EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”),
dated
as of January
31,
2007,
is entered into by and between BTHC
XI,
Inc.,
a
Delaware corporation (together with its subsidiaries, the “Company”),
and
Xxxxx
Xxxxx
(the
“Employee”).
W
I T N E S S E T H:
WHEREAS,
the Employee desires to serve the Company as Co-Chairman and Chief Executive
Officer; and
WHEREAS,
the Company desires to employ the Employee as Co-Chairman and Chief Executive
Officer.
NOW
THEREFORE in consideration of the mutual benefits to be derived from this
Agreement, the Company and the Employee hereby agree as follows:
1. Term
of Employment; Office and Duties.
(a) Commencing
on the date hereof, and for an initial term ending January
31,
2010,
the Company shall employ the Employee as Co-Chairman and Chief Executive
Officer, with such duties and responsibilities consistent with such position
as
may from time to time be assigned to the Employee by the Company’s Board of
Directors. The Employee agrees to perform such duties and discharge such
responsibilities in accordance with the terms of this Agreement. This Agreement
shall be automatically renewed for additional one year terms unless either
party
notifies the other, in writing, at least 60 days prior to the expiration of
the
term, of such party’s intention not to renew this Agreement. The period that the
Employee serves as an employee of the Company pursuant to this Agreement,
including as a result of any extension of the initial term, shall be referred
to
as the “Employment
Term.”
(b) The
Employee shall be required to devote his full business time and efforts to
the
business and affairs of the Company other than during vacations and periods
of
illness or incapacity; provided that it is understood and agreed that until
such
time as the sale of Preferred Labor, LLC is completed it is expected that the
Employee shall continue to provide minimal services to Preferred Labor, LLC,
including in connection with completing such sale, and that the provision of
such services will not be deemed to violate this Section 1(b)
provided
such services do not interfere with the performance of his duties and
responsibilities under this Agreement.
Notwithstanding the foregoing, the Employee shall be permitted to: (i) serve
as
a director of any organization or entity that does not result in a violation
of
Section
5;
(ii)
deliver lectures or fulfill speaking engagements; or (iii) make and manage
passive investments and engage in charitable and community
activities
but only
if such services and activities do not interfere with the performance of his
duties and responsibilities under this Agreement.
2. Compensation
and Benefits.
For all
services rendered by the Employee during the Employment Term, including, without
limitation, any services as a director generally or member of the any committee
of the Board or any subsidiary or division thereof, the Employee shall be
compensated as follows:
1
(a) Base
Salary.
The
Company shall pay the Employee a fixed base salary (“Base
Salary”).
Initially the Base Salary shall be $1 per year. Effective commencing on the
first day of the first month following such time as the Company shall have,
within any period beginning on January 1 and ending not more than 12 months
thereafter, earned pre-tax net income exceeding $1,000,000, the Base Salary
shall be adjusted to an amount, to be mutually agreed upon between Employee
and
the Company, reflecting the fair value of the services provided, and to be
provided, by Employee taking into account (i) Employee’s position,
responsibilities and performance, (ii) the Company’s industry, size and
performance, and (iii) other relevant factors. Base Salary will be payable
in
accordance with the customary payroll practices of the Company. As part of
the
Employees compensation program the Company extends a $1500 per month automobile
allowance;
it being
understood the company shall not be responsible for any insurance, repairs,
tires gas or other expenses related to Employee’s automobile except as provided
in Section 3.
(b) Bonus.
The
Employee may be entitled to receive an annual bonus (“Annual
Bonus”)
for
each fiscal year payable subsequent to the issuance of final audited financial
statements for such fiscal year in the sole discretion of the Board in an amount
as determined by the Compensation Committee of the Board. The targeted amount
of
any Annual Bonus (the “Target Bonus”) shall be determined by the Compensation
Committee of the Board in its discretion.
(c) Fringe
Benefits.
(i) The
Employee shall be entitled to participate in such employee benefit and other
compensatory or non-compensatory plans that are available to similarly situated
executives of the Company, which may include disability, health, dental and
life
insurance plans, option and bonus plans and other fringe benefit plans or
programs, including a 401(k) retirement plan, of the Company established from
time to time by the Board, subject to the rules and regulations applicable
thereto, and which shall include an executive insurance program under which
Employee shall be entitled to be reimbursed for up to $25,000 of medical costs
not covered by the Company’s health insurance per year.
