Bonus Plan. Rights and benefits of
the Employee (a) with respect to the Options or the Bonus Options shall be
determined in accordance with Section 3.3(b) or the Executive Bonus Plan, as
applicable and (b) under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee and no bonus. Rights and
benefits of the Employee (a) with respect to the Options or the Bonus Options
shall be determined in accordance with Section 3.3(b) or the Executive Bonus
Plan, as applicable and (b) under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. After the satisfaction of any claim of the Company against the
Employee incidental to such Due Cause, neither the Employee nor the Company
shall have any further rights or obligations under this Agreement, except as
provided in Sections 7, 8, 9 and 10. For purposes hereof, "Due Cause" shall mean
(a) the Employee's gross negligence or willful misconduct in bad faith in the
discharge of her duties and responsibilities to Norton, the Company and any of
their respective parent, subsidiary or affiliate corporations (collectively, the
"Norton Group"), as determined by the Board of Directors of the Company, (b) the
Employee's material and repeated failure to obey appropriate directions
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from the Chief Executive Officer or Chief Operating Officer of the Company, (c)
any willful or purposeful act or omission of the Employee taken or omitted in
bad faith and intended to materially injure, and which had the effect of
materially injuring, the business or business relationships of any member of the
Norton Group or (d) the Employee's conviction or other adjudication of (1) a
felony or (2) any crime or offense involving fraud; provided, however, that the
Employee shall be given written notice by a majority of the Board of Directors
of the Company that it intends to terminate the Employee's employment for Due
Cause under this Section, which written notice shall specify the act or acts
upon the basis of which the majority of the Board of Directors of the Company
intends so to terminate the Employee's employment, and the Employee shall then
be given the opportunity, within fifteen (15) days of her receipt of such
notice, to have a meeting with the Board of Directors of the Company to discuss
such act or acts.
6.4 Other Termination by the Company. The Company may terminate
the Employee's employment at any time during the Term for whatever reason it
deems appropriate or without reason; provided, however, that in the event that
such termination is not pursuant to Section 6.1, 6.2, 6.3 or 6.5, the Company
shall, except as provided in Section 9(c), (a) pay to the Employee the Severance
Amount (as hereinafter defined) in equal installments on a monthly basis over
the Severance Term (as hereinafter defined), (b) pay to the Employee any bonus
payable in accordance with the terms of the Executive Bonus Plan and (c) provide
the Employee for the Severance Term with the same benefits then in effect under
Section 5. The Employee shall not be required to seek subsequent employment.
Rights and benefits of the Employee with respect to the Options or the Bonus
Options shall be determined in accordance with Section 3.3(b) or the Executive
Bonus Plan, as applicable. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 7, 8, 9 and 10. Any termination of this Agreement by the Company after
the date hereof and prior to the Closing Date shall be treated as a termination
of employment pursuant to this Section 6.4 as of the day following the Closing
Date, provided that the Closing (as defined in the Purchase Agreement) shall
have occurred.
For purposes hereof, Severance Amount shall mean an amount equal
to the sum of (i) the annual salary then in effect under Section 3.1 and (ii)
the Average Bonus (as hereinafter defined), multiplied by the Severance Factor.
Average Bonus shall mean the average of the bonuses, if any, paid to the
Employee by the Company and/or Miss Xxxxx in the two (2) full fiscal years of
the Company and/or Miss Xxxxx, as applicable, prior to the date of termination
of employment of the Employee. Severance Factor shall mean a fraction, the
numerator of which is the number of days remaining in the then-current Term plus
365, and the denominator of which is 365. Severance Term shall mean the number
of days remaining in the then-current Term plus 365 days. For purposes of the
foregoing, in determining the number of days remaining in the then-current Term,
if termination under this Section 6.4 occurs during (i) the Initial Term, the
then-current Term shall be determined without regard to the Extended Term;
provided, however, that if following such termination the Company attains the
EBITDA 2-Year Target for the fiscal years ending October 31, 1998 and November
6, 1999, the then-current Term shall be determined with regard to the Extended
Term and appropriate adjustments shall be made in the then remaining monthly
installments of the Severance Amount to be paid over the extended Severance Term
to take into account such determination or (ii) the Extended Term, the
then-current Term shall be the remaining number of days in the Extended Term.
