Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of October 12, 2004 (this "Agreement"),
between Ramp Corporation (the "Company"), and Xxxxxx Xxxxxxxxxxx (the
"Executive").
RECITALS
WHEREAS, the Company desires to employ the Executive and the Executive
desires to accept such employment by the Company on the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Executive as an Executive
Vice President and Chief Financial Officer, and the Executive hereby accepts
such employment by the Company, upon the terms and conditions hereinafter set
forth. The Executive shall perform such services as the Chief Financial Officer
of the Company as the Chairman of the Board, the Chief Executive Officer or the
Board of Directors of the Company (collectively the "Supervising Persons"),
shall in good faith direct.
2. Term. Subject to the provisions for earlier termination provided in
this Agreement, the term of the Executive's employment shall initially be for a
12-month period commencing on the date hereof (the "Effective Date"), and ending
on October 12, 2005 (the "Initial Term"). Unless either party, upon not less
than 90 days' prior written notice to the other (a "Notice of Termination")
before the end of the Initial Term, elects not to renew this Agreement, the
Executive's employment under this Agreement shall renew on the same terms and
conditions as set forth herein. Such Notice of Termination shall not be required
with respect to any termination pursuant to Sections 6, 7, 8 or 9 below and an
election not to renew pursuant to this Section 2 shall not constitute a
"Termination Without Cause" for purposes of Section 8 and Section 11(b).
3. Duties.
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(a) During the Employment Period, the Executive shall be employed
as Chief Financial Officer and an Executive Vice President of the Company. Such
title may be changed from time to time by the Company, so long as the Executive
maintains the substantially similar level of authority and responsibility. The
Executive shall serve under and report to the Supervising Persons. The Company
and each of their direct or indirect subsidiaries, divisions, partnerships,
limited liability companies, joint ventures and affiliates are hereinafter
referred to collectively as the "Group."
(b) During the Employment Period, the Executive shall perform for
the Group the services normally rendered by a similarly situated executive, as
well as such other services and duties commensurate with the Executive's
position with the Company as the Supervising Persons may direct. The Executive
shall abide by the Company's and the Group's policies, standards, rules and
regulations (including without limitation any ethical rules or standards) as in
effect from time to time after obtaining knowledge thereof, and shall in all
respects use his best efforts to conform to and comply with the lawful
directions and instructions given to the Executive by the Supervising Persons.
(c) During the Employment Period, the Executive shall: (i) use his
best efforts to perform the Executive's duties with efficiency, diligence, care
and conscientiousness; (ii) provide to the Supervising Persons such information
regarding the Group's business and operations as any of them shall require; and
(iii) at all times act consistently with the Executive's duties and obligations
to the Company and the Group and use the Executive's best efforts to promote and
serve the interests of the Company and the Group.
4. Time to be Devoted to Employment. During the Employment Period, the
Executive shall devote the Executive's full business time, attention and
energies to the business of the Company and the Group and shall not engage in
any other business, without prior consent of a Supervising Person, which shall
not be unreasonably withheld, whether or not such activity is pursued for gain,
profit or other pecuniary advantage; provided, however, the Executive may own up
to 5% of the capital stock of any entity that is publicly-traded on a U.S.
national stock exchange or quotation system, so long as the Executive does not
control, directly or indirectly, through one or more entities or groups (whether
formal or informal), the voting or disposition of greater than 5% of the
aggregate beneficial ownership interest of any such entity.
5. Compensation; Benefits and Reimbursement. For all services rendered
by the Executive in any capacity during the Employment Period, including,
without limitation, services as an officer, director or member of any committee
of the Company or any member of the Group, the Executive shall be compensated as
follows (subject, in each case to the provisions of Sections 6-10 below):
(a) During the Employment Period, the Company shall pay, or cause
to be paid, to the Executive a base salary (the "Base Salary") at a rate of
$195,000 on an annualized basis, which shall be payable in accordance with the
customary payroll practices of the Company. Provided, however, that Executive
will receive a reduced salary equal to Base Salary minus $75,000 ( $120,000) on
an annualized basis through December 31, 2004 and a reduced salary equal to Base
Salary minus $45,000 ($150,000) on an annualized basis from January 1, 2005-
March 31, 2005. After March 31, 2005 the Executive will be paid the Base Salary.
Additionally, Executive will participate in the employee restricted stock
ownership plan at a level of 3.2%.
