Exhibit 10.59
CHIEF EXECUTIVE OFFICER
EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into as of
May 22, 2001, by and between Eclipse Corporation, a Delaware corporation with
its principal offices located at 00 Xxxx Xxxx, Xxxxxxxxxx, XX 00000 (together
with its successors and assigns, the "Company"), and Xxxxxx X. Xxxxxxx, an
individual residing at 00 Xxxxxxxx Xxx, Xxxxxxx, XX 00000 (the "Executive").
WHEREAS, the Executive is currently employed as President and Chief
Executive Officer by Comet, Inc., a Delaware corporation ("Comet");
WHEREAS, the Executive and Comet entered into an Employment
Agreement, dated January 5, 1999, pursuant to which the Executive has been
employed as the President and Chief Executive Officer of Comet (as so
amended, the "PRIOR AGREEMENT");
WHEREAS, Comet, Comet Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of the Company ("Merger Sub"), and the Company have
entered into an agreement to merge Comet and Merger Sub, with Comet being the
surviving entity (the "Merger"); and
WHEREAS, the Company desires to employ the Executive and has offered
such employment to the Executive, and the Executive desires to be employed by
the Company and has accepted employment by the Company as the Company's Chief
Executive Officer, in accordance with the provisions contained in this
Agreement, such employment to commence on the effective date of the Merger (the
"Effective Date").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. PRIOR AGREEMENT SUPERSEDED. This Agreement shall supersede and
replace in its entirety the Prior Agreement.
2. TERM. The term of this Agreement shall commence on the Effective
Date and end on the second anniversary of the Effective Date (the "Initial
Term") PROVIDED, HOWEVER, that this Agreement shall, at the expiration of the
Initial Term and of any Renewal Term (as defined below) be automatically
extended for an additional one year period (each a "Renewal Term" and, together
with the Initial Term, the "Term") unless the Company gives the Executive at
least 90 days written notice prior to such expiration electing not to so extend
the Term. Notwithstanding the foregoing, the Term of Employment may be earlier
terminated in strict accordance with the provisions of SECTION 6 of this
Agreement.
3. EMPLOYMENT, ACCEPTANCE, DUTIES AND OTHER ACTIVITIES.
3.1. ACCEPTANCE. The Company agrees to employ the Executive
during the Term, and the Executive accepts such employment. As a condition
precedent to the Company's
obligations hereunder, the Executive shall enter into the attached
NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT
with the Company, which is incorporated herein by reference.
3.2. DUTIES. During the Term, Executive shall serve as the
Chief Executive Officer of the Company and of such of the Company's Subsidiaries
as the Company may reasonably request; shall have all authorities, duties and
responsibilities as are inherent in, or incident to, the office[s] of Chief
Executive Officer; shall be assigned no duties or responsibilities that are
materially inconsistent with, or that materially impair his ability to
discharge, the foregoing duties and responsibilities; shall be a member of the
Company Board and a member of the Board of such of the Company's Subsidiaries as
the Company Board may reasonably request; and shall report solely and directly
to the Company Board. All other officers of the Company shall report to
Executive, or to such person(s) as Executive designates from time to time.
3.3. OTHER ACTIVITIES. The Executive shall devote his full
business time and attention and his best efforts to the performance of his
duties as an employee of the Company; PROVIDED, HOWEVER, that the Executive may
also engage in the following activities: (i) serving on the boards of a
reasonable number of business entities, trade associations and/or charitable
organizations; (ii) engaging in charitable activities and community affairs;
(iii) accepting and fulfilling a reasonable number of speaking engagements; and
(iv) managing his personal investments and affairs; PROVIDED that such
activities do not in the aggregate materially interfere with the proper
performance of the Executive's duties and responsibilities as set forth in this
Agreement.
