EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT 10.2
THIS EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into effective August
16, 2007, by and between XxXxxx Digital Solutions Inc., a corporation duly organized and existing
under the laws of Ontario, Canada, with a place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, XX, Xxxxxx X0X 0X0 (hereinafter referred to as the “Company”), and Xxxxxx Xxxxx, a
resident of the province of Ontario, Canada (hereinafter referred to as “Executive”).
BACKGROUND OF AGREEMENT
| • | The Company desires to employ Executive as its President and Executive desires to accept such employment. |
| • | The Company is a subsidiary of Wireless Ronin Technologies, Inc. (“WRT”). |
| • | This Agreement provides, among other things, for base compensation for Executive, a term of employment and severance payments in the event Executive is terminated without Cause or by reason of a Change of Control of the Company. |
In consideration of the foregoing, the Company and Executive agree as follows:
EMPLOYMENT
Subject to the terms of Articles 3 and 6, the Company agrees to employ Executive as its
President pursuant to the terms of this Agreement, and Executive agrees to such employment.
Executive’s primary place of employment shall be the offices located at 0000 Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, XX, Xxxxxx X0X 0X0.
Executive shall generally have the authority, responsibilities, and such duties as are
customarily performed by a President of a similar size company. Consistent with the
foregoing, the Company may from time to time assign to Executive such other duties relating
to operations and management of the Company as it determines are consistent with Executive’s
experience and senior management level.
Executive shall carry out his duties in a professional and diligent manner and conduct
himself respectfully in his interaction with others. Executive shall report to Xxxxxxx Xxxx,
Chief Executive Officer of WRT and be subject to direction by such officer of WRT or such
other officer as the Board of the Company or WRT shall specify, and shall generally be
subject to direction and advice of such Board.
BEST EFFORTS OF EXECUTIVE
Executive shall use his best efforts and abilities in the performance of his duties,
services and responsibilities for the Company.
During the term of his employment, Executive shall devote substantially all of his
business time and attention to the business of the Company and its subsidiaries and
affiliates and shall not engage in any substantial activity inconsistent with the foregoing,
whether or not such activity shall be engaged in for pecuniary gain, unless approved by the
Board, which approval shall be given if such activities do not violate, or substantially
interfere with his performance of his duties, services and responsibilities under this
Agreement.
TERM AND NATURE OF EMPLOYMENT
Executive’s employment hereunder shall be for an initial term commencing August 16, 2007
and ending on August 15, 2008.
The term of Executive’s employment shall automatically be extended for successive one
(1) year periods commencing on August 16, 2008 unless the Company or Executive elects not to
extend employment, by giving written notice to the other not less than thirty (30) days prior
to the end of the initial term or any extension period. Neither the Company nor Executive
shall be obligated to extend the term of Executive’s employment. ALL PARTIES: NOTE
AUTOMATIC RENEWAL
The terms and conditions of this Agreement may be amended from time to time with the
consent of the Company and Executive. All such amendments shall be effective when
memorialized by a written agreement between the Company and Executive, following approval by
the Company’s Board or the WRT Compensation Committee (the “Committee”).
COMPENSATION AND BENEFITS
During the initial term of employment hereunder, Executive shall be paid a base annual
salary of Two Hundred and Twenty Five Thousand Dollars ($225,000.00) per year (“Base
Salary”), payable in accordance with the Company’s established pay periods, reduced by all
deductions and withholdings required by law and as otherwise specified by Executive. The
Company agrees to review Executive’s performance and compensation annually. Executive’s Base
Salary may be increased (but not decreased) in the sole discretion of the Board. Base Salary
shall not be reduced after any such increase except in connection with Company compensation
reductions applied to all other senior executives of the Company. In the event Executive’s
employment shall for any reason terminate during the Term, Executive’s final monthly Base
Salary payment shall be made on a pro-rated basis as of the last day of the month in which
such employment terminated.
During the term of employment, in addition to payments of Base Salary set forth above,
Executive may be eligible to participate in any performance-based cash bonus or equity award
plan, based upon achievement of individual and/or Company goals established by the Board or
WRT Compensation Committee. Executive’s eligibility for such bonus plans and the extent of
Executive’s participation in those bonus plans shall be within the discretion of the
Company’s Board or WRT’s Compensation Committee.
