EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
March 6, 2000 by and between SmartDisk Personal Storage Systems Corporation, a
Delaware corporation formerly known as "VST Acquisition, Inc." (the "Company"),
and Xxxxx Xxxxxx (the "Executive").
RECITALS
A. The Board of Directors of the Company (the "Board") desires to
ensure the Executive's employment with the Company and to compensate him
therefor.
B. The Executive's execution and delivery of this Agreement is a
condition to the closing obligations of SmartDisk Corporation, a Delaware
corporation ("SmartDisk"), pursuant to an Agreement and Plan of Merger, dated as
of February 23, 2000, (the "Merger Agreement") among the Company, SmartDisk, VST
Technologies, Inc., a Delaware corporation, and certain "Shareholders" party
thereto.
C. The execution of this Agreement is a material inducement for Company
and SmartDisk to enter into the Merger Agreement.
D. The Board has determined that this Agreement will reinforce and
encourage the Executive's attention and dedication to the Company.
E. The Executive is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. EMPLOYMENT.
1.1 GENERAL. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to serve the Company on the terms and
conditions set forth herein.
1.2 DUTIES OF EXECUTIVE. During the term of this Agreement,
the Executive shall serve as the Chief Technology Officer of the Company, shall
diligently perform all services as may be assigned to him by or under the
direction of SmartDisk's President and Chief Executive Officer and shall
exercise such power and authority as may from time to time be delegated to him
by the Company's Board of Directors. Without limiting the generality of the
foregoing, Executive shall have general responsibility for all Company product
development, strategic marketing and related communications. The Executive shall
devote substantially all of his business time and attention to the business and
affairs of the Company, render such services to the best of his ability, and use
his best efforts to promote the interests of the Company. By execution below,
SmartDisk also agrees that the Executive is hereby appointed Chief Technology
Officer of SmartDisk.
1.3 PLACE OF PERFORMANCE. In connection with his employment by
the Company hereunder, the Executive shall perform his duties and obligations
hereunder primarily from the Company's offices located in Acton, Massachusetts,
except for required travel on the Company's business.
2. TERM.
2.1 INITIAL TERM. The initial term of this Agreement, and the
employment of the Executive hereunder, shall be for the two-year period
commencing on the date hereof (the "Initial Term").
2.2 RENEWAL TERMS. The Initial Term of this Agreement, and the
employment of the Executive hereunder shall automatically be renewed for
successive one year periods, unless the Company or the Executive provides
written notice to the other at least 30 days prior to the expiration of the
applicable term. The terms and conditions of any renewal term shall be the same
as those contained herein unless otherwise mutually agreed upon by the Company
and the Executive in a written supplement to this Agreement signed by the
Executive and the Company's President (the "Written Supplement"). In the event
that the Company delivers a notice of non-renewal, the Executive shall be
entitled to the compensation and benefits as if terminated pursuant to Section
5.4 and shall be subject to Section 6.1 as if terminated pursuant to Section
5.4.
3. COMPENSATION.
3.1 BASE SALARY. The Executive shall receive a base salary at
the annual rate of $200,000 (the "Base Salary") during the Initial Term of this
Agreement, with such Base Salary payable in installments consistent with the
Company's normal payroll schedule, subject to applicable withholding and other
taxes. The Base Salary may, by action and in the sole discretion of the Board,
be increased at any time or from time to time. After July 1, 2000, the Board
shall consider the performance of the Executive for a possible merit increase in
the Base Salary; provided that any such increase shall be in the sole discretion
of the Board.
3.2 BONUS COMPENSATION. In addition to the Base Salary, the
Executive shall be entitled to receive bonus compensation (the "Bonus
Compensation") during the Initial Term. The Board shall establish a performance
bonus formula with respect to Bonus Compensation pursuant to which the Executive
will be able to receive a target bonus of $60,000 per annum if the Company
achieves the specified level of financial results.
3.3 STOCK OPTIONS. Contemporaneously herewith, SmartDisk is
granting the Executive a non-qualified stock option to purchase 80,000 shares of
SmartDisk's common stock, the exercise price of which shall be established in
accordance with the SmartDisk option pricing policy in effect on the date
hereof. The option will be granted pursuant to the Company's 1999 Incentive
Compensation Plan (the "Incentive Plan") and be in customary form; provided that
the option will vest (ie, become exercisable) with respect to twenty-five
percent (25%) of the shares issuable upon exercise of such option on the first
anniversary date of this Agreement and thereafter vest as to six and one-quarter
percent (6.25%) of the subject shares on each subsequent quarter. For example,
such option will be exercisable with respect to 37.5% of the subject shares on
the 18-month anniversary of this Agreement. In the event of a "Change in
Control" (as defined in the Incentive Plan), fifty percent of the unvested
shares underlying the option shall vest on the effective date of a Change in
Control.