(b) Executive shall be entitled to receive a discretionary bonus
from the Company within a month of December 31, 2005 as reasonably determined by
the Chief Executive Officer. No bonus shall be required, and any bonus paid
under this provision will be at the sole discretion of the Chief Executive
Officer of the Company.
(c) During the Employment Period, the Executive shall be entitled
to the following:
(i) participation in the Company's and/or the Group's pension
and benefit plans as the Company and/or the Group generally maintains from time
to time during the Employment Period for the benefit of its similarly situated
employees, in each case subject to the eligibility requirements and other terms
and provisions of such plans or programs; provided, however, the Company and/or
the Group may modify or discontinue any such benefits, plans or programs and
change employee contribution amounts to benefit costs without notice in its
discretion. The Company will pay 100% of the cost of the Executive's family
health coverage. Prior to joining the Company sponsored health insurance
program, the Company will reimburse
the Executive for the cost of COBRA not to exceed the cost the Company would
otherwise have incurred had the Executive joined the Company sponsored health
insurance plan.
Notwithstanding the foregoing in this Section 5(c)(i), Executive shall continue
to be entitled to all benefits to which Executive shall be entitled under this
Section 5(c)(i) immediately prior to a change in control of the Company for a
period of two years after such change in control.
(ii) reimbursement for all reasonable and necessary out-of
pocket expenses incurred in the ordinary course of the Executive's employment
during the Employment Period, including travel and entertainment expenses,
according to the Company's expense account and reimbursement policies in place
from time to time and provided that the Executive shall submit appropriate
documentation sufficient for tax purposes to substantiate the expenditure as an
income tax deduction. Each such expenditure shall be reimbursable only if it is
of a nature qualifying it as a proper deduction on the federal and state income
tax returns of the Company, or with the prior written approval of a Supervising
Person. Further, the Executive must obtain the prior consent of a Supervising
Person with respect to any single expense in excess of $2,500 or any aggregate
expenses that exceed $10,000 in any one-month period.
(iii) During the Employment Period, the Executive will accrue
vacation at the rate of 1.67 days for each full month worked, up to a maximum of
twenty (20) days per year. Vacation accruals may not exceed twenty (20) days
(the "Maximum Accrual"). Accordingly, once the Maximum Accrual is reached, all
further vacation accruals will cease. Vacation accruals will recommence after
Executive has taken vacation and his vacation accrual has dropped below the
Maximum Accrual. To the extent this Section 5(c)(iv) conflicts with any Company
policy, the provisions hereof shall prevail.
(d) If a change in control of the Company occurs and if within 365
days thereafter Executive's employment hereunder shall be terminated by the
Company without Cause, then, in addition to all other payments and benefits
provided for elsewhere in this Agreement:
(i) the Company shall pay or cause to be paid to Executive,
cash compensation in an amount equal to twice Executive's then current Base
Salary on the date of such termination of Executive's employment;
(ii) the Company shall pay or cause to be paid to Executive, a
cash performance bonus in an amount equal to twice the aggregate amount of cash
which Executive was entitled to receive from the Company as bonus compensation
with respect to the twelve-month period immediately preceding the date of
termination of Executive's termination hereunder;
(iii) Any unvested Options or other stock incentive (including
without limitation the restricted stock ownership plan referenced in Section
5(a)) described in Section 5 hereof shall vest and in the case of Options,
become exercisable immediately and remain exercisable for the remaining original
term of the Options; and
(iv) Notwithstanding subsections (i) and (ii) above, if the
change in control shall result from the sale of the Company for less than Thirty
One Million Dollars ($31,000,000), each such subsection shall be interpreted as
if the word "twice" had been omitted.
(e) For the purpose of this Amendment, a "change in control"
means: (A) the direct or indirect acquisition, whether in one or a series of
transactions by any person (as such term is used in Section 13(d) and Section
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT")), or related persons constituting a group (as such term is used in Rule
13d-5 under the Exchange Act), of (1) beneficial ownership (as defined in the
Exchange Act) of issued and outstanding shares of stock of the Company, the
result of which acquisition is that such person or such group possesses in
excess of 25% of the combined voting power of all then-issued and outstanding
stock of the Company, or (2) the power to elect, appoint, or cause the election
or appointment of at least a majority of the members of the Board (or such other
governing body in the event the Company or any successor entity is not a
corporation); (B) a merger or consolidation of the Company with a person or a
direct or indirect subsidiary of such person, provided that the result of such
merger or consolidation, whether in one or a series of related transactions, is
that the holders of the outstanding voting stock of the Company immediately
prior to the consummation of such transaction do not possess, whether directly
or indirectly, immediately after the consummation of such merger or
consolidation, in excess of 25% of the combined voting power of all then-issued
and outstanding stock of the merged or consolidated person, its direct or
indirect parent, or the surviving person of such merger or consolidation; or (C)
a sale or disposition, whether in one or a series of transactions, of all or
substantially all of the Company's assets.
