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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of the
2nd day of August, 2000, by and between Illinois Superconductor Corporation, a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxxxx (the "Employee").
W I T N E S S E T H :
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WHEREAS, the Employee is now employed with Spectral Solutions,
Inc. ("SSI") as the Chief Executive Officer;
WHEREAS, the Company wishes to ensure that it will have the
benefits of the Employee's services on the terms and conditions hereinafter set
forth; and
WHEREAS, the Employee desires to work for the Company on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. Employment; Term. The Company hereby employs the Employee,
and the Employee hereby accepts employment with the Company, in accordance with
and subject to the terms and conditions set forth herein. The term of this
Agreement shall commence on the date hereof (the "Effective Date") and, unless
earlier terminated in accordance with Paragraph 6 hereof, shall end on December
31, 2001, with the term of employment being that period between the Effective
Date and December 31, 2001 (the "Term"). Certain provisions of this Agreement
shall continue in effect after the Term as specifically set forth herein.
2. Employment.
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(a) The Employee shall serve as Executive Vice
President of the Company. The Employee shall report to the Chief Executive
Officer of the Company.
(b) The Employee shall have such authority and
responsibility as may reasonably be assigned by the Chief Executive Officer and
the Board of Directors of the Company (the "Board").
(c) During the period the Employee is employed
by the Company, the Employee shall devote the Employee's normal full business
time and attention to the business and affairs of the Company and use the
Employee's best efforts to perform faithfully the duties and responsibilities of
the Employee's position as described herein.
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3. Compensation.
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(a) The Company shall pay the Employee a base salary
(the "Base Salary") of not less than One Hundred Eighty Thousand Dollars
($180,000) per annum, payable at least monthly, in accordance with the Company's
payroll practices less such deductions as shall be required to be withheld by
applicable law and regulations. The Board shall conduct an annual review of the
Employee's Base Salary and Bonus (as defined in Paragraph 3(b)below). Any
increase in the Base Salary or change in the Bonus shall be in the sole
discretion of the Board.
(b) The Employee may receive such bonus, if any,
as may be determined and awarded by the Board from time to time in its sole
discretion (the "Bonus").
4. Stock Options. On August 2, 2000, the Board granted the
Employee an Option subject to the terms hereunder to purchase shares under the
Illinois Superconductor Corporation Amended and Restated 1993 Stock Option Plan,
as amended to date (the "Plan"), to purchase 350,000 Shares of the Company's
Common Stock at an exercise price equal to $3.25 per share in two classes of
250,000 and 100,000 shares (respectively, the "First Class Option" and the
"Second Class Option").
All terms, conditions and restrictions of the Plan
are made a part of this Agreement. If there is any conflict between the terms
and conditions of the Plan or this Agreement, the terms and conditions of the
Agreement as permitted under the Plan and interpreted by the Compensation
Committee of the Board, shall govern.
The Employee acknowledges and represents that this
Option is not an "Incentive Stock Option."
(a) Vesting. Except as provided in Section 7
and subject to Paragraph 4(c) hereof, the vesting dates with respect to each
class are as follows:
i. Twenty-five percent (25%) of the shares subject to the First
Class Option shall become exercisable on the first anniversary
date of the Effective Date ("First Year Anniversary"); the
remaining seventy-five percent (75%) of such shares shall
become exercisable in thirty-six (36) substantially equal
monthly installments, commencing on the first month
anniversary of the First Year Anniversary and ending on the
fourth year anniversary of the Effective Date.
ii. If the Board appoints the Employee Chief Operating Officer of
the Company by no later than December 31, 2000, then the
shares subject to the Second Class Option shall become
exercisable pursuant to the vesting schedule set forth in
4(a)(i) above. If the Board appoints the Employee Chief
Operating Officer of the Company after December 31, 2000 and
by no later than December 31, 2001, twenty-five percent (25%)
of the shares subject to the Second Class Option shall become
exercisable on the first anniversary date of such appointment
by the Board ("Appointment Anniversary"); the remaining
seventy-five percent (75%) of such shares shall become
exercisable in thirty-six (36) substantially equal monthly
installments, commencing on the first month anniversary of the
Appointment
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Anniversary and ending on the fourth year anniversary of the
appointment by the Board.
(b) Exercise of Option. The vested portion of
this Option may be exercised in accordance ------------------ with the
procedures and methods prescribed and authorized under the Plan.