During the term of employment, Executive may be entitled to participate in employee
benefit plans, policies, programs and arrangements, as the same may be provided and amended
from time to time in the discretion of the Company’s Board or the WRT Compensation Committee.
The Company shall reimburse Executive for all reasonable business and travel expenses
incurred by Executive in carrying out Executive’s duties, services, and responsibilities
under this Agreement. Executive shall comply with generally applicable policies, practices
and procedures of the Company with respect to reimbursement for, and submission of expense
reports, receipts or similar documentation of, such expenses.
VACATION AND LEAVE OF ABSENCE
Vacation and leaves of absence shall be taken in accordance with the Company’s policies
for executive-level employees. Such policies shall be subject to change from time to time.
As of the date of this Agreement and for the 12-month period commencing on the date of this
Agreement, Executive shall annually be entitled to twenty-two (22) business days of paid time
off (“PTO”), in addition to the Company’s normal paid holidays; provided, however, that the
Company will allow the Executive to take statutory holidays prescribed for Ontario instead of
holidays observed by other U.S. based executive managers. The Company furnished Executive
with a copy of its PTO policy
prior to the execution of this Agreement.
TERMINATION
The Company may terminate Executive’s employment upon written notice thereof. In the
event of a termination of Executive without Cause, including a termination by Executive for
Good Reason or a decision by the Company not to renew the employment of the Executive as per
Section 3.02 hereof, Executive shall be entitled to receive: (i) the Severance Payment
provided in Section 6.01 and (ii) the bonus described in Section 6.03.
Executive’s employment will terminate as of the date of the death or Disability of the
Executive. In the event of such termination, there shall be payable to Executive or
Executive’s estate Base Salary earned through the date of death together with a pro-rata
portion of any bonus due Executive pursuant to any bonus plan or arrangement established or
mutually agreed-upon prior to termination, to the extent earned or performed based upon the
requirements or criteria of such plan or arrangement, as the Board shall in good faith
determine. Such pro-rated bonus shall be payable at the time and in the manner payable to
other executives of the Company who participate in such plan or arrangement. For purposes of
this Agreement “Disability” shall mean a determination by the Board of the Company of the
inability of Executive to perform substantially all of his duties and responsibilities under
this Agreement due to illness, injury, accident or condition of either a physical or
psychological nature, and such inability continues for an aggregate of ninety (90) days
during any period of three hundred and sixty-five (365) consecutive calendar days, subject to
applicable human rights laws. Such determination shall be made in good faith by the Board,
the decision of which shall be conclusive and binding.
Any other provision of this Agreement notwithstanding, the Company may terminate
Executive’s employment upon written notice specifying a termination date based on any of the
following events that constitute Cause:
Any conviction, guilty plea or no contest plea by Executive to an indictable
offence or a summary conviction offence which involves gross moral turpitude, or any
public or private conduct or behavior by Executive that has or can reasonably be
expected to have a detrimental effect on the Company and the image of its management;
Any act of material misconduct, insubordination, willful or gross negligence, or
breach of duty with respect to the Company, including, but not limited to,
embezzlement, fraud, dishonesty, nonpayment of an obligation owed to the Company, or
willful breach of fiduciary duty to the Company which results in a material loss,
damage, or injury to the Company;
Any willful material breach of any material provision of this Agreement or of the
Company’s announced or written rules, codes or polices; provided, however, that such
breach shall not constitute Cause if Executive cures or remedies such breach within
thirty (30) days after written notice to Executive, without material harm or loss to
the Company, unless such breach is part of a pattern of chronic breaches of the same,
which may be evidenced by reports or warning letters given by the Company to
Executive, in which case such breach is not deemed curable.
Any unauthorized disclosure of any Company trade secret or confidential
information, conduct constituting unfair competition with respect to the Company,
including or inducing a party to breach a contract with the Company; or
A willful violation of U.S. federal or state or Canadian national or provincial
securities laws.
