EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of July 14, 2000 (this
"Agreement"), by and between xxxxxxxx.xxx, inc., a Delaware corporation
(the "Employer"), and Xxxxxxx Xxxx (the "Executive").
WHEREAS, the Executive represents that he possesses skills,
experience and knowledge that are of value to the Employer; and
WHEREAS, the Employer desires to enlist the services and
employment of the Executive on behalf of the Employer and the Executive is
willing to render such services on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
1. Employment Term. Subject to the terms and provisions of this
Agreement, the Employer hereby agrees to employ the Executive, and
Executive hereby agrees to be employed by the Employer, for the period
commencing on the date of this Agreement and ending on the fourth
anniversary of the date of this Agreement, unless terminated sooner as
hereinafter provided (the "Employment Term").
2. Duties. During the Employment Term the Executive shall serve
as Chief Executive Officer of the Employer and shall perform such duties,
services and responsibilities consistent therewith as determined from time
to time by the Board of Directors (the "Board") of the Employer. In
performing such duties hereunder, the Executive will report directly to the
Board. The Employer will include the Executive in its class of directors
nominated for election to the Board at the Employer's next annual meeting
of stockholders during the Employment Term and at each annual meeting
thereafter during the Employment Term and will use its reasonable best
efforts to cause the Executive to be elected to the Board at each such
meeting.
The Executive shall devote his full business time, attention and
skill to the performance of such duties, services and responsibilities, and
will use his best efforts to promote the interests of the Employer. The
Executive will not, without the prior written approval of the Board (a)
engage in any other business activity, or corporate, civic or charitable
activity which would interfere with the performance of his duties as an
executive of the Employer, is in violation of written Employer policies, is
in violation of applicable law, or would create a conflict of interest with
respect to the Executive's obligations as an executive of the Employer, (b)
deliver lectures or fulfill speaking engagements unless such lectures or
speaking engagements do not interfere with the Executive's day-to-day
operation of the Employer or otherwise with the performance of his duties
hereunder, or (c) teach at educational institutions.
3. Compensation. In full consideration of the performance by the
Executive of the Executive's obligations during the Employment Term
(including any services by the Executive as an officer, director, executive
or member of any committee of the Employer or any subsidiary or affiliate
of the Employer, or otherwise on behalf of Employer, including public
appearances or the use of the Executive's photograph or likeness), the
Executive shall be compensated as follows:
(a) The Executive shall receive a base salary (the "Base Salary" at
an annual rate of $325,000 year, payable in accordance with the normal
payroll practices of the Employer then in effect. During the Employment
Term, the Executive will be eligible to receive annual increases in the
Base Salary as determined in the sole discretion of the Board.
(b) The Executive shall be eligible to receive an annual cash
bonus for each calendar year during the Employment Term (the "Annual
Bonus") in the amounts set forth below based on the achievement of the
following performance objectives.
(i) If the Employer meets the projected annual revenue and
expense targets established by the Board for such year (such
targets for the calendar years 2000 and 2001 attached hereto as
Exhibit I), he shall be entitled to receive a cash bonus equal to
25% of his then current Base Salary; or
(ii) If the Employer exceeds the projected annual revenue
target and is below the projected annual expense target
established by the Board for such year by 10% and 5%
respectively, he shall be entitled to receive a cash bonus equal
to 50% of his then current Base Salary; and
(iii) The Board may, in its sole discretion, provide to the
Executive an additional cash bonus which is in excess of an
amount equal to 50% of his then current Base Salary.
