EMPLOYMENT AGREEMENT
EXHIBIT 10.6
On
October 20, 2007, Serefex Corporation and X.X. Xxxxxxx Systems Inc., agreed to
enter into an employment agreement with Mr. Xxxxx Xxxx. The agreement
was never consummated although the parties operated as if the Agreement was in
place. The Agreement is hereby adopted to read as
follows:
THIS
AGREEMENT ("Agreement"), by and between Serefex Corporation, a Delaware
corporation and X.X. Xxxxxxx Systems Inc., an Ohio corporation, hereinafter
referred to as the ("Company"), and Xxxxx X. Xxxx ("Executive") is effective as
of October 20, 2007 (the "Effective Date"). In consideration of the
mutual covenants set forth herein, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT. The Company hereby
agrees to employ the Executive, and the Executive agrees to serve the Company,
in the capacities described herein during the Period of Employment (as defined
in Section 2 of this Agreement), in accordance with the terms and conditions of
this Agreement.
2. PERIOD OF EMPLOYMENT. The term
"Period of Employment" shall mean the period which commences on the Effective
Date and, unless earlier terminated pursuant to Section 6, ends on May 31, 2017;
provided, however, that
the Period of Employment shall automatically be extended on a day by day basis
effective on and after June 1, 2012 (so that the remaining term shall always be
five (5) years) until such date as either the Company or the Executive shall
have terminated such automatic extension provision by giving written notice to
the other.
3. DUTIES DURING THE PERIOD OF
EMPLOYMENT.
3.1 DUTIES.
During the Period of Employment, the Executive shall be employed as the
President and Chief Executive Officer of the Company and Chairman of
the Board of Directors, with overall charge and responsibility for the business
and affairs of the Company, including without limitation, the exclusive right,
as President, in his sole discretion, to vote on behalf of the company, any
shares of capital stock XX Xxxxxxx Systems Inc. owned by Serefex Corporation.
The Executive shall report directly to the Company's Board of Directors (the
"Board") and shall perform such duties as the Executive shall reasonably be
directed to perform by the Board. The Company shall use its best
efforts to cause the Executive to be elected as follows: (i) to the Board, as of
the Effective Date, (ii) to the Executive Committee and or management committee
of the Board, as of the first regularly scheduled Board meeting following the
Effective Date, and (iii) as Chairman of the Board, on or before December 31,
2007 or as of such date as Executive shall designate upon not less than thirty
(30) days' notice to the Company as provided under Section 19.2 of this
Agreement.
3.2 SCOPE.
During the Period of Employment, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive shall devote
substantially all of his business time and attention to the business and affairs
of the Company. It shall not be a violation of this Agreement for the Executive
to (i) serve on corporate, civic, professional, charitable boards or committees,
(ii) belong to professional associations or organizations, (iii) deliver
lectures, fulfill speaking engagements or teach occasional courses or seminars
at educational institutions, or (iv) manage personal investments, so long as
such activities under clauses (i), (ii) (iii) and (iv) do not interfere, in any
substantial respect, with the Executive's responsibilities
hereunder.
4. COMPENSATION AND OTHER
PAYMENTS.
4.1
SALARY. During the Period of Employment, the Company shall pay the Executive an
annualized base salary of not less than one hundred seventy five thousand
dollars ($175,000) per year (the "Base Salary"). The Executive's Base Salary
shall be paid in accordance with the Company's executive payroll policy. The
Base Salary shall be increased annually at a rate of ten percent over the
previous year’s base salary. Any increase in Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this
Agreement.
4.2 MAKE
WHOLE PAYMENT. All current Company outstanding warrants issued to
Executive are to be converted into restricted stock for their respective amounts
at no cost to Executive. The Company will compensate Executive for any
applicable taxes resulting form the issuance of such shares.