Executive may terminate his employment upon sixty (60) days prior written notice to the
Company for “Good Reason.” For purposes of this Agreement, “Good Reason” means any of the
following actions taken by the Company without Cause:
the Company or any of its subsidiaries materially reduces Executive’s Base Salary
or base rate of annual compensation, or otherwise materially changes benefits provided
to Executive under compensation and benefit plans, arrangements, policies and
procedures to be as a whole materially less favorable to Executive, other than
reductions in Base Salary permitted under Section 4.01;
the Executive is demoted from his then current office with the Company without
his express written consent;
without Executive’s express written consent, the Company or any of its subsidiaries
requires Executive to change the location of Executive’s job or office, to a location
more than fifty (50) miles from the location of Executive’s job or office immediately
prior to such required change;
a successor company fails or refuses to assume the Company’s obligations under
this Agreement; or
the Company or any successor company breaches any of the material provisions of
this Agreement.
If Executive intends to terminate this Agreement for Good Reason, Executive must give not less than
sixty (60) days written notice to the Company of the facts or events giving rise to Good Reason,
and must give such notice within ninety (90) days following the facts or event alleged to give rise
to Good Reason.
After the initial term described in Section 3.01 hereof, the Executive may terminate his
employment for any reason upon sixty (60) days prior written notice to the Company.
During the term of his employment and for 24 months after the date of Executive’s
termination of employment, (i) Executive shall not, directly or indirectly, make or publish
any disparaging statements (whether written or oral) regarding the Company or any of its
affiliated companies or businesses, or the affiliates, directors, officers, agents, principal
shareholders or customers of any of them and (ii) neither the Company or any of its
directors, or officers shall directly or indirectly, make or publish any disparaging
statements (whether written or oral) regarding Executive. Information which the Company or
Executive is required to make or disclose regarding the other to comply with laws or
regulations, or makes in a pleading on the advice of litigation counsel, shall not constitute
a disparaging statement.
Upon any termination of Executive’s employment with the Company, Executive shall be
deemed to have resigned from all other positions he then holds as an officer, employee or
director or other independent contactor of the Company or any of its subsidiaries or
affiliates, if any, unless otherwise agreed by the Company and Executive.
SEVERANCE PAYMENTS
The Company, its successors or assigns, will pay Executive as severance pay (the
“Severance Payment”) amount equal to twelve (12) months of the Executive’s monthly Base
Salary for full-time employment at the time of Executive’s termination if (i) there has been
a Change of Control of WRT (as defined in Section 6.02), and (ii) Executive is an active and
full-time employee of the Company at the time of the Change of Control, and (iii) within
twelve (12) months following the date of the Change of Control, Executive’s employment is
involuntarily terminated for any reason (including Good Reason (as definition Section 5.04)),
other than for Cause or death or disability. If Executive’s employment is terminated by the
Company without Cause, or by
Executive for Good Reason, other than in connection with a Change of Control, the
Severance Payment shall be limited and equal to twelve (12) months of Executive’s Base
Salary. Nothing in this Section 6.01 shall limit the authority of the Committee or Board to
terminate Executive’s employment in accordance with Section 5.03. Payment of the Severance
Payment pursuant to Section 6.01, less customary withholdings, shall be made in one lump sum
within thirty (30) days of the Executive’s termination or resignation or, at the Company’s
election. No Severance shall be payable if Executive’s employment is terminated due to death
or Disability.