4. COMPENSATION.
4.1 SALARY.
(a) The Company shall pay the Executive during the Term a
salary of $300,000.00 per annum, less all required and authorized withholdings
and deductions. Salary payments shall be made to the Executive in accordance
with the Company's regular pay practices for executives. Effective on the first
anniversary of the Effective Date, and thereafter effective every anniversary of
the Effective Date during the Term, the Board of Directors of the Company (or
its Compensation Committee) shall review and may increase the annual salary of
the Executive to a level that it deems appropriate in its sole discretion.
(b) Notwithstanding the foregoing, as of the anniversary of
the Effective Date for each year during the Term, commencing on the first
anniversary of the Effective Date, the Executive shall be entitled to an
increase in the Executive's salary hereunder based on increases in the cost of
living ("COST OF LIVING SALARY INCREASE") pursuant to a formula using the basis
of such computation the "Revised Consumer Price Index" published by the Bureau
of Labor Statistics of the United States Department of Labor (the "INDEX").
(i) The index number in the column for Boston,
Massachusetts, entitled "all items," for the month of [insert month agreement is
signed] shall be the "CURRENT INDEX NUMBER" and the corresponding Index number
for the immediately preceding [insert month agreement is signed], commencing
with one year after the Effective Date, shall be the "BASE INDEX NUMBER".
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(ii) The Cost of Living Salary Increase shall be
determined according to the following formula: [(Current Index Number DIVIDED BY
Base Index Number) MINUS 1]. The resulting percentage of increase, if any, in
the cost of living, shall be the increase required to be determined pursuant to
this SUBSECTION 4.1(B); PROVIDED, HOWEVER, that any increase based on this
formula shall not be less than five percent (5%) each year.
(iii) In the event that the publication of the Index is
discontinued for any reason, the parties shall utilize comparable statistics of
the cost of living for the City of Boston, Massachusetts, as computed and
published by any agency or instrumentality of the United States of America or by
a responsible financial periodical or recognized authority then to be selected
by the parties.
(iv) In the absence of fraud, any determination made by
the Company's accountants pursuant to this SUBSECTION 4.1(B) shall be conclusive
and binding upon the Company and the Executive.
4.2 BONUS. The Company shall pay the Executive during the Term
a $300,000.00 performance bonus per annum depending on the Executive's
achievement of certain goals to be determined by the Executive and the Company
("PERFORMANCE BONUS"). Effective on the first anniversary of the Effective Date,
and thereafter effective every anniversary of the Effective Date during the
Term, the Board of Directors of the Company (or its Compensation Committee)
shall review and may increase (but may not decrease) the Performance Bonus of
the Executive to a level that it deems appropriate in its sole discretion.
4.3 EMPLOYEE BENEFIT PLANS. During the Term, and otherwise as
provided in this Agreement, the Executive shall be entitled to receive such
benefits and to participate in such benefits plans as are generally provided
from time to time by the Company to its senior management employees; PROVIDED,
HOWEVER, that (a) the benefits provided to Executive and his immediate family
hereunder shall not be of less value to him than are being provided to Executive
and his immediate family on the Effective Date and (b) nothing in this Agreement
shall be construed to obligate the Company to provide any specific benefits to
employees generally. The Executive's participation in all such plans and
programs shall be at a level, on terms and conditions, that are commensurate
with his positions and responsibilities at the Company and no less favorable to
him than to other senior executives of the Company. During the Term of
Employment, no benefit or coverage available to the Executive under any such
plan or program shall be materially reduced without his prior written consent.
The Executive shall be entitled to post-retirement welfare benefits on a basis
no less favorable than that applying to other senior executives of the Company.
4.4 VACATION. The Executive shall be entitled to four (4)
weeks of paid vacation time on an annual basis, or such greater amount of
vacation time as may be provided in accordance with the policies from time to
time adopted by the Company's Board of Directors with respect to its senior
management employees. Such paid vacation must be taken at a time and in a manner
consistent with the duties of the Executive. If in any fiscal year of the
Company
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the Executive takes less than four (4) weeks of paid vacation, he shall be
entitled to add the amount of vacation time not so taken, but not more than two
additional weeks, to the amount of paid vacation to which he is entitled in the
next succeeding year.
