Contract
Exhibit
10.12
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
(the
“Agreement”), dated as of November __, 2008, by and between MEDIALINK WORLDWIDE
INCORPORATED, a Delaware corporation with offices at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the “Corporation”), and Xxxxxxx X. Xxxxxxxx, an individual
residing at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, XX 00000 (the
“Employee”).
WITNESSETH:
WHEREAS,
the
Corporation desires to continue to retain the services of the Employee upon
the
terms and conditions hereinafter set forth; and
WHEREAS,
the
Corporation and Employee are parties to that certain employment agreement dated
July 11, 2005 (the “Original Employment Agreement”);
WHEREAS,
the
parties desire to amend and restate the Original Employment Agreement in its
entirety in accordance with the resolutions adopted by the Corporation’s
Compensation Committee on April 10, 2007 and November 16, 2007;
WHEREAS,
the
Employee desires to render services to the Corporation upon the terms and
conditions hereinafter set forth.
NOW,
WHEREFORE,
the
parties mutually agree as follows:
Section
1. Employment.
The
Corporation hereby continues to employ the Employee and the Employee hereby
continues to serve as the Chief Financial Officer of the Corporation, subject
to
the terms and conditions set forth in this Agreement.
Section
2. Duties.
The
Employee shall be employed by the Corporation as the Corporation’s Chief
Financial Officer. The Employee shall properly perform such duties as may be
assigned to him from time to time by the Corporation’s Chief Executive Officer
or the Board of Directors of the Corporation as the case may be. During the
term
of this Agreement, the Employee shall devote all of his available business
time
to the performance of his duties hereunder.
Section
3. Term
of Employment.
The
term of the Employee’s employment shall continue as of the date hereof and shall
continue until terminated pursuant to Section 5.
Section
4. Compensation
of Employee.
4.1. Compensation.
As of
July 11, 2008 (the “Effective Date”), the Corporation shall pay to the Employee
as annual compensation for his services hereunder a salary (“Salary”) in an
amount equal to Three Hundred and Fifty Thousand ($350,000) Dollars. The Salary
shall be reviewed every July 11 for merit increases and shall in all events
be
increased on each July 11 by the percentage increase, if any, in the Consumer
Price Index, as defined herein, for the most recent calendar month for which
the
Consumer Price Index has been published over the Consumer Price Index for the
same calendar month in the immediately preceding year. As used herein, the
“Consumer Price Index” shall mean the Consumer Price Index for All Urban
Consumers, New York - Northeastern New Jersey area (1982-84=100) issued by
the
Bureau of Labor Statistics of the United States Department of Labor; provided
that in the event the Consumer Price Index shall hereafter be converted to
a
different standard reference base or otherwise revised, the determination of
the
salary increase shall be made with the use of such conversion factor, formula
or
table for converting the Consumer Price Index as may be published by the Bureau
of Labor Statistics. The Salary shall be payable semi-monthly less such
deductions as shall be required to be withheld by applicable law and
regulations.
4.2. Expenses.
The
Corporation shall pay or reimburse the Employee for all reasonable and necessary
business, travel or other expenses incurred by him with the prior consent of
the
Corporation, upon proper documentation thereof, which may be incurred by him
in
connection with the rendition of the services contemplated
hereunder.
4.3. Benefits.
During
the term of this Agreement, the Employee shall be entitled to participate in
such pension, profit sharing, group insurance, option plans, hospitalization,
group health benefit plans and all other benefits and plans as the Corporation
provides to its employees.
4.4. Discretionary
Payments.
Nothing
herein shall preclude the Corporation from paying the Employee such additional
bonuses or other compensation, as the Board of Directors, in its discretion,
may
authorize from time to time.
4.5. Stock
Options.
Upon
the death or Disability, as hereinafter defined, of the Employee or in the
event
the Employee is terminated without cause, as hereinafter defined, or as a result
of a Change in Control, as hereinafter defined, all stock options granted to
the
Employee, under the Corporation’s Amended and Restated Stock Option Plan,
including non-vested options, shall automatically become vested and immediately
exercisable.