For the purposes of this Agreement, “Change of Control” shall mean any one of the
following:
an acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) of 50% or more of either: (1) the then outstanding Stock; or (2) the combined
voting power of WRT’s outstanding voting securities immediately after the merger or
acquisition entitled to vote generally in the election of directors; provided,
however, that the following acquisition shall not constitute a Change of Control: (i)
any acquisition directly from WRT; (ii) any acquisition by WRT; (iii) any acquisition
by the trustee or other fiduciary of any employee benefit plan or trust sponsored by
WRT; or (iv) any acquisition by any corporation with respect to which, following such
acquisition, more than 50% of the Stock or combined voting power of Stock and other
voting securities of WRT is beneficially owned by substantially all of the individuals
and entities who were beneficial owners of Stock and other voting securities of WRT
immediately prior to the acquisition in substantially similar proportions immediately
before and after such acquisition; or
individuals who, as of the date of this Agreement, constitute the Board (the “Incumbent
Board”), cease to constitute a majority of the Board. Individuals nominated or whose
nominations are approved by the Incumbent Board and subsequently elected shall be
deemed for this purpose to be members of the Incumbent Board; or
approval by the shareholders of WRT of a reorganization, merger, consolidation,
liquidation, dissolution, sale or statutory exchange of Stock which changes the
beneficial ownership of Stock and other voting securities so that after the corporate
change the immediately previous owners of 50% of Stock and other voting securities do
not own 50% of WRT’s Stock and other voting securities either legally or beneficially;
or
the sale, transfer or other disposition of all substantially all of WRT’s assets;
or
a merger of WRT with another entity after which the pre-merger shareholders of
WRT own less than 50% of the stock of the surviving corporation.
A “Change of Control” shall not be deemed to occur with respect to Executive if the
acquisition of a 50% or greater interest in WRT is by a group that includes the Executive, nor
shall it be deemed to occur if at least 50% of the Stock and other voting securities owned before
the occurrence are beneficially owned subsequent to the occurrence by a group that includes the
Executive.
In addition to the Severance Payment, the Company, upon a Change of Control, will pay
Executive a bonus (“Severance Bonus”) in a lump sum within thirty (30) days following a
termination of employment pursuant to 6.01, an amount equal to two (2) times Executive’s
bonus earned for the prior fiscal year or, upon a termination of Executive’s employment
without cause other than in connection with a Change of Control, a Severance Bonus equal to
one and one-half (1.5) times Executive’s bonus earned for the prior fiscal year. The
Severance Bonus payable pursuant to this Section 6.03 shall not, however, exceed Executive’s
target bonus as set forth in any bonus plan or arrangement in which Executive participates at
the time of termination of his employment. The Severance Payment or Severance Bonus shall be
reduced by the amount of cash severance benefits to which Executive may be entitled pursuant
to any other cash severance plan,
agreement, policy or program of the Company or any of its subsidiaries;
provided, however, that if the amount of cash severance benefits payable under such
other severance plan, agreement, policy or program is greater than the amount payable
pursuant to this Agreement, Executive will be entitled to receive the amounts payable under
such other plan, agreement, policy or program which exceeds the Severance Payment or
Severance Bonus payable pursuant to this Section. Without limiting other payments which
would not constitute “cash severance-type benefits” hereunder, any cash settlement of stock
options, accelerated vesting of stock options and retirement, pension and other similar
benefits shall not constitute “cash severance-benefits” for purposes of this Section 6.03.
The Company may withhold from any amounts payable under this Agreement all U.S. federal,
state, city, Canadian national, provincial or municipal or other taxes required by applicable
law to be withheld by the Company.
The provisions of this Article 6 will be deemed to survive the termination of this
Agreement for the purposes of satisfying the obligations of the Company and Executive
hereunder.
NONDISCLOSURE AND INVENTIONS
Except as permitted or directed by the Company or as may be required in the proper
discharge of Executive’s employment hereunder, Executive shall not, during his employment or
at any time thereafter, divulge, furnish or make accessible to anyone or use in any way any
Confidential Information of the Company. “Confidential Information” means any information or
compilation of information that the Executive learns or develops during the course of his/her
employment that is not generally known by persons outside the Company (whether or not
conceived, originated, discovered, or developed in whole or in part by Executive).
Confidential Information includes but is not limited to, the following types of information
and other information of a similar nature (whether or not reduced to writing), all of which
Executive agrees constitutes the valuable trade secrets of the Company: research, designs,
development, know how, computer programs and processes, marketing plans and techniques,
existing and contemplated products and services, customer and product names and related
information, prices sales, inventory, personnel, computer programs and related documentation,
technical and strategic plans, and finances. Confidential Information also includes any
information of the foregoing nature that the Company treats as proprietary or designates as
Confidential Information, whether or not owned or developed by the Company. “Confidential
Information” does not include information that (a) is or becomes generally available to the
public through no fault of Executive, (b) was known to Executive prior to its disclosure by
the Company, as demonstrated by files in existence at the time of the disclosure, (c) becomes
known to Executive, without restriction, from a source other than the Company, without breach
of this Agreement by Executive and otherwise not in violation of the Company’s rights, or (d)
is explicitly approved for release by written authorization of the Company.