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 REIMBURSABLE EXPENSES. During the term of the Executive's
employment hereunder, the Company, upon the submission of proper substantiation
by the Executive, shall reimburse the Executive for all reasonable expenses
actually and necessarily paid or incurred by the Executive in the course of and
pursuant to the business of the Company.
4.2 OTHER BENEFITS. The Executive shall be entitled to
participate in all medical, dental and hospitalization, group life insurance,
and any and all other plans as are presently and hereinafter provided by
SmartDisk to its executives on substantially the same terms as the other
executives and prior
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to December 31, 2000 in accordance with Section 7.5 of the Merger Agreement. The
Executive shall be entitled to vacations in accordance with the Company's
prevailing policy for its executives.
4.3 WORKING FACILITIES. The Company shall furnish the
Executive with an office, secretarial help and such other facilities and
services suitable to his position and adequate for the performance of his duties
hereunder.
4.4 AUTOMOBILE. During the term of Executive's employment
hereunder, the Company shall (x) provide the Executive with a non-accountable
automobile allowance of six hundred fifty dollars ($650.00) per month, which is
intended to compensate Executive for his automobile lease costs, and (y)
reimburse the Executive for all out-of-pocket costs of gasoline, oil, repairs,
maintenance, insurance and other operating costs incurred by Executive by reason
of the use of Executive's automobile for Company business from time to time. The
Company shall also provide Executive with a one-time, non-accountable automobile
allowance of $10,000, which is intended to compensate Executive for his
automobile lease down payment, delivery charges and other acquisition-related
costs.
5. TERMINATION.
5.1 TERMINATION FOR CAUSE. The Company shall at all times have
the right, upon written notice to the Executive, to terminate the Executive's
employment hereunder for "Cause" (as hereinafter defined). For purposes of this
Agreement, the term "Cause" shall mean (i) the failure or refusal of the
Executive to perform the duties or render the services reasonably assigned to
him from time to time by or under direction of the President of the Company
(except during reasonable vacation periods or sick leave), which failure or
refusal is not cured within 15 days of written notice by the Company; (ii) gross
negligence or willful misconduct by the Executive in the performance of his
duties as an employee of the Company, (iii) the conviction of the Executive of a
felony; (iv) the material breach by the Executive of any of the provisions of
Section 6.1, 6.2, 6.3 or 6.4 hereof; (v) the breach by the Executive of his
fiduciary duty or duty of trust to the Company, including the commission by the
Executive of an act of fraud or embezzlement against the Company, (vi) substance
abuse, or (vii) any other material breach by the Executive of any of the
material terms or provisions of this Agreement or any other agreement between
the Company and the Executive related to the Executive's employment, which other
material breach is not cured within ten (10) business days of written notice by
the Company. Upon any termination pursuant to this Section 5.1, the Executive
shall be entitled to receive any salary (other than Bonus Compensation) and
employment benefits which shall have accrued prior to the date of termination,
but shall not be entitled to any bonus or severance payments, salary or
employment benefits relating to periods subsequent to the date of termination,
subject to Executive's rights to continue medical and dental coverage under the
Company's group policy, at Executive's expense, as may be provided by law.
5.2 DISABILITY. The Company shall at all times have the right,
upon written notice to the Executive, to terminate the Executive's employment
hereunder, if the Executive shall, as the result of mental or physical
incapacity, illness or disability, become unable to perform his duties hereunder
for in excess of ninety (90) days in any 12-month period. Upon any termination
pursuant to this Section 5.2, the Company shall pay to the Executive (i) the
balance of Executive's salary and other benefits for the remainder of the month
in which disability occurs, and (ii) a pro rata portion of any Bonus
Compensation to which Executive would be otherwise entitled under Section 3.2
based upon the ratio the number of months employed (calculated through the end
of the then current month) bears to the bonus period of twelve (12) months and
the Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however to the provisions of Section 4.1).
5.3 DEATH. In the event of the death of the Executive during
the term of his employment hereunder, the Company shall pay to the estate of the
deceased Executive (i) the balance of Executive's salary and other benefits for
the remainder of the month in which death occurs, and (ii) a pro rata portion of
any Bonus Compensation to which Executive would be otherwise entitled under
Section 3.2
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based upon the ratio the number of months employed (calculated through the end
of the then current month) bears to the bonus period of twelve (12) months and
the Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of the
Executive's death, subject, however to the provisions of Section 4.1).