4.6 Bonus.
For
calendar year 2008 and each calendar year thereafter, the Employee shall be
eligible to receive a bonus equal to at least forty percent (40%) of his base
salary, with forty percent (40%) of such bonus based on the Corporation’s
financial performance and sixty percent (60%) of such bonus based on the
Employee’s performance with respect to certain personal objectives, each to be
agreed upon by the Corporation and Employee and set forth on Exhibit A to this
Agreement, as such Exhibit A is amended from time to time. Further, the Employee
may be entitled to an additional bonus based on the satisfaction of certain
objective criteria as set forth on Exhibit B to this Agreement, as may be
amended from time to time. The Corporation’s Chairman and Compensation Committee
shall determine, using commercially reasonable standards, whether Employee
has
earned the bonuses set forth herein based on their relative criteria. Unless
noted otherwise, any bonus, to the extent earned, shall be payable within 120
days of the end of the calendar year to which such bonus
relates.
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Section
5. Termination.
5.1. Termination
of Employment.
This
Agreement shall terminate upon the death, Disability, as hereinafter defined,
termination of employment of the Employee For Cause, as hereinafter defined,
termination of the employment of Employee without cause or because Employee
voluntarily leaves his employment hereunder.
5.2. Termination
For Cause/Voluntary Departure.
In the
event of a termination For Cause or because Employee voluntarily leaves his
employment hereunder, the Corporation shall pay Employee all accrued and unpaid
Salary and vacation through the date of termination. The Corporation shall
have
no further obligation to the Employee hereunder.
5.3. Termination
Without Cause.
In the
event of a termination without cause, the Employee shall be entitled to continue
to participate in the hospitalization, group health benefit and disability
plans
of the Corporation on the same terms and conditions as immediately prior to
his
termination and shall receive his Salary for a period equal to twelve (12)
months.
5.4. Termination
Upon Death.
In the
event of a termination upon the death of Employee, the Corporation shall pay
to
any person designated by the Employee, in writing or, if no such person is
designated, to his estate, the Salary which would otherwise be payable to the
Employee for a period of six (6) months from the date of such death. In the
event of a termination upon the death of Employee, the Corporation shall pay
for
a period of six (6) months after such death, on behalf of the Employee’s
surviving dependents, the COBRA insurance premiums of such
dependents.
5.5. Termination
Upon Disability.
In the
event of a termination upon the Disability of Employee, the Corporation shall
pay to the Employee or any person designated by the Employee during the first
three months immediately after the termination of employment due to such
Disability, the Salary which would otherwise be payable to the Employee. In
addition, the Corporation shall pay the COBRA insurance premiums of the Employee
and his dependents for six (6) months from the date of Disability. The Employee
hereby acknowledges that payments pursuant to this Section 5.5 are in lieu
of
the Employee’s receipt of funds under the Corporation’s Salary Continuation Plan
and that Employee hereby agrees to assign to the Corporation any benefits that
he/she may be entitled to under any disability insurance plans of the
Corporation.
5.6. Definition
of “For Cause”.
As used
herein, the term “For Cause” means (i) the Employee's indictment, plea or
conviction of any criminal violation involving dishonesty, fraud, breach of
trust or any other crime involving moral turpitude which constitutes a felony,
whether or not involving the Corporation; (ii) the Employee's willful engagement
in gross misconduct in the performance of his duties that materially injures
the
Corporation; (iii) the Employee's gross neglect of his duties under this
Agreement; (iv) the Employee's violation of Sections 9 or 10 of this Agreement;
(v) Employee’s habitual drunkenness or habitual use of illegal substances; (vi)
behavior by the Employee which is detrimental to the Corporation's reputation;
(vii) the Employee's willful and continuous failure to substantially perform
his
duties under this Agreement, including but not limited to failure resulting
from
gross insubordination; or (viii) the Employee’s willful actions or willful
omissions which cause the Corporation’s securities filings to be inaccurate,
false or misleading. A termination of Employee pursuant to subparagraph (vii)
shall occur only after the Board provides written notice to the Employee of
his
failure and 10 calendar days’ opportunity to cure such failure. An act of the
Employee will not be deemed "willful" unless done or omitted to be done by
the
Employee not in good faith and without reasonable belief that the act or
omission was in the Corporation's best interests.