Executive acknowledges that all inventions, innovations, improvements, developments,
methods, designs, trade secrets, analyses, drawings, reports and all similar related
information (whether or not patentable) which relate to the Company’s or any of its
subsidiaries’ actual or anticipated business, research and development or existing products
or services and which are conceived, developed or made by Executive while employed by the
Company or any of its subsidiaries (“Work Product”) and all moral rights relating thereto
belong to the Company or such subsidiary. Executive shall promptly disclose such Work
Product to the Board of Directors of the Company and, at the Company’s expense, perform all
actions reasonably requested by the Board (whether during or after employment by the Company)
to establish and confirm such ownership (including, without limitation, assignments,
consents, powers of attorney and other instruments). For purposes of this Agreement, any
Work Product or other discoveries relating to the business of the Company or any subsidiaries
on which Executive files or claims a copyright or files a patent application, within one year
after termination of employment with the Company, shall be presumed to cover and be Work
Product conceived or developed by Executive in whole or in part during the term of his
employment with the Company, subject to proof to the contrary by good faith, written
and duly corroborated records establishing that such Work Product was conceived and made
following termination of employment.
Notwithstanding the foregoing, the Company advises Executive, and Executive understands and
agrees, that the foregoing does not apply to inventions or other discoveries for which no
equipment, supplies, facility or trade secret information of the Company was used and that was
developed entirely on Executive’s own time, and (a) that does not relate (i) directly to the
Company’s business, or (ii) to the Company’s actual or demonstrably anticipated business research
or development, or (b) that does not result from any work performed by Executive for the Company.
In the event of a breach or threatened breach by Executive of the provisions of this
Article 7, the Company shall be entitled to an injunction restraining Executive from directly
or indirectly disclosing, disseminating, lecturing upon, publishing or using such
confidential, trade secret or proprietary information (whether in whole or in part) and
restraining Executive from rendering any services or participating with any person, firm,
corporation, association or other entity to whom such knowledge or information (whether in
whole or in part) has been disclosed, without the posting of a bond or other security.
Nothing herein shall be construed as prohibiting the Company from pursuing any other
equitable or legal remedies available to it for such breach or threatened breach, including
the recovery of damages from Executive.
Executive agrees that all notes, data, reference materials, documents, business plans,
business and financial records, computer programs, and other materials that in any way
incorporate, embody, or reflect any of the Confidential Information, whether prepared by
Executive or others, are the exclusive property of the Company, and Executive agrees to
forthwith deliver to the Company all such materials, including all copies or memorializations
thereof, in Executive’s possession or control, whenever requested to do so by the Company,
and in any event, upon termination of Executive’s employment with the Company.
The Executive understands and agrees that any violation of this Article 7 while employed
by the Company may result in immediate disciplinary action by the Company, including
termination of employment for Cause.
The provisions of this Article 7 shall survive termination of this Agreement
indefinitely.
NON-COMPETITION, NON-INTERFERENCE AND NON-SOLICITATION
In further consideration of the compensation to be paid to Executive hereunder,
including amounts payable to Executive as a Severance Payment, Executive acknowledges that in
the course of his employment with the Company he will become familiar with the Company’s
trade secrets and other Confidential Information concerning the Company and that his services
will be of a special, unique and extraordinary value to the Company, and therefore, Executive
agrees that, during the period of his employment, and for a period of one year following the
end of Executive’s employment term specified in Section 3.01 or any extension thereof, he
shall not directly or indirectly own any interest in, manage, control, participate in,
consult with, render services for, or in any manner engage in any business competing with the
business of the Company, its subsidiaries or affiliates, as defined below and as such
businesses exist or are in the process during the period of his employment on the date of
termination or the expiration of the period his employment, within any geographical area
within Canada or the United States in which the Company or its subsidiaries or affiliates
engage or have defined plans communicated to Executive to engage in such businesses. Nothing
herein shall prevent Executive from being a passive owner of not more than one percent of the
outstanding stock of any class of a corporation which is publicly traded in the United
States, so long as Executive has no participation in the business of such corporation. For
the purposes of this Agreement, “business” or “business of the Company” means, with respect
to and including the Company and its subsidiaries or affiliates, the design, development,
marketing and sale of interactive, e-learning and digital signage products and solutions.
