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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 3rd day of October, 1999, by and between Xxxxxxx International, Ltd.,
a Delaware corporation (the "Employer"), and Xxxx X. Xxxxxxx, an individual
resident in the State of Connecticut (the "Executive").
RECITALS:
The Employer desires to secure the employment of the Executive, and the
Executive wishes to become employed by the Employer, upon the terms and
conditions set forth in this Agreement.
Now, therefore, the parties intending to be legally bound, hereby agree
as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the meanings specified or referred to in this Section 1.
"AGREEMENT" shall mean this Employment Agreement, as amended from time
to time.
"BASIC COMPENSATION" shall mean Salary and Benefits.
"BENEFITS" shall have the meaning given to such term in Section 3.1(b)
hereof.
"BOARD OF DIRECTORS" shall mean the board of directors of the Employer.
"CONFIDENTIAL INFORMATION" shall mean and include any and all:
(a) trade secrets concerning the business and affairs of the
Employer, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information), and any other information, however documented, that is a trade
secret within the meaning of Chapter 625 of the Connecticut General Statutes;
and
(b) information concerning the business and affairs of the
Employer (which includes historical financial statements, financial projections
and budgets, historical and projected sales, capital spending budgets and plans,
the names and backgrounds of key personnel, and personnel training and
techniques and materials), however documented; and
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(c) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Employer containing or based, in whole or
in part, on any information included in the foregoing.
"DISABILITY" shall have the meaning given to such term in Section 6.2
hereof.
"EFFECTIVE DATE" shall mean October 3, 1999.
"EMPLOYEE INVENTION" shall mean any idea, invention, technique,
modification, process, or improvement (whether patentable or not), any
industrial design (whether registerable or not), any mask work, however fixed or
encoded, that is suitable to be fixed, embedded or programmed in a semiconductor
product (whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by
the Executive, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the Employment Period,
that relates in any way to, or is useful in any manner in, the business then
being conducted or proposed to be conducted by the Employer, and any such item
created by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"EMPLOYMENT PERIOD" shall mean the term of the Executive's employment
under this Agreement.
"FISCAL YEAR" shall mean the Employer's fiscal year, as it exists on
the Effective Date or as changed from time to time.
"FOR CAUSE" shall have the meaning given to such term in Section 6.3
hereof.
"FOR GOOD REASON" shall have the meaning given to such term in Section
6.4 hereof.
"PERSON" shall mean any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, or
governmental body.
"POST-EMPLOYMENT PERIOD" shall have the meaning given to such term in
Section 8.2 hereof.
"PROPRIETARY ITEMS" shall have the meaning given to such term in
Section 7.2(a)(iv) hereof.
"SALARY" shall have the meaning given to such term in Section 3.1(a)
hereof.
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2. EMPLOYMENT TERMS AND DUTIES.
2.1 EMPLOYMENT. The Employer hereby employs the Executive, and
the Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 TERM. Subject to the provisions of Section 6, the term of
the Executive's employment under this Agreement shall commence as of the
Effective Date and continue until the close of business of March 31, 2001.
2.3 DUTIES. The Executive will have such duties as are
assigned or delegated to the Executive by the Board of Directors, and will
initially serve as the Chief Executive Officer of the Employer. The Executive
will devote his entire business time, attention, skill, and energy exclusively
to the business of the Employer, will use his best efforts to promote the
success of the Employer's business, and will cooperate fully with the Board of
Directors in the advancement of the best interests of the Employer. Nothing in
this Section 2.3, however, will prevent the Executive from engaging in
additional activities in connection with personal investments and community
affairs that are not inconsistent with the Executive's duties under this
Agreement. In addition, the Employer expressly authorizes the Executive to
devote whatever time is reasonably necessary for the Executive to complete his
consulting activities in connection with the litigation matter Standard Charter
Bank vs. Price Waterhouse.