The amount of the Annual Bonus shall be pro-rated for any calendar
year during the Employment Term in which the Executive is not employed by
the Employer for 365 days. Notwithstanding anything in this Section 3(b) to
the contrary, the Executive shall receive a guaranteed minimum cash bonus
equal to $25,000 in respect of each of the calendar years 2000 and 2001
(each a "Guaranteed Bonus"); it being understood that the amount of any
Annual Bonus, if any, earned by the Executive in each of the calendar years
2000 and 2001 shall be reduced by the Guaranteed Bonus corresponding to
that year. The Guaranteed Bonus in respect of the calendar year 2000 shall
be payable no later than January 31, 2001, and the Guaranteed Bonus in
respect of calendar year 2001 shall be payable on the first anniversary of
the date of this Agreement. Any Annual Bonus earned by the Executive in the
calendar years 2000 and 2001 shall be payable in accordance with the normal
payment of bonuses by the Company during each of those years.
(c) On July 14, 2000 the Employer will grant the Executive
options to purchase shares of common stock of the Employer, par value
$0.001 per share (the "Shares"), covering the number of Shares, and subject
to the terms and conditions, including with respect to vesting, set forth
in the forms of Option Agreements attached as Exhibit II and Exhibit III
hereto.
The Executive shall be solely responsible for taxes imposed on
the Executive by reason of any compensation and benefits provided under
this Agreement and all such compensation and benefits shall be subject to
applicable withholding taxes.
4. Disability. If the Executive is unable, as reasonably determined
by the Board of the Employer, to perform his duties, services and
responsibilities hereunder by reason of a physical or mental infirmity for
a total of 90 calendar days in any twelve-month period during the
Employment Term ("Disability"), the Employer shall not be obligated to pay
the Executive any Base Salary for any period of absence in excess of such
90 calendar days and, in any case, shall be entitled to terminate the
Executive's employment hereunder in accordance with Section 7.
5. Benefits. In addition to the payments and awards described in
Section 3 of this Agreement, during the period that the Executive is
employed by the Employer pursuant to this Agreement, the Executive shall be
entitled to employee benefit plans, policies, programs and arrangements, as
may be amended from time to time, that are provided to other senior
executives of the Employer to the extent the Executive meets the
eligibility requirements for any such plan, policy, program or arrangement.
6. Vacations. During the Employment Term the Executive shall be
entitled to 20 paid vacation days in each calendar year in accordance with
the Employer's policies in effect from time to time.
7. Termination. The Executive's employment with the Employer and
the Employment Term shall terminate upon the expiration of the Employment
Term or upon the earlier occurrence of any of the following events (the
date of termination, the "Termination Date"):
(a) The death of the Executive ("Death").
(b) The termination of employment by the Employer for Cause upon
written notice (the "Cause Notice ") to the Executive specifying the
conduct constituting Cause. Termination of employment for "Cause" shall
mean termination based on: (i) the Executive's material breach of this
Agreement, (ii) conduct by the Executive that is fraudulent or unlawful,
(iii) gross negligence of or willful misconduct by the Executive which
discredits or damages the Employer, any of its subsidiaries or affiliates
or (iv) repeated failure to perform his duties hereunder and such failure
to perform adversely affects the Employer. For all purposes of this
Agreement (including the Exhibits hereto), if the Executive's employment is
terminated for Cause, the effective date of such termination shall be the
date of delivery of the Cause Notice.
(c) The termination of employment by the Executive for Good
Reason. Termination of employment for "Good Reason" shall mean termination
by the Executive during the twelve (12) month period immediately following
a "Change in Control" (as defined below) following a substantial reduction
in the duties and responsibilities the Executive was performing immediately
prior to such Change in Control.