4.3 ANNUAL
BONUS. Beginning with the Company's fiscal year ending on the last day of May
2008 or as otherwise changed, as soon as practicable after the end of each
fiscal year, the Committee shall review the Executive's performance under this
Agreement as part of Executive's participation under the appropriate bonus plan
of the Company as in effect from time to time. The Executive's annual bonus
shall be at a target of no less than one hundred thousand ($100,000) (the
"Target Amount") and a maximum of no more than two hundred fifty thousand
dollars ($250,000) (the "Maximum Amount"). Nothing contained herein shall
prevent the Committee from paying an annual bonus in excess of the Maximum
Amount. The Executive shall be paid his annual bonus no later than other senior
executives of the Company are paid their annual bonuses. For any period during
the Period of Employment which is less than one year due to termination of the
Executive's employment for any reason other than Cause or termination by
Executive other than for Good Reason, the Executive will receive an annual bonus
of no less than the Target Amount.
4.4 ANNUAL
STOCK OPTION GRANTS. The Compensation Committee or other designated body shall
in fiscal year ending May 31, 2008 and subsequent fiscal years grant to the
Executive ten-year options with respect to shares of Company stock, with such
grants to be made at the same time during the fiscal year as grants are
generally made to senior executives of the Company. Such annual grants shall be
consistent with competitive pay practices generally and appropriate relative to
awards made to other senior executives of the Company; with such number to be
adjusted appropriately in the event of any change in the outstanding shares of
Company Stock by reason of a stock dividend or split, recapitalization, merger,
consolidation or other similar corporate change or distribution of stock or
property by the Company. These option grants shall vest 20% at the end of each
of the first five years. However, in the event of termination by the
Company without Cause or termination by Executive for Good Reason, the vesting
of such options will accelerate and they will become immediately
exercisable.
4.5 PAYMENT
OF PROFESSIONAL FEES. The Company shall pay on the Executive's behalf all
statements rendered to the Executive by the Executive's attorneys, accountants
and other advisors for reasonable fees and expenses in connection with the
negotiation and preparation of this Agreement. The Company shall pay the
Executive, on or prior to such date as the Executive shall be required to pay
federal, state or local taxes with respect to the Company's payment of such
professional fees, an additional payment (the "Gross-Up Payment") in an amount
sufficient to fully reimburse the Executive with respect to all federal, state
and local taxes with respect to the Company's payment of such professional fees
and with respect to receipt of the Gross-Up Payment.
5. OTHER
EXECUTIVE BENEFITS.
5.1 DEFERRED
COMPENSATION.
5.1.1 Upon
termination of the Executive's employment (unless terminated by the Company for
cause or by the Executive for other than Good Reason), the Executive shall be
entitled to a cash benefit (the "Deferred Compensation") in the form of a single
life annuity for the life of Executive, commencing on the earlier of his 62nd
birthday or termination of employment, in an annual amount equal to the
Executive's Final Earnings. Final Earnings shall equal the sum of the
Executive's (i) then-current Base Salary as of the date of termination and (ii)
most recent annual bonus (or then-current Target Amount, if greater) as of the
date of termination; provided, however, that Final Earnings shall not be less
than two hundred seventy five thousand dollars ($275,000) (the sum of the
original Base Salary and original Target Amount under this
Agreement).
5.1.2 With
the consent of the Company, or by written election delivered to the Company by
the Executive at least twelve (12) months prior to the termination of the
Executive's employment with the Company, the Executive may elect, in lieu of a
single life annuity, to receive the Deferred Compensation in a lump sum or
deferred lump sum or installment payments, or a life and term certain or joint
and survivor annuity, or such other optional form as Executive may elect. The
amount of such lump sum benefit shall be the actuarially equivalent present
value of the Deferred Compensation that would otherwise have been payable,
commencing immediately as of the date such lump sum payment is made. Any
optional form of payment shall have an actuarially equivalent present value
equal to the amount of such lump sum. For purposes of this Agreement, any
actuarially equivalent present value shall not be less than the present value
determined on the basis of the applicable mortality table and applicable
interest rate prescribed in Internal Revenue Code Section 417(e)(3)(A)(ii), in
each case as would be applicable to a distribution made during the second
calendar month immediately preceding the calendar month in which such lump sum
distribution is made or optional form of payment is commenced.