3. COMPENSATION.
3.1 BASIC COMPENSATION.
(a) SALARY. The Executive will be paid an annual
salary of $172,000.00, subject to adjustment as provided below (the "Salary"),
which will be payable in equal periodic installments according to the Employer's
customary payroll practices, but no less frequently than monthly. The Salary
will be reviewed by the Board of Directors of the Employer not less frequently
than annually and may be adjusted upward (but not downward) in the sole
discretion of the Board of Directors.
(b) CAR ALLOWANCE. The Executive will be paid a
monthly allowance of $600.00 for expenses incurred by the Executive in
connection with the use of his automobile in the performance of the Executive's
duties.
(c) BENEFITS. The Executive will, during the
Employment Period, be permitted to participate in such pension, profit sharing,
bonus, life insurance, hospitalization, major medical, and other employee
benefit plans of the Employer that may be in effect from time to time, to the
extent the Executive is eligible under the terms of those plans (collectively,
the "Benefits").
3.2 INCENTIVE COMPENSATION.
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(a) INCENTIVE STOCK OPTION. Prior to the execution
and delivery of this agreement, the Executive Compensation/Stock Option
Committee of the Board of Directors of the Employer took action to grant the
Executive an incentive stock option (the "ISO") to purchase up to thirty
thousand (30,000) shares of the common stock, per value $.001 per share ("Common
Stock"), of the Employer at an exercise price of $3.00 per share. The terms and
conditions of the ISO shall be governed by the separate Incentive Stock Option
Agreement evidencing the ISO entered into between the Employer and the Employee.
(b) CASH BONUS. As additional compensation for the
services to be rendered by the Executive pursuant to this Agreement, the
Executive shall be eligible to receive a cash bonus based on the attainment of
specified goals and objectives for Employer operating performance established
for the Executive by the Executive Compensation/Stock Option Committee of the
Board of Directors with respect to the Fiscal Year ending March 31, 2001.
4. FACILITIES AND EXPENSES. The Employer will furnish the Executive
office space, equipment, supplies, and such other facilities and personnel as
the Employer deems necessary or appropriate for the performance of the
Executive's duties under this Agreement. The Employer will pay the Executive's
dues in such professional societies and organizations as the Board of Directors
deems appropriate, and will pay on behalf of the Executive (or reimburse the
Executive for) reasonable expenses incurred by the Executive at the request of,
or on behalf of, the Employer in the performance of the Executive's duties
pursuant to this Agreement, and in accordance with the Employer's employment
policies, including reasonable expenses incurred by the Executive in attending
conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. The Executive must file
expense reports with respect to such expenses in accordance with the Employer's
policies.
5. VACATIONS AND HOLIDAYS. The Executive will be entitled to paid
vacation in accordance with the vacation policies of the Employer in effect for
its executive officers from time to time. Vacation must be taken by the
Executive at such time or times as approved by the Chairman of the Board. The
Executive will also be entitled to paid holidays and other paid leave, as set
forth in the Employer's policies. Up to ten (10) vacation days that are not used
by the Executive during any Fiscal Year may be carried over to the next Fiscal
Year.
6. TERMINATION.
6.1 EVENTS OF TERMINATION. The Employment Period, the
Executive's Basic Compensation, and any and all other rights of the Executive
under this Agreement or otherwise as an employee of the Employer will terminate
(except as otherwise provided in this Section 6):
(a) upon ninety (90) days' prior written notice from
one party to the other;
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(b) upon the death of the Executive;
(c) upon the disability of the Executive (as defined
in Section 6.2) immediately upon notice from either party to the other;
(d) For Cause (as defined in Section 6.3),
immediately upon notice from the Employer to the Executive, or at such later
time as such notice may specify; or
(e) For Good Reason (as defined in Section 6.4) upon
not less than ninety (90) days' prior notice from the Executive to the Employer.
6.2 DEFINITION OF DISABILITY. For purposes of Section 6.1, the
Executive will be deemed to have a "disability" if, for physical or mental
reasons, the Executive is unable to perform the essential functions of the
Executive's duties under this Agreement for ninety (90) consecutive days.