6.5 Non-Extension by the Company. If (A) the Initial Term is not
extended for the Extended Term as a result of the failure to achieve the EBITDA
2-Year Target or if (B) the Initial Term is extended for the Extended Term
pursuant to Section 1.2 and, upon the expiration of such Extended Term, the
Company shall fail to offer employment to the Employee in the same position and
with the same salary then in effect under Section 3.1 and participation in the
Executive Bonus Plan on the same terms then in effect for an additional period
of one year, in either case, the Company shall, except as provided in Section
9(c), (a) continue to pay to the Employee the salary then in effect under
Section 3.1 for one year from the date of expiration of the Extended Term, (b)
pay to the Employee the Average Bonus in equal monthly installments over such
one year period (the amounts set forth in clauses (a) and (b), the "Section 6.5
Amounts") and (c) provide the Employee with the same Benefits then in effect
under Section 5 for such one year period. The Employee shall not be required to
seek subsequent employment. Rights and benefits of the Employee (a) with respect
to the Options or the Bonus Options shall be determined in accordance with
Section 3.3(b) or the Executive Bonus Plan, as applicable and (b) subject to
this Section 6.5, under the benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9
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and 10.
6.6 Termination by the Employee with Good Reason. The Employee may
at any time terminate her employment with the Company with Good Reason (as
hereinafter defined) and may treat such as a termination of employment pursuant
to and with the effects set forth in Section 6.4. For purposes hereof, Good
Reason shall mean (i) the continued breach by the Company of a material
provision of this Agreement for a period of 30 days after written notice of such
breach by the Employee to the Company or (ii) a material and adverse diminution
in the Employee's title or scope of duties as set forth in Section 2, which
diminution shall continue for a period of 30 days after written notice thereof
by the Employee to the Company.
6.7 Termination by the Employee without Good Reason. The Employee
may at any time upon at least 120 days prior written notice to the Company
terminate her employment with the Company without Good Reason. Such termination
shall be treated as a termination of employment pursuant to, including with the
effect set forth in, Section 6.3; provided, however, that the Company hereby
waives any claim it may have against the Employee incidental to the Employee's
termination of her employment pursuant to this Section 6.7.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times
thereafter, treat as confidential and, except as required in the performance of
her duties and responsibilities under this Agreement, not disclose, publish or
otherwise make available to the public or to any individual, firm or corporation
any confidential material (as hereinafter defined), except, on a need to know
basis, to the Employee's attorney, accountant or personal advisor. The Employee
agrees that all confidential material, together with all notes and records of
the Employee relating thereto, and all copies or facsimiles thereof in the
possession of the Employee, are the exclusive property of the Company and the
Employee agrees to return such material to the Company promptly upon the
termination of the Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material"
shall mean all information acquired by the Employee in the course of the
Employee's prior employment with Miss Xxxxx and in the course of the Employee's
employment with the Company in any way concerning the products, projects,
activities, business or affairs of the Company or any member of the Norton Group
or the customers, suppliers or agents of the Company or any member of the Norton
Group, including, without limitation, all information concerning trade secrets
and the preparation of raw material for, manufacture of, and/or finishing
processes utilized in the production of, the products or projects of the Company
or any member of the Norton Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Norton Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Norton Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public or the apparel industry in general other than
as a result of a disclosure by the Employee, (b) was available to the Employee
on a non-confidential basis prior to her employment with the Company or (c)
becomes available to the Employee on a non-confidential basis from a source
other than the Company or any of its agents, franchisees, creditors, suppliers,
lessors, lessees or customers provided that the Employee has no knowledge that
such source is not bound by a confidentiality agreement with the Company or any
of such agents or customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of her employment with the Company which may be directly or
indirectly useful in, or relate to, the business of the Company, shall be
promptly and fully disclosed by the Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating
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to any inventions made, developed or created by her as aforesaid. The Employee
shall, at the request of the Company and without any payment therefor, execute
any documents necessary or advisable in the opinion of the Company's counsel to
direct issuance of patents or copyrights to the Company with respect to such
inventions as are to be the Company's exclusive property as against the Employee
or to vest in the Company title to such inventions as against the Employee. The
expense of securing any such patent or copyright shall be borne by the Company.
9. Non-Competition. (a) The Employee acknowledges that the
services to be rendered by her to the Company are of a special and unique
character.