5.2
REGULAR REIMBURSED BUSINESS EXPENSES. The Company shall promptly reimburse the
Executive for all expenses and disbursements reasonably incurred by the
Executive in the performance of his duties hereunder during the Period of
Employment.
5.3 BENEFIT
PLANS. The Executive and his eligible family members shall be entitled to
participate immediately (except for the Company's 401(k) plan, in which the
Executive shall be entitled to participate after satisfying any required waiting
period), on terms no less favorable to the Executive than the terms offered to
other senior executives of the Company who perform or have performed in the same
capacity as the Executive, in any group and/or executive life, hospitalization
or disability insurance plan, health program, vacation policy, pension, profit
sharing, ESOP, 401(k) and similar benefit plans (qualified, non-qualified and
supplemental) or other fringe benefits (it being understood that items such as
stock options are not fringe benefits) of the Company (collectively referred to
as the "Benefits"); provided, however, that such Benefits shall be no less, in
both scope of coverage and value of coverage, than the benefits provided to the
Executive by the Executive's immediately preceding employer. In
the event that any health programs or insurance policies applicable to the
Benefits provided hereunder contain a preexisting conditions clause, the Company
shall reimburse the Executive for any COBRA premiums on a tax grossed-up
basis.
5.4 INSURANCE.
The Company shall pay 100 % (one hundred percent) for Executive, Executive’s
Spouse and Executive’s Children for cancer coverage if not included in the
coverages listed above. The Company shall pay 100 % (one hundred percent) of the
coverage for disability, both short and long-term, for the Executive to cover no
less than ¾ (three fourths) of the Executives base salary annually and other
insurance coverage’s provided for senior employees of the Company during the
term of this Agreement and any renewal thereof. The company shall pay
100 % (one hundred percent) of the coverage for either a 25-year term life
insurance policy, whole life, universal life or any other type of policy at the
Executive’s sole discretion in the amount of $3,500,000 for Executive, naming
Xxxxxxxx Xxxx; Wife, as primary beneficiary and Xxxx Xxxx; son, as secondary
beneficiary.
5.5 RELOCATION.
The Company shall pay all costs of relocation of the Executive and his family to
the Cleveland/Solon Ohio metropolitan area in accordance with the Company's
relocation policy supplemented as follows:
5.5.1 The
Company shall reimburse the Executive, in the Executives sole determination, for
reasonable temporary living expenses (including reasonable travel expenses
between the Executive's primary residence as of the Effective Date and the
Cleveland/Solon Ohio metropolitan area) for the Executive and his family in the
Cleveland/Solon Ohio metropolitan area for a period not to exceed one year from
the Effective Date and upon the effective date of this agreement pay
the Executive a one-time relocation payment equaling $45,000.
5.5.2
The Company will make available to the Executive the opportunity
to recapture any loss in sales proceeds from his
family’s home compared to similar in model and square footage sold
homes on Xxxxxxxx Drive by taking the average closing price of all similar in
model and square footage homes sold in the previous three years, located in
Grandezza, Xxxxxx, Xxxxxxx 00000, where the Executive currently resides by
either making a cash or Serefex restricted common stock payment in the amount
due. Said payment form of either Serefex restricted common stock or cash is to
be solely determined by the Executive.
5.5.3 All
relocation payments and benefits will be fully grossed-up for any applicable
taxes.
5.6 PERQUISITES.
The Company shall provide the Executive the perquisites of employment as are
provided to the other senior executives of the Company.
