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EXHIBIT 10(C)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 6th day of
February, 1998 (the "Effective Date") by and between Enterprise Systems Group,
Inc., a New York corporation ("Employer"), and Xxxxxxx X. Xxxxxxxxx, an
individual domiciled in the State of Colorado ("Employee").
W I T N E S S E T H
WHEREAS, Employer is a provider of computer software and services to
the electronic media industry, primarily in North and South America; and
WHEREAS, Employer believes that it would benefit from the application
of Employee's particular and unique skill, experience, and background to the
Employer's business and business concept; and
WHEREAS, Employee wishes to commit to serve Employer in the position
set forth herein on the terms herein provided;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
terms and conditions set forth in this Agreement, and for other good and
valuable consideration, Employer and Employee hereby agree, effective as of the
Effective Date (as defined below), as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, as the Group Chief Executive Officer. Employee agrees to
devote Employee's full time, attention, energy, skill, loyalty and best efforts
to perform Employee's duties as the Group Chief Executive Officer. The Chief
Executive Officer and/or the Board of Directors of Employer (the "Board") may
time to time further define and clarify Employee's duties and services
hereunder, and Employee also hereby agrees to perform such redefined and/or
clarified duties in accordance with the provisions of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall expire on May 23, 2003 (the "Employment Term").
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3. Compensation and Related Matters.
(a) Base Salary. As compensation for performing the services required
by this Agreement during the Employment Term, and beginning April 1, 1998,
Employer shall pay to Employee an annual salary of no less than Two Hundred
Fifty Thousand Dollars ($250,000) ("Base Compensation") , payable in accordance
with the general policies and procedures for payment of salaries to its Employee
personnel maintained, from time to time, by Employer (but no less frequently
than monthly), subject to withholding for applicable federal, state, and local
taxes. Increases in Base Compensation, if any, shall be determined by the
Compensation Committee (the "Committee") of the Board, based on periodic reviews
of Employee's performance conducted on at least an annual basis.
(b) Bonus. In addition to Base Compensation, the Employee shall be
entitled to receive a cash bonus (a "Performance Bonus Distribution") in an
amount to be determined by the Board and the Committee in their sole and
absolute discretion based upon achievement of both corporate and individual
performance goals and objectives. Such goals and objectives shall be established
by the Board or the Committee in writing on an annual basis. Each fiscal year,
upon establishment of the goals and objectives by the Board and the Committee,
the actual amount of the potential bonus to be earned and the criteria for
earning it will be set forth in writing. The achievement of such goals and
objectives and the payment of any bonus shall be determined by the Board and the
Committee, provided, however, that if it is determined by the Board and the
Committee that the employee attained the required goals and objectives, the
bonus shall be paid.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Employee and
Employee's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Employee) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other Employee officers of Employer. If the participation of Employee
would adversely affect the qualification of a plan intended to be qualified
under Section 401(a) of the Internal Revenue Code as the same may be amended
from time to time (the "Code"), Employer shall have the right to exclude
Employee from that plan in return for Employee's participation in (i) a
nonqualified deferred compensation plan or (ii) an arrangement providing
substantially comparable benefits under a plan that is either a qualified or
nonqualified under the Code, at Employer's option.
(d) Vacations. During the Employment Term, Employee
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shall be entitled to vacation in accordance with Employer's practices, as such
practices may be amended or modified from time to time by Employer, provided
that Employee shall be entitled to four (4) weeks paid vacation in each full
fiscal year. Employee may not accrue unused vacation time and shall not be
entitled to payment for vacation time not used in any fiscal year.
Notwithstanding the foregoing, Employee shall be entitled to use during the term
of this Agreement any vacation time accrued prior to the Effective Date.
Employee shall be entitled to a payment for any vacation time which has accrued
in a fiscal year but has not been used as of the date of the termination of
Employee's employment with Employer, unless Employee's employment is terminated
pursuant to Section 5(a)(ii) hereof.
(e) Business Expenses. Employer shall reimburse Employee for
reasonable and necessary business expenses, in accordance with Employer's
policies and upon presentation of appropriate documentation.