4.5 BUSINESS EXPENSES. The Executive shall be entitled to
reimbursement for all reasonable business, promotional and entertainment
expenses incurred in connection with his employment on behalf of the Company or
to further the Company's business. The Company shall promptly reimburse the
Executive for all such expenses, subject to documentation in accordance with
reasonable policies of the Company previously communicated to the Executive by
the Company. The Company shall also promptly reimburse the Executive (a) for all
reasonable expenses (including, without limitation, reasonable fees and other
charges of an attorney acceptable to the Company) incurred by him in connection
with the negotiation and documentation of these employment arrangements and (b)
for annual financial, estate and tax counseling that the Executive may choose to
obtain from professional providers of such services, in an amount not to exceed
$25,000 for any fees incurred prior to December 31, 2001, and in an amount not
to exceed $10,000 for each calendar year thereafter.
5. STOCK OPTIONS
5.1 OPTIONS GRANT. On the Effective Date, the Executive will
receive stock options to purchase 1,000,000 (one million) shares of the common
stock of the Company, $0.001 par value per share (the "Options"; "Common
Stock"). To the maximum extent possible under applicable tax rules and
regulations then in effect, the Options will be incentive stock options within
the meaning of section 422(b) of the Internal Revenue Code of 1986, as amended,
for federal income tax purposes, and the balance, if any, of the Options will be
non-qualified stock options.
5.2 EXERCISING OPTIONS. The Options will be issued with an
exercise price per share equal to the fair market value of the Common Stock (as
determined in accordance with the provisions of the stock option plan under
which the Options are issued) as of the Effective Date. Any or all exercises by
the Executive of such options may be by (a) cash payment, (b) "cashless
exercise," (c) tender of shares of the Company's stock which the Executive
already holds, or (d) by delivery of a promissory note of the Executive bearing
interest at a rate not less than the "Applicable Federal Rate" under section
1274(d) of the Internal Revenue Code as of the date of such exercise and with a
repayment term determined by the Executive but not to exceed five (5) years.
5.3 VESTING OF OPTIONS.
(a) The Options shall have a term of ten (10) years and will
vest over a 4 year period, in 8 equal semi-annual installments commencing six
months after the date of grant, except that 100% of the Options shall vest
immediately upon the Executive's death, Disability (as hereinafter defined),
voluntary termination within 180 days of an Event of Constructive Termination
(as hereinafter defined) or Termination Without Cause (as hereinafter defined).
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Additionally, all unvested Options and any outstanding,
unvested options to purchase Company Stock held by the Executive as of the
Effective Date shall vest immediately upon a subsequent sale of the Company or a
Change of Control (as hereinafter defined).
(b) The Options will terminate immediately if the Executive's
employment is terminated by the Company for Cause or if the Executive
voluntarily terminates his employment as Chief Executive Officer with the
Company.
(c) Notwithstanding anything to the contrary in this Agreement
or in any applicable Company option plan agreement, in the event that the
Executive's employment is terminated by the Company without Cause (as
hereinafter defined) or if the Executive dies or suffers a Disability (as
hereinafter defined) during the Term, the options which have vested as of the
date of termination, death or the Disability Termination Date (as hereinafter
defined) will remain exercisable until the earlier of (i) one year after
termination or the Disability Termination Date, or two years after death, and
(ii) the original expiration date of the option term..
(d) In the case of a conflict or ambiguity between the
provisions of this Agreement and the provisions of any Company stock option plan
or agreement under which stock options on Company stock are or have been issued
to the Executive, the provisions of this Agreement shall prevail.
5.4 MISCELLANEOUS.
(a) With respect to protection against dilution, the Executive
will not be treated any differently than any current stockholder; PROVIDED,
HOWEVER that the Company's Compensation Committee shall make an appropriate
adjustment to the Executive's Options to reflect any stock split, stock
dividend, reverse stock split, recapitalization or other event that dilutes the
stockholders generally.
