Exhibit 10.3
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") effective as of the 1/st/ day of
April, 2003 between Multi-Tech International, Corp. ("MLTI" or the
"Company") and Xxxxx X. Xxxxxxxxx ("Executive").
WHEREAS, the parties desire to enter into this Agreement to reflect their
mutual agreements with respect to the employment of Executive by the
Company.
NOW, THEREFORE, in consideration of the mutual covenants, warranties and
undertakings herein contained, the parties hereto agree as follows:
1. Term.
The employment of Executive under this Agreement shall commence on April
1, 2003 and shall continue through March 31, 2008 (the "Term"), subject to
the terms and provisions of this Agreement. The Term shall be automatically
renewed from year to year unless either party shall give the other written
notice at least thirty (30) days prior to the end of the then current term
of its intention that the then current term is not to renew.
2. Position and Duties.
Executive shall remain in his present position as Chief Financial
Officer, continuing with his current responsibilities for the Company's
Finance, Legal, Facilities, Investor Relations and Human Resources Divisions
as well as other duties to be mutually agreed upon. Executive shall continue
to report directly to the Company's Chief Executive Officer. The Executive
agrees that he will also serve as Chief Executive Officer beginning June 24,
2003 and continue with dual roles until the Board of Directors hires a
CEO/President, at which time the Executive will continue to serve through
the term of this agreement as the Chief Financial Officer. Except for
vacation, personal and sick days in accordance with the Company's policies
for comparable senior executives, Executive shall devote his full time
during the Term to provide services to the Company, its parents,
subsidiaries, affiliates or divisions. The Board of Directors acknowledge
that Xx. Xxxxxxxxx has served ITM,LTD(a Hong Kong company, and all of its
subsidiaries)and affiliates as its COO and Board member and that he has been
promised compensation for prior services, none of which has been paid and
that he may accept payment for those services when and if payment should be
made. He may devote a reasonable amount of time, not to the detriment of
MLTI, since MLTI is now a five percent (5%) joint venture partner, by way of
the Asset Purchase Agreement with AlphaCom, Inc., and ITM LTD is a 95% joint
venture partner. Additionally, it is acknowledged that Xx. Xxxxxxxxx is a
100% shareholder of Mostly Sales Corporation, a family consulting services
company, and will continue to advise that company during the tenure of this
contract, but not to the detriment of MLTI. Also, Xx. Xxxxxxxxx is a member
in HiRoad Investment, LLC and serves as a managing member, and is a member
in Premiere America, LLC, as a founding member and is a minority holder of
interest. None of these entities have provided compensation to date and Xx.
Xxxxxxxxx may accept payment for his services he has rendered, when and if,
the payment is ever made.
Also, Xx. Xxxxxxxxx is encouraged to continue serving church and
community by maintaining his existing positions of Member of the Executive
Committee of The Muscular Dystrophy Association, Northeast Ohio Chapter and
Board Member of Complete Christian Ministry. It is likely that Xx.Xxxxxxxxx
will be asked to serve other Not-for-Profit Organizations and he is encouraged
to do so but not to the detriment of MLTI.
Xx. Xxxxxxxxx has also served as an independent tax advisor and anti-
trust litigation consultant to law firms. He is due certain contingent fees
for these services and may collect these fees if and when paid.
3. Compensation.
(a) Base Salary. Executive's base salary (the "Base Salary") shall be at the
rate of $150,000 per annum for the period April 1, 2003. The Base Salary
shall be increased annually to the cost of living adjustment as published by
the U.S. Department of Labor.
(b) Bonus Compensation.
(i) Signing Bonus.
The Executive shall receive a bonus of $37,500 plus 400,000
restricted common shares of the Company upon Executive's execution
of this Agreement.
(ii) Annual Cash Incentive Bonus.
For the fiscal year ending December 31, 2004, Executive shall be
entitled to a minimum bonus of 50% of the Base Salary in effect on
such date. However, if the Company achieves or exceeds the
Company's Annual Financial Budget as approved by the Board of
Directors for such year, Executive shall be entitled to a minimum
bonus of 100% of the Base Salary in effect on such date. For the
fiscal year ending December 31, 2005, Executive shall be entitled
to a minimum bonus of $75,000. However, if the Company achieves or
exceeds the Company's Annual Financial Budget as approved by the
Board of Directors for such year, Executive shall be entitled to a
minimum bonus of 100% of the Base Salary in effect on such date.