6. Involuntary Termination.
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(a) To the extent permitted by law, in the event of the
Executive's physical or mental disability that prevents the Executive from
performing the services required to be performed by the Executive under this
Agreement for a period of at least 120 consecutive days or 150 non-consecutive
days in any 12-month period (such condition being herein referred to as a
"Disability"), the Company may, at its option, terminate this Agreement and the
Executive's employment hereunder, effective upon giving the Executive notice to
that effect. In the event of a dispute as to the Executive's ability to perform
the Executive's duties, the Company may refer the same to a licensed practicing
physician of the Company's choice, and the Executive agrees to submit to such
non-invasive tests and examination as such physician shall deem appropriate.
(b) If the Executive dies during the Employment Period, this
Agreement and the Executive's employment hereunder shall be deemed to be
terminated as of the date of Executive's death (such termination, as well as a
termination for Disability under Section 6(a) above being referred to herein as
an "Involuntary Termination").
7. Termination For Cause. The Company may terminate this Agreement and
the employment of the Executive hereunder at any time during the Employment
Period for Cause by giving the Executive written notice of such termination,
which termination shall take effect immediately upon receipt of such notice (a
"Termination for Cause"). For the purposes of this Agreement, "Cause" shall
mean:
(a) any breach of the Executive's obligations under this Agreement
in any material respect, if such breach is not cured within 15 days after
written notice from the Company describing the alleged breach; provided,
however, a breach of Sections 12, 13, 14 or 17 shall not be subject to any cure
period;
(b) gross incompetence, willful misconduct or willful neglect in
the execution of the Executive's duties hereunder;
(c) fraud, misappropriation, theft, gross malfeasance or
dishonesty on the part of Executive in connection with the performance of his
duties to the Company or otherwise in his dealings or arrangements with the
Company, any member of the Group or any of its or their respective clients,
customers, suppliers or vendors;
(d) conviction of the Executive of a felony or a crime involving
moral turpitude;
(e) (i) violation of the Executive's fiduciary obligations to the
Company or (ii) conduct by the Executive which is inconsistent with the
Executive's position and which results or is reasonably likely to result, in an
adverse effect (financial or otherwise) on the business or reputation of the
Company or any other member of the Group;
(f) repeated or continued absence from work during normal business
hours for reasons other than illness, incapacity or permitted vacation;
(g) violation by the Executive in any material respect of any
policies, rules, regulations, standards or practices of the Company or the Group
in place from time to time the customary penalty for which is termination of
employment; or
(h) failure to comply with any lawful written directive of the
Board of directors or any appropriate committee thereof.
8. Termination Without Cause. The Company may terminate this Agreement
and the employment of the Executive hereunder, for no reason or any reason
whatsoever (other than for Cause), at any time upon 90 days' prior written
notice and payment of 90 days' Base Salary to the Executive (a "Termination
Without Cause"). No payments under this Section 8 will impair any payments owed
to the Executive under Section 11(b), with those payments explicitly being in
addition to any payments due under this Section 8.
9. Voluntary Termination. The Executive may terminate this Agreement
and his employment with the Company hereunder at any time by giving 90 days'
prior written notice of termination to the Company; provided, however, that the
Company reserves the right to accept the Executive's notice of termination and
to accelerate such notice and make the Executive's termination effective
immediately, or on any other date prior to the Executive's intended last day of
work as the Company deems appropriate.
10. Expiration of Initial Term. This Agreement and the Executive's
employment hereunder shall automatically terminate upon the expiration of the
Initial Term, provided that either party shall have given a Notice of
Termination in accordance with the terms and provisions of Section 2 above.
