Exhibit 10.4 Service Agreement, by and between Xx0xxx.xxx and
Xxxx Xxxxxxxx
Xx. Xxxx X. Xxxxxxxx
000 Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Dear Xx. Xxxxxxxx:
Xx0Xxx.xxx, Inc. (the "Company") agrees to employ you and you
agree to accept employment upon the terms and conditions set
forth in this agreement (the "Agreement").
1. Term. The term of this Agreement will commence on the date
hereof (the "Effective Date") and continue until December 31,
2003 unless earlier terminated pursuant to the provisions of
Paragraph 4 (the "Term").
You and the Company agree and acknowledge that the Company has no
obligation to extend the Term or to continue your employment
after expiration of the Term, and you and the Company expressly
acknowledge that no promises or understandings to the contrary
have been made or reached. You and the Company also agree and
acknowledge that should you and the Company choose to continue
your employment for any period of time following the expiration
of the Term (including any extensions thereof) without a written
agreement that the provisions of Paragraphs 5, 9 and 10 shall
continue to apply during any such "at will" employment.
2. Duties. You agree to be employed and perform your exclusive
full-time services for the Company upon the terms and conditions
of this Agreement; provided, however, that nothing herein shall
prevent or preclude your involvement or participation, so long as
it does not materially interfere with the performance of your
duties hereunder, in (i) the management of your personal
investments; (ii) your service on the boards of three charitable
organizations on which you currently serve and (iii) subject to
the prior written approval of the Board, which shall not be
unreasonably withheld, and your compliance with the provisions of
Paragraph 5(c) hereof, your service on the board of directors of
any charitable, civic or business organization. You will perform
your services hereunder as Chief Executive Officer of the
Company, reporting directly to, and performing the services
commensurate with your position as requested from time to time
by, the Board of Directors of the Company (the "Board") or its
duly authorized officers. It is anticipated that, subject to
shareholder approval, you will be appointed as a member of the
Board. Your services hereunder shall be substantially consistent
with, and you shall have the duties, authorities and
responsibilities substantially commensurate with, those of a
chief executive officer of a company of similar size and nature
as the Company. You shall render your services hereunder in
metropolitan areas of London, England and New York, New York,
provided that you agree to such travel as is reasonably necessary
or desirable for the performance of your duties hereunder.
3. Compensation and Related Matters.
(a) Base Salary. For all services rendered under this
Agreement, commencing May 1, 2000, the Company or its affiliates
will pay you base salary at an annual rate of Three Hundred Fifty
Thousand and 00/100 Dollars ($350,000.00), payable in accordance
with the Company's applicable payroll practices ("Base Salary").
Your Base Salary will be reviewed at least once during each full
year during the Term and may be increased (but not decreased) at
the sole and absolute discretion (without any obligation to do
so) of the Board, with such new amount constituting "Base Salary"
for all purposes hereunder.
(b) Bonus Compensation. You will be eligible to receive an
annual bonus as determined by the Board based on the achievement
of certain reasonable performance objectives with respect to the
Company as adopted by the Board after discussion with you. Your
target annual bonus (the "Target Bonus") will be One Hundred
Fifty Thousand and 00/100 Dollars ($150,000.00), pro rated for
any partial year of your employment, and will be paid at the same
time as other executives are paid bonuses for each fiscal year of
the Company. Your Target Bonus is not a guaranteed bonus. Your
Target Bonus shall be increased proportionately with any increase
in your Base Salary so as to consitute at least 42.8% of your
Base Salary, with such new amount constituting "Target Bonus" for
all purposes hereunder (it being understood and agreed for the
avoidance of doubt that the Board is under no obligation to
increase your Base Salary).
(d) Options.