For the fiscal year ending December 31, 2006, Executive shall be
entitled to a minimum bonus of $100,000. However, if the Company
achieves or exceeds the Company's Annual Financial Budget as
approved by the Board of Directors for such year, Executive shall
be entitled to a minimum bonus of 100% of the Base Salary in
effect on such date. For the fiscal year ending December 31, 2007,
Executive shall be entitled to a minimum bonus of $125,000.
However, if the Company achieves or exceeds the Company's Annual
Financial Budget as approved by the Board of Directors for such
year, Executive shall be entitled to a minimum bonus of 100% of
the Base Salary in effect on such date. The Annual Cash Incentive
Bonus shall be earned on the last day of the Company's fiscal
year, and payable when the Company pays bonuses to other Company
executives, but no later than June 30 of the following fiscal
year.
(c) Benefits. During his employment under this Agreement, the Company will
continue to provide Executive with the benefits approved by the Board of
Directors for all executives of the Company.
(d) Automobile. During his employment under this Agreement, the Company will
continue to provide Executive at its expense with the same automobile
benefit approved for all executives by the Board of Directors.
(e) Expense Reimbursement. The Company shall reimburse Executive for the
ordinary and necessary business expenses incurred by him in the performance
of his duties in accordance with the Company's policies and procedures
applied in a manner consistent with the Company's policies.
(f) Stock Options. Upon execution of this Agreement, the Company will grant
to the Executive under the MLTI 2002 Stock Incentive Plan (as the same may
be amended or superseded from time to time, the "Plan"), an option to
purchase 500,000 Ordinary Shares of Multi-Tech International, Corp. The
grant provided for herein will vest in three (5) equal installments on June
30, 2004, June 30, 2005, June 30, 2006, June 30, 2007 and March 31, 2008,
respectively, and will be subject to the terms and conditions set forth
below, in the Plan and any applicable stock option agreement, provided that
any such stock option agreement shall be in the form then used with respect
to employees of the Company generally. If Executive remains in the
Company's employ on March 31, 2008, all options issued to Executive will be
accelerated to vest on that date. Executive agrees that notwithstanding the
terms and conditions of this Agreement, the Plan and any such stock option
agreement, if Executive resigns his employment for any reason, other than
for "Good Reason" as that term is defined in Section 5(a) of this Agreement,
or his employment is terminated for "Cause" as that term is defined in
Section 4(b) of this Agreement, Executive shall no longer have the right to
exercise any of the options granted pursuant to this Section 3(f) or
thereafter which Executive has not exercised as of the date of Executive's
resignation or termination. Executive further understands that (1) the
preceding sentence shall apply regardless of whether the options are "vested"
under the Plan; and (2) all such options will terminate immediately
as of such date.
(g) Taxes. All payments to be made to and on behalf of Executive under this
Agreement will be subject to required withholding of federal, state and
local income and employment taxes, and to related reporting requirements.
4. Termination of Employment.
(a) Death and Disability.
(i) Death. Executive's employment under this Agreement shall
terminate automatically upon his death.
(ii) Disability. The Company may terminate Executive's employment
under this Agreement if Executive is absent from work due to
serious illness or incapacity for a period of at least 180 days
(whether or not consecutive) in any period of 365 consecutive
days.
(b) Cause. The Company may terminate Executive's employment under this
Agreement at any time with Cause (as defined below). For purposes of this
Agreement, "Cause" means the occurrence of any of the following events: (i)
a material breach by Executive of his obligations under this Agreement; (ii)
the commission by Executive of a fraud against the Company or its parents,
subsidiaries, affiliates and divisions or his conviction for aiding or
abetting, or the commission of, a felony or of a fraud or a crime involving
moral turpitude or a business crime; or (iii) the possession or use by
Executive of illegal drugs or prohibited substances, the excessive drinking
of alcoholic beverages on a recurring basis which impairs Executive's
ability to perform his duties under this Agreement, or the appearance during
hours of employment on a recurring basis of being under the influence of
such drugs, substances or alcohol.
5. Consequences of Termination or Breach.
(a) Death: Termination for Cause or Without Good Reason. If Executive's
employment under this Agreement is terminated under Section 4(a)(i) or 4(b),
or Executive terminates his employment for any reason other than for "Good
Reason" (as defined below), Executive shall not thereafter be entitled to
receive any compensation or benefits under this Agreement, other than for
(i) Base Salary earned but not yet paid prior to the date of Executive's
termination of employment with the Company for any reason (the "Termination
Date"), and (ii) reimbursement of any expenses pursuant to Section 3(e)
incurred prior to the Termination Date. For purposes of this Agreement,
"Good Reason" means a material breach by the Company of its obligations
under this Agreement.