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Section
6. Disability
6.1. Definition.
In the
event the Employee is mentally or physically incapable
or unable to perform his regular and customary duties of employment with the
Corporation for a period of ninety (90) days in any one hundred twenty (120)
day
period during the Term, the Employee shall be deemed to be suffering from a
"Disability".
6.2. Payment
During Disability.
In the
event the Employee is unable to perform his duties hereunder by reason of a
disability, which disability does not constitute a Disability, the Corporation
shall continue to pay the Employee his Salary and benefits during the
continuance of such disability. The Employee hereby acknowledges that payments
pursuant to this Section 6.2 are in lieu of the Employee’s receipt of funds
under the Corporation’s Salary Continuation Plan and that Employee hereby agrees
to assign to the Corporation any benefits that he may be entitled to under
any
disability insurance plans of the Corporation.
Section
7. Vacations
and Personal Days.
For
calendar year 2008 and for future years, the Employee shall be entitled to
the
greater of four (4) weeks, or the Employee’s entitlement under the Corporation’s
vacation policy. In addition, the Employee shall be entitled to personal days
in
accordance with the Corporation’s policy. The Employee’s Salary shall be paid in
full during his vacation and personal days. The Employee shall take his vacation
at such time or times as the Employee and the Corporation shall determine is
mutually convenient.
Section
8. Change
in Control.
8.1. Change
in Control Defined.
A
“Change in Control” shall be deemed to occur upon the earliest to occur after
the date of this Agreement of any of the following events;
(a) Acquisition
of Stock by Third Party. Any Person (as hereinafter defined) is or becomes
the
Beneficial Owner (as hereinafter defined), directly or indirectly, of securities
of the Corporation representing fifty (50%) percent or more of the combined
voting power of the Corporation’s then outstanding securities.
(b) Change
in
Board of Directors. The date when Continuing Directors cease to be a majority
of
the Directors then in office;
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(c) Corporate
Transactions. The effective date of a merger or consolidation of the Corporation
with any other entity, other than a merger or consolidation which would result
in the voting securities of the Corporation outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 51% of the combined voting power of the voting securities
of
the surviving entity outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the board of directors or
other governing body of such surviving entity;
(d) Liquidation.
The approval by the shareholders of the Corporation of a complete liquidation
of
the Corporation or an agreement for the sale or disposition by the Corporation
of all or substantially all of the Corporation’s assets; and
(e) Other
Events. There occurs any other event of a nature that would be required to
be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a
response to any similar item on any similar schedule or form) promulgated under
the Exchange Act, whether or not the Corporation is then subject to such
reporting requirement.
8.2. Termination
Following Change in Control.
(a) The
Corporation will provide or cause to be provided to Employee the rights and
benefits described in Section 8.3 if, within twelve (12) months following a
Change in Control, the Corporation terminates the Employee’s employment for
reasons other than as a result of Employee’s death, Disability or For Cause, and
following such termination,
Employee, at the Corporation’s request, shall provide a maximum of 50 hours of
post-termination services for tax return preparation and filing and other
administrative matters.
(b) The
Corporation will provide or cause to be provided to Employee the rights and
benefits described in Section 8.3 if, within twelve (12) months following a
Change in Control, the Employee voluntarily terminates the Employee’s
employment, and following such termination,
Employee, at the Corporation’s request, shall provide a maximum of 50 hours of
post-termination services for tax return preparation and filing and other
administrative matters.;
provided,
however,
that if
the Employee’s employer desires to retain Employee’s employment, and the
Employee voluntarily terminates his employment within less than sixty days
following a Change in Control, then the Employee shall not be entitled to the
rights and benefits described in Section 8.3.