(i) Initial Option Grant. The Company will grant to you an
option (the "Initial Grant") to purchase 1,225,000 common shares,
$0.001 par value, of the Company ("Common Shares") at an exercise
price per share equal to the offering price per share in the
proposed underwritten secondary offering of the Company's
securities (the "Secondary Offering"). Except as otherwise
provided herein the Initial Grant will vest as follows: (i) one
quarter of the Initial Grant (with respect to 306,250 Common
Shares) will vest on the date of grant; and (ii) the remaining
three quarters of the Initial Grant will vest in equal
one-sixteenths (with respect to 76,562.5 Common Shares) of the
entire Initial Grant at the end of each calendar quarter during
your continuous employment by the Company commencing March 31,
2001; provided that if you remain continuously employed by the
Company on the first anniversary following a Change of Control
(as defined below), any unvested portion of the Initial Grant
will vest in an amount equal to one quarter thereof (i.e., with
respect to 306,250 Common Shares or such lesser unvested amount),
with the remaining unvested portion continuing to vest in equal
one-sixteenths of the entire Initial Grant at the end of each
calendar quarter during your continuous employment by the Company
following such one-year anniversary of a Change of Control
(together with the other provisions relating to vesting set forth
in this Agreement, the "Vesting Schedule"). For purposes hereof,
the term "Change of Control" shall mean (A) any "person" as
defined in Section 3(a)(9) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and as used in Section
13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d) of the Exchange Act but excluding the Company and
any affiliate thereof (including, without limitation, Xxxxx Xxxxx
and Xxx Xxxx and any of their affiliates) and any employee
benefit plan sponsored or maintained by the Company or any
subsidiary (including any trustee of such plan), directly or
indirectly, becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), of securities of the Company
representing more than 110% of the percentage ownership of
combined voting power in the Company held or controlled
collectively by Xxxxx Xxxxx and Xxx Xxxx, or their affiliates;
(B) any merger, combination, consolidation, sale of substantially
all of the assets of the Company, liquidation, dissolution or
similar transaction (other than in connection with ordinary sales
to the public, or repurchases by the Company, of the Company's
securities) involving the Company following which the holders of
the capital stock of the Company immediately prior to such
transaction will not own in substantially the same percentages as
prior to such transaction more than 50% of the Company's capital
stock entitled to vote for directors of the resulting entity
other than by a merger, combination, consolidation or similar
transaction by an affiliate of the Company; or (C) if within any
12-month period commencing after the election of the Board in the
year 2000, the persons who were directors of the Company
immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death) to
constitute at least a majority of the Board or the board of
directors of a successor to the Company; provided that for this
purpose, any director who was not a director at the beginning of
such period shall be deemed to be an Incumbent Director if such
director was elected to the Board by, or on the nomination or
recommendation of, or with the approval of, at least 51% of the
directors who then qualified as Incumbent Directors (so long as
such director was not nominated by a person who commenced or
threatened to commence an election contest or proxy solicitation
by or on behalf of a person or entity (other than the Board) or
who has entered into an agreement to effect a Change of Control
or expressed an intention to cause such a Change of Control).
(ii) Subsequent Grants. For each subsequent fiscal year of
the Term after the fiscal year in which the Initial Grant is
made, the Board may (but shall not be obligated to) grant to you
additional options to purchase Common Shares in amounts and
exercise prices determined by the Board in its sole discretion
("Subsequent Grants").
The Initial Grant and any Subsequent Grants will become
exercisable and be granted pursuant to the Company's Option Plan
(the "Option Plan") and will in all respects be subject to the
terms and conditions of the Option Plan and any applicable option
agreement; provided that to the extent of any inconsistency
between this Agreement and the Option Plan or any applicable
option agreement, the terms of this Agreement shall control.
(e) Restricted Share Awards. The Company will issue you shares
of Common Stock having a value of $500,000 (based on the offering
price of the Secondary Offering) as a sign-on bonus (the
"Restricted Shares"), which shares will vest on the same terms as
the Vesting Schedule as the Initial Grant above, and will lend
you up to $250,000 pursuant to a full-recourse promissory note
(which note will have a term that runs 120 days beyond the Term,
bear interest at the lowest applicable Federal rate, and be
secured by such shares pursuant to a pledge agreement in form and
substance reasonably satisfactory to the Company executed and
delivered by you together with the certificates for such shares
accompanied by stock powers endorsed in blank) in order to enable
you to pay income taxes on such sign-on bonus (the "Tax Note").