(b) Other Terminations. If Executive's employment under this
Agreement is terminated by the Company other than under Section 4(a)(i) or
4(b), or the Company does not renew this Agreement at the end of the Term or
any renewal term, or Executive terminates his employment for Good Reason,
the sole obligations of the Company to Executive shall be to make the
payments described in clauses (i) and (ii) of Section 5(a), and subject to
the Executive providing the Company with the release described below, to
continue to pay Executive's annual Base Salary then in effect, in
substantially equal semimonthly installments, until the end of the Term or
then current renewal term, as applicable, plus one year, which such payments
shall be offset by any compensation and benefits Executive receives from
other employment (including self-employment) and Company sponsored long term
disability during the severance period. If Executive's employment terminates
on any day other than the last day of the Company's fiscal year, Executive
shall be entitled to a pro rata portion of the Annual Cash Incentive Bonus
(if any) that otherwise would have been payable to Executive in respect of
such partial fiscal year, which such bonus shall be payable at the time
referred to in Section 3(b) above.
The Company's obligations to provide the separation payments referred to in
this Section 5(b) shall be contingent upon (A) the Executive having
delivered to the Company a fully executed release (that is not subject to
revocation) of claims against the Company, its subsidiaries, affiliates
(other than Multi-Tech International, Corp.), divisions, directors,
officers, employees, agents and representatives satisfactory in form and
content to the Company's counsel, provided however, that nothing herein
shall be deemed to require Executive to execute a release of (1) Multi-Tech
International, Corp. and (2) Executive's rights to vested benefits Executive
may have under the Company's benefits plans, including without limitation,
the Company's 401(k) plan and (B) Executive's continued compliance with the
terms of Sections 6(a), (b) and (c) of this Agreement. A sample of the form
of release required by the Company is attached as Exhibit A. Executive
agrees that the form may be reasonably modified by the Company to reflect
developments in the law after the date hereof. Executive acknowledges that
and agrees that in the event the Company terminates Executive's employment
in breach of this Agreement (1) Executive's sole remedy shall be to receive
the payments specified in this Section 5(b), (2) if Executive does not
execute the release described above, Executive shall have no remedy against
the Company, its subsidiaries, affiliates (other than Multi-Tech
International, Corp.) and divisions or any of their respective officers,
directors, stockholders, employees or agents with respect to such breach and
(3) Executive hereby waives any other rights he may have against the
Company, its subsidiaries, affiliates (other than Multi-Tech International,
Corp.) and divisions or any of their respective officers, directors,
stockholders, employees or agents for damages arising from such termination,
provided however, that Executive is not hereby waiving any rights he may
have against Multi-Tech International, Corp. Executive also agrees to notify
the Company's Senior Vice President of Human Resources promptly upon his
obtaining other employment or commencing self-employment during any
severance period described in this Section 5(b) and to provide the Company
with complete information regarding his compensation and benefits therein.
6. Certain Covenants and Representations.
(a) Confidentiality. The Executive acknowledges that in the course of his
employment by the Company, the Executive will receive and or be in
possession of confidential information of the Company and its parents,
subsidiaries, affiliates and divisions, including, but not limited to,
information relating to their financial affairs, business methods, strategic
plans, marketing plans, product and styling development plans, pricing,
products, vendors, suppliers, manufacturers, computer programs and software.
The Executive agrees that he will not, without the prior written consent of
the Company, during the period of his employment or thereafter, disclose or
make use of any such confidential information, except as may be required by
law or in the course of Executive's employment hereunder. Executive agrees
that all tangible materials containing confidential information, whether
created by Executive or others which shall come into Executive's custody or
possession during Executive's employment shall be and is the exclusive
property of the Company. Upon termination of Executive's employment for any
reason whatsoever, Executive shall immediately surrender to the Company all
confidential information and property of the Company in Executive's
possession.