(c) Post-Termination Exercise. Subject to the
provisions of Section 7, the Option (i) to ------------------------- the extent
it was not exercisable at the time of the termination of the Employee's
employment with the Company ("the Employee's Termination") will expire upon the
Employee's Termination; and (ii) to the extent it was exercisable at the time of
the Employee's Termination shall remain exercisable for the period commencing on
the date of the Employee's Termination and ending on the earlier of sixty (60)
days after the date of the Employee's Termination or the tenth anniversary of
the date of grant of the Option.
5. Benefits.
(a) The Company agrees to reimburse the Employee
for all reasonable and necessary travel, business entertainment and other
business expenses incurred by the Employee in connection with the performance of
the Employee's duties under this Agreement. Such reimbursements shall be made by
the Company within a reasonable time after submission by the Employee of
vouchers in accordance with the Company's standard policies and procedures.
(b) The Employee shall be entitled to
participate in any and all medical insurance, group health, disability
insurance, pension and other benefit plans which are made generally available by
the Company to its senior executives, which shall not be less favorable than
those available to any other group of employees of the Company. The Company, in
its sole discretion, may at any time amend or terminate its benefit plans or
programs.
(c) The Employee shall be entitled to receive
four weeks of annual paid vacation in accordance with the Company's vacation
policy for its senior executives. The Employee shall be entitled to all paid
holidays the Company makes available to its employees.
6. Termination. The Employee's employment
hereunder may be terminated prior to the end of the Term under the following
circumstances:
(a) Death. The Employee's employment hereunder
shall terminate upon the Employee's death.
(b) Total Disability. The Company may terminate
the Employee's employment hereunder at any time after the Employee's "Totally
Disability." "Totally Disability" means (i) the Employee becomes entitled to
receive disability benefits under the Company's long-term disability plan, or,
in the absence of such a plan, (ii) the Employee's inability to perform the
duties and responsibilities contemplated under this Agreement for a period of
more than one hundred eighty (180) consecutive days due to physical or mental
incapacity or impairment. Such termination shall become effective five (5)
business days after
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the Company gives notice of such termination to the Employee, or to the
Employee's spouse or legal representative (in case of mental incapacitation).
(c) Termination by the Company With or Without
Cause. The Company may terminate the Employee's employment hereunder with or
without Cause at any time after the Company provides thirty (30) days' written
notice (or a shorter period of time, to be determined in good faith by the Board
to be essential to prevent serious damage to the Company) to the Employee to
such effect. The term "Cause" shall mean any of the following: (i) willful
malfeasance or willful misconduct by the Employee in connection with the
Employee's employment; (ii) the Employee's gross negligence in performing any of
the Employee's duties under this Agreement; (iii) the Employee's conviction of,
or entry of a plea of guilty to, or entry of a plea of nolo contendere with
respect to any crime other than a traffic violation or infraction which is a
misdemeanor; (iv) the Employee's willful and continuing breach of any written
policy applicable to all employees adopted by the Company concerning conflicts
of interest, political contributions, standards of business conduct or fair
employment practices, procedures with respect to compliance with securities laws
or any similar matters, or adopted pursuant to the requirements of any
government contract or regulation; or (v) any other material breach by the
Employee of this Agreement after the Company provides written notification to
employee of such breach and the Employee fails within 5 days of receipt of such
notification to cure the circumstances which gave rise to such breach.
(d) Termination by the Employee With or Without
Good Reason. The Employee's employment hereunder may be terminated by the
Employee as specified below with, or upon thirty (30) days' prior notice
without, Good Reason. For purposes of this Agreement, "Good Reason" means any of
the following: (i) any change in, or diminution of, the Employee's duties or
responsibilities that is inconsistent in any material and adverse respect with
the Employee's duties and responsibilities as contemplated under Section 2 of
this Agreement, provided that a change in the Employee's title alone, without a
corresponding material adverse change in the Employee's duties or
responsibilities shall not constitute Good Reason; (ii) any reduction of the
Employee's Base Salary or failure to receive a Bonus previously awarded by the
Board, or (iii) any requirement by the Company that the Employee relocate the
Employee's principal office (currently located in Plano, Texas) to a location
more than thirty-five (35) miles from the Employee's principal office at the
time the Company makes such request. Notwithstanding the foregoing, no act or
omission by the Company done in good faith shall constitute Good Reason
hereunder unless the Employee gives the Company written notice thereof within
thirty (30) days after he has actual knowledge of such act or omission, and the
Company fails to remedy such act or omission within thirty (30) days after
receiving such notice.