In addition, you will be allowed to purchase up to $2,000,000 of
Common Stock at the offering price of the Secondary Offering,
which will be fully vested when purchased, and the Company will
lend you funds sufficient to make such purchase pursuant to a
promissory note (the "Stock Note") having substantially the same
terms as the Tax Note other than its being only 20% recourse to
you and otherwise secured only by such shares. You hereby
covenant not to sell more than 5% of the shares acquired pursuant
to this paragraph until the earliest of (i) one year from the
date of issuance or acquisition, (ii) the termination of your
employment with the Company or (iii) the occurrence of a Change
in Control.
(f) Benefits. You will be entitled to participate at a level not
less favorable than that afforded other executives of the Company
in the Company employee benefit plans, policies and programs (the
"Company Benefits"), in accordance with and subject to the terms
and conditions thereof. You will be entitled to vacation with
pay during the Term in accordance with the Company's vacation
policy in effect from time to time; provided, however, that you
shall be entitled to not less than four (4) weeks of paid
vacation in each calendar year. The Company will also provide
round trip business class airfare between London and New York for
you and your spouse (i) twice monthly until May 1, 2001 and (ii)
once monthly thereafter during the Term. In addition, the
Company will provide you with a term life insurance policy in the
amount of $3,000,000, and you hereby agree to submit to medical
examinations as requested by the Company in order to obtain such
insurance policy.
(g) Expense Reimbursements. During your employment, the Company
will reimburse you for your reasonable and necessary business
expenses in accordance with its then prevailing policy for senior
executives at your level (which will include appropriate
itemization and substantiation of expenses incurred). The
Company agrees to reimburse you for your reasonable legal fees in
connection with the negotiation, execution and delivery of this
Agreement in an amount not to exceed $25,000.
(h) Withholding. The Company may withhold from any amounts
payable under this Agreement such federal, state or local taxes
as will be required to be withheld pursuant to any applicable
laws or regulations.
(i) Expatriation Package. The Company will provide you with a
relocation package, which will include reimbursement of your
reasonable moving-related expenses, tax equalization, expatriate
cost of living adjustment based on standard recognized
differential for US employees in UK, apartment and automobile,
and the details of which will be mutually agreed upon between you
and the Company.
4. Compensation Upon Certain Termination Events.
(a) Compensation Payable. Should your employment with the
Company terminate, you will be entitled to the amounts and
benefits shown on the following table, subject to Paragraphs 4(b)
through 4(h) and Paragraph 5(g). In the event of such
termination, and except for payments noted in this Paragraph 4
and expense reimbursements in accordance with Paragraph 3(f) and
Paragraphs 9(d) and 10, the Company will have no further
obligations to you under this Agreement.
Termination For Cause/Voluntary Termination without Good Reason
Involuntary Termination/ Good Reason Disability Death
Payment of (1) any accrued but unpaid Base Salary and, if earned
and announced by the Board with respect to the prior fiscal year
and not previously paid, any bonus owing to you for such prior
fiscal year, (2) any accrued but unpaid vacation due you at the
end of the Term, (3) other unpaid amounts then due you under
Company benefit plans or programs, and (4) termination and
cancellation of all unvested Restricted Shares and options, with
30 days to exercise vested options. Same as for termination
for Cause except that (1) your Base Salary, Target Bonuses will
continue through the expiration of the Term, (2) benefits (other
than benefits provided under (a) any plan qualified under Section
401(a) of the Internal Revenue Code and (b) any stock or
incentive based plan) will continue through the earlier of the
first anniversary of the termination of your employment or the
end of the otherwise applicable Term, provided you meet the
requirements in Paragraph 5 and subject to the terms and
conditions of each benefit plan (other than the requirement of
continued employment) and provided further that such benefits
shall terminate upon your securing other employment with
substantially similar benefits, (3) all of the Restricted Shares
and Initial Grant shall vest (and be exercisable for one year
from termination of your employment), and (4) the reasonable
repatriation expenses for you, your spouse, your children and
your possessions ("Repatriation Expenses") will be paid. Your
Base Salary will continue until the earliest of (1) the 180th day
following the start of your disability absence, or (2) your death
and will be reduced by other Company-provided disability benefits
available to you. Payment of (1) any accrued but unpaid Base
Salary, bonus due you for the prior year, if any, and pro rata
Target Bonus through the date of termination, (2) any accrued but
unpaid vacation to due you at the end of the Term, (3) other
unpaid amounts then due you under Company benefit plans or
programs, (4) vesting of Restricted Shares and Options that would
otherwise have vested within one year of the termination of your
employment (which shall be exercisable for one year from
termination of your employment), and (5) Repatriation Expenses
will be paid. Payment of (1) any accrued but unpaid Base Salary,
bonus due you for the prior year, if any, and pro rata Target
Bonus through your date of death, (2) any accrued but unpaid
vacation due you at the end of the Term, and (3) other unpaid
amounts then due you under Company benefit plans or programs,
except that those payments will be made to your estate or legal
representative, and your death benefits payable due to your death
under Company employee benefit plans or programs will also be
paid, (4) vesting of Restricted Shares and Options that would
otherwise have vested within one year of your death (which shall
be exercisable for one year from termination of your death), and
(5) Repatriation Expenses will be paid.