4. Stock Options. IndeNet, Inc. has established a stock option plan (the
"Stock Option Plan") which provides, among other things, for the issuance of
options to purchase stock of IndeNet, Inc. from time to time to certain
officers, directors and other employees of IndeNet, Inc. and its subsidiaries,
including Employee. On the Effective Date, pursuant to the Stock Option Plan,
IndeNet, Inc. shall grant to Employee the option to purchase Three Hundred
Thousand (300,000) shares of IndeNet, Inc. stock ("Options") according to such
terms and conditions as are set forth in the Stock Option Plan and the Option
Agreement to be entered into between IndeNet, Inc. and Employee in connection
with the award of such Options in accord with paragraph 7 of the Stock Option
Plan. Such Options granted to Employee shall vest immediately upon (i) the death
or disability of Employee, (ii) upon termination of this Agreement and
Employee's employment by Employer for any reason other than a termination for
cause or (iii) in the event of a Change in Control (as defined in Section
5(a)(iv)herein). In the case of termination of this Agreement and Employee's
employment (x) by Employee or (y) for cause (as defined in Section 5(a)(ii)
herein), all unvested Options shall be forfeited by Employee, but Employee shall
have the right to exercise within the time period provided for in the Stock
Option Plan all Options vested prior to such termination for cause.
5. Termination and Termination Benefits.
(a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and
Employee's employment at any time for any reason or for no reason at
all upon thirty (30) days, prior written notice to Employee following
notice of termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(i), Employee (A) shall be paid
Employee's Base Compensation in accordance with Section 3(a) for a
period of one
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year from the effective date of such termination, (B) may, in
accordance with section 3(b) hereof, be paid a pro rata portion of any
bonus for which Employee may be eligible with respect to the fiscal
year in which such termination occurs up to the effective date of such
termination, (C) to the extent not previously paid, shall be entitled
to all bonuses payable to Employee in accordance with Section 3(b)
hereof for or with respect to any fiscal years prior to the fiscal year
in which such termination occurs, (D) shall be entitled to the benefits
set forth in Section 3(c) hereof for a period of six (6) months from
the effective date of such termination and, as appropriate, shall be
paid amounts accrued and owing pursuant to Sections 3(d) and 3(e)
hereof. For purposes of this Agreement, the "effective date of
termination" shall mean the last day on which Employee is employed with
Employer which may be later than the date of the delivery of any
applicable notice of termination.
(ii) With Cause. Employer may terminate this Agreement with cause
immediately upon written notice to Employee. Employer may elect to
require Employee to continue to perform Employee's duties under this
Agreement for an additional thirty (30) days following notice of
termination. In connection with the termination of Employee's
employment pursuant to this Section 5(a)(ii), Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) to the extent
not previously paid, Employee shall be entitled to any bonuses payable
to Employee in accordance with Section 3(b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs, (C) be
entitled to the benefits set forth in Section 3(c) hereof up to the
effective date of such termination and, as appropriate, shall be paid
amounts accrued and owing pursuant to Sections 3(d) and 3 (e) hereof.
For purposes of this Section 5 (a) (ii) , "cause" shall mean (1) a
finding by the Board that Employee has materially harmed Employer, its
business, assets or employees through an act of dishonesty, material
conflict of interest, gross misconduct or willful malfeasance, (2)
Employee's conviction of (or pleading nolo contendere to) a felony,
(3) Employee's failure to perform (which shall not include inability to
perform due to disability) in any material respects Employee's material
duties under this Agreement after written notice specifying the failure
and a reasonable opportunity to cure (it being understood that if
Employee's failure to perform is not of a type requiring a single
action to fully cure, then Employee may commence the cure promptly
after such written notice and thereafter diligently prosecute such cure
to completion), (4) the breach by Employee of any of
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Employee's material obligations hereunder (other than those covered by
clause (3) above) and the failure of Employee to cure such breach
within thirty (30) days after receipt by Employee of a written notice
of Employer specifying in reasonable detail the nature of the breach,
or (5) Employee's sanction (including restrictions, prohibitions and
limitations agreed to under a consent decree or agreed order) under, or
conviction for violation of, any federal or state securities law, rule
or regulation (provided that in the case of a sanction, such sanction
materially impedes or. impairs the ability of Employee to perform
Employee's duties and exercise Employee's responsibilities hereunder in
a satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Employee shall fail during any four
(4) consecutive months to perform the duties required by this
Agreement, Employer may, upon thirty (30) days' written notice to
Employee, either terminate this Agreement or suspend Employee's right
to any Base Compensation or Performance Bonus Distributions without
terminating this Agreement. In any such event, Employee shall (A) be
paid Employee's Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) be paid a pro
rata portion of any bonus otherwise payable to Employee for or with
respect to the fiscal year in which such termination occurs in
accordance with Section 3 (b) hereof up to the first day of such four
(4) month period and, to the extent not previously paid, Employee shall
be entitled to all bonuses payable to Employee in accordance with
Section 3(b) hereof and for any fiscal years prior to the fiscal year
in which such termination occurs and (C) be entitled to the benefits
set forth in Section 3(c) hereof (or the after-tax cash equivalent) for
a period of six (6) months from the effective date of such termination
and, as appropriate, shall be paid amounts accrued and owing pursuant
to Sections 3(d) and 3(e) hereof. In the event Employer elects to
suspend Employee's right to Base Compensation and Performance Bonus
Distributions, at such time as Employee is able to resume the duties
required under this Agreement, Employee shall be entitled to receive
Base Compensation and Performance Bonus Distributions from the date
Employee commences the performance of such duties following the
disability in accordance with the terms and provisions of this
Agreement. This Section 5(a) (iii) shall not limit the entitlement of
Employee, Employee's estate or beneficiaries to any disability or other
benefits available to Employee under any disability insurance or other
benefits plan or policy which is maintained by Employer for Employee's
benefit. For purposes of this Agreement, the "date of disability" shall
mean the
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first day of the consecutive period during which Employee fails to
perform the duties required by this Agreement due to illness, physical
or mental disability or other incapacity.