(b) The Company anticipates that the Board may issue further
options to employees, including officers, as dictated by the interests of the
Company.
(c) Nothing contained in this Agreement shall preclude the
granting of additional stock options to the Executive in the discretion of the
Company's Board of Directors or Compensation Committee.
6. Termination of Employment.
6.1 DEFINITION OF TERMS
(a) The SEVERANCE AMOUNT shall be equal to the sum of (i) the
Executive's then-current monthly salary multiplied by twelve (12) plus (ii) one
hundred (100) percent of the maximum Performance Bonus and Additional
Performance Bonus amounts, including without limitation any and all commissions,
pursuant to existing compensation agreements in effect for the year in which
such termination occurs which the Executive could have earned if he remained in
the employ of the Company and all performance goals and other criteria were met
(whether or not such goals or criteria are in fact met), plus (iii) all
compensation owing hereunder to the
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Executive as of the date of his termination, plus (iv) all accrued benefits
under any retirement plan adopted by the Company for the benefit of its
employees.
(b) The SEVERANCE BENEFITS shall be all allowances and
benefits, including, but not limited to, medical and dental insurance benefits;
PROVIDED, HOWEVER, that if, and only if, the allowances and benefits being
provided to the Executive on the date the Executive terminates cannot be
provided under the terms of such plans (and such plans cannot be amended by the
Board of Directors of the Company to provide such benefits and allowances
without adversely affecting the tax treatment thereof to the Company or the
participants thereunder), the Company shall pay to the Executive, his spouse,
his estate or his legal representative, as the case may be, the value of such
allowances and benefits in a lump sum payment within thirty (30) days after the
date the Executive terminates.
6.2 TERMINATION UPON DEATH.
(a) The Term of employment of the Executive under this
Agreement shall terminate upon the death of the Executive. Following the death
of the Executive while he is employed by the Company, but in no event later than
the thirtieth (30th) day following the date of his death, the Company shall make
a lump sum cash Severance Amount payment to his surviving spouse, if she
survives him, or to his estate if his spouse does not survive him.
(b) In addition to the Severance Amount payable pursuant to
SUBSECTION 6.2(a), the Company shall provide Severance Benefits to the
Executive's surviving spouse, if any, for twelve (12) months following the date
of the Participant's death.
6.3 TERMINATION UPON DISABILITY.
(a) If, during the Term of his employment, the Executive
suffers a Disability (as hereinafter defined) for a period of three (3)
consecutive months or more, the Company may, after the expiration of such
three-month period and prior to the Executive resuming his full-time duties
hereunder, terminate the employment of the Executive upon prior written notice
to the Executive which notice shall specify a date (which may be the date of
such notice or any later date) as of which such termination is to become
effective (the "DISABILITY TERMINATION DATE"). Subsequent to the Disability
Termination Date, the Executive or his legal representatives shall be entitled
to receive any benefits which may be payable under all disability insurance
policies and disability plans provided by the Company, without offset for any
other insurance or disability payments to which the Executive may be entitled
under insurance policies owned by him.
(b) In addition to the benefits payable pursuant to SUBSECTION
6.3(A), within thirty (30) days following the Disability Termination Date, the
Company shall pay the Executive or his legal representatives the Severance
Amount and shall provide Severance Benefits for twelve (12) months following the
Disability Termination Date.
(c) For purposes of this SUBSECTION 6.3, "DISABILITY" shall
mean any mental or physical condition or incapacity which prevents the Executive
from substantially discharging his duties and responsibilities as an officer of
the Company. In the event of a disagreement between the Company and the
Executive as to whether the Executive suffers from a Disability, the Executive
shall submit to the physical or mental examination of a physician licensed under
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the laws of the State of Massachusetts who shall be mutually selected by the
Executive (or his legal representative) and the Company, and such physician
shall make the determination of whether the Executive suffers from any
Disability. In the absence of fraud or bad faith, the determination of such
physician shall be final and binding upon the Company and the Executive. The
entire cost of any such examination shall be borne by the Company.