Executive agrees that during the term of his employment and for a period of one (1) year
after the termination of Executive’s employment he will not directly or indirectly (i) in any
way interfere or attempt to interfere with the Company’s relationships with any of its
current or potential customers, vendors, investors, business partners, or (ii) employ or
attempt to employ any of the Company’s employees on behalf of any other entity, whether or
not such entity competes with the Company.
Executive agrees that breach by him of the provisions of this Article 8 will cause the
Company irreparable harm that is not fully remedied by monetary damages. In the event of a
breach or threatened breach by Executive of the provisions of this Article 8, the Company
shall be entitled to an injunction restraining Executive from directly or indirectly
competing or recruiting as prohibited herein, without posting a bond or other security.
Nothing herein shall be construed as prohibiting the Company from pursuing any other
equitable or legal remedies available to it for such breach or threatened breach, including
the recovery of damages from Executive.
The Executive understands and agrees that any violation of this Article 8 while employed
by the Company may result in immediate disciplinary action by the Company, including
termination of employment for Cause.
The obligations contained in this Article 8 shall survive the termination of this
Agreement as described in this Article 8.
MISCELLANEOUS
Governing Law. This Agreement shall be governed and construed according to the
laws of the Province of Ontario without regard to conflicts of law provisions. The Company
and Executive agree that if any action is brought pursuant to this Agreement that is not
otherwise resolved by arbitration pursuant to Section 9.06, such dispute shall be resolved
only in the Superior Court of Justice Ontario, Southwest Region in a court located in the
City of Windsor, Ontario and each party hereto unconditionally (a) submits for itself in any
proceeding relating to this Agreement, or for recognition and enforcement of any judgment in
respect thereof, to the Superior Court of Justice Ontario, Southwest Region and agrees that
all claims in respect to any such proceeding shall be heard and determined in the Superior
Court of Justice Ontario, Southwest Region; (b) consents that any such proceeding may and
shall be brought in such courts and waives any objection that it may now or thereafter have
to the venue or jurisdiction of any such proceeding in any such court or that such proceeding
was brought in an inconvenient court and agrees not to plead or claim the same; waives all
right to trial by jury in any proceeding (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement, or its performance under or the enforcement of
this Agreement; (d) agrees that service of process in any such proceeding may be effected by
mailing a copy of such process by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to such party at its address as provided in Section 9.08; and
(e) agrees that nothing in this Agreement shall affect the right to effect service of process
in any other manner permitted by the laws of the Province of Ontario.
Successors. This Agreement is personal to Executive and Executive may not
assign or transfer any part of his rights or duties hereunder, or any compensation due to him
hereunder, to any other person or entity. This Agreement may be assigned by the Company.
The Company shall require any successor or assignee, whether direct or indirect, by purchase,
merger, consolidation or otherwise, of all or substantially all the business or assets of the
Company, expressly and unconditionally to assume and agree to perform the Company’s
obligations under this Agreement, in the same manner and to the same extent that the Company
would be required to perform if no such succession or assignment had taken place. In such
event, the term “Company,” as used in this Agreement, shall mean the Company as defined above
and any successor or assignee to the business or assets which by reason hereof becomes bound
by the terms and provisions of this Agreement.
Waiver. The waiver by the Company of the breach or nonperformance of any
provision of this Agreement by Executive will not operate or be construed as a waiver of any
future breach or nonperformance under any such provision or any other provision of this
Agreement or any similar agreement with any other Executive.