(iv) After Change of Control. If, within a two (2) year period
following a "change in control" as defined below, Employer terminates
this Agreement for any reason other than as provided in Section
5(a)(ii),, Employer shall pay to Employee, within thirty (30) days of
termination, the greater of (i) two (2) times Employee's Base
Compensation as provided in Section 3(a) hereof, or (ii) Employee's
Base Compensation provided in Section 3(a) hereof times the number of
years and/or fraction thereof remaining under this Agreement. In
addition, Employee shall (A) be paid Employee's Base Compensation up to
the effective date of such termination, (B) be paid a pro rata portion
of any bonus otherwise payable to Employee for or with respect to the
fiscal year in which such termination occurs in accordance with Section
3(b) hereof up to the effective date of such termination, (C) to the
extent not previously paid, shall be entitled to all bonuses payable to
Employee in accordance with Section 3(b) hereof for or with respect to
any fiscal years prior to the fiscal year in which such termination
occurs, (D) be entitled to the benefits set forth in Section 3(c)
hereof for a period of six (6) months from the effective date of such
termination, and, as appropriate, be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. For purposes of this
Agreement, in the event Employer defaults in its obligation under
Section 9 hereof and, as a consequence thereof, Employee's employment
with Employer (or Employer's successor or assign) terminates, such
termination shall be deemed to be a termination under this Section
5(a)(iv).
For purposes of this Section 5(a)(iv), (A) a "change of control"
of Employer shall be deemed to have occurred if: (1) any person (as
such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) , including a
"group" as defined in Section 13(d)(3) of the Exchange Act (but
excluding IndeNet, Inc. or any of its affiliates or any group in which
IndeNet, Inc. or any of its affiliates has a significant interest, a
trustee or other fiduciary holding securities under an employee benefit
plan of Employer), becomes the beneficial owner of the outstanding
common stock, of IndeNet, Inc. (the "Common Stock") having at least
forty percent (40%) of the total number of votes that may be cast for
the election of directors of IndeNet, Inc., or any such person becomes
the beneficial owner of all of the outstanding common stock of
Employer; (2) within any
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twenty-four (24) month period beginning on or after the date hereof,
the persons who were directors of IndeNet, Inc. immediately before the
beginning of such period (the "Incumbent Directors") shall cease to
constitute at least a majority of the Board or a majority of the board
of directors of any successor to Employer, provided that, any director
who was not a director as of the date hereof shall be deemed to be an
Incumbent Director if such director was elected to the Board by, or on
the recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either actually
or by prior operation of this provision, unless such election,
recommendation or approval was the result of an actual or threatened
election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; (3) a
reorganization, merger, share exchange, consolidation, sale, business
combination or other disposition of all or substantially all of the
assets of IndeNet, Inc. or Employer, or combination of the foregoing
transactions (any of the foregoing, a "Transaction") is
consummated, unless, immediately following such Transaction the
shareholders of Employer immediately prior to the Transaction continue
to have a majority of the voting power in the resulting entity; or (4)
the shareholders approve a complete liquidation or dissolution of
IndeNet, Inc. or the Employer.
(b) Termination by Employee.