Within 120 days after any termination you shall repay each of the
Tax Note and the Stock Note in full, except that prior to such
time the Company shall be entitled pursuant to Paragraph 4(g)
hereof to offset as a prepayment of the Tax Note and the Stock
Note any amounts payable to you hereunder by any outstanding
amounts thereunder.
(b) Termination for Cause. The Company may terminate your
employment for Cause at any time. "Cause" will mean: (i) your
willful misconduct or gross negligence, or your material failure
to comply with the written policies of the Company, that involves
fraud against the Company or has a material adverse effect on
Company; (ii) your willful failure to follow the lawful and
reasonable direction of the Board; (iii) your willful failure to
perform the duties required hereunder (other than a result of
your Disability) after delivery of a written demand for
substantial performance by the Board; or (iv) your conviction of
or plea of guilty or nolo contendere to a misdemeanor involving
moral turpitude or any felony. No act or failure to act will be
"willful" unless done or omitted to be done, not in good faith
and without reasonable belief that action or omission was in the
best interests of the Company. No termination for Cause (other
than a termination for Cause arising from clause (iv) of the
immediately preceding sentence) shall be effected without
providing you a reasonable opportunity (but not more than 2 days'
notice) to appear before Board.
(c) Involuntary Termination. The Company may terminate your
employment other than for Cause or other than on account of your
death or Disability, as defined in Paragraph 4(d). Any such
termination of your employment shall be deemed to be an
"Involuntary Termination" for all purposes of this Agreement. In
such case you will receive Base Salary, Target Bonuses and
benefits as specified in Paragraph 4(a); provided the Company
will retain a right of offset as set forth in Paragraph 4(g)
against the amounts payable to you under this Paragraph with
respect to the period following the date of your termination.
You agree that you will have no rights or remedies in the event
of your Involuntary Termination other than those set forth in
this Agreement.
(d) Termination for Disability. The Company may terminate your
employment on account of a Disability, in which case you will
receive the payments and benefits specified in Paragraph 4(a).
You will be deemed to have a "Disability" if you are
incapacitated by a physical or mental condition, illness or
injury which has prevented you from being able to perform
substantially the duties of your position under this Agreement in
a satisfactory fashion for all of a consecutive 180-day period or
for 180 non-consecutive days in any 12-month period.
(e) Death. If you die while employed under this Agreement the
Term shall automatically terminate and your estate or legal
representative will receive the payments and benefits specified
in Paragraph 4(a).