7. Compensation Following Termination Prior to
the End of the Term. In the event that the Employee's employment hereunder is
terminated prior to the end of the Term, the Employee shall be entitled only to
the following compensation and benefits upon such termination:
(a) Termination by Reason of Death or Total
Disability. In the event that the Employee's employment is terminated prior to
the expiration of the Term by reason of the Employee's death or Total
Disability, pursuant to Paragraph 6(a) or 6(b) hereof, respectively,
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the Employee (or the Employee's spouse or estate, as the case may be) shall be
entitled to the following amounts or benefits:
i. any accrued but unpaid Base Salary (as determined pursuant to
Paragraph 3(a) hereof) for services rendered to the date of
termination in accordance with the Company's standard payroll
practices and any unpaid Bonus previously awarded by the Board
pursuant to Paragraph 3(b) hereof;
ii. any incurred but unreimbursed expenses required to be
reimbursed pursuant to Paragraph 5(a) hereof;
iii. the benefits to which the Employee and/or the Employee's
family may be entitled upon such termination pursuant to the
plans, programs and arrangements referred to in Paragraph 5
hereof shall be determined and paid in accordance with the
terms of such plans, programs and arrangements; and
iv. the Option, to the extent it was exercisable at the time of
the Employee's Termination, shall remain exercisable (by the
Employee or by the duly authorized executor of the Employee's
last will or the duly authorized administrator of the
Employee's estate, as the case may be) for a period commencing
at the time of the Employee's Termination and ending on the
earlier of (i) one hundred eighty (180) days after the time of
the Employee's Termination, or (ii) the tenth anniversary of
the date of grant of the Option.
(b) Termination by the Company Without Cause or
Termination by the Employee With Good Reason. In the event that the Employee's
employment is terminated by the Company without Cause pursuant to Paragraph 6(c)
hereof, or by the Employee with Good Reason pursuant to Paragraph 6(d) hereof,
the Employee shall be entitled to the following amounts or benefits:
i. any accrued but unpaid Base Salary (as determined pursuant to
Paragraph 3(a) hereof) for services rendered to the date of
termination in accordance with the Company's standard payroll
practices and any unpaid Bonus previously awarded by the Board
pursuant to Paragraph 3(b) hereof;
ii. any incurred but un reimbursed expenses required to be
reimbursed pursuant to Paragraph 5(a) hereof;
iii. continued payment of the Base Salary (as determined under
Paragraph 3(a) hereof) in accordance with the Company's
standard payroll practices until the later of: (x) the time
the Term would have ended but for the Employee's termination
by the Company without Cause or by the Employee with Good
Reason, or (y) six (6) months from such termination;
iv. the benefits to which the Employee and/or the Employee's
family may be entitled upon such termination pursuant to the
plans, programs and arrangements referred to in Paragraph 5
hereof shall be determined and paid in accordance with the
terms of such plans, programs and arrangements;
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v. if the Employee (or his legal representative) timely elects to
continue the Employee's medical benefits under the
Consolidated Omnibus Benefit Restoration Act ("COBRA"), the
Company will, for a maximum of six (6) months, pay to the
medical insurance carrier the monthly premiums for such
continuation coverage; and
vi. the First Class Option, to the extent it would have become
exercisable in accordance with the vesting schedule set forth
in Paragraph 4(a)(i) hereof within the 12 months immediately
following the time of the Employee's Termination but for the
Employee's termination by the Company without Cause or by the
Employee with Good Reason, will be deemed to have vested and
become fully exercisable at the time of the Employee's
Termination.
(c) Termination by the Company for Cause or
Termination by the Employee Without Good Reason. In the event that the
Employee's employment is terminated prior to the expiration of the Term of this
Agreement by the Company for Cause pursuant to Paragraph 6(c) hereof or by the
Employee without Good Reason pursuant to Paragraph 6(d) hereof, the Employee
shall be entitled to the following amounts or benefits
i. any accrued but unpaid Base Salary (as determined pursuant to
Paragraph 3(a) hereof) for services rendered to the date of
termination in accordance with the Company's standard payroll
practices and any unpaid Bonus previously awarded by the Board
pursuant to Paragraph 3(b) hereof;
ii. any incurred but unreimbursed expenses required to be
reimbursed pursuant to Paragraph 5(a) hereof;
iii. the benefits to which the Employee and/or the Employee's
family may be entitled upon such termination pursuant to the
plans, programs and arrangements referred to in Paragraph 5
hereof shall be determined and paid in accordance with the
terms of such plans, programs and arrangements; and
iv. the Option shall expire immediately upon the Employee's
Termination and be of no force or effect. If, subsequent to
the Employee's Termination for any reason it is discovered
that the Employee's employment could have been terminated for
Cause, the Employee's employment shall be deemed to have been
terminated for Cause as of date of the occurrence of the event
giving rise to Cause. In the event the Employee has been
permitted to exercise the Option on or after the date the
Employee's employment is deemed to have been terminated for
Cause, such exercise shall be deemed to have been void ab
initio and, upon demand by the Company, the Employee shall
return to the Company any shares purchased upon such exercise,
and the Company shall return to the Employee the exercise
price paid by the Employee.