6.3 DEFINITION OF "FOR CAUSE." For purposes of Section 6.1,
the phrase "For Cause" means: (a) the Executive's material breach of this
Agreement; (b) the Executive's failure to adhere to any written Employer policy
after the Executive has been given a reasonable opportunity to comply with such
policy or cure his failure to comply (which reasonable opportunity must be
granted during the ten-day period preceding termination of this Agreement); (c)
the appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Employer; (d) the misappropriation (or attempted misappropriation) of any of the
Employer's funds or property; or (e) the conviction of, the indictment for (or
its procedural equivalent), or the entering of a guilty plea or plea of no
contest with respect to, a felony, the equivalent thereof, or any other crime
with respect to which imprisonment is a possible punishment.
6.4 DEFINITION OF "FOR GOOD REASON." For purposes of Section
6.1, the phrase "For Good Reason" means any of the following: (a) the Employer's
material breach of this Agreement; (b) the assignment of the Executive without
his consent to a position, responsibilities, or duties of a materially lesser
status or degree of responsibility than his position, responsibilities, or
duties at the Effective Date; or (c) the relocation of the Employer's principal
executive offices to a location or place that is more than fifty miles from the
location of the Employer's principal executive officers as of the Effective Date
or the requirement by the Employer that the Executive be based anywhere other
than the Employer's principal executive offices, in either case without the
Executive's consent.
6.5 TERMINATION PAY. Effective upon the termination of this
Agreement, the Employer will be obligated to pay the Executive (or, in the event
of his death, his designated beneficiary as defined below) only such
compensation as is provided in this Section 6.5, and in lieu of all other
amounts and in settlement and complete release of all claims the Executive may
have against the Employer. For purposes of this Section 6.5, the Executive's
designated beneficiary will be such individual beneficiary or trust, located at
such address, as
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the Executive may designate by notice to the Employer from time to time or, if
the Executive fails to give notice to the Employer of such a beneficiary, the
Executive's estate. Notwithstanding the preceding sentence, the Employer will
have no duty, in any circumstances, to attempt to open an estate on behalf of
the Executive, to determine whether any beneficiary designated by the Executive
is alive or to ascertain the address of any such beneficiary, to determine the
existence of any trust, to determine whether any person or entity purporting to
act as the Executive's personal representative (or the trustee of a trust
established by the Executive) is duly authorized to act in that capacity, or to
locate or attempt to locate any beneficiary, personal representative, or
trustee.
(a) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. If
the Executive terminates this Agreement For Good Reason, the Employer will pay
the Executive (i) the Executive's Salary for the remainder, if any, of the
calendar month in which such termination is effective and for six (6)
consecutive calendar months thereafter. Notwithstanding the preceding sentence,
if the Executive obtains other employment prior to the end of the six (6) months
following the month in which the termination is effective, he must promptly give
notice thereof to the Employer, and the Salary payments under this Agreement for
any period after the Executive obtains other employment will be reduced by the
amount of the cash compensation received and to be received by the Executive
from the Executive's other employment for services performed during such period.
(b) TERMINATION BY THE EMPLOYER FOR CAUSE. If the
Employer terminates this Agreement for cause, the Executive will be entitled to
receive his Salary only through the date such termination is effective.
(c) TERMINATION UPON DISABILITY. If this Agreement is
terminated by either party as a result of the Executive's disability, as
determined under Section 6.2, the Employer will pay the Executive his Salary
through the remainder of the calendar month during which such termination is
effective and for the lesser of (i) three consecutive months thereafter, or (ii)
the period until disability insurance benefits commence under the disability
insurance coverage furnished by the Employer to the Executive, if any.
(d) TERMINATION UPON DEATH. If this Agreement is
terminated because of the Executive's death, the Executive will be entitled to
receive his Salary through the end of the calendar month in which his death
occurs.
(e) TERMINATION BY WRITTEN NOTICE. If this Agreement
is terminated by either party pursuant to Section 6.1(a) hereof, the Executive
will be entitled to receive his Salary through the termination date of his
employment, which shall be at least ninety (90) days from the date of the
notice.
