EXHIBIT 10.10
AGREEMENT
AGREEMENT, dated as of June 15, 2000, by and between EQUIDYNE CORPORATION,
formerly known as American Electromedics Corp., a Delaware corporation (the
"Company"), and XXXXXXX X. XXXXXXXXX (the "Executive").
WHEREAS, the Executive and the Company entered into an Amended and Restated
Employment Agreement, dated as of the 1st day of January, 2000 (the "Employment
Agreement");
WHEREAS, the Executive has a right to terminate the Employment Agreement
for cause pursuant to Section 6.04(i) thereof and upon such termination to
receive the amounts as provided for in Section 6.05(iv) thereof; and
WHEREAS, the Executive and the Company agree to the following terms in lieu
of the amounts contemplated pursuant to Section 6.05(iv) of the Employment
Agreement;
NOW, THEREFORE, in consideration of matters recited above and the mutual
covenants and agreements herein contained, each party intending to be legally
bound hereby, the parties hereto agree as follows:
1. Termination of Employment; Departure Date. As of the date chosen by
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the Executive in his discretion, but no later than October 31, 2000 (the
"Departure Date"), the Executive's employment by the Company as Executive
Vice-President and Chief Financial Officer shall terminate. The Company and the
Executive acknowledge and agree that the Employment Agreement shall be
terminated upon the date of execution of this Agreement, and shall no longer be
of any force or effect and shall be superseded by this Agreement, except to the
extent expressly provided herein.
2. Payments.
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2.1 Current Payments.
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(a) From the date hereof through the Departure Date, the Executive
shall receive compensation calculated according to his Base Salary as provided
in Section 4.01 of the Employment Agreement. If the Departure Date is later than
July 31, 2000, the Executive shall not be entitled to a pro rata portion of the
Profits Bonus for Fiscal Year 2001 as provided in Section 4.02 of the Employment
Agreement.
(b) Upon the execution of this Agreement, the Company shall pay to
Executive an amount of $200,000 in cash, in lieu of any Profits Bonus that may
have become due for any and all fiscal years pursuant to Section 4.02 of the
Employment Agreement.
2.2 Departure Date Payments. On the Departure Date, the Company shall
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provide to the Executive (i) an amount of $400,000 in cash, if the Executive's
Departure Date is on or before September 1, 2000, however, the Company may, in
its sole discretion, pay the Executive an amount of $475,000 in cash, if a new
Chief Financial Officer has been chosen and, in the Company's business judgment,
a successful transition has been made to the new Chief Financial Officer, or
(ii) an amount of $475,000 in cash, if the Executive's Departure Date is after
September 1, 2000.
3. Health Insurance Coverage. The Company shall make all premium
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payments on the behalf of the Executive for health insurance and dental
insurance coverage for a period from the date hereof and extending one year from
the Departure Date except that if the Executive becomes eligible to be covered
by a similar plan through another employment or consulting arrangement during
this period, the Company shall no longer be obligated to pay such premiums.
4. Agreement not to Compete ---Trade Secrets and Confidential
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Information. The entirety of Section 5 of the Employment Agreement shall
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continue in full force and effect and is hereby incorporated into this Agreement
by reference. For purposes of Section 5.03 thereof, the two year period shall
commence as of the Departure Date.
5. Change of Control. The entirety of Section 6.06 of the Employment
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Agreement shall continue in full force and effect through the Departure Date and
is hereby incorporated into this Agreement by reference.
6. Indemnification. The Company shall indemnify the Executive
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against any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) arising from his past employment with the
Company, or by reason of the fact that he was an officer of the Company, except
those resulting from his willful misfeasance, gross negligence, bad faith or
reckless disregard in the performance of his obligations and duties. The
Executive shall be entitled to advances from the Company for payment of
reasonable expenses incurred by him in connection with the matter as to which he
is seeking indemnification in advance of the final disposition of such matter
upon receipt by the Company of his written undertaking to repay any such advance
if it should ultimately be determined that the standard of conduct has not been
met. The Executive's right of indemnification hereunder shall continue after he
ceases to be the Executive Vice President and a Director, and shall inure to the
benefit of his heirs and personal representatives.
7. Releases. Effective as of the Departure Date, in consideration of
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the payments contemplated hereunder and other consideration provided to the
Executive pursuant to this Agreement, the Executive, for himself and his heirs,
executors, administrators, hereby releases and forever discharges the Company,
and any of its subsidiaries, affiliates, officers, directors, employees, agents,
successors and assigns, and all plan administrators and trustees of employee
benefit plans maintained by any of them (collectively "Company Entities"), from
all rights, claims or demands the Executive ever had, now has or hereafter may
have based on his employment with the Company, or any subsidiary of the Company,
or the termination of that employment, provided that the foregoing does not
release any of the Company Entities from any obligations they may have to the
Executive under this Agreement. The Company hereby releases the Executive from
all rights, claims or demands the Company ever had, now has or hereafter may
have based on the Executive's employment with the Company, or any subsidiary of
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the Company, or the termination of that employment, excluding the Executive's
obligations to the Company under this Agreement. The foregoing mutual release
covers both known and unknown claims, provided that the foregoing does not
release either party hereto from any of his or its obligations under this
Agreement or under the Employment Agreement which are provided for herein.
Anything herein to the contrary notwithstanding, the provisions of this Section
7 shall not apply to limit the rights of either party to enforce the terms of
this Agreement against the other party.
8. Miscellaneous
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8.1 Notices. All notices, requests, demands or other communications
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hereunder shall be deemed to have been given if delivered in writing personally
or by registered mail or national overnight courier or by facsimile to either
party at the address set forth below, or at such other address as either party
may designate in writing to the other:
If to the Company:
Equidyne Corporation
00000 Xxxxxxxx Xxxxx Xxxxx - Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, President
Fax: (000) 000-0000
If to the Executive:
Xxxxxxx X. Xxxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: ( ) -
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8.2 Severability. Any provision of this Agreement which is deemed
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invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction and subject to this Section be ineffective to the extent of such
invalidity, illegality or unenforceability, without affecting in any way the
remaining provisions hereof in such jurisdiction or rendering that or any other
provisions of this Agreement invalid, illegal or unenforceable in any other
jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable
because its scope is considered excessive, such covenant shall be modified so
that the scope of the covenant is reduced only to the minimum extent necessary
to render the modified covenant valid, legal and enforceable.
8.3 Counterparts. This Agreement may be executed in separate
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counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together with constitute one and the same
agreement.
8.4 Amendments. No amendments or other modifications to this
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Agreement may be made except by writing signed by both parties. No amendment or
waiver of this Agreement requires the consent of any individual, partnership,
corporation or other entity not a party to this Agreement. Nothing in this
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Agreement, express or implied, is intended to confer upon any third person any
rights or remedies under or by reason of this Agreement.
8.5 Assignability. This Agreement is personal to the Executive and
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shall not be assignable by him without the written consent of the Company. This
Agreement shall inure to the benefit of and be binding upon the Executive and
the Company and their respective heirs, administrators, successors or assigns.
8.6 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the Commonwealth of Massachusetts, without
reference to principles of conflict of laws.
8.7 Withholding. The Company may withhold from any amounts payable
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under this Agreement such federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
EQUIDYNE CORPORATION
By:
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Xxxxxx X. Xxxxxx, President
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XXXXXXX X. XXXXXXXXX
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