5.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. At any time, the
Company shall have the right to terminate this Agreement and Executive's
employment with the Company by providing at least 30 days prior written notice
to the Executive; provided, however, that, the Company shall (i) pay to the
Executive any unpaid Base Salary accrued through the effective date of
termination specified in such notice, (ii) pay Executive's Base Salary in the
manner set forth in Section 3.1 hereof until the date which is three months
following such effective date (the "Severance Date") and (iii) pay a pro rata
portion of any Bonus Compensation to which the Executive would be otherwise
entitled under Section 3.2 based upon the ratio the number of months employed
bears to the bonus period of twelve (12) months. Following the effective date of
such termination, the Company shall continue to pay for or provide to the
Executive such benefits as may have been provided to the Executive in accordance
with Section 4.2 immediately prior to such termination (subject to changes in
the terms of such coverage by the provider as may be applicable to the Company
as a whole) for a period ending on the earliest of (A) the date of the
Executive's employment by a third party on a substantially full-time basis, (B)
the death of the Executive and (C) the Severance Date. Except as expressly
provided herein, the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however to the provisions of Section 4.1).
5.5 TERMINATION BY EMPLOYEE. At any time, the Executive may
terminate this Agreement and Executive's employment with the Company by
providing at least 30 days prior written notice to the Company. Upon termination
of this Agreement pursuant to this Section 5.5., the Executive shall be entitled
to receive any salary (other than Bonus Compensation) and employment benefits
which shall have accrued prior to the date of termination, but shall not be
entitled to any bonus or severance payments, salary or employment benefits
relating to periods subsequent to the date of termination, subject to
Executive's rights to continue medical and dental coverage under the Company's
group policy at Executive's expense, as may be provided by law.
6. RESTRICTIVE COVENANTS.
6.1 NON-COMPETITION. While employed by the Company and for a
period of two years following the later of the date his employment is terminated
hereunder or, if applicable, the Severance Date (the "Restricted Period"), the
Executive shall not, directly or indirectly (whether as owner, principal, agent,
shareholder, employee, partner, lender, venturer with or consultant to any
person, firm, partnership, corporation, limited liability company or other
entity), whether or not compensation is received, engage or participate in any
activity for any business or entity which is or plans to engage in the marketing
and sale of any products or services which are under active development or are
marketed or sold by the Company, SmartDisk, and/or their respective subsidiaries
and affiliates during the term of this Agreement anywhere in the United States;
provided, however, that nothing herein shall be deemed to prevent the Executive
from acquiring through market purchases and owning, solely as an investment,
less than three percent in the aggregate of the equity securities of any class
of any issuer whose shares are registered under ss.12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended, and are listed or admitted for
trading on any United States national securities exchange or are quoted on the
National Association of Securities Dealers Automated Quotations System, or any
similar system of automated dissemination of quotations of securities prices in
common use, so long as the Executive is neither involved in the management or
conduct of the business affairs of such issuer nor a member of any "control
group" (within the meaning of the rules and regulations of the United States
Securities and Exchange Commission) of any such issuer. Notwithstanding the
foregoing, in the event that the Executive's employment hereunder is terminated
pursuant to Section 5.4 or Section 5.5, the Restricted Period shall terminate on
the later of (a) one year after the date Executive's employment is terminated or
(b) two years from the date of execution of this Agreement. The Executive
acknowledges and agrees that the covenants provided for in this Section 6.1
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are reasonable and necessary in terms of time, area and line of business to
protect the Company's and SmartDisk's "Trade Secrets" (as hereinafter defined).
The Executive further acknowledges and agrees that such covenants are reasonable
and necessary in terms of time, area and line of business to protect the
Company's and SmartDisk's legitimate business interests, which include their
interests in protecting the Company's and SmartDisk's (i) valuable confidential
business information, (ii) substantial relationships with customers throughout
the United States, and (iii) customer goodwill associated with the ongoing
business of the Company and SmartDisk. The Executive expressly authorizes the
enforcement of the covenants provided for in this Section 6.1 by (A) SmartDisk
and its subsidiaries, (B) SmartDisk's and the Company's permitted assigns, and
(C) any successors to SmartDisk's and the Company's business. To the extent that
the covenant provided for in this Section 6.1 may later be deemed by a court to
be too broad to be enforced with respect to its duration or with respect to any
particular activity or geographic area, the court making such determination
shall have the power to reduce the duration or scope of the provision, and to
add or delete specific words or phrases to or from the provision. The provision
as modified shall then be enforced.