(b) Non-Competition. Executive agrees that during the term of his employment
with, and for one year after leaving the employ of the Company, the
Executive will not engage in, or carry on, directly or indirectly, either
for himself or as an officer or director of a corporation or as an employee,
agent, associate, or consultant of any person, partnership, business or
corporation, any business in competition with the business carried on by the
Company and its parents, subsidiaries, affiliates and divisions in any
market in which the Company or its parents, subsidiaries, affiliates, or
divisions actively conduct business; provided, however, that if the Company
elects to enforce this provision, and the Executive is not receiving
separation pay pursuant to Section 5(b) herein, the Company shall pay to the
Executive during the one-year period (in accordance with the Company's then
current payroll practices) at the rate of one-half (1/2) his annual Base
Salary as of the date of his termination. If the Company, at its sole
option, decides not to continue the Executive's one-half (1/2) Base Salary
at any time during the one-year period and the Executive is not otherwise
receiving separation pay pursuant to Section 5(b) herein, this non-
competition provision shall not thereafter be enforceable.
(c) No Hiring. During the two-year period immediately following the
Termination Date, Executive shall not employ or retain (or participate in or
arrange for the employment or retention of) any person who was employed or
retained by the Company or any of its parents, subsidiaries, affiliates and
divisions within the six-month period immediately preceding such employment
or retention.
(d) Remedy for Breach and Modification. Executive acknowledges that the
foregoing provisions of this Section 6 are reasonable and necessary for the
protection of the Company and its parents, subsidiaries, affiliates and
divisions, and that they will be materially and irrevocably damaged if these
provisions are not specifically enforced. Accordingly, Executive agrees
that, in addition to any other relief or remedies available to the Company
and its parents, subsidiaries, affiliates and divisions, they shall be
entitled to seek an appropriate injunctive or other equitable remedy for the
purposes of restraining Executive from any actual or threatened breach of or
otherwise enforcing these provisions and no bond or security will be
required in connection therewith. If any provision of this Section 6 is
deemed invalid or unenforceable, such provision shall be deemed modified and
limited to the extent necessary to make it valid and enforceable.
7. Miscellaneous.
(a) Authority. The Company and Executive each have full power and authority
to execute and deliver this Agreement and to perform their respective
obligations hereunder. This Agreement constitutes the legal, valid and
binding obligation of the Company and Executive and is enforceable against
the Company and Executive in accordance with its terms.
(b) Notices. Any notice or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been
duly given when delivered by hand, by facsimile transmission, by a
nationally recognized overnight delivery service or mailed by certified
mail, return receipt requested, to Executive at his address or to the
Company at the address set forth below or at such other address as Executive
or the Company may specify by notice to the others:
To the Company:
Multi-Tech International, Corp.
000 Xxxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: Chief Executive Officer
To Executive:
Xxxxx X. Xxxxxxxxx
0000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxx 00000
(c) Entire Agreement; Amendment. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter, and is
intended as a complete and exclusive statement of the terms of the agreement
between the parties with respect thereto and may be amended only in writing
signed by both parties hereto.
(d) Waiver. The failure of any party to insist upon strict adherence to any
term or condition of this Agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must
be in writing.
(e) Assignment. Except as otherwise provided in this Section 7(e), this
Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, representatives, successors and assigns.
This Agreement shall not be assignable by Executive and shall be assignable
by the Company only to its parents, subsidiaries, affiliates or divisions,
provided that any assignment by the Company shall not, without the written
consent of Executive, relieve the Company of its obligations hereunder.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of
which together shall constitute the same instrument.
(g) Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of
the Agreement.
(h) Governing Law. This Agreement shall be governed by the law of the State
of Ohio, without regard to its conflict of laws principles.
(i) Arbitration. Any dispute or claim between the parties hereto arising out
of, or, in connection with this Agreement, shall, upon written request of
either party, become a matter for arbitration, provided, however, Executive
acknowledges that in the event of any violation of Section 6 hereof, the
Company shall be entitled to obtain from any court in the State of Ohio,
temporary, preliminary or permanent injunctive relief as well as damages,
which rights shall be in addition to any other rights or remedies to which
it may be entitled. The arbitration shall be before a neutral arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and take place in Cleveland, Ohio. Each party shall bear its own
fees, costs and disbursements in such proceeding. The decision or award of
the arbitrator shall be final and binding upon the parties hereto. The
parties shall abide by all awards recorded in such arbitration proceedings,
and all such awards may be entered and executed upon in any court having
jurisdiction over the party against whom or which enforcement of such award
is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Multi-Tech International, Corp
By: /s/ Dr. Xxxxxx Xxxxx
Name: Dr. Xxxxxx Xxxxx
Title: Member of Board of Directors
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
EXHIBIT A
Dear XXXX:
This letter ("Agreement") sets forth our mutual agreement concerning your
separation from your employment with Multi-Tech International, Corp.,
including its subsidiary and affiliated corporations (other than Multi-Tech
International, Corp.), and their respective successors, assignees,
representatives, agents, shareholders, officers, directors and employees
(the "Company"; provided that for purposes of the following sentence and
paragraphs 4, 5 and 7 hereof, the "Company" shall be deemed to include
Multi-Tech International, Corp.). We have agreed that your employment with
the Company ends for all purposes effective _________, and as of that date,
you cease to accrue any benefits that customarily accrue to the Company's
active employees.