11. Effect of Termination. Upon any termination of this Agreement and
the employment of the Executive whether pursuant to any of Sections 6, 7, 8, 9
or 10 hereof or otherwise, neither the Executive nor Executive's beneficiaries
or estate shall have any further rights or claims against the Company or the
Group under this Agreement or otherwise, except as hereinafter set forth in this
Section 11 and the right to receive any benefits to which the Executive is
entitled to pursuant to any Federal state or local laws, including, without
limitation, COBRA laws:
(a) the unpaid portion of the Base Salary provided for in Section
5(a) above to the effective date of termination; and
(b) reimbursement for any expenses for which the Executive shall
not have theretofore been reimbursed as provided in Section 5(c)(ii) above.
12. Confidentiality and Non-Disclosure.
(a) The Executive recognizes that, as a valued employee of the
Company, Executive occupies a position of trust with respect to business
information of a secret, proprietary or confidential nature that is the property
of the Company and/or the Group and which has been or will be used by or
imparted to Executive from time to time in the course of the performance of
Executive's duties hereunder. Executive acknowledges and agrees that such
Confidential Information is important, material and confidential trade secrets
and proprietary information of the Company and/or the Group, and materially
affect the successful conduct of the Company's and/or the Group's business and
its goodwill. Executive therefore agrees that:
(i) The Executive shall use Confidential Information only in
the good faith performance of the Executive's duties hereunder. The Executive
shall not at any time during the Employment Period or thereafter, directly or
indirectly, use Confidential Information for the Executive's personal benefit,
for the benefit of any other individual or entity, or in any manner adverse to
the interests of the Company, the Group or its or their respective clients and
customers;
(ii) The Executive will not, directly or indirectly, disclose
Confidential Information at any time (during or after the Employment Period)
except to authorized Company personnel; (iii) The Executive will safeguard
Confidential Information by all reasonable steps and abide by all policies and
procedures of the Company and the Group in effect from time to time and of which
he has obtained knowledge regarding storage, copying and handling of documents;
and
(iv) Promptly on the termination of Executive's employment for
whatever reason or otherwise on demand, the Executive shall return (or in the
event of Executive's death, Executive's personal representative shall return) to
the Company any and all materials, substances, models, software, prototypes,
documents and the like containing and/or relating to Confidential Information,
together with all other property of the Company, the Group and its and their
respective customers and clients. The Executive shall not retain any copies or
reproductions of correspondence, memoranda, reports, notebooks, drawings,
photographs, databases, diskettes, or other documents or electronically stored
information of any kind relating to the business, potential business of affairs
of the Company, the Group and its and their respective clients and customers.
(b) "Confidential Information" means and includes (i) all
knowledge, documents, information, data and material concerning the Company and
the Group or any of their respective businesses, operations, affairs or
financial condition, and (ii) all information that has been disclosed to the
Company or any other member of the Group by any third party under an agreement
or circumstances requiring such information to be kept confidential.
Confidential Information shall include, without limitation, the names,
procedures, projects, rates, fees, and practices of the Company and the Group
and their respective clients; pricing information relating
to the Company and the Group and their respective vendors and suppliers;
compensation paid to employees and other terms of employment; proprietary
software and programs; financial or research models or processes and related
data; and financial information concerning the Company and the Group.
Confidential Information shall not include (i) information that is in the public
domain through no fault of Executive; (ii) information published or disseminated
by the Company or the Group in the ordinary course of business without
restriction; and (iii) information received from a third party not under an
obligation to keep such information confidential and without breach of this
Agreement by Executive.
(c) The terms and provisions of this Section 12 shall survive the
termination of this Agreement and the Executive's employment hereunder.
13. Non-Solicitation and Non-Competition
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(a) The Executive acknowledges and understands that, in view of
the position that the Executive will hold as an employee of the Company, the
Executive's relationship with the Company and the Group will afford the
Executive extensive access to Confidential Information of the Company and the
Group. The Executive therefore agrees that during the course of the Executive's
employment with the Company or any member of the Group and for a period of 12
months after termination of the Executive employment with the Company or any
member of the Group (for any reason or no reason) (collectively, "Restricted
Period"), the Executive shall not in any State within the United States of
America that the Company or the Group then conducts or proposes to conduct
business, either directly or indirectly, as an owner, stockholder, member,
partner, joint venturer, officer, director, consultant, independent contractor,
agent or employee, engage in any business or other commercial activity which is
engaged in or is seeking to engage in a "competitive business". As used in this
Agreement, the term "competitive business" shall mean any individual or
enterprise engaged in point-of-care technology and related connectivity
solutions to any segment of the healthcare marketplace.