6. TERMINATION.
6.1 DEATH
OR DISABILITY. This Agreement and the Period of Employment shall terminate
automatically upon the Executive's death. If the Company determines in good
faith that the Disability of the Executive has occurred (pursuant to the
definition of "Disability" set forth below), it may give to the Executive
written notice of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the thirtieth day after receipt by the Executive of such notice given at any
time after a period of one hundred twenty (120) consecutive days of Disability
or a period of one hundred eighty (180) days of Disability within any twelve
(12) consecutive months, and, in either case, while such Disability is
continuing ("Disability Effective Date"); provided that, within the thirty (30)
days after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" means the Executive's inability to substantially perform his duties
hereunder, with reasonable accommodation, as evidenced by a certificate signed
either by a physician mutually acceptable to the Company and the Executive or,
if the Company and the Executive cannot agree upon a physician, by a physician
selected by agreement of a physician designated by the Company and a physician
designated by the Executive; provided, however, that if such physicians cannot
agree upon a third physician within thirty (30) days, such third physician shall
be designated by the American Arbitration Association. Until the Disability
Effective Date, the Executive shall be entitled to all compensation provided for
under Section 4 hereof. It is understood that nothing in this Section 6.1 shall
serve to limit the Company's obligations under Section 7.2 hereof.
6.2 BY
THE COMPANY FOR CAUSE. During the Period of Employment after the Effective Date,
the Company may terminate the Executive's employment immediately for "Cause."
For purposes of this Agreement, "Cause" shall mean (i) the Executive’s willful
failure to perform, or gross negligence in the performance of, the Executive’s
duties and responsibilities to the Company; (ii) the Executive’s conviction of
or plea of nolo
contender to any felony or other crime involving moral turpitude; (iii)
the Executive’s unlawful use or possession of illegal drugs; or (iv) the
Executive’s commission of an act of fraud, embezzlement, or other material
dishonesty with respect to the Company; provided, however, that for
the purposes of determining whether conduct constitutes willful failure to
perform or gross negligence, no act on Executive's part shall be considered
unless it is done by the Executive in bad faith and without reasonable belief
that the Executive's action was in the best interests of the
Company. Notwithstanding the foregoing, the Company may not terminate
the Executive's employment for Cause under (i) unless (a) determination that
Cause exists is made and approved by a majority of the Company's Board of
Directors, (b) the Executive is given at least sixty (60) days written notice of
the Board meeting called to make such determination, and (c) the Executive and
his legal counsel are given the opportunity to address such
meeting.
6.3 BY
EXECUTIVE FOR GOOD REASON. During the Period of Employment, the Executive's
employment hereunder may be terminated by the Executive for Good Reason upon
thirty (30) days' written notice. For purposes of this Agreement, "Good Reason"
shall mean, the Company takes action without the Executive's consent, including
without limitations:
6.3.1 Assignment
to the Executive of any duties inconsistent in any material respect with the
Executive's position (including status, offices, titles and reporting
relationships), authority, duties or responsibilities as contemplated by Section
3 of this Agreement, or any other action by the Company which results in a
significant diminution in such position, authority, duties or responsibilities,
excluding any isolated and inadvertent action not taken in bad faith and which
is remedied by the Company within ten (10)days after receipt of notice thereof
given by the Executive;
6.3.2 Any
failure by the Company to comply with any of the provisions of Section 4 or 5 of
this Agreement;
6.3.3 The
Executive being required to relocate to a principal place of employment more
than thirty (30) miles from his principal place of employment with the Company
in Solon, Ohio as of the Effective Date;
6.3.4 Failure
by the Board to elect the Executive to the position of Chairman of the Board of
Directors, in compliance with the terms of Section 3.1; or
6.3.5 Any
purported termination by the Company of the Executive's employment otherwise
than as expressly permitted by this Agreement.
6.3.6 The
Executive or the Company may terminate this Agreement for any reason other than
for Good Reason or Cause, respectively, upon thirty (30) days written notice to
the Company or Executive, as the case may be. If the Executive terminates the
Agreement for any reason, he shall have no liability to the Company or its
subsidiaries or affiliates as a result thereof. If the Company terminates the
Agreement or if the Agreement terminates because of the death of the Executive,
the obligations of the Company shall be as set forth in Section 7
hereof.