For purposes of this Agreement, "Change in Control" shall mean the
occurrence of any of the following:
(1) An acquisition (other than directly from the Employer) of any
voting securities of the Employer (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent
(50%) or more of the then outstanding Shares or the combined voting power
of the Employer's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred pursuant to this
paragraph, Shares or Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control Acquisition" shall
mean an acquisition by (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (A) the Employer or (B) any corporation or
other Person of which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or indirectly, by the
Employer (for purposes of this definition, a "Majority-Owned Subsidiary"),
(ii) the Employer or its Majority-Owned Subsidiaries, or (iii) any Person
in connection with a "Non-Control Transaction" (as hereinafter defined);
(2) The consummation of:
(A) A merger, consolidation or reorganization with or into
the Employer or in which securities of the Employer are issued, unless
such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Employer or in which
securities of the Employer are issued where:
(i) the stockholders of the Employer, immediately
before such merger, consolidation or reorganization, own directly
or indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the
same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization,
and
(ii) no Person other than (a) the Employer, (b) any
Majority-Owned Subsidiary, (c) any employee benefit plan (or any
trust forming a part thereof) that, immediately prior to such
merger, consolidation or reorganization, was maintained by the
Employer or any Majority-Owned Subsidiary, or (d) any Person who,
immediately prior to such merger, consolidation or reorganization
had Beneficial Ownership of thirty percent (30%) or more of the
then outstanding Voting Securities or Shares, has Beneficial
Ownership of thirty percent (30%) or more of the combined voting
power of the Surviving Corporation's then outstanding voting
securities or its common stock.
(B) A complete liquidation or dissolution of the Employer;
or
(C) The sale or other disposition of all or substantially
all of the assets of the Employer to any Person (other than a transfer
to a Majority-Owned Subsidiary or the distribution to the Employer's
stockholders of the stock of a Majority-Owned Subsidiary or any other
assets).
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Shares or Voting Securities as a result of the acquisition of
Shares or Voting Securities by the Employer which, by reducing the number
of Shares or Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons, provided that
if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Shares or Voting Securities by the
Employer, and after such share acquisition by the Employer, the Subject
Person becomes the Beneficial Owner of any additional Shares or Voting
Securities which increases the percentage of the then outstanding Shares or
Voting Securities Beneficially Owned by the Subject Person, then a Change
in Control shall occur.
(d) The termination of employment by the Employer for Disability.
(e) The termination of employment by the Employer other than (i)
for Cause, (ii) Disability or (iii) Death.
In the event of termination of the Executive's employment, for
whatever reason (other than Death), the Executive agrees to cooperate with
the Employer, its subsidiaries and affiliates and to be reasonably
available to the Employer, its subsidiaries and affiliates with respect to
continuing and/or future matters arising out of the Executive's employment
hereunder or any other relationship with the Employer, its subsidiaries and
affiliates, whether such matters are business-related, legal or otherwise.
8. Termination Payments. If the Executive's employment with the
Employer terminates, the Employer's, its subsidiaries' and affiliates' sole
obligation hereunder, except as otherwise provided in this Section 8, shall
be to pay the Executive (i) any accrued and unpaid Base Salary as of the
Termination Date and (ii) an amount equal to such reasonable and necessary
business expenses incurred by the Executive in connection with the
Executive's employment on behalf of the Employer on or prior to the
Termination Date but not previously paid to the Executive (the "Accrued
Compensation"). In addition, if the Executive's employment with the
Employer terminates pursuant to Section 7(c) or 7(e) hereof, the
Employer's, its subsidiaries' and affiliates' sole obligation hereunder
shall be, so long as the Executive is not in violation of the covenants
contained in Section 10 hereof and provided the Executive has executed a
General Release in favor of the Employer at the time of termination, to (i)
pay the Accrued Compensation, (ii) continue to pay the Executive the Base
Salary (at the rate in effect at the time of termination of employment)
through the first anniversary of the Termination Date in bi-weekly
installments and (iii) if such termination occurs prior to the first
anniversary of the date of this Agreement, pay the Executive an amount
equal to $50,000 (less the amount of any Guaranteed Bonus theretofore paid
or theretofore payable and unpaid), payable at the time the Employer makes
payments of annual bonuses in accordance with past practice. For purposes
of this Section 8, the Executive's employment shall not be treated as
terminated for so long as he is an employee of the Employer or any of its
subsidiaries.