6.4 TERMINATION FOR CAUSE. In the event of termination of the
Executive's employment for Cause, all compensation of the Executive and any
other rights the Executive may have under this Agreement shall cease upon the
termination date of his employment, the Executive shall receive no Severance
Amount, no Severance Benefits and no further payments or benefits shall be paid
or payable to the Executive by the Company for any period thereafter, except to
the extent that Executive shall have accrued benefits under any retirement plan
adopted by the Company for the benefit of its employees and except for all
compensation owing hereunder to the Executive as of the date of termination for
Cause. For purposes of this Agreement, "CAUSE" shall only mean the Executive's
conviction of criminal conduct constituting a felony offense, other than a
traffic offense, during the Term.
6.5 VOLUNTARY TERMINATION BY EXECUTIVE.
(a) The Executive may voluntarily terminate his employment at
any time upon ninety (90) days written notice to the Company. In such case, the
Executive shall receive no Severance Amount, no Severance Benefits and no
further payments or benefits shall be paid or payable to the Executive by the
Company for any period after such termination of employment, except to the
extent that Executive shall have accrued benefits under any plan adopted by the
Company for the benefit of its employees generally and except for all
compensation owing hereunder to the Executive as of the date of voluntary
termination.
(b) Notwithstanding the foregoing, within 180 days after an
Event of Constructive Termination (as hereinafter defined) the Executive may
voluntarily terminate employment and within thirty (30) days thereafter, the
Company shall pay the Executive (i) the Severance Amount, and (ii) Severance
Benefits for a period of twelve (12) months. An "EVENT OF CONSTRUCTIVE
TERMINATION" shall mean (v) a relocation of the Executive's principal workplace
to a location more than 20 miles from the location of such workplace on the
Effective Date without the Executive's express written consent; (w) an
assignment to the Executive of duties or responsibilities inconsistent with his
position as set forth in Section 3.2 hereof or inappropriate to the Chief
Executive Officer of the Company; (x) a failure to appoint or reelect the
Executive to the Board of Directors of the Company or a requirement that the
Executive report to an individual or group other than the Company Board of
Directors; (y) a reduction in the Executive's compensation or benefits without
the express written consent of the Executive; or (z) delivery of written notice
by the Company that the Term of the Agreement will not be extended in accordance
with Section 2 hereof.
6.6 TERMINATION BY THE COMPANY DUE TO A CHANGE IN CONTROL.
(a) If the Company terminates the Executive's employment
within twelve (12) months after a Change in Control (as hereinafter defined),
the Executive shall receive the Severance Amount payable in one lump sum on the
effective date of such termination and the Severance Benefits for a period of
twelve (12) months following the termination of the Executive's employment.
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(b) For purposes of this Agreement, a "CHANGE OF CONTROL"
shall mean: (i) the acquisition by an individual, entity, group or any other
person of beneficial ownership of thirty-five percent (35%) or more of either
(x) the then-outstanding shares of common stock of the Company or (y) the
combined voting power of the election of directors for the Company; and/or (ii)
the sale of substantially all of the Company's assets or a merger or sale of
stock wherein the holders of the Company's capital stock immediately prior to
such sale do not hold at least a majority of the outstanding capital stock of
the Company or its successor immediately following such sale; and/or (iii)
individuals who, as of the date hereof, constitute the Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board of Directors; provided, however, that any individual becoming a director
subsequently to the date hereof whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as result
of an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board of Directors.
(c) The Company shall require any successor via a Change in
Control (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
6.7 TERMINATION WITHOUT Cause. In the event that the
Executive' employment under this Agreement is Terminated Without Cause (as
hereinafter defined), the Company shall pay the Executive, on the date of such
termination, the Severance Amount as well as the Severance Benefits for a period
of twelve (12) months. TERMINATION WITHOUT CAUSE shall mean any termination of
Executive's employment under this Agreement, other than (a) termination upon
death in accordance with SECTION 6.2, (b) termination upon Disability in
accordance with SECTION 6.3, (c) termination for Cause in accordance with
SECTION 6.4, (d) voluntary termination by the Executive in accordance with
SECTION 6.5, or (e) termination by the Company due to a Change in Control in
accordance with SECTION 6.6.