1. Separation Payments. In consideration for your signing this Agreement,
subject to the conditions set forth below, you will receive
_________________, which amount shall be payable in substantially equal
semimonthly installments; all less applicable deductions and withholdings
required by federal, state and local law. You agree that the Company's
obligation to pay you salary continuation shall be reduced by the amount of
the compensation and benefits you are entitled to receive from other
employment (including self-employment) you obtain prior to _________. You
agree to notify the Company's Senior Vice President of Human Resources
promptly upon your obtaining any such other employment or commencing self-
employment, and to provide the Company with complete information regarding
your compensation therein. You acknowledge that you are not entitled to
receive the items provided for in this paragraph and that these items will
be provided to you only if you execute this Agreement and do not revoke your
signature during the seven (7) day period referred to in paragraph 15 below.
You represent that during the term of your employment with the Company you
did not breach your fiduciary duty to the Company.
2. Release. In exchange for providing you with the items described in
paragraph 1 above, you agree to waive any and all claims against the Company
and release and discharge the Company from liability for any and all claims
or damages that you had, have or may have against the Company as of the date
of your execution of this Agreement, whether known or unknown to you,
including but not limited to any claims arising under any federal, state or
local law, rule or ordinance, tort, employment contract (express or
implied), public policy, or any other obligation including any claims
arising under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Older Workers' Benefit
Protection Act, the Civil Rights Act of 1866, the Civil Rights Act of 1991,
the Americans With Disabilities Act, the Family and Medical Leave Act, the
Employee Retirement Income Security Act, the Ohio State Human Rights Law,
the Cleveland, Ohio Human Rights Law and any other labor law, employee
relations, and/or fair employment practice statute, rule or ordinance and
all claims for workers' compensation, wages, monetary or equitable relief,
vacation, other employee fringe benefits, benefit plans or attorney's fees.
This Agreement may not be cited as, and does not constitute any admission by
the Company with respect to any aspect of your employment or termination
therefrom. Nothing herein shall be deemed to release (1) Multi-Tech
International, Corp.; and (2) your rights to vested benefits you may have
under the Company's benefits plans, including without limitation, the
Company's 401(k) plan and SERP.
3. Confidentiality and Cooperation. You agree that you will not disclose or
cause to be disclosed in any way the terms, contents or execution of this
Agreement or the facts and circumstances underlying this Agreement, except
in the following circumstances; (1) to your immediate family provided the
persons to whom the information is to be disclosed are informed of this
paragraph and agree to be bound by it; (2) to your tax adviser, provided
such persons agree to be bound by this paragraph; (3) to your legal counsel;
and (4) pursuant to an order of a court or governmental agency of competent
jurisdiction, or for the purposes of securing enforcement of the provisions
of this Agreement. You also agree that you will cooperate fully with the
Company in connection with any existing or future litigation against the
Company, whether administrative, civil or criminal in nature, in which and
to the extent the Company reasonably deems your cooperation necessary. You
further agree that, in the event you or anyone acting on your behalf, is
served with any subpoena, order, directive or other legal process involving
the Company, you or your attorney shall immediately notify the Company's
Senior Vice President of Human Resources of such service and of the content
of any testimony or information to be provided pursuant to such subpoena,
order, directive or other legal process and within two (2) business days
send to the Company's Senior Vice President of Human Resources via overnight
delivery (at the Company's expense) a copy of said documents served upon
you.
4. Company Property. It is understood and agreed that all books, handbooks,
manuals, files, papers, memoranda, letters, facsimile or other
communications which you have in your possession that were written,
authorized, signed, received or transmitted during your employment are and
remain the property of the Company and, as such, are not to be removed from
the Company's offices. In addition, you acknowledge that you have returned
to the Company all confidential information and property of the Company in
your possession, including the automobile which the Company provided to you
pursuant to Section 3(e) of the Employment Agreement.
5. Future Employment. You agree that you shall not seek reinstatement to
employment with the Company in the future. You hereby waive any rights that
may accrue to you and release the Company from any liability that may arise
against the Company because of any denial of employment, reemployment,
reinstatement or any other remunerative relationship and to hold the Company
harmless for any costs or fees it incurs as a result of your breach of this
paragraph.