(f) BENEFITS. The Executive's accrual of, or
participation in plans providing for, the Benefits will cease at the effective
date of the termination of this Agreement, and the Executive will be entitled to
accrued Benefits pursuant to such plans only as provided in such plans. The
Executive will not receive, as part of his termination pay pursuant to this
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Section 6, any payment or other compensation for any vacation, holiday, sick
leave, or other leave unused on the date the notice of termination is given
under this Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS.
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive
acknowledges that (a) during the Employment Period and as a part of his
employment, the Executive will be afforded access to Confidential Information;
(b) public disclosure of such Confidential Information could have an adverse
effect on the Employer and its business; (c) because the Executive possesses
substantial technical expertise and skill with respect to the Employer's
business, the Employer desires to obtain exclusive ownership of each Employee
Invention, and the Employer will be at a substantial competitive disadvantage if
it fails to acquire exclusive ownership of each Employee Invention; and (d) the
provisions of this Section 7 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and to provide the
Employer with exclusive ownership of all Employee Inventions.
7.2 AGREEMENTS OF THE EXECUTIVE. In consideration of the
compensation and benefits to be paid or provided to the Executive by the
Employer under this Agreement, the Executive covenants as follows:
(a) CONFIDENTIALITY.
(i) During and following the Employment
Period, the Executive will hold in confidence the Confidential Information and
will not disclose it to any person, except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by the terms
of this Agreement.
(ii) Any trade secrets of the Employer will
be entitled to all of the protections and benefits under Chapter 625 of the
Connecticut General Statutes and any other applicable law. If any information
that the Employer deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement, such
information will, nevertheless, be considered Confidential Information for
purposes of this Agreement. The Executive hereby waives any requirement that the
Employer submit proof of the economic value of any trade secret or post a bond
or other security.
(iii) None of the foregoing obligations and
restrictions applies to any part of the Confidential Information that the
Executive demonstrates was or became generally available to the public other
than as a result of a disclosure by the Executive.
(iv) The Executive will not remove from the
Employer's premises (except to the extent such removal is for purposes of the
performance of the Executive's duties at home or while traveling, or except as
otherwise specifically authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form (collectively, the "Proprietary Items").
The Executive recognizes that, as between the Employer and the
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Executive, all of the Proprietary Items, whether or not developed by the
Executive, are the exclusive property of the Employer. Upon termination of this
Agreement by either party, or upon the request of the Employer during the
Employment Period, the Executive will return to the Employer all of the
Proprietary Items in the Executive's possession or subject to the Executive's
control, and the Executive shall not retain any copies, abstracts, sketches, or
other physical embodiment of any of the Proprietary Items.
(b) EMPLOYEE INVENTIONS. Each Employee Invention will
belong exclusively to the Employer. The Executive acknowledges that all of the
Executive's writings, works of authorship, and other Employee Inventions are
works made for hire and the property of the Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, the Executive hereby
assigns to the Employer all of the Executive's right, title, and interest,
including all rights of copyright, patent, and other intellectual property
rights, to or in such Employee Inventions. The Executive covenants that he will
promptly:
(i) disclose to the Employer in writing any
Employee Invention;
(ii) assign to the Employer or to a party
designated by the Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee Invention for the
United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer
such applications, assignments, and other documents as the Employer may request
in order to apply for and obtain patents or other registrations with respect to
any Employee Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to
carry out the above obligations; and
(v) give testimony and render any other
assistance (but without expense to the Executive) in support of the Employer's
rights to any Employee Invention.
7.3 DISPUTES OR CONTROVERSIES. The Executive recognizes that
should a dispute or controversy arising from or relating to this Agreement be
submitted for adjudication to any court, arbitration panel, or other third
party, the preservation of the secrecy of Confidential Information may be
jeopardized. All pleadings, documents, testimony, and records relating to any
such adjudication will be maintained in secrecy and will be available for
inspection by the Employer, the Executive, and their respective attorneys and
experts, who will agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited by them in writing.
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8. NON-INTERFERENCE.