(d) Termination Upon a Change of Control. In
the event there is a "Change of Control" (as defined by the Plan) and the
Employee's employment is terminated thereafter by the Company without Cause or
by the Employee with Good Reason, the First Class
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Option, to the extent it was not exercisable at the time of the Employee's
Termination pursuant to this Paragraph 7(d), shall vest and become fully
exercisable at the time of the Employee's Termination.
(e) Expiration of The Agreement and Failure To
Renew. In the event that this Agreement expires after December 31, 2001 and the
Company has not made an offer to renew this Agreement with job duties and base
salary substantially similar to or more favorable to the Employee than those
described herein, the First Class Option, to the extent it was not exercisable
on December 31, 2001 but would have become exercisable on or before December 31,
2002 in accordance with the vesting schedule set forth in Paragraph 4(a)(i) but
for the expiration of this Agreement, will be deemed to have vested and will
become fully exercisable on December 31, 2001.
(f) No Other Benefits or Compensation. Except
as may be specifically provided under this Agreement or under the terms of any
incentive compensation, employee benefit or fringe benefit plan applicable to
the Employee at the time of the termination of the Employee's employment prior
to the end of the Term, the Employee shall have no right to receive any other
compensation, or to participate in any other plan, arrangement or benefit, with
respect to any future period after such termination.
8. Confidentiality, Ownership, and Covenants of
Non-Competition and Non-Solicitation.
(a) Confidentiality. The Employee recognizes
that the Company's business interests require the fullest practical protection
and confidential treatment of all information not generally known within the
relevant trade group or by the public, including all documents, writings,
memoranda, business plans, illustrations, designs, plans, processes, programs,
inventions, computer software, reports, sources of supply, customer lists,
supplier lists, trade secrets and all other valuable or unique information and
techniques acquired, developed or used by the Company relating to its
businesses, operations, employees and customers (hereinafter collectively termed
"Protected Information"). The Employee expressly acknowledges and agrees that
Protected Information constitutes trade secrets and confidential and proprietary
business information of the Company. No Protected Information shall include
information which is or becomes part of the public domain through no breach of
this Agreement by the Employee. The Employee agrees that Protected Information
is essential to the success of the Company's business, and it is the policy of
the Company to maintain as secret and confidential Protected Information which
gives the Company a competitive advantage over those who do not know the
Protected Information and is expressly and implicitly protected by the Company
from unauthorized disclosure. Accordingly, the Employee agrees to keep secret
Protected Information and to treat confidentially and not to knowingly permit
any other entity to, directly or indirectly, appropriate, divulge, disclose or
otherwise disseminate to any other entity nor use in any manner for the
Employee, and not to intentionally use or aid others in using any such Protected
Information in competition with the Company or its Affiliates except to the
extent that disclosure is required by law; provided, however, that the Employee
shall provide the Company with notice as far in advance of any required
disclosure as is practicable in order for the Company to obtain an order for the
assurance that any information required to be disclosed will be treated as
Protected Information and the Employee shall use all reasonable efforts to
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cooperate with the Company in connection therewith and in furtherance thereof.
The obligation of non-disclosure of information shall continue to exists for so
long as such information remains Protected Information. For purposes of this
Agreement, trade secrets are subject to the protection of the Illinois Trade
Secret Act. The provisions of this Paragraph 8(a) are not intended to supersede
or limit the effect of any prior confidentiality or proprietary rights
agreements previously executed by the Employee including the Confidential
Information, Proprietary Rights and Non-Competition Agreement between the
Company and the Employee, a copy of which is attached hereto as Exhibit B.
However, if there is any conflict between the terms and conditions of this
Agreement and the Confidential Information, Proprietary Rights and
Non-Competition Agreement attached hereto as Exhibit B, then the terms and
conditions of this Agreement, as interpreted by the Board, shall govern.