(b) During the Restricted Period, the Executive shall not,
directly or indirectly, either on the Executive's own behalf or on behalf of any
other individual or commercial enterprise: contact, communicate, solicit or
transact any business with or assist any third party in contracting,
communicating, soliciting or transacting any business with (i) any of the
customers or clients of the Company or of the Group, (ii) any prospective
customers or clients of the Company or of the Group being solicited at the time
of the Executive's termination, or (ii) any individual or entity who or which
was within the most recent 12-month period a customer or client of the Company
or of the Group, for the purpose of inducing such customer or client or
potential customer or client to be connected to or benefit from any competitive
business or to terminate its or their relationship with the Company or of the
Group.
(c) The Executive further agrees that during the Restricted
Period, the Executive will not, directly or indirectly (including without
limitation through the use of "headhunters", recruiters or other employment
agencies) or by action in concert with others, solicit, recruit or otherwise
induce or influence (or seek to induce or influence) any person or entity who or
which is or will be hereafter employed or engaged (as an employee, agent,
independent contractor or otherwise) by the Company or the Group to terminate
its, his or her employment or engagement with the Company or the Group. Further,
the Executive agrees that this restriction does not allow him to (i) disclose to
any third party the names, backgrounds or qualifications of any of the Company's
or the Group's employees or agents, or otherwise identify them as potential
candidates for employment or engagement; or (ii) participate in any
pre-employment interviews with any such employee or agent.
(d) The terms and provisions of this Section 13 shall survive the
termination of this Agreement and the Executive's employment hereunder.
14 Inventions.
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(a) The Executive will disclose promptly and fully to the Company
and the Supervising Persons and to no one else: (i) all procedures, inventions,
developments, ideas, improvements, discoveries, works, modifications, processes,
software programs, works of authorship, documentation, formulae, techniques,
designs, methods, trade secrets, technical specifications and technical data,
suggestions, proposals, know-how and show-how, concepts, expressions or other
developments whatsoever or any interest therein (whether or not patentable or
registrable under copyright, trademark or similar statutes or subject to
analogous protection) made, authored, devised, developed, discovered, reduced to
practice, conceived or otherwise obtained by the Executive ("Inventions"),
solely or jointly with others, during the course of the Executive's employment
with the Company which (a) are related to the business of the Company or the
Group, any of the products or services being researched, developed, distributed,
manufactured, licensed or sold by the Company or the Group, or the demonstrably
anticipated products or services of the Company or the Group or which may be
used in relation with any of the foregoing or (b) result from tasks assigned to
the Executive by the Company or Supervising Persons; and (ii) any Invention made
using the time, materials or facilities of the Company or the Group, even if
such Invention does not relate to the business of the Company or the Group. The
determination as to whether an Invention is related to the business of the
Company or the Group shall be made solely by an authorized representative of the
Company. The "business of the Company or the Group" as used in this Section 14
includes the actual business currently conducted by the Company or any member of
the Group, as well as any business in which the Company or any other member of
the Group demonstrably proposes to engage during the Employment Period. The
Executive agrees that all such Inventions listed above and the benefits thereof
are and shall immediately become the sole and absolute property of the Company
from conception, as "works made for hire" (as that term is used under the U.S.
Copyright Act of 1976, as amended) or otherwise. The Executive shall have no
interest in any Inventions. To the extent that title to any Inventions or any
materials comprising or including any Invention does not, by operation of law,
vest in the Company, the Executive hereby irrevocably assigns to the Company all
of the Executive's right, title and interest, including, without limitation,
tangible and intangible rights such as patent rights, trademarks and copyrights,
that the Executive may have or may acquire in and to all such Inventions,
benefits and/or rights resulting therefrom, and agrees promptly to execute any
further specific assignments related to such Inventions, benefits and/or rights
at the request of the Company. The Executive also hereby assigns to the Company,
or waives if not assignable, all of the Executive's "moral rights" in and to all
such Inventions, and agrees promptly to execute any further specific assignments
or waivers related to moral or other rights at the request of the Company.