(f) "Good Reason" Termination. You may terminate your
employment voluntarily for Good Reason and will be entitled to
receive the same payments and benefits which would be payable
upon Involuntary Termination pursuant to Paragraph 4(c), subject
to the same limitations and conditions set forth therein. "Good
Reason" means the occurrence of any of the events in the
immediately succeeding sentence, which is not remedied within 30
days after receipt of written notice from you specifically
delineating each such event which you claim is a breach of this
Agreement and setting forth your intention to terminate your
employment if such breach is not duly remedied. "Good Reason"
will mean only: (i) any material diminution of your position,
duties or responsibilities (except for Disability or temporarily
illness or other absence) or assignment of duties or
responsibilities that are inconsistent with your position; (ii)
relocation of your place of employment more than 50 miles from
the metropolitan areas of London, England or New York, New
without your consent; or (iii) any other willful and material
uncured breach by the Company of the material terms of this
Agreement (including failure of a successor to assume its
obligations in accordance with Paragraph 8); provided that no act
or failure to act will be "willful" unless done, or omitted to be
done, in bad faith.
(g) Offset. If your employment terminates for any reason, the
Company will retain a right of offset against any liability to
you, and will be entitled to reduce the amount of any
compensation and benefits payable to you under this Agreement by
the outstanding principal and interest on the Tax Note and the
Stock Note, any applicable withholding or other tax liabilities
owed by you which the Company is required to withhold, and any
other monetary obligations owed by you to the Company.
(h) Notice of Voluntary Termination Without Good Reason. You
hereby agree that any voluntary termination by you without Good
Reason shall be made only after 60 days' prior written notice of
such intention to the Company.
(i) Excise Tax Gross Up. If you become entitled to the payments
and benefits (collectively, "Severance Benefits") described in
this Agreement or otherwise as a result of a change in ownership
or control of the Company (as such terms are defined in Section
280G of the Internal Revenue Code of 1986, as amended (the
"Code"), and such payments are determined by the Company (or its
accountants) or the Internal Revenue Service (the "IRS") to be
subject to any excise tax (the "Excise Tax") imposed under
Section 4999 of the Code, the Company shall pay to you, or to the
IRS on your behalf, an additional amount (the "Gross-up Payment")
such that the net amount retained by you after deduction of any
Excise Tax and any federal, state and local income and employment
tax and Excise Tax imposed upon the Excise Tax and the Gross-up
Payment shall be equal to the Severance Benefits (which amount
shall remain subject to withholding by the Company or payment by
you of all otherwise applicable taxes other than the Excise Tax
and resultant taxes thereon as aforesaid). The Company and you
shall each cooperate with the other in connection with any
administrative or judicial proceedings concerning the existence
or amount of liability for Excise Tax with respect to the
Severance Benefits; provided that the Company shall control and
provide legal counsel with respect to all proceedings taken in
connection with a contest of the determination of the existence
and amount of any Excise Tax; and provided further that you shall
promptly reimburse the Company for any refunded payments (and the
Company will pay to you or to the IRS on your behalf any
deficiencies) in respect of any purported Excise Tax and other
taxes hereunder.
5. Covenants.
(a) Acknowledgment. You acknowledge that you currently possess
or will acquire secret, confidential, or proprietary information
or trade secrets concerning the operations, future plans, or
business methods of the Company or its affiliates. You agree
that the Company would be severely damaged if you misused or
disclosed this information. To prevent this harm, you are making
the promises set forth in this Paragraph. You acknowledge that
the provisions of this Paragraph are reasonable and necessary to
protect the legitimate interests of the Company and that any
violation of such provisions would result in irreparable injury
to the Company. In the event of a violation of the provisions of
this Paragraph, you further agree that the Company will, in
addition to all other remedies available to it, be entitled to
seek equitable relief by way of injunction and any other legal or
equitable remedies.