9. (a) Excise Tax Limitation. (1) In the event it shall be
determined that any payment or distribution of any type to or for the
benefit of the Executive, by the Employer, any Affiliate of the Employer,
any person who acquires ownership or effective control of the Employer or
ownership of a substantial portion of the Employer's assets (within the
meaning of Section 28OG of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations thereunder) or any Affiliate of such
person, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (the "Total Payments"), is or will
be subject to the excise tax imposed by Section 4999 of the Code (the
"Excise Tax"), then the Total Payments shall be reduced (but not below
zero) if and to the extent necessary so that no payment to be made or
benefit to be provided to the Executive shall be subject to the Excise Tax
(such reduced amount is hereinafter referred to as the "Reduced Payment
Amount"). Unless the Executive shall have given prior written notice
specifying a different order to the Employer to effectuate the foregoing,
the Employer shall reduce or eliminate the Total Payments, by first
reducing or eliminating the portion of the Total Payments which are not
payable in cash and then by reducing or eliminating cash payments, in each
case in reverse order beginning with payments or benefits which are to be
paid the farthest in time from the Determination (as hereinafter defined).
Any notice given by the Executive pursuant to the preceding sentence shall
take precedence over the provisions of any other plan, arrangement or
agreement governing the Executive's rights and entitlements to any benefits
or compensation.
(b) The determination of whether the Total Payments shall be
reduced to the Reduced Payment Amount pursuant to this Agreement and the
amount of such Reduced Payment Amount shall be made, at the Employer's
expense, by an accounting firm selected by the Executive which is one of
the five (5) largest accounting firms in the United States (the "Accounting
Firm"). The Accounting Xxxx shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Employer and the Executive within ten (10) days of the
Termination Date, if applicable, or such other time as requested by the
Employer or by the Executive (provided the Executive reasonably believes
that any of the Total Payments may be subject to the Excise Tax) and if the
Accounting Firm determines that no Excise Tax is payable by the Executive
with respect to the Total Payments, it shall furnish the executive with an
opinion reasonably acceptable to the Executive and the Employer that no
Excise Tax will be imposed with respect to any such payments and, absent
manifest error, the Determination shall be binding, final and conclusive
upon the Employer and the Executive.
10. Executive Covenants.
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(a) Unauthorized Disclosure. The Executive agrees and understands
that in the Executive's position with the Employer, the Executive has been
and will be exposed to and receive information relating to the confidential
affairs of Dancing Bear Investments, Inc. (the "Investor"), the Employer,
their subsidiaries and/or Affiliates (as defined below), including but not
limited to technical information, intellectual property, business and
marketing plans, strategies, customer information, other information
concerning the products, promotions, development, financing, expansion
plans, business policies and practices of Investor, the Employer, their
subsidiaries and/or Affiliates and other forms of information considered by
Investor or the Employer to be confidential or in the nature of trade
secrets (collectively, the "Confidential Information"). Confidential
Information shall not include information which is now, or hereafter
becomes, through no act or failure to act on the part of Executive (except
those performed in the ordinary course of the Employer's business),
generally known or available to the public. The Executive agrees that
during the Employment Term and thereafter, the Executive will keep the
Confidential Information confidential and not disclose such information,
either directly or indirectly, except in the ordinary course of performance
of the Employer's business, to any third person or entity without the prior
written consent of the Chairman of the Board or the Board, unless required
to do so by law or court order. This confidentiality covenant has no
temporal, geographical or territorial restriction. Upon termination of this
Agreement, the Executive will promptly surrender to the Employer all
property, keys, notes, memoranda, writings, lists, files, reports, customer
lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines,
technical data or any other tangible product or document which has been
produced by, received by or otherwise submitted to the Executive after the
date on which he first performed services for the Employer and is still in
the Executive's possession or control. As used herein, "Affiliate" means,
with respect to any person, any person directly or indirectly controlling,
controlled by, or under common control with such person.