8.3. Payment
on Change in Control.
In the
event of the termination of Employee’s employment under any of the circumstances
set forth in Section 8.2 (“Change in Control Termination”), the Corporation
and/or its successor shall be obligated to pay to the Employee a lump sum in
an
amount equal to the sum of: (i) two (2) times his annual salary at the date
of
the Change in Control; and (ii) the greater of (a) the bonus declared payable
to
the Employee for the immediately preceding calendar year and (b) the bonus
declared payable to the Employee for the current calendar year, in each case
excluding the bonus, if any, awarded to Employee pursuant to Exhibit B. The
payment of the above amount shall be made as soon as practicable after the
Change in Control Termination, but in no event more than thirty (30) days after
such Change in Control Termination and shall be in addition to any other
payments to which the Employee may be entitled pursuant to Sections 4.5, 5
and 6
hereof. In addition, the Corporation shall: (i) continue to allow Employee
to
participate in the hospitalization, group health benefit and disability plans
of
the Corporation for eighteen (18) months from the date of the Change in Control
Termination on the same terms and conditions as immediately prior to such Change
in Control Termination (or provide the equivalent thereof if such plans do
not
allow such participation); and (ii) provide appropriate outplacement services
the cost of which shall not exceed $3,000 as selected by the Employee for up
to
12 months from the date of the Change in Control Termination.
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8.4. Certain
Definitions.
For
purposes of this Section 8, the following terms shall have the following
meanings:
(a) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(b) “Person”
shall have the meaning as set forth in Section 13(d) and 14(d) of the Exchange
Act; provided, however, that Person shall exclude (i) the Corporation, (ii)
any
trustee or other fiduciary holding securities under an employee benefit plan
of
the Corporation, and (iii) any corporation owned, directly or indirectly, by
the
shareholders of the Corporation in substantially the same proportions as their
ownership of stock of the Corporation.
(c) “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act.
(d) “Continuing
Directors” as used in this Agreement shall mean the persons who constitute the
Board of Directors of the Corporation on the date hereof together with their
successors whose nominations were approved by a majority of Continuing
Directors.
Section
9. Disclosure
of Conflicts of Interest; Abstention from Speculation in Securities of the
Corporation or Clients.
9.1. Conflicts
of Interest; Speculation in Securities.
(a) In
order
to avoid actual or apparent conflicts of interest, the Employee shall take
all
necessary actions to disclose to the Corporation any direct or indirect
ownership or financial interest in (i) any company, person or entity which
is a
service provider to the Corporation or (ii) an actual or intended client of
the
Corporation.
(b) While
the
Employee is employed by the Corporation, the Employee shall abstain from
divulging or appropriating to the Employee’s own use or to that of others any
secret, confidential or proprietary information or knowledge regarding the
Corporation, its clients or customers for the purpose of speculation in the
securities of any of them.
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9.2. General
Requirements.
The
Employee shall observe such lawful policies of the Corporation as may from
time-to-time apply.
9.3. Xxxxxxx
Xxxxxxx.
Considering that the Corporation is a publicly-traded corporation, the Employee
hereby agrees that the Employee shall comply with any and all federal and state
securities laws, including but not limited to those that relate to
non-disclosure of information, xxxxxxx xxxxxxx and individual reporting
requirements and shall specifically abstain from discussing the non-public
aspects of the Corporation’s business affairs with any individual or group of
individuals (e.g., Internet chat rooms) who does not have a business need to
know such information for the benefit of the Corporation.
Section
10. Disclosure
of Confidential Information.