(b) Promise Not to Disclose. You will hold in a fiduciary
capacity, for the benefit of the Company, all confidential or
proprietary information, knowledge and data of the Company which
you may acquire, learn, obtain or develop during your employment
by the Company. Further, you will not, during the Term or at any
time thereafter, directly or indirectly use, communicate or
divulge for your own benefit or for the benefit of another any
such information, knowledge or data. You make the same
commitments with respect to the secret, confidential or
proprietary information, knowledge and data of affiliates,
customers, contractors and others with whom the Company has a
business relationship or to whom the Company or its affiliates
owe a duty of confidentiality. The confidential or proprietary
information covered by this protection includes, but is not
limited to, matters of a business or strategic nature, such as
information about costs and profits, projections, personnel
information, reengineering, records, customer lists, contact
persons, customer data, software, sales data, possible new
business ventures and/or expansion plans, or matters of a
creative nature, including without limitation, matters regarding
ideas of a literary, creative, musical or dramatic nature, or
regarding any form of product produced, distributed or acquired
by the Company ("Company Information"). Anything contained
herein to the contrary notwithstanding, for purposes of this
Agreement, "Company Information" and "confidential or proprietary
information, knowledge and data" shall not include information
which is generally known in the industry or is in the public
domain, prior to any unauthorized disclosure of such information
by you. Company Information will be considered and kept as the
private, proprietary and confidential information of the Company
except in furtherance of the Company's business or within the
Company as required to perform services, and may not otherwise be
divulged (A) without the express written authorization of the
Company or (B) unless required by law or ordered by a court or
(C) unless the Company Information is generally known in the
industry or to the public, provided that you provide the Company
with prior written notice of such disclosure.
(c) Promise Not to Engage In Certain Activities. You will not
at any time during your employment by the Company and until the
first anniversary of the termination of your employment be or
become (i) interested or engaged in any manner, directly or
indirectly, either alone or with any person, firm or corporation
now existing or hereafter created, in any business which is
competitive with the business of the Company and its affiliates,
or which the Company and its affiliates has made material
preparations to enter, at the time of your termination or (ii)
directly or indirectly a stockholder or officer, director, agent,
consultant or employee of, or in any manner associated with, or
aid or abet, or give information or financial assistance to, any
such business. The provisions of this Paragraph will not be
deemed to prohibit your purchase or ownership, as a passive
investment, of not more than five percent (5%) of the outstanding
capital stock of any corporation whose stock is publicly traded.
(d) Promise to Return Property. All records, files, lists,
drawings, documents, models, equipment, property, computer,
software or intellectual property relating to the Company's
business in whatever form (including electronic) which you
possess will be returned to the Company upon the termination of
your employment, whether such termination is at your or the
Company's request.
(e) Promise Not to Solicit. You will not during the period of
your employment by the Company and until the first anniversary of
the termination of your employment induce or attempt to induce
any employees, consultants, contractors or representatives of the
Company (or those of any of its affiliates) to stop working for,
contracting with or representing the Company or any of its
affiliates or, with respect to any of the foregoing under an
exclusive contractual arrangement with the Company, to work for,
contract with or represent any of the Company's (or its
affiliates') competitors.
(f) Company Ownership. The results and proceeds of your
services hereunder, including, without limitation, any works of
authorship resulting from your services during your employment
with the Company and/or any of the Company's affiliates and any
works in progress, will be works-made-for hire and the Company
will be deemed the sole owner throughout the universe of any and
all rights of whatsoever nature therein, whether or not now or
hereafter known, existing, contemplated, recognized or developed,
with the right to use the same in perpetuity in any manner the
Company determines in its sole discretion without any further
payment to you whatsoever. If, for any reason, any of such
results and proceeds will not legally be a work-for-hire and/or
there are any rights which do not accrue to the Company under the
preceding sentence, then you hereby irrevocably assign and agree
to assign any and all of your right, title and interest thereto,
including, without limitation, any and all copyrights, patents,
trade secrets, trademarks and/or other rights of whatsoever
nature therein, whether or not now or hereafter known, existing,
contemplated, recognized or developed, to the Company, and the
Company will have the right to use the same in perpetuity
throughout the universe in any manner the Company determines
without any further payment to you whatsoever. You will, from
time to time, as may be requested by the Company, do any and all
things which the Company may reasonably deem useful or desirable
to establish or document the Company's exclusive ownership of any
and all rights in any such results and proceeds, including,
without limitation, the execution of appropriate copyright and/or
patent applications or assignments. To the extent you have any
rights in the results and proceeds of your services that cannot
be assigned in the manner described above, you unconditionally
and irrevocably waive the enforcement of such rights. This
Paragraph is subject to and will not be deemed to limit,
restrict, or constitute any waiver by the Company of any rights
of ownership to which the Company may be entitled by operation of
law by virtue of the Company being your employer.