(ii) Notwithstanding
anything in Section
2(c)(i)
to the
contrary, contemporaneous with the execution of this Agreement, the Employee
will be granted a non-qualified stock option (the “Employment
Option”)
to
purchase a total of 650,000 shares of the Company’s common stock, par value
$.001 per share (the “Common
Stock”),
with
an exercise price of $1.25 per share, pursuant to the Company’s 2007 Omnibus
Equity Compensation Plan and the Employee will execute any award agreement
or
other documents required by the Company to evidence such grant. 33.33% of the
options shall vest immediately on grant; an additional 33.33% of such options
shall vest on February 29, 2008 and an additional 33.33% of such options shall
vest on February 28, 2009; provided,
however,
that in
the event (A) of a Change in Control or (B) the Employee's employment is
terminated by (I) the Company without Cause pursuant to Section
4(d)
or (II)
the Employee for Good Reason pursuant to Section
4(e),
all
unvested options shall accelerate and immediately vest and become exercisable
in
full on the earliest of the date of the Change in Control or the date of the
Employee's termination pursuant to Sections
4(d)
and
(e),
as
applicable. The term of the Employment Option will be 10 years from the date
of
grant.
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(iii) For
purposes of this Agreement, a “Change
in Control”
shall
mean:
(A) the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”))
(a
“Person”)
of
“beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of (I) the then-outstanding shares of Common Stock
(the “Outstanding
Company Common Stock”),
or
(II) the combined voting power of the then-outstanding voting securities of
the
Company generally entitled to vote in the election of directors (the
“Outstanding
Company Voting Securities”)
regardless of whether such acquisition is as a result of the issuance of
securities by the Company to such Person, by such Person acquiring such shares
publicly or in private sales (or in any combination of acquisitions or public
or
private sales or both), or otherwise; provided,
however,
that
the following shall not constitute a Change in Control: (a) any issuance or
acquisition of securities of the Company whereby the Employee (including his
affiliates) reaches or exceeds such 50% threshold; (b) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any entity controlled by the Company; or (c) any issuance of shares of Series
1 Preferred Stock issued in the Company’s initial offering of such shares or any
shares of common stock issued upon conversion of such shares of Series 1
Preferred Stock;
(B) approval
by the stockholders of the Company of a reorganization, merger, consolidation
or
other business combination (collectively, a “Business
Combination”),
unless following such Business Combination more than 50% of, respectively,
the
then-outstanding shares of common stock of the entity resulting from such
Business Combination and the combined voting power of the then-outstanding
voting securities of such entity generally entitled to vote in the election
of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination in
substantially the same proportions as their ownership, immediately prior to
such
Business Combination, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be;
and
(C) (I) approval
by the stockholders of the Company of a complete liquidation or dissolution
of
the Company or (II) the first to occur of (a) the sale or other
disposition (in one transaction or a series of related transactions) of all
or
substantially all of the assets of the Company, or (b) the approval by the
stockholders of the Company of any such sale or disposition.
(d) Withholding
and Employment Tax.
Payment
of all compensation hereunder shall be subject to customary withholding tax
and
other employment taxes as may be required with respect to compensation paid
by
an employer to an employee.
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(e) Disability.
The
Company shall, to the extent such benefits can be obtained at a reasonable
cost,
provide the Employee with disability insurance benefits of at least 60% of
his
gross Base Salary per month; provided that for purposes of the foregoing, prior
to the date on which Employee’s Base Salary is adjusted in accordance with
Section 2(a) Employee’s Base Salary shall be deemed to be $300,000. In the event
of the Employee's Disability (as hereinafter defined), the Employee and his
family shall continue to be covered by all of the Company's employee welfare
benefit plans described under Section
2(c),
at the
Company's expense, to the extent such benefits may, by law, be provided, for
the
lesser of the term of such Disability and 24 months, in accordance with the
terms of such plans.
(f) Death.