10.1. The
Employee hereby acknowledges that the principal business of the Corporation
is
providing video and audio production and satellite and other distribution
services to television and radio stations and Internet sites for corporations
and other organizations seeking to communicate their news to the public;
corporation consultation and production; and distribution of public relations
text, audio and video to news media and the general public via satellite,
streaming media, cassette, wire or other means; distribution of press releases
by the Internet, mail and facsimile; the maintenance of databases of media
contacts for and on behalf of clients; and such other businesses as the
Corporation may conduct from time to time up until the time of termination
of
employment or a date of a Change in Control (the “Business”). Employee
acknowledges that he will be acquiring confidential information concerning
the
Corporation and the Business and that, among other things, his knowledge of
the
Business will be enhanced through his employment by the Corporation. Employee
acknowledges that such information is of great value to the Corporation, is
the
sole property of the Corporation, and has been and will be acquired by him
in
confidence. In consideration of the obligations undertaken by the Corporation
herein, Employee will not, unless required by law, at any time, during or after
the term of this Agreement, reveal, divulge or make known to any person, any
information which is treated as confidential by the Corporation and not
otherwise in the public domain or previously known to him. Employee agrees
that
all materials or copies thereof containing confidential information of the
Corporation in Employee’s custody or possession will not, at any time, be
removed from the Corporation’s premises without prior written consent of an
executive officer of the Corporation (except as reasonably necessary in the
discharge of Employee’s duties hereunder) and shall be delivered to the
Corporation upon the earlier of (i) a request by the Corporation or
(ii) the termination of Employee’s employment with the Corporation. After
such delivery, Employee shall not retain any such materials or copies
thereof.
10.2. Employee
agrees to make full and prompt disclosure to the Corporation of all inventions,
improvements, discoveries, methods, developments, computer software (and
programs and code) and works of authorship, whether or not patentable or
copyrightable, which were or are created, made, conceived or reduced to practice
by Employee or under Employee’s direction or jointly with others during
Employee’s employment by the Corporation or during Employee’s provision of
services as an independent contractor to the Corporation, whether or not during
normal working hours or on the premises of the Corporation (all of which are
collectively referred to in this Agreement as “Developments”).
7
10.3. Employee
also agrees to assign and, by executing this Agreement, Employee does hereby
assign, to the Corporation (or to any person or entity designated by the
Corporation) all of the Employee’s rights, titles and interests, if any, in and
to all Developments and all related patents, patent applications, copyrights
and
copyright applications. However, this Section 10.3 shall not apply to
Developments which (i) do not relate to the present or planned business or
research and development of the Corporation and (ii) are made and conceived
by
the Employee: (A) at a time other than during normal working hours,
(B) not on the Corporation’s premises and (C) not using the
Corporation’s tools, devices, equipment or proprietary information. Employee
understands that to the extent that the terms of this Agreement shall be
construed in accordance with the laws of any state which precludes a requirement
in an employee’s agreement to assign certain classes of inventions made by an
employee, this Section 10.3 shall be interpreted not to apply to any invention
which a court rules and/or the Corporation agrees falls within such class or
classes. Employee also agrees to waive all claims to moral and/or equitable
rights in any Developments.
10.4. Employee
agrees to cooperate fully with the Corporation, both during and after Employee’s
employment with the Corporation, with respect to the procurement, maintenance
and enforcement of copyrights, patents and other intellectual property rights
(both in the United States and foreign countries) relating to Developments.
Employee agrees that he will sign all papers, including, without limitation,
copyright applications, patent applications, declarations, oaths, formal
assignments, assignments of priority rights, and powers of attorney, which
the
Corporation may deem necessary or desirable in order to protect its rights
and
interests in any Development. Employee further agrees that if the Corporation
is
unable, after reasonable effort, to secure Employee’s signature on any such
papers, any executive officer of the Corporation shall be entitled to execute
any such papers as Employee’s agent and attorney-in-fact, and Employee hereby
irrevocably designates and appoints each executive officer of the Corporation
as
Employee’s agent and attorney-in-fact to execute any such papers on Employee’s
behalf, and to take any and all actions as the Corporation may deem necessary
or
desirable, in order to protect its rights and interests in any Development,
under the conditions described in this sentence.