(g) Prior Restrictions. You represent that you are free to
enter into this Agreement and are not restricted in any manner
from performing under this Agreement by any prior agreement,
commitment, or understanding with any third party, including,
without limitation and to the best of your knowledge, your
agreements with Xxxxxxxx Soup Company ("CSC"). In the event any
lawsuit or injunction is brought by CSC in connection with any
non-compete agreement between you and CSC, you hereby agree that
the Company shall have the right to void this Agreement without
any of the termination consequences set forth in Paragraph 4
(provided that the nature of such termination shall be referred
to by both parties as a mutual voluntary termination not for
Cause) and that you shall automatically forfeit any options and
Common Stock granted to, or purchased by, you hereunder (and the
Stock Loan shall be cancelled and forgiven to the extent used to
purchase, and upon your returning to the Company, any Common
Stock purchased therewith); provided that if this Agreement is
voided as aforesaid after the one-month anniversary of the
Effective Date, you shall be entitled to retain that portion of
the Initial Grant and the Restricted Shares on a pro rata basis
determined on the basis of the number of full months you have
been actively employed by the Company over the total number of
months it would otherwise have taken for the Initial Grant and
the Restricted Shares to vest in full. If you have acquired
confidential or proprietary information in the course of your
prior employment or as a consultant, you will fully comply with
any duties not to disclose such information then applicable to
you during the Term.
6. Services Unique. You recognize that your services hereunder
are of a special, unique, unusual, extraordinary and intellectual
character, giving them a peculiar value, the loss of which the
Company cannot be reasonably or adequately compensated for in
damages. In the event of a breach of this Agreement by you
(particularly, but without limitation, with respect to the
provisions hereof relating to the exclusivity of your services),
the Company will, in addition to all other remedies available to
it, be entitled to seek equitable relief by way of injunction and
any other legal or equitable remedies. This provision will not
be construed as a waiver of the rights which the Company may have
for damages under this Agreement or otherwise, and all of the
Company's rights and remedies will be unrestricted.
7. Notices. All notices and other communications hereunder
will be in writing and will be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, or by next-day delivery service with
confirmation of receipt, addressed as follows:
If to Employee:
At the address indicated on the first page hereof, with a copy
to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
If to the Company:
Xx0xxx.xxx, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Human Resources
with a copy to:
Xxxxxxxx Xxxxx & Deutsch LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx and Xxxxx X. Xxxxx
or to such other address as either party will have furnished to
the other in writing. All notices and communications shall be
deemed to have been duly given and received: (a) on the date of
receipt, if delivered by hand or by telecopier confirmed
electronically; (b) three (3) business days after being sent by
first class certified mail return receipt requested postage
prepaid; or (c) one (1) business day after sending by next-day
delivery service with confirmation of receipt. As used herein,
the term "business day" means any day that is not Saturday,
Sunday or a legal holiday in the State of New York.
8. Assignment/Affiliated Corporations. This Agreement shall be
binding on and shall inure to the benefit of the parties to it
and their respective heirs, legal representatives, successors and
permitted assigns (including, without limitation your estate and
heirs in the case of any payments due to you hereunder). The
Company may only (and, with respect to clause (b) below, must)
assign this Agreement and its liabilities, rights and obligations
hereunder (a) to any entity controlled by, controlling or under
common control with the Company, or (b) to any entity which, by
way of merger, consolidation or sale of substantially all of the
assets of the Company, becomes a successor to the Company, so
long as in the case of either clause (a) or (b) such successor
assumes in writing the Company's obligations hereunder and,
unless you consent in writing, the Company remains fully liable
for any such liabilities, rights and obligations. You
acknowledge and agree that all of your covenants and obligations
to the Company, as well as the rights of the Company hereunder,
will run in favor of and will be enforceable by the Company, its
affiliates and assigns and their successors, as permitted
consistent with the provisions of this Paragraph 8.