The
Company shall, to the extent such benefits can be obtained at a reasonable
cost,
provide the Employee with life insurance benefits in the amount of at least
$500,000. In the event of the Employee's death, the Employee's family shall
continue to be covered by all of the Company's employee welfare benefit plans
described under Section
2(c),
at the
Company's expense, to the extent such benefits may, by law, be provided, for
12
months following the Employee's death in accordance with the terms of such
plans.
(g) Vacation.
The
Employee shall receive four weeks of vacation annually, administered in
accordance with the Company's existing vacation policy.
3. Business
Expenses.
The
Company shall pay or reimburse the Employee for all reasonable travel (including
travel by automobile), business and entertainment expenses incurred by or
necessary for the Employee to perform his duties under this Agreement in
accordance with such policies and procedures as the Company may from time to
time establish for senior officers and subject to the Company's normal
requirements with respect to reporting and documentation of such expenses.
4. Termination
of Employment.
Notwithstanding any other provision of this Agreement, the Employee's employment
with the Company may be terminated as set forth below:
(a) Termination
by Mutual Agreement.
The
Employee's employment with the Company may be terminated at anytime by, and
upon
the terms and conditions of, a mutual written agreement between the
parties.
(b) Termination
for Cause.
The
Employee's employment with the Company may be terminated by the Company for
Cause. Provided Cause actually exists, the
date
of termination for Cause shall be the date the Company sends the Employee a
written notice to such effect specifying the reason(s) for the termination
for
Cause.
For
purposes of this Agreement, “Cause”
shall
mean any one of the following: (i) conviction of the Employee for committing
a
felony or crime or other crime involving moral turpitude; (ii) the Employee
having committed acts or omissions constituting willful or wanton misconduct
with respect to the Company; (iii) the Employee having committed any act of
fraud or embezzlement involving the Company; (iv) the Employee having committed
any willful and material violation of any statutory or common law duty of
loyalty to the Company; (v) the Employee having committed acts or omissions
constituting a material breach of this Agreement that continues for more than
15
days after notice from the Company specifically identifying such
breach.
In the
event of any termination under this Section
4(b),
the
Company shall pay all amounts of Base Salary then due to the Employee under
Section
2(a)
up to
the payroll period worked but for which payment had not yet been made up to
the
date of termination (but expressly excluding any bonuses or other incentive
compensation). The Company shall have no further obligations to the Employee
under this Agreement (including no obligation with respect to bonuses or other
incentive compensation), and any and all stock options granted to the Employee
shall terminate according to their terms of grant with any such vested options
being exercisable for the shorter of (i) 90 days from the date of termination
and (ii) the exercise term of each relevant option grant.
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(b) Termination
for Disability.
The
Employee's employment with the Company may be terminated by the Company in
the
event of the Employee's Disability. The
date
of termination for Disability shall be the date the Company sends the Employee
a
written notice to such effect. In
the
event of any termination under this Section
4(b),
on the
date of termination all options that would have otherwise vested within the
12
months following the date of the date of termination shall accelerate and
immediately vest and become exercisable in full. Such options may be exercised
for the longer of (i) 12 months from the date of the date of termination and
(ii) the exercise term of each relevant option grant. For purposes of this
Agreement, “Disability”
shall
mean the inability of the Employee, in the reasonable judgment of a physician
appointed by the Board, to perform his duties of employment because of any
physical or mental disability or incapacity, where such disability shall exist
for an aggregate period of more than 150 days in any 365-day period or for
any
period of 90 consecutive days. In the event of any termination under this
Section
4(b),
the
Company shall (i) pay by the next payroll period all amounts then due to the
Employee under Section
2(a)
up to
the payroll period worked but for which payment had not yet been made up to
the
date of termination (including bonuses then-earned or owing), and (ii) comply
with its obligations under Section
2(e).
(c) Termination
upon Death.