(b) In consideration of her employment hereunder, the Employee
agrees, for the benefit of the Company, that she will not, during the period of
her employment with the Company and thereafter for a period (A) of one (1) year
commencing on the date of termination of her employment with the Company
pursuant to Section 6.2 or 6.3, (B) of the greater of one (1) year commencing on
the date of termination of her employment with the Company pursuant to Section
6.7 or the remainder of the then-current Term (without regard to the Extended
Term if such termination occurs during the Initial Term) or (C) during which the
Employee receives payments of the Severance Amount pursuant to Section 9(c) (in
the case of a termination under Section 6.4 or 6.6), (1) engage, directly or
indirectly, whether as principal, agent, distributor, representative,
consultant, employee, partner, stockholder, limited partner or other investor
(other than an investment of not more than (i) one percent (1%) of the stock or
equity of any corporation the capital stock of which is publicly traded or (ii)
five percent (5%) of the ownership interest of any limited partnership or other
entity) or otherwise, anywhere in the United States, in any activity or business
venture which is in competition with the business then conducted by the Company
and any of its subsidiaries, (2) solicit or entice or endeavor to solicit or
entice away from any member of the Norton Group any person who was an officer,
employee, agent or consultant of any member of the Norton Group, either for her
own account or for any individual, firm or corporation, and, if applicable,
whether or not such person would commit any breach of his contract of employment
by reason of leaving the service of a member of the Norton Group, and the
Employee agrees not to employ, directly or indirectly, any person who was an
officer or employee of any member of the Norton Group or who by reason of such
position at any time is or may be likely to be in possession of any confidential
information or trade secrets relating to the businesses or products of any
member of the Norton Group, or (3) solicit or entice or endeavor to solicit or
entice away from any member of the Norton Group any customer or prospective
customer of any member of the Norton Group, either for her own account or for
any individual, firm or corporation (the activities set forth in clauses (1),
(2) and (3) above, the "Non-Competition Activities").
(c) In the event of termination of the employment of the Employee
pursuant to Section 6.4 or 6.6, the Company shall pay to the Employee the
Severance Amount and other benefits set forth in Section 6.4 or 6.6 in which
event the Employee shall not engage in the Non-Competition Activities for the
Severance Term; provided, however, if the Employee engages in the
Non-Competition Activities during the Severance Term, the Employee shall
immediately notify the Company that she is engaging in the Non-Competition
Activities, and the Company's obligation to pay the Severance Amount shall
immediately cease. From and after the date on which the Employee engages in the
Non-Competition Activities, the Company shall continue to pay to the Employee
the salary in effect on the date of termination of the employment of the
Employee under Section 3.1 for the remainder of the Severance Term and shall
offset any amounts earned as a result of the Employee's engaging in the
Non-Competition Activities (whether as an employee, consultant or otherwise)
against such salary continuation by the Company which becomes payable after the
first date on which the Employee engages in the Non-Competition Activities.
(d) Notwithstanding the foregoing, the provisions of this Section
9 not be effective on or after November 7, 1999.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9, the Employee hereby consents and
agrees that the Company shall be entitled to an injunction or similar equitable
relief from any court of competent jurisdiction restraining the Employee from
committing or continuing any such breach or threatened breach or granting
specific performance of any act required to be performed by the Employee
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under any of such provisions, without the necessity of showing any actual damage
or that money damages would not afford an adequate remedy and without the
necessity of posting any bond or other security. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies at law or
in equity which it may have with respect to any such breach or threatened
breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7, 8 or
9 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (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 and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if she is a
member of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of her legal incompetency or her
death and shall not preclude the legal representative of her estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under her will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to her
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of her incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the
understandings and representations between the parties hereto pertaining to the
subject matter hereof. This Agreement supersedes all understandings and
agreements, whether oral or in writing, if any, previously entered into by the
Company with the Employee in any way relating to the employment of the Employee
by the Company, including without limitation, the Purchase Agreement, all of
which agreements and understandings are hereby terminated and all rights and
entitlements thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this
Agreement may be amended or modified unless such amendment or modification is
agreed to in writing and signed by the Employee and by a representative of the
Company (other than the Employee) who have been duly authorized by the Board of
Directors of the Company to do so (other than the Employee if she is a member of
such Board at the time). Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of a similar or dissimilar provision or
condition at the same or any prior or subsequent time, nor shall the failure of
or delay by either party hereto in exercising any right, power or privilege
hereunder operate as a waiver thereof to preclude any other or further exercise
thereof or the exercise of any other such right, power or privilege.
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15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
x/x Xxxxxx XxXxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
If to the Employee:
Xxxxxxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
16. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall, except as provided in
Section 10, be settled by binding arbitration in accordance with the rules of
the American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held
by a court or arbitration panel of competent jurisdiction to be enforceable only
if modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or her
beneficiaries, including her estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign as
an officer and director of the Company or of any parent, subsidiary or affiliate
of the Company upon termination of her employment with the Company for any or no
reason.
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21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ME ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Chairman of the Board
EMPLOYEE:
/s/ Xxxxxxxxx Xxxxx
--------------------
Xxxxxxxxx Xxxxx