(b) Ownership. The Employee hereby assigns to
the Company all of the Employee's right (including patent rights, copyrights,
trade secret rights, and all other rights throughout the world), title and
interest in and to Inventions, whether or not patentable or registrable under
copyright or similar statutes, made or conceived or reduced to practice or
learned by the Employee, either alone or jointly with others, during the course
of the performance of services for the Company. The Employee shall also assign
to, or as directed by, the Company, all of the Employee's right, title and
interest in and to any and all Inventions, the full title to which is required
to be in the United States government by a contract between the Company and the
United States government or any of its agencies. For the purpose of this
Agreement, the term "Inventions" collectively refers to any and all inventions,
trade secrets, improvements, ideas, processes, formulas, source and object
codes, data, programs, other works of authorship, know-how, improvements,
discoveries, developments, designs, and techniques regarding any of the
foregoing. The provisions of this Paragraph 8(b) are not intended to supersede
or limit the effect of any prior confidentiality or proprietary rights
agreements previously executed by the Employee including the Confidential
Information, Proprietary Rights and Non-Competition Agreement between the
Company and the Employee, a copy of which is attached hereto as Exhibit B.
However, if there is any conflict between the terms and conditions of this
Agreement and the Confidential Information, Proprietary Rights and
Non-Competition Agreement attached hereto as Exhibit B, then the terms and
conditions of this Agreement, as interpreted by the Board, shall govern.
(c) Covenants of Non-Competition and
Non-Solicitation. The Employee acknowledges that the Employee's services
pursuant to this Agreement are unique and extraordinary, that the Company will
be dependent upon the Employee for the development and growth of its business
and related functions, and that the Employee will continue to develop personal
relationships with significant customers of the Company and to have control of
confidential information concerning, and lists of customers of, the Company. The
Employee further acknowledges that the business of the Company is international
in scope and cannot be confined to any particular geographic area of the United
States. For the foregoing reasons, the Employee covenants and agrees that at no
time during the Term nor during the period commencing on the date of termination
of the Employee's employment with the Company and ending the day following the
second anniversary of the date of termination of the Employee's employment with
the Company for any reason, shall the Employee either alone or as a stockholder,
partner, consultant, owner, agent, creditor, co-venturer of any other entity or
in any other capacity, directly or indirectly, engage in the Business; provided
that nothing herein shall
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prohibit the Employee from being an owner of not more than 5% of the outstanding
stock of any class of a corporation which is publicly traded, so long as the
Employee does not actively participate in the business of such corporation. For
the purpose of this Paragraph 8(c), the "Business" means the business of
developing, manufacturing and marketing high temperature superconductivity
products designed to enhance the quality, capacity, coverage and flexibility of
cellular, personal communication services and other wireless telecommunications
services.
For the reasons acknowledged by the Employee at the beginning
of this Paragraph 8(c), the Employee additionally acknowledges, covenants, and
agrees that at no time during the Term nor during the period commencing on the
date of termination of the Employee's employment with the Company and ending the
day following the second anniversary of the date of termination of the
Employee's employment with the Company for any reason, shall the Employee,
directly or indirectly, either alone or as a stockholder, partner, consultant,
adviser, owner, agent, creditor, co-venturer of any other entity, or in any
other capacity, (i) knowingly sell to or solicit sales of products produced in
the Business to any customer or account which was a customer or account of the
Company during the Employee's employment with the Company, or (ii) (other than
through general, non targeted advertisements) intentionally solicit, hire,
knowingly attempt to solicit or hire, or knowingly participate in any attempt to
solicit or hire any person who was an employee of the Company or any of its
Affiliates during the Employee's employment with the Company.
The provisions of this Paragraph 8(c) are not intended to
supersede or limit the effect of any prior confidentiality or proprietary rights
agreements previously executed by the Employee including the Confidential
Information, Proprietary Rights and Non-Competition Agreement between the
Company and the Employee, a copy of which is attached hereto as Exhibit B.
However, if there is any conflict between the terms and conditions of this
Agreement and the Confidential Information, Proprietary Rights and
Non-Competition Agreement attached hereto as Exhibit B, then the terms and
conditions of this Agreement, as interpreted by the Board, shall govern.
(d) Equitable Remedies. The Employee acknowledges, covenants
and agrees that, in the event the Employee shall violate any provisions of this
Section 8, the Company will have the right to enforce this Agreement by all
remedies that may be available at law or in equity.