The
Employee's employment with the Company automatically terminates on the
Employee's death. In the event of the Employee's death (i) the Company will
continue to pay the Employee's heirs or beneficiaries his Base Salary for 6
months following the date of termination (on regular payroll dates) and (ii)
on
the date of termination all options that would have otherwise vested within
the
12 months following the date of the Employee's death shall accelerate and
immediately vest and become exercisable in full. Such options may be exercised
for the longer of (i) 12 months from the date of the Employee's death and (ii)
the exercise term of each relevant option grant. In addition, in the event
of
the Employee's death, the Company shall (i) pay by the next payroll period
all
amounts then due to the Employee under Section
2(a)
up to
the payroll period worked but for which payment had not yet been made up to
the
date of termination (including bonuses then-earned or owing), and (ii) comply
with its obligations under Section
2(f).
(d) Termination
without Cause.
The
Employee's employment with the Company may be terminated by the Company, in
the
absence of Cause, for any reason and in its sole and absolute discretion,
provided that in such event (which
would include the Company's declining to extend the Employment Term in
accordance with Section 1(a))
the
Company shall continue to pay to the Employee the Base Salary (on regular
payroll dates) for twelve months from the date of termination (the “Termination
Payments”)
plus
any bonuses then-earned or owing on the date of termination and an amount equal
to the Target Bonus for the year in which the termination occurs pro rated
based
on the number of days of service in such year. On
the
date of termination, all
unvested options shall accelerate and immediately vest and become exercisable
in
full.
Such
options may be exercised for the longer of (i) 12 months from the date of
termination and (ii) the exercise term of each relevant option grant. Finally,
during any period in which Termination Payments are required to be paid, the
Company shall continue the benefits for the Employee and his family provided
for
under Section
2
at no
cost to the Employee.
5
(e) Termination
by
the
Employee for
Good Reason.
The
Employee's employment with the Company may be terminated by the Employee for
Good Reason. “Good
Reason”
shall
be deemed to exist: (i) if the Employee’s duties or responsibilities are
materially diminished or the Employee is assigned any duties materially
inconsistent with the duties or responsibilities contemplated by this Agreement;
(ii) if the Company shall have continued to fail to comply with any material
provision of this Agreement after a 30-day period to cure (if such failure
is
curable) following written notice by the Employee to the Company of such
non-compliance; (iii) upon a Change in Control; or (iv) if the Company requires
that the Employee be based at any location other than Charlotte, NC or Boca
Raton, FL (or the suburban area of either). In the event of any termination
under this Section
4(e),
the
Company shall pay the Termination Payments plus any bonuses then-earned or
owing
on the date of termination and an amount equal to the Target Bonus for the
year
in which the termination occurs pro rated based on the number of days of service
in such year to the Employee in the same amount and manner as under Section
4(d).
On
the
date of termination, all
unvested options shall accelerate and immediately vest and become exercisable
in
full.
Such
options may be exercised for the longer of (i) 12 months from the date of
termination and (ii) the exercise term of each relevant option grant. Finally,
during any period in which Termination Payments are required to be paid, the
Company shall continue the benefits for the Employee and his family provided
for
under Section
2
at no
cost to the Employee.
(f) Voluntary
Resignation.
The
Employee's employment with the Company may be terminated by the Employee without
Good Reason. In the event of any termination under this Section
4(f),
the
Company shall pay all amounts of Base Salary then due to the Employee under
Section
2(a)
up to
the payroll period worked but for which payment had not yet been made up to
the
date of termination (but expressly excluding any bonuses or other incentive
compensation). The Company shall have no further obligations to the Employee
under this Agreement (including no obligation with respect to bonuses or other
incentive compensation), and any and all stock options granted to the Employee
shall terminate according to their terms of grant; provided that if such
termination occurs during the first year of the Employment Term any such vested
options would be exercisable for the shorter of (i) 90 days from the date of
termination and (ii) the exercise term of each relevant option grant, and if
the
termination occurs thereafter any such vested options would continue to be
exercisable for the full exercise term of each relevant option
grant.