6.4 NOTICE
OF TERMINATION. Any termination by the Company or by the Executive shall be
communicated by a Notice of Termination to the other party hereto given in
accordance with Section 19.2 of this Agreement. For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail, if necessary, the facts and circumstances claimed to provide
a basis for termination of the Executive's employment under the provision so
indicated, and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice and specifies the termination date. The
failure by the Executive to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of the basis for termination shall
not waive any right of such party hereunder or preclude such party from
asserting such fact or circumstance in enforcing his or its rights
hereunder.
6.5 DATE
OF TERMINATION. "Date of Termination" means the date specified in the Notice of
Termination; provided, however, that if the Executive's employment is terminated
by reason of death or Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date, as the case may
be.
7.
OBLIGATIONS OF THE
COMPANY UPON TERMINATION.
7.1 The
following provisions describe the obligations of the Company to the Executive
under this Agreement upon termination of his employment. However, except as
explicitly provided in this Agreement, nothing in this Agreement shall limit or
otherwise adversely affect any rights which the Executive may have under
applicable law, under any other agreement with the Company, or under any
compensation or benefit plan, program, policy or practice of the
Company.
7.2 TERMINATION
BY THE COMPANY FOR CAUSE. In the event this Agreement terminates by
reason of the termination of the Executive's Employment by the Company for
Cause, the Company shall pay to the Executive all Accrued Obligations (owed up
to the Date of Termination) in a lump sum payment in cash within five (5) days
after the Date of Termination. "Accrued Obligations" shall mean, as of the Date
of Termination, the sum of (A) the Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, (B) except as otherwise
previously requested by the Executive, the amount of any bonus, incentive
compensation, deferred compensation due and payable and other cash compensation
accrued by the Executive as of the Date of Termination to the extent not
theretofore paid and (C) any vacation pay, expense reimbursements and other cash
entitlements accrued by the Executive as of the Date of Termination to the
extent not theretofore paid.
7.3 TERMINATION
WITHOUT CAUSE; CHANGE IN CONTROL. If the Company shall terminate the
Executive's employment without cause, or due to a change in control, the
Executive shall receive in addition to the Accrued Obligations, the
following:
7.3.1 Five
million dollars ($5,000,000), within fifteen (15) days after the Date of
Termination;
7.3.2
Immediate full vesting of (i.e., full exercisability for) any options previously
granted and not yet vested as of the Date of Termination.
7.3.3 Continued
exercisability, through the end of their respective full original terms, for all
vested options, whether previously vested or vesting under this subsection
7.3;
7.3.4 For
each year prior to 2017 for which the annual option award required by subsection
4.4 has not yet been granted, immediate grant of a ten-year stock option award
having an exercise price equal to the fair market value of a share of Company
stock on the Date of Termination and otherwise complying with the requirements
of subsection 4.4, with each such award being fully vested immediately upon such
grant and remaining exercisable for the full ten-year term;
7.3.5 Immediate
full vesting in the Deferred Compensation described in Section 5.1 (i.e., no
reductions pursuant to subsection 5.1.3);
7.3.6 Immediate
full forgiveness of any outstanding balances due the Company by the
Executive;
7.3.7 Receipt
of any other compensation and benefits accrued or earned and vested (if
applicable) by the Executive as of the Date of Termination; and
7.3.8 For
the remainder of the Period of Employment (determined without regard to the
termination thereof pursuant to Section (6) or for three (3) years, whichever is
longer), the Company shall continue health, prescription drug, dental,
disability and life insurance benefits to the Executive and/or
the Executive's eligible family members at least equal to those which
would have been provided to them in accordance with Section 5.3 of this
Agreement if the Executive's employment had not been terminated.