6.2 NONDISCLOSURE. Executive shall not divulge, communicate, use to the
detriment of the Company, SmartDisk or for the benefit of any other person or
persons, or misuse in any way, any "Confidential Information" pertaining to the
Company or SmartDisk. Any confidential information or data now known or
hereafter acquired by the Executive with respect to the Company or SmartDisk
shall be deemed a valuable, special and unique asset of the Company or SmartDisk
that is received by the Executive in confidence and as a fiduciary, and
Executive shall remain a fiduciary to the Company and SmartDisk with respect to
all of such information. For purposes of this Agreement, the following terms
when used in this Agreement have the meanings set forth below:
"CONFIDENTIAL INFORMATION" means confidential data and confidential
information relating to the business of the Company or SmartDisk (which does not
rise to the status of a Trade Secret under applicable law) which is or has been
disclosed to the Executive or of which the Executive became aware as a
consequence of or through his employment with the Company and which has value to
the Company or SmartDisk and is not generally known to the competitors of the
Company or SmartDisk. Confidential Information does not include (a) information
that is or becomes generally available to the public other than as a result of
the Executive's disclosure of such information, (b) information that was within
the Executive's possession prior to it being furnished to the Executive by or on
behalf of SmartDisk or its affiliates, including the Company, provided that the
source of such information was not known to the Executive to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to SmartDisk or its affiliates, including the
Company, or any other party with respect to such information, (c) information
that becomes available to the Executive on a non-confidential basis from a
source other than SmartDisk or any of its affiliates, including the Company,
provided that such source is not known to the Executive to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the SmartDisk or its affiliates, including the
Company, or any other party with respect to such information, (d) information
the disclosure of which is required by applicable law or judicial process, or
(e) general technical skills or general experience gained by the Executive
during the Executive's employment with the Company.
"TRADE SECRETS" means information of the Company or SmartDisk
including, but not limited to, technical or nontechnical data, formulas,
patterns, compilations, programs, financial data, financial plans, product or
service plans or lists of actual or potential customers or suppliers which (i)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
In addition, during the Initial Term and during the periods described
in the last sentence of this Section 6.2, the Executive (a) will receive and
hold all Confidential Information and Trade Secrets (collectively "Company
Information") in trust and in strictest confidence, (b) will take reasonable
steps to protect the Company Information from disclosure and will in no event
take any action causing, or fail to
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take any action reasonably necessary to prevent, any Company Information to lose
its character as Company Information, and (c) except as required by the
Executive's duties in the course of his employment by the Company, will not,
directly or indirectly, use, disseminate or otherwise disclose any Company
Information to any third party without the prior written consent of SmartDisk,
which may be withheld in SmartDisk's absolute discretion. The provisions of this
Section 6.2 shall survive the termination of the Executive's employment (i) for
a period of five years with respect to Confidential Information, and (ii) with
respect to Trade Secrets, for so long as any such information qualifies as a
Trade Secret under applicable law.
6.3 NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. While employed
by the Company and for a period of two years following the later of the date his
employment is terminated hereunder by either the Company or the Executive, or,
if applicable, the Severance Date, the Executive shall not, directly or
indirectly, for himself or for any other person, firm, corporation, partnership,
association or other entity, (i) attempt to employ or enter into any contractual
arrangement with any employee or former employee of the Company or SmartDisk,
unless such employee or former employee has not been employed by the Company or
SmartDisk for a period in excess of three months, and/or (ii) divert or take
away, or attempt to divert or take away, the business or prospects of any of the
actual or targeted prospective customers or clients of the Company or SmartDisk,
nor shall the Executive make known the names and addresses of such customers or
any information relating in any manner to the Company's or SmartDisk's trade or
business relationships with such customers.
6.4 ASSIGNMENT OF INVENTIONS.
(a) ORIGINAL DEVELOPMENT. The Executive represents
and warrants to the Company that all work that the Executive performs
for or on behalf of the Company and its clients, and all work product
that the Executive produces in such capacity, including but not limited
to software, documentation, memoranda, ideas, designs, inventions,
processes, algorithms, etc. ("Work Product"), will not knowingly
infringe upon or violate any patent, copyright, trade secret, or other
property right of any of his former employers or of any other third
party. The Executive will not disclose to the Company, or use in any of
his Work Product, any confidential or proprietary information belonging
to others, unless both the owner thereof and the Company have consented
in writing.
(b) DISCLOSURE. The Executive will promptly disclose
to the Company all Work Product developed by him within the scope of
his employment with the Company or which relates directly to, or
involve the use of, any Company Information, including but not limited
to all software, concepts, ideas and designs, and all documentation,
manuals, letters, pamphlets, drafts, memoranda and other writings or
tangible things of any kind. The Executive will not disclose them to
anyone other than authorized Company personnel.