(b) Non-competition. By and in consideration of the Employer's
entering into this Agreement and the Executive's exposure to the
Confidential Information, during the Employment Term and thereafter, (i) if
the Executive's services are terminated by the Employer with or without
Cause or by the Executive pursuant to Section 7(c), until the first
anniversary of the Termination Date, or (ii) if the Executive voluntarily
terminates his employment with the Employer for any reason (other than
pursuant to Section 7(c)), if the Employer terminates the Executive by
reason of Disability, or if the Employment Term expires after four (4)
years, for up to a period of twelve (12) months following the Termination
Date for so long as the Board determines in its sole discretion to continue
to pay the Employee the Base Salary, the Executive will not own, manage,
operate, join, control, be employed by, or participate in the ownership,
management, operation or control of, or hold the position of shareholder,
director, officer, consultant, employee, independent contractor, executive,
partner, investor or advisor (whether or not formally appointed) of, any
enterprise that engages in any activity that the Employer or any of its
subsidiaries is engaged in, or proposes to be engaged in; provided that in
no event shall ownership of less than 1% of the outstanding equity
securities of any issuer whose securities are registered under the
Securities Exchange Act of 1934, as amended, standing alone, be prohibited
by this Section 10(b).
(c) Non-solicitation. Until the first anniversary of the
Termination Date, the Executive shall not interfere with or harm, or
intentionally attempt to interfere with or harm, the relationship of the
Employer, its subsidiaries and/or Affiliates with, or endeavor to entice
away from the Employer, its subsidiaries and/or Affiliates, any person who
is an employee, customer or supplier of the Employer, its subsidiaries
and/or Affiliates.
(d) Non-Disparagement. Executive shall not during the Employment
Term and thereafter publish or otherwise make any negative or disparaging
statements, comments or remarks regarding the Employer or its subsidiaries,
Affiliates, or their directors, officers or employees except for non-public
statements, comments or remarks made by the Executive in evaluating or
reviewing employees of the Employer in the ordinary course of his duties
hereunder.
(e) Remedies. The Executive agrees that any breach of the terms
of this Section 10 would result in irreparable injury and damage to
Investor and the Employer for which Investor and the Employer would have no
adequate remedy at law; the Executive therefore also agrees that, in the
event of said breach or any threat of breach, Investor and the Employer
shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Executive and/or any and all persons and/or entities acting for and/or with
the Executive, without having to prove damages, and to all costs and
expenses, including reasonable attorneys' fees and costs (provided, that
such fees and expenses shall be awardable only in the event of an
adjudication that there was a breach or a legitimate threat of breach), in
addition to any other remedies to which Investor or the Employer may be
entitled at law or in equity. The terms of this paragraph shall not prevent
Investor or the Employer from pursuing any other available remedies for any
breach or threatened breach hereof, including but not limited to the
recovery of damages from the Executive. The Executive, Investor and the
Employer further agree that the provisions of the covenant not to compete
are reasonable. The Executive hereby acknowledges that due to the global
aspects of the Employer's business and competitors it would not be
appropriate to include any geographic limitation on this Section 10. Should
a court or arbitrator determine, however, that any provision of the
covenant not to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties hereto agree that the covenant
should be interpreted and enforced to the maximum extent which such court
or arbitrator deems reasonable.
The existence of any claim or cause of action by the Executive
against the Employer, its subsidiaries and/or affiliates, whether
predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by the Employer of the covenants contained in this
Section 10.
11. Proprietary Rights. The Executive agrees that all
Intellectual Property (as hereinafter defined) which is or was at any time
made or conceived by the Executive, acting alone or in conjunction with
others, is and shall be the property of the Employer since its inception,
free of any reserved or other rights of any kind on the Executive's part
and the Executive hereby assigns to the Employer all of his right, title
and interest in and to any such Intellectual Property. During the
Employment Term and thereafter, the Executive shall promptly make full
disclosure of any such Intellectual Property to the Employer and do all
reasonable acts and things (including, among others, the execution and
delivery under oath of patent and copyright applications and instruments of
assignment) deemed by the Employer to be necessary or desirable at any time
in order to effect the full assignment to the Employer of the Executive's
right and title, if any, to such Intellectual Property and to protect the
Employer's interests in such Intellectual Property. For purposes of this
Agreement, "Intellectual Property" means any discovery, development,
program, concept, idea, process or improvement, whether or not patentable,
patent, patent application, copyright, copyright registration, license,
trademark or trade name, service xxxx or service name, trade secret or
other intellectual property rights, in each case, made prior to or during
the Employment Term.