9. Assignability; Binding Effect. This Agreement is a personal
contract calling for the provision of unique services by the Employee, and the
Employee's rights and obligations hereunder may not be sold, transferred,
assigned or pledged. In the event of any attempted assignment or transfer of
rights hereunder by the Employee contrary to the provisions hereof (other than
as may be required by law), the Company will have no further liability for
payments hereunder. The rights and obligations of the Company hereunder will be
binding upon and run in favor of the successors and assigns of the Company and,
in connection therewith, and notwithstanding any other provision of this
Agreement to the contrary, in the event that there is such a successor or
assign, on and after the date of such succession or assignment, "Company" shall
thereupon instead refer to such successor or assign, as the case may be. This
Agreement does not create, and shall not be interpreted or construed to create,
any rights enforceable by any person not a party to this Agreement, except as
specifically provided herein.
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10. Entire Agreement. This Agreement represents the entire
agreement between the parties concerning the Employee's employment with the
Company and supersedes all prior negotiations, discussions, understandings and
agreements, whether written or oral, between the Employee and the Company
relating to the subject matter of this Agreement. All prior employment
agreements, between the Company and the Employee shall remain in full force and
effect with respect all matters addressed in such prior employment agreements
occurring on or before the effective date of this Agreement.
11. Amendment or Modification, Waiver. No provision of this
Agreement may be amended or waived unless such amendment or waiver is agreed to
in writing signed by the Employee and by a duly authorized officer of the
Company other that the Employee. No waiver by any party to this Agreement of any
breach by another party 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 condition or provision at the same time, any prior time or any
subsequent time.
12. Notices. All notices, demands or other communications of
any kind to be given or delivered under this Agreement shall be in writing and
shall be deemed to have been properly given if (a) delivered by hand, (b)
delivered by a nationally recognized overnight courier service, (c) sent by
registered or certified United States Mail, return receipt requested and first
class postage prepaid, or (d) facsimile transmission followed by a confirmation
copy delivered by a nationally recognized overnight courier service. Such
communications shall be sent to the parties at their respective addresses as
follows:
If to the Employee Mr. Xxxxxxx Xxxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
If to the Company: Illinois Superconductor Corporation
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, XX 00000
Attention: Vice President of Human Resources
with a copy to: Xxxxx X. Xxxxxxx
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Either party may change such address for delivery to the other party by delivery
of a notice in conformity with the provisions of this Section specifying such
change. Notice shall be deemed to have been properly given (i) on the date of
delivery, if delivery is by hand, (ii) three (3) days after the date of mailing
if sent by certified or registered mail, (iii) one (1) day after date of
delivery to the overnight courier if sent by overnight courier, or (iv) the next
business day after the date of transmission by facsimile.
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13. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances other than those to which it
is so determined to be invalid and unenforceable shall not be affected, and each
provision of this Agreement shall be validated and shall be enforced to the
fullest extent permitted by law. If for any reason any provision of this
Agreement containing restrictions is held to cover an area or to be for a length
of time that is unreasonable or in any other way is construed to be too broad or
to any extent invalid, such provision shall not be determined to be entirely
null, void and of no effect; instead, it is the intention and desire of both the
Company and the Employee that, to the extent that the provision is or would be
valid or enforceable under applicable law, any court of competent jurisdiction
shall construe and interpret or reform this Agreement to provide for a
restriction having the maximum enforceable area, time period and such other
constraints or conditions (although not greater than those currently contained
in this Agreement) as shall be valid and enforceable under the applicable law.
14. Survivorship. The respective rights and obligations
of the parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preservation of such rights and obligations.
15. Headings. All descriptive headings of sections and
paragraphs in this Agreement are intended solely for convenience of reference,
and no provision of this Agreement is to be construed by reference to the
heading of any section or paragraph.
16. Withholding Taxes. All salary, benefits,
reimbursements and any other payments to the Employee under this Agreement shall
be subject to all applicable payroll and withholding taxes and deductions
required by any law, rule or regulation of any federal, state or local
authority.
17. Applicable Law/ Jurisdiction. The laws of the State of
Illinois shall govern the interpretation, validity and performance of the terms
of this Agreement, without reference to rules relating to conflicts of law. The
parties select and irrevocably submit to the exclusive jurisdiction of a court
of competent jurisdiction located in the State of Illinois for any action to
enforce, construe or interpret this Agreement. The Employee and the Company each
hereby waives any objection to venue in such state on the basis of forum
non-conveniens.
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the date first above written.
ILLINOIS SUPERCONDUCTOR CORPORATION
By: /s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
Chief Executive Officer
/s/ XXXXXXX XXXXXXX
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XXXXXXX XXXXXXX
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