(c) COPYRIGHT OWNERSHIP. The Executive acknowledges
and agrees that all Work Product which is made by him (solely or
jointly with others) within the scope of his employment and which is
protectable by copyright is being created at the instance of the
Company and is "work made for hire," as that term is defined in the
United States Copyright Act (17 USCA, Section 101).
(d) ASSIGNMENT. The Executive hereby assigns to the
Company all of his other rights, title and interest (including but not
limited to all patent, copyright and trade secret rights) in and to all
Work Products prepared by him, whether patentable or not, made or
conceived in whole or in part by him within the scope of his employment
hereunder, or that relates directly to, or involves the use of Company
Information.
(e) DOCUMENTS. The Executive agrees to execute all
documents reasonably requested by the Company to further evidence the
foregoing assignment and to provide all
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reasonable assistance to the Company (at the Company's expense) in
perfecting or protecting any or all of the Company's rights in his Work
Product.
(f) PRE-EXISTING INVENTIONS NOT ASSIGNED. The
Executive represents that the Executive has indicated on Annex III to
this Agreement all inventions, expression of ideas or other Work
Product related to the Company's or SmartDisk's business and created
prior to his employment by the Company in which the Executive has any
right, title or interest that the Executive does not assign to the
Company. If the Executive does not have any such inventions,
expressions of ideas, or work product to indicate, the Executive will
write "none" on Annex III. The Executive will not assert any rights
under any inventions as having been made or acquired by him prior to
his being employed by the Company, unless such inventions are
identified on Annex I.
6.5 BOOKS AND RECORDS. All books, records, reports, writings, notes,
notebooks, computer programs, sketches, drawings, blueprints, prototypes,
formulas, photographs, negatives, models, equipment, chemicals, reproductions,
proposals, flow sheets, supply contracts, customer lists and other documents
and/or things belonging to the Company or embodying or relating to any
Confidential Information or Trade Secrets, whether prepared by the Executive or
otherwise coming into the Executive's possession shall not be copied,
duplicated, replicated, transformed, modified or removed from the premises of
the Company except pursuant to the business of the Company and shall be returned
immediately to the Company on termination of the Executive's employment
hereunder or on the Company's request at any time.
6.6 NO CONFLICT. The Executive represents to the Company that his
execution and performance of this Agreement does not violate the provisions of
any employment, non-competition, confidentiality or other material agreement to
which he is a party or by which he is bound. The Executive also agrees to
indemnify and hold harmless the Company from any and all damages and other
obligations or liabilities incurred by the Company in connection with any breach
of the foregoing representation.
7. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Section 6 of this Agreement will cause irreparable harm and damage to SmartDisk
and the Company, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive recognizes and hereby acknowledges that
Smart Disk or the Company shall be entitled to seek an injunction from any court
of competent jurisdiction (without posting a bond or other security) enjoining
and restraining any violation of any or all of the covenants contained in
Section 6 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company or the Company may possess.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to conflicts of
laws principles thereof and all questions concerning the validity and
construction hereof shall be determined in accordance with the laws of said
state.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Executive and SmartDisk (or any
of its affiliates, including the Company) with respect to such subject matter.
Except for the obligation to pay all accrued but unpaid salary due the
Executive, all such prior agreements, understandings and arrangements for the
provision of services by the Executive to the Company and the compensation of
the Executive in any form are hereby terminated, and the Executive hereby
releases and forever discharges SmartDisk (as well as the Company and its other
affiliates) from any and all liabilities and obligations of any nature arising
out of or in connection with any and all such prior agreements, understandings
or arrangements. This Agreement may not be modified in any way unless by a
written instrument signed by both the Company and the Executive.
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10. NOTICES. Any notice required or permitted to be given hereunder
shall be deemed given when delivered by hand or when deposited in the United
States mail, by registered or certified mail, return receipt requested, postage
prepaid, (i) if to the Company, c/o SmartDisk Corporation, 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Vice President, and
(ii) if to the Executive, to his address as reflected on the payroll records of
the Company, or to such other address as either party hereto may from time to
time give notice of to the other.
11. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representative, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether by
merger, consolidation, sale of stock, sale of assets or otherwise; provided,
however that the Executive shall not delegate his employment obligations
hereunder, or any portion thereof, to any other person.
12. 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 thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
14. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or for the injunction of
any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
15. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SMARTDISK PERSONAL STORAGE SYSTEMS
CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
/s/ XXXXX XXXXXX
---------------------------------------
Xxxxx Xxxxxx
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SMARTDISK CORPORATION (AS TO SECTION 1.2)
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------
Xxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
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ANNEX I
PRE-EXISTING INVENTIONS
None