9. Arbitration of Disputes.
(a) Arbitrable Disputes. You agree to use final and binding
arbitration to resolve any dispute (an "Arbitrable Dispute")
between you and the Company and/or any affiliate. This
arbitration agreement applies to all matters relating to this
Agreement, your employment with and/or termination from the
Company, including disputes about the validity, interpretation,
or effect of this Agreement, or alleged violations of it, any
payments due to your hereunder, and further including all claims
arising out of any alleged discrimination, harassment,
retaliation, including, but not limited to, those covered by the
New York Human Rights Law, N.Y. Exec. Law Section 296, the 1964
Civil Rights Act, 42 U.S.C. Section 2000e et seq., the federal
Age Discrimination in Employment Act, the Americans With
Disabilities Act, and the Family and Medical Leave Act.
(b) Injunctive Relief. Notwithstanding Paragraph 9(a), due to
the irreparable harm that would result from an actual or
threatened violation of Paragraph 5 that involves disclosure or
use of confidential information, trade secrets, or competition
with the Company and Paragraphs 2 and 6 that involve exclusivity
of your services with the Company, you agree that the Company may
seek an injunction prohibiting you from committing such a
violation.
(c) The Arbitration. Arbitration will take place in New York,
New York before a single experienced employment arbitrator
licensed to practice law in New York and selected in accordance
with the Employment Dispute Resolution Rules of the American
Arbitration Association. The arbitrator may not modify or change
this Agreement in any way.
(d) Fees and Expenses. In connection with any dispute hereunder
(unless such dispute is caused, created or prosecuted by you in
bad faith without a reasonable basis in law or fact), you shall
be entitled to recover the reasonable fees and expenses of your
attorneys from the Company whether or not you prevail. In any
arbitration the fees and expenses of the arbitrator shall be paid
by the non-prevailing party. The arbitrator shall determine the
prevailing party and whether or not you have acted in bad faith
without a reasonable basis in law or fact.
(e) Exclusive Forum. Arbitration in this manner will be the
exclusive forum for any Arbitrable Dispute. Should you or the
Company attempt to resolve an Arbitrable Dispute by any method
other than arbitration pursuant to this Paragraph, the responding
party will be entitled to recover from the initiating party all
damages, expenses, and attorneys' fees incurred as a result of
that breach. The provisions of this Paragraph 9 and Paragraphs
4, 5 and 10 shall survive any termination of the Term of this
Agreement.
10. Indemnification. The Company agrees that you will be
entitled to indemnification and payment or reimbursement of
expenses (including attorney's fees and expenses) to the fullest
extent permitted by applicable law and provided for in the
Certificate of Incorporation and By-laws of the Company for all
damages, losses and expenses incurred by you in connection with
any claim, action, suit or proceeding which arises from your
services and/or activities as an officer and/or employee of the
Company or any affiliate thereof. The Company shall maintain
Directors and Officers liability insurance in such amounts as
determined by the Board after discussion with you.
11. Miscellaneous. No provisions of this Agreement may be
amended, modified, waived, or discharged except by a written
document signed by you and a duly authorized officer of the
Company. A waiver of any conditions or provisions of this
Agreement in a given instance will not be deemed a waiver of such
conditions or provisions at any other time. The validity,
interpretation, construction, and performance of this Agreement
will be governed by the laws of the State of New York without
regard to its conflicts of law principles. This Agreement will
be binding upon, and will inure to the benefit of, you and your
estate and the Company and any successor thereto, but neither
this Agreement nor any rights arising under it may be assigned or
pledged by you.
12. Validity. The invalidity or unenforceability of any
provisions of this Agreement will not affect the validity or
enforceability of any other provisions of this Agreement, which
will remain in full force and effect.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but
all of which together will constitute the same instrument.
14. Entire Agreement. This Agreement, together with any
applicable option agreement, sets forth the entire understanding
between us; all oral or written agreements or representations,
express or implied, with respect to the subject matter of this
Agreement are set forth in this Agreement. All prior employment
agreements, understandings and obligations (whether written,
oral, express or implied) between us, if any, are terminated as
of the commencement date of the Term and are superseded by this
Agreement.
Very truly yours,
XX0XXX.XXX, INC.
By:_______________________
Name :
Title:
ACCEPTED AND AGREED:
___________________
XXXX X. XXXXXXXX