(b) The Executive agrees to assist the Company (including without
limitation, signing all documents and supplying all information such as disks,
code, print outs and descriptions that the Company may deem necessary or
desirable) without charge for so long as the Executive is an employee of the
Company and for as long thereafter as may be necessary (but at the Company's
expense, including consulting fees at the same rate as the last salary in
effect,
if the Executive is no longer an employee of the Company): (1) to apply, obtain,
register and renew for, and vest in, the Company's benefit alone (unless the
Company otherwise directs), patents, trademarks, copyrights, mask works, and
other protection for such Inventions in all countries, and (2) in any
controversy or legal proceeding relating to Inventions. In the event that the
Company is unable to secure the Executive's signature after reasonable effort in
connection with any patent, trademark, copyright, mask work or other similar
protection relating to an Invention, the Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents as the
Executive's agent and attorney-in-fact, to act for and on the Executive's behalf
and stead to execute and file any such application and to do all other lawfully
permitted acts to further the prosecution and issuance of patents, trademarks,
copyrights, mask works or other similar protection thereon with the same legal
force and effect as if executed by the Executive. The Executive agrees and
understands that compliance with the covenants and agreements contained in this
Section 14 is not conditioned upon the payment of any additional or special
consideration.
(c) The obligations of this Section 14 shall continue beyond the
termination of this Agreement and the Executive's employment with the Company,
whether or not the Inventions are patentable or registrable under copyright,
trademark or similar statutes or subject to analogous protection, if conceived
or made by the Executive during the Employment Period and shall be binding upon
the Executive and his assigns, executors, administrators and other legal
representatives. For purposes of this Agreement, any Invention relating to the
business of the Company or the Group upon which the Executive files patent
applications or seeks analogous protection or which is otherwise disclosed to
the Company within one year after the termination of this Agreement shall be
presumed to relate to an Invention conceived by Executive during the Employment
Period, subject to proof to the contrary by good faith, written and duly
corroborated records establishing that such Invention was conceived and made by
the Executive after termination of his employment by the Company and that no
Confidential Information was utilized by Executive with respect to that
Invention.
15. Extraordinary Relief. The Executive acknowledges and understands
that the provisions of Sections 12, 13, 14 and 17 of this Agreement are of a
special and unique nature that are reasonably necessary to protect the
legitimate business interests of the Company and the Group, the breach of which
would cause the Company and/or the Group irreparable injury, and which cannot
adequately be compensated for in damages by an action at law. The Executive
further acknowledges that the restrictions set forth in Section 13 will not
prevent the Executive form earning a livelihood during the Restricted Period. In
the event of a breach or threatened breach by the Executive of any provision of
such Sections, the Company or the Group may seek an injunction restraining the
Executive from such actual or threatened breach, and shall not be required to
post a bond or to prove that irreparable injury would result from the alleged
breach of the aforesaid Sections. Nothing contained herein shall be construed as
prohibiting the Company or the Group from pursuing any other remedies
(including, without limitation, an action for damages) available for any actual
or threatened breach of this Agreement, and the pursuit of any injunction or any
other remedy shall not be deemed an exclusive election of such remedy. Further,
in addition to any other rights or remedies available to the Company or the
Group, in the event that the Company makes a good faith determination that the
Executive breached his obligations under Sections 12, 13, 14 or 17, any
outstanding obligations of the Company hereunder shall immediately terminate.
The restrictions and limitations herein regarding non-disclosure,
non-solicitation, non-disparagement and inventions are in addition to, and not
in derogation of, applicable law with respect to non-disclosure,
non-solicitation, non-competition and inventions in general. All time periods in
this Agreement shall be computed by excluding
from such computation any time during which the Executive is in violation of any
provision of this Agreement and any time during which there is pending in any
court of competent jurisdiction or arbitration forum any action (including any
appeal from any final judgment) brought by any person, whether or not a party to
this Agreement, in which action the Company or the Group seeks to enforce the
agreements and covenants in this Agreement or in which any person contests the
validity of such agreements and covenants or their enforceability or seeks to
avoid their performance or enforcement which is determined adversely against the
Executive or such other party.
16. Assistance in Litigation. Executive shall, upon reasonable notice,
furnish such information and proper assistance to the Company and the Group as
it may reasonably require, at the expense of the Company and the Group, which
shall include consulting fees at the rate of the employee's last salary, in
connection with any litigation in which it is, or may become, a party either
during or after the Employment Period.