5. Non-Competition.
During
the Employment Term and for two years following termination thereof (other
than
any such termination by the Company without Cause or by the Employee for Good
Reason), the Employee shall not, directly or indirectly own any interest in,
manage, control, participate in, consult with, render services for, advise,
or
in any manner engage in the Company Business within a 100 mile radius of any
office operated by the Company or any subsidiary of the Company, whether as
an
officer, director, stockholder, consultant, investor, agent or otherwise (unless
the Board shall have authorized such activity and the Company shall have
consented thereto in writing). For purposes of this Section 5, “Company
Business” means (i) providing
accounts receivable funding (factoring), outsourcing of accounts receivable
management including collections and the risk of customer default, purchase
order financing, lawsuit financing, trade finance and government contract
funding and (ii) back office support including payroll, payroll tax compliance
and invoice processing services. Passive
investments in less than 5% of the outstanding securities of any entity subject
to the reporting requirements of Section 13 or Section 15(d) of the Exchange
Act, shall not be prohibited by this Section
5.
The
provisions of this Section
5
are
subject to the provisions of Section
14.
6
6. Inventions
and Confidential Information.
The
parties hereto recognize that a major need of the Company is to preserve its
specialized knowledge, trade secrets and confidential information. The strength
and good will of the Company is derived from the specialized knowledge, trade
secrets, and confidential information generated from experience with the
activities undertaken by the Company. The unauthorized disclosure of this
information and knowledge to competitors would be beneficial to such competitors
and detrimental to the Company, as would the disclosure of non-public
information about the marketing practices, pricing practices, costs, profit
margins, design specifications, development and business plans, analytical
techniques and similar items of the Company. The Employee acknowledges that
specific proprietary information and non-public data obtained by him while
employed by the Company concerning the business or affairs of the Company are
the property of the Company. By reason of his being a senior executive of the
Company, the Employee has or will have access to, and has obtained or will
obtain, trade secrets and confidential information about the Company's
operations, which operations extend throughout the United States. Therefore,
subject to the provisions of Section
14,
the
Employee hereby agrees as follows, recognizing that the Company is relying
on
these agreements in entering into this Agreement:
(a) During
the Employment Term and for three years following termination of the Employee's
employment with the Company for any reason, the Employee will not use, disclose
to others, or publish or otherwise make available to any other party (other
than
in furtherance of his obligations hereunder) any non-public or confidential
business information about the business and affairs of the Company, including
but not limited to confidential information concerning the Company's products,
methods, engineering designs and standards, analytical techniques, technical
information, customer information, employee information, inventions and other
confidential information acquired by him in the course of his past or future
services for the Company during the Employment Term. The Employee agrees to
hold
as the Company's property all books, papers, letters, formulas, memoranda,
notes, plans, records, reports, computer tapes, printouts, software and other
documents, and all copies thereof and therefrom, relating to the Company's
business and affairs conducted by him as Chief Executive Officer of the Company,
whether made by him or otherwise coming into his possession or control, and
on
termination of his employment, or upon demand of the Company, at any time after
termination of his employment, to deliver the same to the Company.
7
(b) During
the Employment Term and for 18 months following termination of the Employee's
employment with the Company for any reason, the Employee will not (i) directly
or indirectly, including through an entity or agent, induce or otherwise attempt
to influence any employee of the Company to leave the Company's employ, (ii)
hire, cause to be hired or induce a third party to hire, any such employee
(unless the Board shall have authorized such employment and the Company shall
have consented thereto in writing) or in any way materially interfere with
the
relationship between the Company and any employee thereof, or (iii) induce
or
attempt to induce any customer, supplier, licensee, licensor or other business
relation of the Company to cease or otherwise limit doing business with the
Company or in any way materially interfere to the detriment of the Company
with
the relationship between any such customer, supplier, licensee or business
relation of the Company.
7. Indemnification;
Director and Officer Liability Insurance.
The
Company will indemnify (and advance the costs of defense of) the Employee (and
his legal representatives) to the fullest extent permitted by the laws of the
state in which the Company is incorporated, as in effect at the time of the
subject act or omission, or by the Certificate of Incorporation and Bylaws
of
the Company, as in effect at such time or on the date of this Agreement,
whichever affords greater protection to the Employee, and both
during and after termination (for any reason) of the Employee's employment,
the
Company shall cause the Employee to be covered under a directors and officers'
liability insurance policy for his acts (or non-acts) as an officer or director
of the Company or any of its affiliates. Such policy shall be maintained by
the
Company, at its expense in an amount of at least $5 million and on terms
(including the time period of coverage after the Employee's employment
terminates) at least as favorable to the Employee as policies covering the
Company's other members of its Board of Directors.