(i) Without Good Reason. Employee may terminate this Agreement
and Employee's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which
period Employee shall continue to perform Employee's duties under this
Agreement if Employer so elects. In connection with the termination of
Employees employment pursuant to this Section 5 (b)(i), Employee (A)
shall be paid Employee's Base Compensation in accordance with Section
3(a) hereof up to the effective date of such termination, (B) to the
extent not previously paid, shall be entitled to all bonuses payable to
Employee in accordance with Section 3(b) hereof and for any fiscal
years prior to the fiscal year in which such termination occurs and (C)
shall be entitled to the benefits set forth in Section 3(c) hereof up
to the effective date of such termination, and, as appropriate, shall
be paid amounts accrued and owing pursuant to Sections 3(d) and 3(e)
hereof.
(c) Death. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of Employee's death. In
such event, Employee shall (A) be paid Employee's Base Compensation in
accordance with Section 3(a)
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hereof up to the date of such death, (B) be paid a pro rata portion of any bonus
otherwise payable to Employee for or with respect to the fiscal year in which
such death occurs in accordance with Section 3(b) hereof up to the effective
date of such death and, to the extent not previously paid, Employee shall be
entitled to all bonuses payable to Employee in accordance with Section 3(b)
hereof for or with respect to any fiscal years prior to the fiscal year in which
such death occurs and (C) be entitled to the benefits set forth in Sections 3(c)
hereof (or the aftertax cash equivalent) for a period of six (6) months from the
date of death and, as appropriate shall be paid amounts accrued and owing
pursuant to Sections 3(d) and 3(e) hereof. This Section 5(c) shall not limit the
entitlement of Employee, Employee's estate or beneficiaries under any insurance
or other benefits plan or policy which is maintained by Employer for Employee's
benefit.
6. Covenants of Employee.
(a) No Conflicts. Employee represents and warrants that Employee is
not personally subject to any agreement, order or decree which restricts
Employee's acceptance of this Agreement and the performance of Employee's duties
with Employer hereunder.
(b) Non-Competition. In return for employment in the capacity set
forth under this Agreement, during the Employment Term and, in the event of the
termination of this Agreement pursuant to the provisions of Section 5(a)(ii)
hereof, for a period of twelve (12 months) thereafter, Employee shall not,
directly or indirectly, (i) in any capacity whatsoever, either on Employee's own
behalf or on behalf of any other person or entity with whom Employee may be
employed or associated, be employed by, be a consultant to, be an officer or
director of, or be connected in any manner with, a person or agency engaged in
the electronic media computer software or servicing business (notwithstanding
the immediately preceding clause, nothing herein shall prohibit Employee from
owning 5% or less of any securities of a competitor engaged in the electronic
media computer software or servicing business if such securities are listed on a
nationally recognized securities exchange or traded over-the-counter on the
National Association of Securities Dealers Automated Quotation System or
otherwise); (ii) interfere with the employment relationship between Employer and
its employees by directly or indirectly soliciting any such individual to
participate in, or be employed by, any business venture other than the
Employer; (iii) solicit any business related to the business of Employer from
any client or prospective client of Employer at or before the termination date
of the Employee's employment with Employer for himself or for any entity in
which the Employee has an interest or by which Employee is employed or engaged;
or (iv) seek to divert or dissuade from continuing to do business with or
entering into business with Employer or any of its affiliates or related
entities, any supplier, customer or other person or entity that had a business
relationship with or with which Employer, its subsidiaries or any of its
affiliates or related entities was
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actively planning or pursuing a business relationship at or before the
termination of Employee.
(c) Confidentiality. Employee hereby acknowledges that during the
course of his employment with Employer, Employee has been and will be granted
access to certain information which Employer insists be kept confidential. In
consideration of this Agreement, any compensation and other benefits of
Employee's employment and Employee's continued employment by Employer, Employee
hereby agrees:
(i) to use his best efforts and diligence both during and after
his employment with Employer to protect the confidential, trade secret
and/or proprietary character of all Confidential Information, as
defined herein, including but not limited to, avoiding the direct or
indirect use (for Employee or for another) or direct or indirect
disclosure of any Confidential Information, for so long as it shall
remain proprietary or protectible as confidential or trade secret
information, except as may be necessary for the performance of
Employee's duties for Employer.
(ii) to deliver promptly to Employer, at the termination of
Employee's employment, or at any other time at Employer's request,
without retaining any copies, all documents and other material in
Employee's possession relating, directly or indirectly, to any
Confidential Information, including, but not limited to, all memoranda,
notes, records, reports, audio and video tapes, computer disks and
other storage devices, and other documents or other repositories of
information containing any information concerning confidential or trade
secret information, whether prepared by the Employee, the Employer or
anyone else.