17. No Disparagement.
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(a) The Executive shall not, except in connection with a legal
proceeding or order (including a proceeding relating to this Agreement), from
and after the date hereof, regardless of the expiration or termination of this
Agreement, make any (i) statement to any person or entity which has a business
relationship with the Company or the Group or (ii) public statement, in each
instance, that criticizes, ridicules, disparages or is derogatory of the Company
or the Group, or any of their respective stockholders, investors, officers,
directors, agents or employees or any of their products, services or procedures,
whether or not such disparaging or derogatory statements are true.
(b) The Company and the Group shall not, except in connection with
a legal proceeding or order (including a proceeding relating to this Agreement),
from and after the date hereof, regardless of the expiration or termination of
this Agreement, make any (i) statement to any person or entity which has a
business relationship with the Company or the Group or (ii) public statement, in
each instance, that criticizes, ridicules, disparages or is derogatory of the
Executive, whether or not such disparaging or derogatory statements are true.
(c) The provisions of this Section 17 shall survive the
termination of this Agreement and the Executive's employment hereunder.
18. Notices. All notices, claims, certificates, demands and other
communications hereunder shall be in writing and sent by facsimile transmission
or e-mail, by nationally-recognized overnight courier, delivered personally
against receipt, or mailed (by registered or certified mail, return receipt
requested and postage prepaid), as follows:
if to the Executive, to:
Xxxxxx Xxxxxxxxxxx
Ramp Corporation
00 Xxxxxx Xxxx
0xx Xxxxx
Xxx Xxxx XX 00000
The address as provided by the Executive to the Company, with
a copy to such person or entity as the Executive shall from time to
time request by notice to the Company;
if to the Company:
Ramp Corporation
00 Xxxxxx Xxxx 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been delivered (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of courier
delivery, upon receipt of confirmation of delivery, (c) in the case of telecopy
transmission or e-mail, upon confirmation of receipt by hardcopy and (d) in the
case of mailing, on the fifth business day following posting.
19. Entire Agreement; Severability. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior and contemporaneous arrangements,
agreements or understandings (whether written or oral) with respect thereto. In
the event that any one or more of this provisions contained in this Agreement
shall be deemed by a court of competent jurisdiction or arbitration panel to be
unenforceable in any respect, then such provision shall be deemed limited and
restricted to the extent that the court or arbitrator shall deem the provision
to be enforceable. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
hereof
20. Successors and Assigns; Assignment. The terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the Company and
the Executive and their successors and permitted assigns. This Agreement is
personal in its nature and neither party may assign or transfer this Agreement
or any rights or obligations hereunder, except that the Company shall have the
right to assign its rights hereunder to another member of the Group.
21. Governing Law. Any and all actions or controversies arising out of
this Agreement or the Executive's employment, including, without limitation,
tort claims, shall be governed by and construed in accordance with the laws of
the State of New York without giving effect to the principles of conflict of
laws.
22. Arbitration. Except with respect to either party's right to seek
injunctive and other equitable relief (including, without limitation, to enforce
the provisions of Sections 12, 13, 14 and 17), in consideration of the Company
employing Executive or continuing to employ Executive and the mutual promises
set forth herein, Executive and the Company agree, for themselves and for their
representatives, successors, and assigns, that any controversy or claim arising
out of or relating to this Agreement, its enforcement or interpretation, or
because of an alleged breach, default, or misrepresentation in connection with
any of its provisions, or arising out of or relating in any way to Executive's
employment with Company or termination thereof, shall be submitted to and
settled by final and binding arbitration in New York, New York, before a single
arbitrator, in accordance with the procedures required under New York law.
(a) To the extent not inconsistent with law, the following will
govern any arbitration hereunder:
(i) The National Rules for the Resolution of Employment
Disputes of the American Arbitration Association will apply. The arbitrator may
award any form of remedy or relief (including injunctive relief) that would
otherwise be available in court, consistent with applicable laws. Any award
pursuant to said arbitration shall be accompanied by a written opinion of the
arbitrator setting forth the reason for the award. The award rendered by the
arbitrator shall be conclusive and binding upon the parties hereto, and judgment
upon the award may be entered, and enforcement may be sought in, any court of
competent jurisdiction.
(ii) The Company shall bear the costs of the arbitrator and
forum fees and each party shall bear its own respective attorney fees and all
other costs, unless otherwise required or allowed by law and awarded by the
arbitrator, provided further that if any matter of dispute raised by a party or
any defense or objection thereto was unreasonable, the arbitrator may assess, as
part of the arbitration award, all or any part of the arbitration expenses
(including reasonable attorney's fees) of the other party and the arbitration
fees against the party raising such unreasonable matter of dispute or defense or
objection thereto.