10.5. The
provisions of this Section 10 shall survive Employee’s employment
hereunder.
Section
11. Covenant
Not To Compete.
11.1. Employee
recognizes that the services to be performed by him hereunder are special,
unique and extraordinary. The parties confirm that it is reasonably necessary
for the protection of the Corporation that Employee agrees, and, accordingly,
Employee does hereby agree, that he will not, directly or indirectly, in the
Territory, as hereinafter defined, at any time during the Restricted Period,
as
hereinafter defined:
8
(i) engage
in
the Business for his account or render any services which constitute engaging
in
the Business, in any capacity to any entity; or become interested in any entity
engaged in the Business either on his own behalf or as an officer, director,
stockholder, partner, principal, consultant, associate, employee, owner, agent,
creditor, independent contractor, or co-venturer of any third party or in any
other relationship or capacity; or
(ii) employ
or
engage, or cause to authorize, directly or indirectly, to be employed or
engaged, for or on behalf of himself or any third party, any employee,
representative or agent of the Corporation; or
(iii) solicit,
directly or indirectly, on behalf of himself or any third party, any client
or
vendor, for services competitive with the Business, of the Corporation and
its
affiliates; or
(iv) have
an
interest as an owner, lender, independent contractor, co-venturer, partner,
participant, associate or in any other capacity, render services to or
participate in the affairs of, any business which is competitive with, or
substantially similar to, the Business of the Corporation and its affiliates
as
presently conducted and as may be conducted by the Corporation during the
Restricted Period.
11.2. If
any of
the restrictions contained in this Section 11 shall be deemed to be
unenforceable by reason of the extent, duration or geographical scope thereof,
or otherwise, then after such restrictions have been reduced so as to be
enforceable, in its reduced form this Section shall then be enforceable in
the
manner contemplated hereby.
11.3. This
Section 11 shall not be construed to prevent Employee from owning, directly
or indirectly, in the aggregate, an amount not exceeding two (2%) percent of
the
issued and outstanding voting securities of any class of any corporation deemed
to be competitive with the Corporation whose voting capital stock is traded
on a
national securities exchange or in the over-the-counter market.
11.4. Notwithstanding
anything to the contrary set forth in this Section 11. (i) the Employee
shall not be prohibited from rendering services as a full time
employee for news organizations; (ii) the Employee may render
services for an entity whose primary function is journalism; (iii) the
Employee may render services for the internal public relations department
of any corporation or entity who performs services for only that corporation
or
its affiliates, including parent corporations, subsidiaries, and joint ventures;
and/or (iv) the Employee may provide services for a public relations
agency directly serving that agency’s clients. Notwithstanding the prior
sentence, however, the Employee may not render services, directly or indirectly,
for any organization, department, or affiliate of such news organizations,
corporate public relations departments, or public relations agencies, which
has
a division or affiliate whose primary purpose is to provide services
substantially similar to, or competitive with the Business and which services
represent at least 25% of the organization’s revenue, other than the entities
listed in Exhibit C or their successor.
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11.5. The
term
“Restricted Period”, as used in this Section 11, shall mean (i) the
term of this Agreement plus two (2) years; (ii) in the event of a
termination without cause, the term of this Agreement plus one (1) year from
the
date of termination; or in the event of a Change in Control Termination, the
term of this Agreement. Employee acknowledges that the Corporation markets
its
Business worldwide and therefore, the term “Territory” as used herein shall mean
the entire world.
11.6. The
provisions of this Section 11 shall survive the termination of Employee’s
employment hereunder and until the end of the Restricted Period.
Section
12. Rights
and Remedies Upon Breach of Sections 10 or 11.
12.1. Return
of Benefits.