12. Representation. The Executive expressly represents and
warrants to the Employer that he is not a party to any contract, agreement
or otherwise obligated, and is not subject to any rules or regulations,
whether governmentally imposed or otherwise, which restricts in any way his
ability to fully perform his duties and responsibilities under this
Agreement.
13. Non-Waiver of Rights. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by any
other party of any of the provisions hereof shall in no way be construed to
be a waiver of such provisions or to affect either the validity of this
Agreement or any part hereof, or the right of any party to enforce each and
every provision in accordance with its terms.
14. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery, reputable overnight
carriers, or by registered or certified mail, postage prepaid, return
receipt requested.
If delivered to the Executive, to:
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15. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, estates, successors (including,
without limitation, by way of merger) and assigns. Notwithstanding the
provisions of the immediately preceding sentence, the Executive shall not
assign all or any portion of this Agreement without the prior written
consent of the Employer.
16. Entire Ageement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, written or oral, between them
as to such subject matter. This Agreement may not be amended, nor may any
provision hereof be modified or waived, except by an instrument in writing
duly signed by the party to be charged.
17. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part,
such provision or application shall to that extent be severable and shall
not affect other provisions or applications of this Agreement.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York,
without reference to the principles of conflict of laws. For purposes of
Section 10 hereof, each of the parties to this Agreement hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and the courts of the United States of
America located in the Southern District of the State of New York for any
action, claim or proceeding arising out of or relating to this Agreement
(and agrees not to commence any action, claim or proceeding relating hereto
except in such courts), and further agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective
address shall be effective service of process for any action, claim or
proceeding brought against it in any such court. For purposes of Section 10
hereof, each of the parties to this Agreement hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action,
claim or proceeding arising out of this Agreement in the courts of the
State of New York or the courts of the United States of America located in
the State of New York and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such
action, claim or proceeding brought in any such court has been brought in
an inconvenient forum. For purposes of Section 10 hereof, each of the
parties hereto hereby irrevocably and unconditionally waives any right it
may have to trial by jury in connection with any action, claim or
proceeding arising out of or relating to Section 10 hereof.
19. Resolutions of Disputes. Notwithstanding anything herein to
the contrary, in the event that there shall be a dispute among the parties
arising out of or relating to this Agreement or the breach thereof, other
than, at the option of Employer, Section 10, the parties agree that such
dispute shall be resolved by final and binding arbitration in New York, New
York, in accordance with the rules and procedures of the American
Arbitration Association ("AAA") and in accordance with the AAA's National
Rules for the expedited resolution of employment disputes. Depositions may
be taken and other discovery may be obtained during such arbitration
proceedings to the same extent as authorized in civil judicial proceedings.
Any award issued as a result of such arbitration shall be final and binding
between the parties thereto, and shall be enforceable by any court having
jurisdiction over the party against whom enforcement is sought. The fees
and expenses of such arbitration (including, but not limited to, reasonable
attorneys' fees) or any action to enforce an arbitration award shall be
paid as determined by the arbitrator in such arbitration.
20. Modifications and Waivers. No provision of this Agreement may
be modified, altered or amended except by an instrument in writing executed
by the parties hereto. No waiver by any party hereto of any breach by any
other party hereto of any provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar
provisions at the time or at any prior or subsequent time.
21. Headings. The headings contained herein are solely for the
purposes of reference, are not part of this Agreement and shall not in any
way affect the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(remainder of page left intentionally blank)
IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed by authority of its Board of Directors, and the Executive has
hereunto set his hand, on the day and year first above written.
Employer:
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xxxxxxxx.xxx, inc.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Pres., COO
Executive:
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/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