7.3.9 For
purposes of this Agreement, a "Change in Control" shall be deemed to have
occurred if:
7.3.9.1 Any
"person" (as defined in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), excluding for this purpose, (i) the
Company or any subsidiary of the Company, or (ii) any employee benefit plan of
the Company or any subsidiary of the Company, or any person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan which acquires beneficial ownership of voting securities of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly of securities of the Company
representing more than 50% of the combined voting power of the Company's then
outstanding securities;
7.3.9.2
During any two (2) consecutive years (not including any period
beginning prior to October 20, 2007), individuals who at the beginning of such
two (2) year period constitute the Board of Directors of the Company
and any new director (except for a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described elsewhere in this definition of Change in Control) whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved (such individuals and any such new director being referred to as the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; or
7.3.9.3
Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners of outstanding voting securities of the Company
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the company resulting from such Business Combination
(including, either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such
Business Combination, of the outstanding voting securities of the Company;
or
7.3.9.4
Approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
7.3.10
Any other provision of this Section 7.2 notwithstanding, termination of
the Executive's employment due to involuntary retirement on or after the
Executive reaching age sixty-two (62) will not be a termination of employment
covered by this Section 7.2.
7.4 RETIREMENT
AFTER AGE SIXTY-TWO. If the Executive's employment with the Company terminates
due to his retirement from the Company after he attains age sixty-two (62), all
equity-based awards made to the Executive shall become fully vested and
exercisable.
7.5 COBRA
RIGHTS. It is understood that the Executive's rights under this Section 7 are in
lieu of all other rights which the Executive may otherwise have had upon
termination of employment under this Agreement; provided, however, that no
provision of this Agreement is intended to adversely affect the Executive's
rights under the Consolidated Omnibus Budget Reconciliation Act of
1985.
8. MITIGATION. In no event shall
the Executive be obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. Any severance benefits payable to the Executive
shall not be subject to reduction for any compensation received from other
employment.
9. INDEMNIFICATION. The Company
shall maintain, for the benefit of the Executive, director and officer liability
insurance for a minimum amount of at least ten million dollars and at least as
comprehensive as, that maintained by the Company on the Effective Date. In
addition, the Executive shall be indemnified by the Company against liability as
an officer and director of the Company and any subsidiary or affiliate of the
Company to the maximum extent permitted by applicable law. The Executive's
rights under this Section 9 shall continue so long as he may be subject to such
liability, whether or not this Agreement may have terminated prior
thereto.
10. CONFIDENTIAL INFORMATION. The
Executive shall hold in a fiduciary capacity for the benefit of the Company all
secret or confidential information, knowledge or data relating to the Company,
or any of its subsidiaries, affiliates and businesses, which shall have been
obtained by the Executive pursuant to his employment by the Company or any of
its subsidiaries and affiliates and which shall not have become public knowledge
(other than by acts by the Executive or his representatives in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute a basis for deferring
or withholding any amounts otherwise payable to the Executive under this
Agreement.
It is further understood and agreed to
by both parties that the Executive has engaged in the Publicly Traded Securities
Markets, and has gained over 15 years of experience and knowledge relative to
running Day to Day operations of a NASDAQ company, Acquisitions, Importing and
Retail Distribution of Products, Securities, Financing, Investor Relation
Services and other various related activities in North America, Canada, Mexico,
Asia, Eurasia, India and surrounding areas. In Executive’s capacity
as President and CEO of Serefex Corporation, the Executive has become privy to
and benefited from the confidential information (as defined in Paragraph 10
above), beneficial relationships with Serefex Corporation 's employees,
suppliers, contractors, subcontractors, customers and others and other
proprietary information and relationships which the Executive has developed over
the years. The acquisition and protection of the confidential information is an
integral part of the consideration received by the Executive and Company under
this Agreement because such confidential information and beneficial
relationships are critical to the Executive’s ability to compete and continue
being successful.
11. REMEDY FOR VIOLATION OF SECTION 10.
The Executive acknowledges that the Company has adequate remedy at law
and will not be irreparably harmed if the Executive breaches or threatens to
breach the provisions of Section 11 of this Agreement.