Entire Agreement; Modification. This Agreement supersedes, revokes and replaces
any and all prior oral or written understandings, if any, between the parties relating to the
subject matter of this Agreement; provided, however, that the Noncompetition Agreement
entered into between Executive and WRT of even date shall, to the extent it relates to any of
the subject matter of this Agreement, be deemed to be an independent obligation of Executive
and be enforceable in accordance with its terms. The parties agree that this Agreement: (a)
is the entire understanding and agreement between the parties; and (b) is the complete and
exclusive statement of the terms and conditions thereof, and there are no other written or
oral agreements in regard to the subject matter of this Agreement. Except for modifications
described in Section 3.01 and Section 4.01, this Agreement shall not be changed or modified
except by a written document signed by the parties hereto.
Severability and Blue Penciling. To the extent that any provision of this
Agreement shall be determined to be invalid or unenforceable as written, the validity and
enforceability of the remainder of such provision and of this Agreement shall be unaffected.
If any particular provision of this Agreement shall be adjudicated to be invalid or
unenforceable, the Company and Executive specifically authorize the tribunal making such
determination to edit the invalid or unenforceable provision to allow this Agreement, and the
provisions thereof, to be valid and enforceable to the fullest extent allowed by law or
public policy.
Arbitration. Any dispute, claim or controversy arising under this Agreement
shall, at the request of any party hereto be resolved by binding arbitration in Ontario,
Canada and if possible conducted in Windsor, Ontario by a single arbitrator selected by the
Company and Executive, with arbitration governed by the Arbitration Act, 1991 (Ontario);
provided, however, that a dispute, claim or controversy shall be subject to adjudication by a
court in any proceeding against the Company or Executive involving third parties (in addition
to the Company or Executive). Such arbitrator shall be a disinterested person who is either
an attorney, retired judge or labor relations arbitrator. In the event the Company and
Executive are unable to agree upon such arbitrator, the arbitrator shall, upon petition by
either the Company or Executive, be designated by a judge of the Superior Court of Justice of
Ontario, Southwest Region. The arbitrator shall have the authority to make awards of damages
as would any court in Ontario having jurisdiction over a dispute between employer and
Executive, except that the arbitrator may not make an award of exemplary damages or
consequential damages. In addition, the Company and Executive agree that all other matters
arising out of Executive’s employment relationship with the Company shall be arbitrable,
unless otherwise restricted by law.
In any arbitration proceeding, each party shall pay the fees and expenses of its
or his own legal counsel.
The arbitrator, in his or her discretion, shall award legal fees and expenses and
costs of the arbitration, including the arbitrator’s fee, to a party who substantially
prevails in its claims in such proceeding.
Notwithstanding this Section 9.06, in the event of alleged noncompliance or violation, as
the case may be, of Sections 7 or 8 of this Agreement, the Company may alternatively
apply to a court of competent jurisdiction for a temporary restraining order,
injunctive and/or such other legal and equitable remedies as may be appropriate.
Legal Fees. If any contest or dispute shall arise between the Company and
Executive regarding any provision of this Agreement, and such dispute results in court
proceedings or arbitration, a party that prevails with respect to a claim brought and pursued
in connection with such
dispute, shall be entitled to recover its legal fees and expenses reasonably incurred in
connection with such dispute. Such reimbursement shall be made as soon as practicable
following the resolution of the dispute (whether or not appealed) to the extent a party
receives documented evidence of such fees and expenses.
Notices. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly given when
personally delivered or may send by certified mail, return receipt requested, postage
prepaid, addressed to Executive at his residence address appearing on the records of the
Company and to the Company at its then current executive offices to the attention of the
Board. All notices and communications shall be deemed to have been received on the date of
delivery thereof or on the third business day after the mailing thereof, except that notice
of change of address shall be effective only upon actual receipt. No objection to the method
of delivery may be made if the written notice or other communication is actually received.
Survival. The provisions of this Article 9 shall survive the termination of
this Agreement, indefinitely.
IN WITNESS WHEREOF the following parties have executed the above instrument the day and year
first above written.
| WIRELESS RONIN TECHNOLOGY, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Xxxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | ||||
| EXECUTIVE |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