(b) This pre-dispute resolution agreement covers all matters
directly or indirectly related to Executive's recruitment, employment, or
termination of employment by the Company, including, but not limited to, alleged
violations of Title VII of the Civil Rights Act of 1964, sections 1981 through
1988 of Title 42 of the United States Code and all amendments thereto, Employee
Retirement Income Security Act of 1974 ("ERISA"), the Americans with
Disabilities Act of 1990 ("ADA"), the Age Discrimination in Employment Act of
1967 ("ADEA"), the Older Workers Benefits Protection Act of 1990 ("OWBPA"), the
Fair Labor Standards Act ("FLSA"), the Occupational Safety and Health Act
("OSHA"), the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),
the New York Human Rights Laws, the New York City Human Rights Laws, the Texas
Commission on Human Rights Act, the Utah Anti-Discrimination Act and any and all
claims under federal, state, and local laws against employment discrimination or
otherwise pertaining to the Executive's employment or termination thereof, but
excluding Worker's Compensation Claims.
(c) In the event that either party files, and is allowed by the
courts to prosecute, a court action against the other, the plaintiff in such
action agrees not to request, and hereby waives such party's right to a trial by
jury.
(d) THE EXECUTIVE AND THE COMPANY UNDERSTAND THAT, ABSENT THIS
AGREEMENT, THEY WOULD HAVE THE RIGHT TO XXX EACH OTHER
IN COURT AND THE RIGHT TO A JURY TRIAL, BUT, BY THIS AGREEMENT, THEY GIVE UP
THOSE RIGHTS AND AGREE TO RESOLVE ANY AND ALL GRIEVANCES BY ARBITRATION.
23. Waivers. The provisions of this Agreement may not be waived,
temporarily or permanently, except pursuant to a writing executed by the party
against whom enforcement of such waiver would be sought. The waiver by any party
of a breach of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
24. Amendments; Modifications. The terms and provisions of this
Agreement may not be modified or amended without the written agreement of each
of the parties.
25. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement. Delivery of an executed counterpart by facsimile shall be equally as
effective as delivery of an manually executed counterpart.
26. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meanings or interpretations of this Agreement.
27. Survival. The representations, warranties, covenants and agreements
of the parties hereto shall survive any cancellation, termination, rescission,
amendment, modification or expiration of this Agreement and any termination of
the Executive's employment with the Company for any reason.
28. Indemnification. The Executive shall be entitled to indemnification
in his capacity as an officer of the Company as provided in the Company's
organizational documents and applicable law.
29. Executive's Ability to Contract for the Company. The Executive
shall not have the right to make any contracts or commitments for or on behalf
of the Company or the Group, to sign or endorse any commercial paper, contracts,
advertisements, or instrument of any nature, or to enter into any obligation
binding the Company or the Group to the payment of money or otherwise, except to
the extent Executive is so authorized in writing by a Supervising Person or by
resolution of the Company's Board of Directors.
30. Executive's Representations. The Executive represents and warrants
that: (i) the Executive has the legal capacity to execute and perform this
Agreement; (ii) this Agreement is a valid and binding agreement enforceable
against the Executive according to its terms; (iii) the Executive is free to
enter into this Agreement and to perform each of its terms and covenants; (iv)
the Executive is not restricted or prohibited, contractually or otherwise, from
entering into and performing this Agreement, (v) the Executive's execution and
performance of this Agreement is not a violation or a breach of any other
agreement or understanding to which the Executive is a party or by which the
Executive may be bound; and (vi) the Executive shall not disclose to the Company
or any member of the Group or induce the Company or any member of the Group to
use any secret or confidential information belonging to others, including,
without limitation, the Executive's former employers. The Executive agrees to
indemnify and hold the Company and the Group harmless from any and all costs and
expenses, including attorney's fees, incurred by the Company and the Group as a
result of any breach by Executive of the representations and warranties set
forth in this Section 30.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Employment Agreement the date first above written.
Ramp Corporation
By:
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Name: Xxxxxx Xxxxx
Title: Chairman and C.E.O.
EXECUTIVE
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Name: Xxxxxx Xxxxxxxxxxx