12. WITHHOLDING. Anything in this
Agreement to the contrary notwithstanding, all payments required to be made by
the Company hereunder to the Executive shall be subject to tax withholding, at
the time payments are actually made to the Executive and received by him, of
such amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company may, in its sole discretion,
accept other provision for payment of taxes as required by law, provided that it
is satisfied that all requirements of law as to its responsibilities to withhold
such taxes have been satisfied.
13. ARBITRATION. Any dispute or
controversy between the Company and the Executive, whether arising out of or
relating to this Agreement, the breach of this Agreement, or otherwise, shall be
settled by arbitration administered by the American Arbitration Association
("AAA") in accordance with its Commercial Arbitration Rules then in effect, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Any arbitration shall be held before a single
arbitrator who shall be selected by the mutual agreement of the Company and the
Executive, unless the parties are unable to agree to an arbitrator, in which
case, the arbitrator will be selected under the procedures of the AAA. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Company and the Executive acknowledge that this
Agreement evidences a transaction involving interstate commerce. Notwithstanding
any choice of law provision included in this Agreement, the United States
Federal Arbitration Act shall govern the interpretation and enforcement of this
arbitration provision. The arbitration proceeding shall be conducted in Solon,
Ohio or such other location to which the executive agrees in his sole
discretion. The Company shall pay the costs of any arbitrator appointed
hereunder.
14. REIMBURSEMENT OF LEGAL
EXPENSES. In the event that the Executive has to retain legal
representation, whether in mediation, arbitration or litigation, in pursuing any
claim or dispute involving the Executive's employment with the Company,
including any claim or dispute relating to (a) this Agreement, (b)termination of
the Executive's employment with the Company or (c) the failure or refusal of the
Company to perform fully in accordance with the terms hereof, the Company shall
promptly reimburse the Executive for all costs and expenses (including, without
limitation, attorneys' fees) relating to any such claim provided Executive is
successful in any such claim or dispute. In any case, the Company shall each
bear all their own respective costs and attorneys' fees.
15. TAXES. In the event
that the aggregate of all payments or benefits made or provided to, or that may
be made or provided to, the Executive under this Agreement and under all other
plans, programs and arrangements of the Company (the "Aggregate Payment") is
determined to constitute a "parachute payment," as such term is defined in
Section 280G(b)(2) of the Internal Revenue Code, the Company shall pay to the
Executive, prior to the time any excise tax imposed by Section 4999 of the
Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate
Payment, an additional amount which, after the imposition of all income and
excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The
determination of whether the Aggregate Payment constitutes a parachute payment
and, if so, the amount to be paid to the Executive and the time of payment
pursuant to this Section 16 shall be made by an independent auditor (the
"Auditor") jointly selected by the Company and the Executive and paid by the
Company. The Auditor shall be a nationally recognized United States public
accounting firm which has not, during the two (2) years preceding the date of
its selection, acted in any way on behalf of the Company or any affiliate
thereof. If the Executive and the Company cannot agree on the firm to serve as
the Auditor, then the Executive and the Company shall each select one accounting
firm and those two firms shall jointly select the accounting firm to serve as
the Auditor. Notwithstanding the foregoing, in the event that the amount of the
Executive's Excise Tax liability is subsequently determined to be greater than
the Excise Tax liability with respect to which an initial payment to the
Executive under this Section 16 has been made, the Company shall pay to the
Executive an additional amount with respect to such additional Excise Tax (and
any interest and penalties thereon) at the time and in the amount determined by
the Auditor so as to make the Executive whole, on an after-tax basis, with
respect to such Excise Tax (and any interest and penalties thereon)
and such additional amount paid by the Company. In the event the amount of the
Executive's Excise Tax liability is subsequently determined to be less than the
Excise Tax liability with respect to which an initial payment to the Executive
has been made, the Executive shall, as soon as practical after the determination
is made, pay to the Company the amount of the overpayment by the Company,
reduced by the amount of any relevant taxes already paid by the Executive and
not refundable, all as determined by the Auditor. The Executive and the Company
shall cooperate with each other in connection with any proceeding or claim
relating to the existence or amount of liability for Excise Tax, and all
expenses incurred by the Executive in connection therewith shall be paid by the
Company promptly upon notice of demand from the Executive.