As used herein, "Confidential Information" means any of the following:
(x) all technical and business information of Employer, its subsidiaries or
affiliates, whether patentable or not, which is of a confidential, trade secret
and/or proprietary character, whether or not developed by Employee (alone or
with others); (y) confidential evaluations of, and the confidential use or
non-use by Employer, its subsidiaries or affiliates of technical or business
information in the public domain or (z) the confidential, trade secret and whom
Employer, its subsidiaries or affiliates has a business relationship.
(d) Return of Documents. In addition to Employee's duties under
Section 6(c) hereof, upon termination of Employee's services with Employer,
Employee shall return all originals and copies of books, records, documents,
customer lists, sales materials, tapes, keys, credit cards and other tangible
property of Employer within Employee's possession or under Employee's control.
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(e) Equitable Relief. In the event of any breach by Employee of any of
the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Employee as to the terms
and conditions hereof.
(f) Acknowledgment. Employee acknowledges that Employee will be
directly and materially involved in certain business operations and decisions of
Employer. Employee further acknowledges that the scope of the foregoing
restrictions has been specifically bargained between Employer and Employee, each
being fully informed of all relevant facts. Accordingly, Employee acknowledges
that the foregoing restrictions of Section 6 are fair and reasonable, are
minimally necessary to protect Employer and the public from the unfair
competition of Employee who, as a result of Employee's performance of services
on behalf of Employer, will have had unlimited access to the most confidential
and important information of Employer, its business and future plans. Employee
furthermore acknowledges that no unreasonable harm or injury will be suffered by
him from enforcement of the covenants contained herein and that Employee will be
able to earn a reasonable livelihood following termination of Employee's
services notwithstanding enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Option Plan
and any Option Agreements thereunder, supersedes and is in lieu of any and all
other employment arrangements between Employee and Employer or its predecessor
or any subsidiary and any and all such employment agreements and arrangements
are hereby terminated and deemed of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of Employee
hereunder shall be assignable by Employee and any such purported assignment by
him shall be void. Employer may assign all or any of its rights hereunder
provided that substantially all of the assets of Employer are also transferred
to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Employee,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Employee the right to terminate this Agreement, in which case Employee
shall be entitled to receive the compensation specified in Section 5(a)(iv)
hereof. This Agreement
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shall inure to the benefit of and be enforceable by Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Employee should die while any amounts
are still payable to Employee hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee or other designee or, if there be no such designee,
to Employee's estate.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Employee, to:
Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xx.
Xxxxxxxx, Xxxxxxxx 00000
(b) if to Employer, to:
Enterprise Systems Group, Inc.
0000 Xxxx Xxxxxx Xx., Xxx. 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx
Attn: President
With a copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
000 X. Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
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13. Severability. Employer and Employee each expressly agree and contract
that it is not the intention of either party to violate any public policy,
statutory or common law, and that if any covenant, sentence, paragraph, clause
or combination of the same of this Agreement (a "Contractual Provision") is in
violation of the law of any state where applicable, such Contractual Provision
shall be void in the jurisdictions where it is unlawful, and the remainder of
such Contractual Provision, if any, and the remainder of this Agreement shall
remain binding on the parties such that such Contractual Provision shall be
binding only to the extent that such Contractual Provision is lawful or may be
lawfully performed under then applicable laws. In the event that any part of any
Contractual Provision of this Agreement is determined by a court of competent
jurisdiction to be overly broad thereby making the Contractual Provision
unenforceable, the parties hereto agree, and it is their desire, that such court
shall substitute a judicially enforceable limitation in its place, and that the
Contractual Provision, as so modified, shall be binding upon the parties as if
originally set forth herein.
14. Indemnification by Employee. Employee shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from any material harm to Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance by Employee. Employee also shall indemnify Employer for any
and all damages, costs and expenses (including reasonable attorney fees)
resulting from Employee's acts of omission constituting reckless disregard of
Employee's duties to Employer following notice thereof by Employer after it
becomes aware of such conduct and Employee's failure to so cure within thirty
(30) days.
15. Indemnification by Employer. Employer shall indemnify Employee to the
fullest extent permitted under the laws of the jurisdiction in which Employer
has its principal place of business, in connection with any proceeding which may
give rise to Employer's obligation to indemnify Employee pursuant to such laws.
16. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Michigan,
exclusive of the conflict of laws provisions thereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
ENTERPRISE SYSTEMS GROUP, INC.
By: /s/ Xxxxx X. Xxxx
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Print Name: Xxxxx X. Xxxx
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Title: CEO
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Employee:
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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