6. Enforceability and Severability. It is the intention of the parties that
the provisions of this Agreement shall be enforced to the finest extent
permissible under the laws and public policies of each state and
jurisdiction in which such enforcement is sought, but that the
unenforceability (or the modification to conform with such laws or public
policies) of any provisions hereof, shall not render unenforceable or impair
the remainder of this Agreement. Accordingly, if any provision of this
Agreement shall be determined to be invalid or unenforceable, either in
whole or in part, this Agreement shall be deemed amended to delete or
modify, as necessary, the offending provisions and to alter the balance of
this Agreement in order to render the same valid and enforceable to the
fullest extent permissible. However, the illegality or unenforceability of
any such provision shall have no effect on, and shall not impair the
enforceability of the release language set forth in paragraph 2, provided
that, if a court of competent jurisdiction in an action or proceeding to
which you are a party determines that the release language set forth in
paragraph 2 is unenforceable in any respect, you shall be required to pay to
the Company the value of all amounts paid and benefits provided to you by
the Company under this Agreement, net of taxes paid and not recoverable.
7. Non-Disparagement. You agree not to make, or cause to be made, any
written or oral statements about the Company that may disparage, criticize
or in any way injure the Company.
8. Covenant Not to Xxx. You represent that: (a) you have not filed any
lawsuits against the Company in any court whatsoever; (b) you have not filed
or caused to be filed any charges or complaints against the Company with any
municipal, state or federal agency charged with the enforcement of any law;
and (c) pursuant to and as part of your release of the Company herein, to
the fullest extent permitted by law, you shall not xxx or file a charge,
complaint, grievance or demand for arbitration in any forum or assist or
otherwise participate in any claim, arbitration, suit, action, investigation
or other proceeding of any kind that relates to any matter that involves the
Company that occurred up to and including the date of your execution of this
Agreement. You agree that you will pay all costs and expenses including,
without limitation, attorney's fees incurred by the Company in defending
against any such suit, charge or complaint initiated by you and you
expressly waive any claim to any form of monetary or other damages, or any
other form of recovery or relief in connection with any such action, or in
connection with any action brought by a third party.
9. Breach by You. You acknowledge and agree that if you breach any of your
promises in this Agreement, for example, by filing or prosecuting a lawsuit
or charge based on claims that you have released, such conduct would cause
great damage and injury to the Company and that such provisions provide a
material element of the Company's consideration for and inducement to enter
into this Agreement. Accordingly, it is expressly understood and agreed that
if there is a breach by you (1) the Company may cease providing any payments
and benefits not already provided hereunder; and (2) you must immediately
repay to the Company the value of all payments and benefits previously
received by you under this Agreement as liquidated damages, it being agreed
that the Company's monetary damages in the event of such breach would be
difficult to calculate and that this amount represents a fair approximation
of such damages. You further agree that the Company may, in addition to
these liquidated damages and in addition to pursuing any other remedies that
it may have in law or in equity, obtain an injunction against you from any
court having jurisdiction over this matter, restraining any further
violations of this Agreement.
10. Agreement Not Admissible. The terms of this Agreement, including all
facts, circumstances, statements and documents relating thereto, shall not
be admissible or submitted as evidence in any litigation in any forum for
any purpose, other than to secure enforcement of the terms and conditions of
this Agreement.
11. Binding Effect. This Agreement and all of the provisions hereof shall be
binding upon, and inure to the benefit of, you and the Company and your and
the Company's successors (including successors by merger, consolidation or
similar transactions), permitted assigns, executors, administrators,
personal representatives, heirs and distributees.
12. Headings. The paragraph headings contained in this Agreement are for
convenience of reference only and are not intended to determine, limit or
describe the scope or intent of any provision of this Agreement.
13. Entire Agreement and Applicable Law. This Agreement contains the entire
understanding between you and the Company, and supersedes any and all prior
or contemporaneous understandings and agreements, written or oral,
including, but not limited to, the Employment Agreement, provided, however,
that you agree that Section 6 of the Employment Agreement shall survive in
its entirety. This Agreement shall be interpreted for all purposes under the
laws of the State of Ohio, excluding its choice of laws principles, which
are deemed inapplicable.
14. Waiver. The failure of you or the Company to insist upon strict
adherence to any term of this Agreement on any occasion shall not be
considered a waiver thereof or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
15. Right to Counsel, Effective Date and Amendments