16. SUCCESSORS.
16.1 This
Agreement is personal to the Executive and without the prior written consent of
the Company shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Executive's heirs and legal
representatives.
16.2 This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
16.3 The
Company shall require any successor (including but not limited to direct or
indirect, by purchase, merger, reorganization, consolidation, acquisition of
property or stock, liquidation, or otherwise) to all or a substantial portion of
its assets, by agreement in form and substance reasonably satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform this
Agreement if no such succession had taken place. Regardless of whether such an
agreement is executed, this Agreement shall be binding upon any successor of the
Company in accordance with the operation of law, and such successor shall be
deemed the "Company" for purposes of this Agreement.
16.4 As
used in this Agreement, the term "Company" shall include any successor to the
Company's business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
17. REPRESENTATIONS.
17.1
The Company represents and warrants that (i) the execution of this Agreement has
been duly authorized by the Company, (ii) the execution, delivery and
performance of this Agreement by the Company does not and will not violate any
law, regulation, order, judgment or decree or any agreement, plan or corporate
governance document of the Company and (iii) upon the execution and delivery of
this Agreement by the Executive, this Agreement shall be the valid and binding
obligation of the Company, enforceable in accordance with its terms, except to
the extent enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by the
effect of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
17.2 The
Executive represents and warrants to the Company that (i) the execution,
delivery and performance of this Agreement by the Executive does not and will
not violate any law, regulation, order, judgment or decree or any agreement to
which the Executive is a party or by which he is bound, and (ii)upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of the Executive, enforceable in accordance
with its terms, except to the extent enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at
law).
18. MISCELLANEOUS.
18.1 This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio, without reference to principles of conflicts of laws. The
captions of this Agreement are not part of the provisions hereof and shall have
no force or effect. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
18.2 All
notices and other communications hereunder shall be in writing and shall be to
the other party, by overnight courier, or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxx
X. Xxxx
00000
Xxxxxxxx Xxxxx
Xxxxxx,
XX 00000
If
to the Company:
Serefex
Corporation
00000
Xxxxx Xxxxxxxxxx Xxxx.
Xxxxx,
XX 00000
And
X.X.
Xxxxxxx Systems, Inc.
00000
Xxxxx Xxxxxxxxxx Xxxxxxx
Xxxxx,
Xxxx 00000
or to
such other address as either of the parties shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by signature by the addressee.
18.3 None
of the provisions of this Agreement shall be deemed to impose a
penalty.
18.4 The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
18.5 Any
party's failure to insist upon strict compliance with any provision hereof shall
not be deemed to be a waiver of such provision or any other provision
hereof.
18.6 This
Agreement supersedes any prior employment agreement or understandings, written
or oral between the Company and the Executive and contains the entire
understanding of the Company and the Executive with respect to the subject
matter hereof.
18.7 This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SEREFEX
CORPORATION DATED:
May 21,
2008
By: Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Its:
Chief Operating Officer
______________________________________
WITNESS
/s/ Xxxxx
Xxxxxxx
May 21,
2008
Xxxxx
Xxxxxxx, Director
X.
X. XXXXXXX SYSTEMS, INC.
May
21, 2008
By: Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Its:
Treasurer
______________________________________
WITNESS
By: Xxxx Xxxxxxxx
Xxxx X. Xxxxxxxx
Director
EXECUTIVE
/s/ Xxxxx X. Xxxx,
Executive
May 21, 2008
Xxxxx X.
Xxxx, Executive
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______________________________________
|
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WITNESS