If the
Employee breaches, or threatens to commit a breach of, any of the provisions
of
Sections 10 or 11 (the “Restrictive Covenants”), the Corporation shall have
the right and remedy to require the Employee to account for and pay over to
the
Corporation all compensation, profits, monies, accruals, increments or other
benefits (collectively, “Benefits”) derived or received by him as the result of
any transactions constituting a breach of the Restrictive Covenants, and the
Employee shall account for and pay over such Benefits to the Corporation. In
addition, if the Employee breaches or threatens to commit a breach of any of
the
Restrictive Covenants, (i) the Employee’s unvested stock options shall
immediately lapse and (ii) the Corporation shall have the right to purchase
from the Employee the Employee’s vested stock options for the book value of the
shares of Common Stock underlying such vested options less the exercise price
of
such vested options. The Corporation may set off any amounts due to the
Corporation under this Section 12.1 against any amounts owed to the
Employee by the Corporation.
12.2. Injunctive
Relief.
Employee acknowledges that the services to be rendered under the provisions
of
this Agreement are of a special, unique and extraordinary character and that
it
would be difficult or impossible to replace such services. Accordingly, Employee
agrees that any breach or threatened breach by him of Sections 10 or 11 of
this Agreement shall entitle the Corporation, in addition to all other legal
remedies available to it, to apply to any court of competent jurisdiction to
enjoin such breach or threatened breach without posting a bond or showing
special damages. The parties understand and intend that each restriction agreed
to by Employee hereinabove shall be construed as separable and divisible from
every other restriction, that the unenforceability of any restriction shall
not
limit the enforceability, in whole or in part, of any other restriction, and
that one or more of all of such restrictions may be enforced in whole or in
part
as the circumstances warrant. In the event that any restriction in this
Agreement is more restrictive than permitted by law in the jurisdiction in
which
the Corporation seeks enforcement thereof, such restriction shall be limited
to
the extent permitted by law.
Section
13. Miscellaneous.
13.1. Assignment.
The
Employee may not assign or delegate any of his rights or duties under this
Agreement.
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13.2. Resignations.
In the
event Employee’s employment is terminated for any reason whatsoever, Employee
shall immediately resign as an officer of the Corporation, its subsidiaries
and
affiliates.
13.3. Entire
Agreement.
This
Agreement constitutes and embodies the full and complete understanding and
agreement of the parties with respect to the Employee's employment by the
Corporation, supersedes all prior understandings and agreements, including
employment agreements, non-compete agreements and confidentiality agreements,
if
any, whether oral or written, between the Employee and the Corporation and
shall
not be amended, modified or changed except by an instrument in writing executed
by the party to be charged. The invalidity or partial invalidity of one or
more
provisions of this Agreement shall not invalidate any other provision of this
Agreement. No waiver by either party of any provision or condition to be
performed shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or any prior or subsequent time.
13.4. Binding
Effect.
This
Agreement shall inure to the benefit of, be binding upon and enforceable
against, the parties hereto and their respective successors and permitted
assigns.
13.5. Captions.
The
captions contained in this Agreement are for convenience of reference only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
13.6. Notices.
All
notices, requests, demands and other communications required or permitted to
be
given hereunder shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, postage prepaid, or
overnight delivery to the party at the address set forth above or to such other
address as either party may hereafter give notice of in accordance with the
provisions hereof.
13.7. Governing
Law.
This
Agreement shall be governed by and interpreted under the laws of the State
of
New York applicable to contracts made and to be performed therein without giving
effect to the principles of conflict of laws thereof. Except in respect of
any
action commenced by a third party in another jurisdiction, the parties hereto
agree that any legal suit, action, or proceeding against them arising out of
or
relating to this Agreement shall be brought exclusively in the United States
Federal Courts or New York County Supreme Court, in the State of New York.
The
parties hereto hereby accept the jurisdictions of such courts for the purpose
of
any such action or proceeding and agree that venue for any action or proceeding
brought in the State of New York shall lie in the Southern District of New
York
or Supreme Court, New York County, as the case may be. Each of the parties
hereto hereby irrevocably consents to the service of process in any action
or
proceeding in such courts by the mailing thereof by United States registered
or
certified mail postage prepaid at its address set forth herein.
13.8. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date set forth
above.
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