8. Litigation
Expenses.
In the
event of any litigation or other proceeding between the Company and the Employee
with respect to the subject matter of this Agreement and the enforcement of
the
rights hereunder and such litigation or proceeding results in final judgment
or
order in favor of the Employee, which judgment or order is substantially
inconsistent with the positions asserted by the Company in such litigation
or
proceeding, the losing party shall reimburse the prevailing party for all of
his/its reasonable costs and expenses relating to such litigation or other
proceeding, including, without limitation, his/its reasonable attorneys' fees
and expenses.
9. Consolidation;
Merger; Sale of Assets; Change of Control.
Nothing
in this Agreement shall preclude the Company from combining, consolidating
or
merging with or into, transferring all or substantially all of its assets to,
or
entering into a partnership or joint venture with, another corporation or other
entity, or effecting any other kind of corporate combination provided that
the
corporation resulting from or surviving such combination, consolidation or
merger, or to which such assets are transferred, or such partnership or joint
venture expressly assumes in writing this Agreement and all obligations and
undertakings of the Company hereunder. Upon such a consolidation, merger,
transfer of assets or formation of such partnership or joint venture, this
Agreement shall inure to the benefit of, be assumed by, and be binding upon
such
resulting or surviving transferee corporation or such partnership or joint
venture, and the term “Company,” as used in this Agreement, shall mean such
corporation, partnership or joint venture or other entity, and this Agreement
shall continue in full force and effect and shall entitle the Employee and
his
heirs, beneficiaries and representatives to exactly the same compensation,
benefits, perquisites, payments and other rights as would have been their
entitlement had such combination, consolidation, merger, transfer of assets
or
formation of such partnership or joint venture not occurred.
8
10. No
Set-off; No Mitigation Required.
Except
as expressly provided otherwise in this Agreement, the obligation of the Company
to make any payments provided for hereunder and otherwise to perform its
obligations hereunder will not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against the Employee or others. In no event will the Employee be obligated
to
seek other employment or take other action by way of mitigation of the amounts
payable to the Employee under any of the provisions of this Agreement, and
such
amounts will not be reduced (except as otherwise specifically provided herein)
whether or not the Employee obtains other employment.
11. Section
409A Compliance.
This
Agreement is intended to comply with Internal Revenue Code Section 409A.
Notwithstanding any provision herein to the contrary, this Agreement shall
be
interpreted, operated and administered consistent with this intent. In that
regard, any payment described herein that is subject to Code Section 409A shall
not be made earlier than six (6) months after the date of termination to the
extent required by Code Section 409A(a)(2)(B)(i); provided that any such payment
that is deferred pursuant to this Section 11 shall be paid in full as soon
as
possible consistent with this Section 11.
12. Survival
of Obligations.
Sections
4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15
and
16
shall
survive the termination for any reason of this Agreement (whether such
termination is by the Company, by the Employee, upon the expiration of this
Agreement or otherwise).
13. Employee's
Representations.
The
Employee hereby represents and warrants to the Company that (i) the execution,
delivery and performance of this Agreement by the Employee do not and shall
not
conflict with, breach, violate or cause a default under any material contract,
agreement, instrument, order, judgment or decree to which the Employee is a
party or by which he is bound, (ii) the Employee is not a party to, or bound
by,
any employment agreement, noncompete agreement or confidentiality agreement
with
any other person or entity, and (iii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and binding
obligation of the Employee, enforceable in accordance with its terms. The
Employee hereby acknowledges and represents that he has consulted with legal
counsel regarding his rights and obligations under this Agreement and that
he
fully understands the terms and conditions contained herein.
14. Company's
Representations.
The
Company hereby represents and warrants to the Employee that (i) the execution,
delivery and performance of this Agreement by the Company do not and shall
not
conflict with, breach, violate or cause a default under any material contract,
agreement, instrument, order, judgment or decree to which the Company is a
party
or by which it is bound, and (ii) upon the execution and delivery of this
Agreement by the Employee, this Agreement shall be the valid and binding
obligation of the Company, enforceable in accordance with its
terms.