7. INDEMNIFICATION.
7.1 The Company agrees that (i) if the Executive is made a
party, or is threatened to be made a party, to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee, agent, manager, consultant or
representative of the Company or Comet, or is or was serving at the request of
the Company or Comet, or in connection with his service under this Agreement or
the Prior Agreement, as a director officer, employee, agent, manager, consultant
or representative of another person, or (ii) if any claim is made, or is
threatened to be made, that arises out of or relates to the Executive's service
in any of the foregoing capacities, then the Executive shall promptly be
indemnified and held harmless by the Company to the fullest extent
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legally permitted, or authorized, by the Company's certificate of incorporation,
bylaws or other organization documents or Board resolutions, against any and all
costs, expenses liabilities and losses (including, without limitation,
judgments, interest, expenses of investigation, penalties, fines, ERISA excise
taxes or penalties, reasonable attorneys' fees, and amounts paid or to be paid
in settlement) incurred or suffered by Executive in connection therewith and
such indemnification shall continue as to the Executive even if he has ceased to
be a director, officer, employee, agent, manager, consultant or representative
of the Company or Comet and shall insure to the benefit of the Executive's
heirs, executors, administrators and legal representatives.
7.2 The Company agrees to advance to the Executive all costs
and expenses incurred by him in connection with any event described in this
SECTION 7 to the fullest extent legally permitted, or authorized, by the
Company's certificate of incorporation, bylaws or other organization documents
or Board resolutions within fifteen (15) days after receiving written notice
requesting such an advance, which notice (a) shall include an undertaking by the
Executive to repay the amount advanced if he is ultimately determined not to be
entitled to indemnification against such costs and expenses and (b) shall be
accompanied by reasonable documentation of the costs and expenses for which
advancement is sought. No amendment by the Company at any time on or after the
Effective Date of the provisions of the Company's certificates of incorporation
or bylaws shall be effective to reduce any of the Executive's rights to
indemnification, or advancement of costs and expenses, under this SECTION 7.
7.3 During the Term and for a period of six (6) years
thereafter, a directors and officers' liability insurance policy (or policies)
shall be kept in place providing comprehensive coverage to the Executive to the
extent that such coverage is then provided by the Company for any other present
or former senior executive or director of the Company with respect to such
senior executive's or director's service as such.
7.4 The provisions of this section shall survive the
termination or expiration of this Agreement, irrespective of the reasons for
such termination or expiration.
8. ARBITRATION OF DISPUTES. The parties hereto shall use their best
efforts to settle amicably any disputes, differences, or controversies arising
between them arising out of or in accordance with this Agreement. However, in
the event any such disputes, differences, or controversies are not so settled,
the same shall be submitted to, and finally settled by, arbitration in
accordance with the Rules of American Arbitration Association by one or more
arbitrators appointed in accordance with said Rules. Arbitration initiated by
either party shall be held in Boston, Massachusetts. The arbitrator(s) shall
have the power to award attorneys' fees to the prevailing party in their sole
discretion. Judgment upon the award rendered by the arbitrator(s) may be entered
in any court having jurisdiction or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the case may
be.
9. ATTORNEYS' FEES. In the event a party seeks to enforce any provision
of this Agreement and receives injunctive relief or other equitable relief from
a court of competent jurisdiction which is final and not subject to appeal, such
party shall be entitled to recover its reasonable attorneys' fees and costs
incurred with respect to obtaining such relief from the other party. The
provisions of this section are not intended to modify the provisions of SECTIONS
7 AND 8 hereof.
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10. OTHER PROVISIONS.
10.1 AMOUNTS PAYABLE LESS WITHHOLDING TAXES. The amounts
payable by the Company hereunder shall be less any federal, state or local
withholding taxes and social security.