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive hereby
acknowledges that: (a) the services to be performed by him under this Agreement
are of a special, unique, unusual, extraordinary, and intellectual character;
(b) the Employer's business is national in scope and its products are marketed
throughout the United States; (c) the Employer competes with other businesses
that are or could be located in any part of the United States; (d) the Employer
has required that the Executive make the covenants set forth in this Section 8
as a condition to the Employer's willingness to employ the Executive pursuant to
this Agreement; and (e) the provisions of this Section 8 are reasonable and
necessary to protect the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE. In consideration of the
foregoing acknowledgments by the Executive, and in consideration of the
compensation and benefits to be paid or provided to the Executive by the
Employer, the Executive covenants that he will not, directly or indirectly:
(a) whether for the Executive's own account or the
account of any other person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an employee,
independent contractor, or otherwise, any person who is or was an employee of
the Employer at any time during the Employment Period or in any manner induce or
attempt to induce any employee of the Employer to terminate his employment with
the Employer; or (ii) at any time during the Employment Period and for three
years thereafter, interfere with the Employer's relationship with any person,
including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
(b) at any time during or after the Employment
Period, disparage the Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment
Period" means the three-year period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section
8.2 will be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 8.2
is in effect, give notice to the Employer, within ten days after accepting any
other employment, of the identity
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of the Executive's employer. The Employer may notify such employer that the
Executive is bound by this Agreement and, at the Employer's election, furnish
such employer with a copy of this Agreement or relevant portions thereof.
9. GENERAL PROVISIONS.
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Executive
hereby acknowledges that the injury that would be suffered by the Employer as a
result of a breach of the provisions of this Agreement (including any provision
of Sections 7 and 8) would be irreparable and that an award of monetary damages
to the Employer for such a breach would be an inadequate remedy. Consequently,
the Employer will have the right, in addition to any other rights it may have,
to obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement, and the
Employer will not be obligated to post bond or other security in seeking such
relief. Without limiting the Employer's rights under this Section 9 or any other
remedies of the Employer, if the Executive breaches any of the provisions of
Section 7 or 8, the Employer will have the right to cease making any payments
otherwise due to the Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND
INDEPENDENT COVENANTS. The covenants by the Executive in Sections 7 and 8 are
essential elements of this Agreement, and without the Executive's agreement to
comply with such covenants, the Employer would not have entered into this
Agreement or employed or continued the employment of the Executive. The Employer
and the Executive have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer.
The Executive's covenants in Sections 7 and 8 are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise will not excuse the Executive's breach of any
covenant in Section 7 or 8.
If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Sections 7 and 8.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The
Executive represents and warrants to the Employer that the execution and
delivery by the Executive of this Agreement do not, and the performance by the
Executive of the Executive's obligations hereunder will not, with or without the
giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which the Executive is or may
be bound.
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9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE. The obligations of
the Employer hereunder, including its obligation to pay the compensation
provided for herein, are contingent upon the Executive's performance of the
Executive's obligations hereunder.
9.5 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by either party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege, and no
single or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the exercise
of any other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement.
9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
9.7 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand, (b) sent by facsimile, provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses and
facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If to Employer:
Xxxxxxx International, Ltd.
Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chairman of the Board
Facsimile No.: (000) 000-0000
If to the Executive:
Xxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxx X-00
Xxxxxxx, XX 00000
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9.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Stock
Option contain the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof, including without limitation that certain Employment Agreement, dated as
of October 5, 1999, which is hereby terminated and completely superseded by this
Agreement. This Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto.
9.9 GOVERNING LAW. This Agreement will be governed by the laws
of the State of Connecticut without regard to conflicts of laws principles.
9.10 JURISDICTION. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties in the courts of the State of Connecticut,
County of Hartford, or, if it has or can acquire jurisdiction, in the United
States District Court for the District of Connecticut, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on either party anywhere in the world.
9.11 SECTION HEADINGS, CONSTRUCTION. The headings of Sections
in this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding Section or Sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
9.12 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
9.13 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
9.14 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE A
JURY TRIAL IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
XXXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxxxx Xxxxxxx
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Chairman of the Executive Compensation/
Stock Option Committee
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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