9
15. Enforcement.
Because
the Employee's services are unique and because the Employee has access to
confidential information concerning the Company, the parties hereto agree that
money damages shall not be an adequate remedy for any breach of this Agreement.
Therefore, in the event of a breach or threatened breach of this Agreement
that
cannot be compensated with monetary damages, the Company may, in addition to
other rights and remedies existing in its favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in
order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security).
16. Severability.
In case
any one or more of the provisions or part of a provision contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect in any jurisdiction, such invalidity, illegality or
unenforceability shall be deemed not to affect any other jurisdiction or any
other provision or part of a provision of this Agreement, nor shall such
invalidity, illegality or unenforceability affect the validity, legality or
enforceability of this Agreement or any provision or provisions hereof in any
other jurisdiction; and this Agreement shall be reformed and construed in such
jurisdiction as if such provision or part of a provision held to be invalid
or
illegal or unenforceable had never been contained herein and such provision
or
part reformed so that it would be valid, legal and enforceable in such
jurisdiction to the maximum extent possible. In furtherance and not in
limitation of the foregoing, the Company and the Employee each intend that
the
covenants contained in Sections
5
and
6
shall be
deemed to be a series of separate covenants. If, in any judicial proceeding,
a
court shall refuse to enforce any of such separate covenants, then such
unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings. If, in any
judicial proceeding, a court shall refuse to enforce any one or more of such
separate covenants because the total time, scope or area thereof is deemed
to be
excessive or unreasonable, then it is the intent of the parties hereto that
such
covenants, which would otherwise be unenforceable due to such excessive or
unreasonable period of time, scope or area, be enforced for such lesser period
of time, scope or area as shall be deemed reasonable and not excessive by such
court.
17. Entire
Agreement; Amendment.
This
Agreement contains the entire agreement between the Company and the Employee
with respect to the subject matter hereof. This Agreement may not be amended,
waived, changed, modified or discharged except by an instrument in writing
executed by or on behalf of the party against whom enforcement of any amendment,
waiver, change, modification or discharge is sought. No course of conduct or
dealing shall be construed to modify, amend or otherwise affect any of the
provisions hereof.
18. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if physically delivered,
delivered by express mail or other expedited service or upon receipt if mailed,
postage prepaid, via registered mail, return receipt requested, addressed as
follows:
10
| (a) To the Company: | (b) To the Employee: |
|
BTHC
XI, Inc.
c/o
Anchor Funding Services, LLC
0000
Xxxxxxxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
|
Xxxxx
Xxxxx
00000
Xxx Xxxxx Xxx
Xxxx
Xxxxx, XX 00000
|
and/or
to
such other persons and addresses as any party shall have specified in writing
to
the other.
19. Assignability.
This
Agreement shall not be assignable by either party and shall be binding upon,
and
shall inure to the benefit of, the heirs, executors, administrators, legal
representatives, successors and assigns of the parties. In the event that all
or
substantially all of the business of the Company is sold or transferred, then
this Agreement shall be binding on the transferee of the business of the Company
whether or not this Agreement is expressly assigned to the
transferee.
20. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware without regard to conflict of laws principles.
21. Waiver
and Further Agreement.
Any
waiver of any breach of any terms or conditions of this Agreement shall not
operate as a waiver of any other breach of such terms or conditions or any
other
term or condition, nor shall any failure to enforce any provision hereof operate
as a waiver of such provision or of any other provision hereof. Each of the
parties hereto agrees to execute all such further instruments and documents
and
to take all such further action as the other party may reasonably require in
order to effectuate the terms and purposes of this Agreement.
22. Headings
of No Effect.
The
Section headings contained in this Agreement are for reference purposes only
and
shall not in any way affect the meaning or interpretation of this
Agreement.
(Remainder
of page intentionally left blank)
11
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the date first above written.
| COMPANY: | ||
| BTHC XI, INC. | ||
| |
|
|
| By: | /s/ | |
|
Name: Xxxx Xxxxxxxxx |
||
|
Title:
President
|
||
|
EMPLOYEE:
|
||
| |
|
|
| By: | /s/ | |
|
Xxxxx Xxxxx |
||
12