10.2 EXCISE TAX. To the extent that payments or other benefits
to the Executive pursuant to this Agreement (together with any other payments,
benefits or stock awards received by the Executive in connection with a Change
in Control) would result in triggering the provisions of the Sections 280G and
4999 of the Internal Revenue Code of 1986, as amended, or other comparable
federal, state or local tax laws, the Company shall pay the Executive such an
additional amount as is necessary (after taking into account all federal, state
and local taxes (including any interest and penalties imposed with respect to
such taxes) , including any income or excise tax payable by Executive as a
result of the receipt of such additional amount) to place Executive in the same
after-tax position (including federal, state and local taxes) he would have been
in had no such excise or similar purpose tax been paid or incurred. Such payment
shall be determined by independent accountants agreed upon by the Company and
the Executive and shall be made as soon as practicable after the time that any
payments set forth in SECTION 6 hereof are due.
10.3 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed given when delivered
personally or sent by facsimile transmission (with confirmation) or, if sent by
regular mail, three days after the date of deposit in the United States mails
addressed as follows:
(a) if to the Company, to: eXcelon Corporation
-------------------
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
with copy to:
-----------, Esq.
-----------
Telecopier No.: __________
(b) if to the Executive, to: Xxxxxx X. Xxxxxxx
-----------
-----------
Telecopier No.: __________
with copy to:
-----------, Esq.
-----------
-----------
Telecopier No.: __________
or to such other address as either party may from time to time provide to the
other by notice as provided in this section.
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10.4 BENEFICIARIES/REFERENCES. The Executive shall be
entitled, to the extent permitted under applicable law, to select and change a
beneficiary or beneficiaries to receive any compensation or benefit under this
Agreement, following the Executive's death by giving the Company written notice
thereof. In the event of the Executive's death or a judicial determination of
his incompetence, references in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, transferee, estate or other
legal representative.
10.5 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the Company and the Executive, and
supersedes all prior negotiations, agreements (including the Prior Agreement),
arrangements, and understandings, both written or oral, between the Company and
the Executive with respect to the subject matter and the Term of this Agreement.
10.6 WAIVER OR AMENDMENT.
(a) The waiver by either party of a breach or violation of any
term or provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach or violation of any provision of
this Agreement or of any other right or remedy.
(b) No provision in this Agreement may be amended unless such
amendment is set forth in a writing that specifically refers to this Agreement
and is signed by the Executive and the Company.
10.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
without regard to its conflict of laws rules.
10.8 ASSIGNMENT. This Agreement shall inure to the benefit of,
and shall be binding upon, each of the Company and the Executive and their
respective heirs, personal representatives, legal representatives, successors
and assigns.
10.9 SEVERABILITY. The invalidity of any one or more of the
words, phrases, sentences, clauses or sections contained in this Agreement shall
not affect the enforceability of the remaining portions of this Agreement or any
part hereof. If any part of this Agreement shall be declared invalid by a court
of competent jurisdiction, this Agreement shall be construed as if such invalid
part had not been inserted.
10.10 SECTION HEADINGS. The section and subsection headings
contained in this Agreement are for reference purposes only and shall not affect
any way the meaning, construction or interpretation of any or all of the
provisions of this Agreement.
10.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the separate parties hereto in separate
counterparts, each of which shall be deemed to constitute an original and all of
which shall be deemed to be one and the same instrument.
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10.12 AUTHORITY TO EXECUTE. The undersigned officer represents
and warrants that he has full power and authority to enter into this Agreement
on behalf of the Company, and that the execution, delivery and performance of
this Agreement have been authorized by the Board of Directors of the Company.
Upon the Executive's acceptance of this Agreement by signing and returning it to
the Company, this Agreement will become binding upon the Executive and the
Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
EXECUTIVE ECLIPSE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------- ---------------------
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
---------------------
Title:
Date: 5/22/01 --------------------
--------- Date:
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