EMPLOYMENT AGREEMENT
AGREEMENT made as of this 21st day of March, 1997, by and between ICON CMT
CORP., a Delaware corporation with an address at 0000 Xxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxxxx (the "COMPANY"), and XXXXXXX X. XXXX, an individual with
an address at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, Company wishes to secure the employment of Executive with the
Company and the Executive wishes to accept such employment upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. EMPLOYMENT
The Company agrees to employ the Executive and the Executive
agrees to accept such employment, upon the terms and conditions hereinafter set
forth.
2. TERM
The "TERM" of Executive's employment hereunder shall commence
upon execution hereof and continue until terminated by either Executive or
Company. Executive acknowledges and agrees that his employment status is that of
an employee-at-will and that Executive's employment may be terminated by Company
or Executive at any time with or without cause (as defined in paragraph 8(b)
below). The effective date of the termination of the Executive's employment with
the Company, regardless of the reason therefor, is referred to in this Agreement
as the "DATE OF TERMINATION".
3. Duties and Responsibilities
(a) During the Term, the Executive shall have the position of
Senior Vice President, Chief Financial Officer. The Executive shall report to
the President of the Company and/or such other person or persons as the
President or the Board of Directors of the Company (the "BOARD") may from time
to time designate, at such times and in such detail as they shall reasonably
require.
(b) The Executive shall have all of the powers, duties and
responsibilities customary to his office as are reasonably necessary to the
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operations of the Company and as may be assigned to him from time to time by the
President of the Company, consistent with his position as designated in
paragraph 3(a) above.
(c) The Executive will, at all times, use all reasonable efforts
to perform his duties and responsibilities in a manner consistent with the
policies of the Company as from time to time in effect and the parameters of the
then-current profit plan and capital expenditure budget of the Company as
provided by the Company. The Executive shall use his best efforts to ensure that
the Company and its subsidiaries, if any, comply on a timely basis with all
budgetary and reporting requirements reasonably requested by the President. In
no event will the Executive, without the approval of the President of the
Company, incur obligations on behalf of the Company other than in the ordinary
course of business or enter into any transaction on behalf of the Company not in
the ordinary course of business.
(d) The Executive's employment by the Company shall be full-time
and exclusive and, during the Term, the Executive agrees that he will (i) devote
substantially all of his business time and attention, his best efforts, and all
his skill and ability to promote the interests of the Company; (ii) carry out
his duties in a competent and professional manner; (iii) work with other
employees of the Company in a competent and professional manner; and (iv)
generally promote the interests of the Company and its clients. Notwithstanding
the foregoing, the Executive shall be permitted to engage in other business or
charitable activities (as an active participant or a passive investor), provided
that such activities are not rendered for a company which transacts business
with the Company or competes with the Company (or, if such company does transact
business with the Company or does compete with the Company, it is a publicly
held corporation and the Executive's participation is limited to owning less
than 1% of its outstanding shares) and further provided that such activities
(individually or collectively) do not materially interfere with the performance
of his duties or responsibilities under this Agreement.
(e) The Executive's services hereunder shall be performed at the
offices of the Company in Weehawken, New Jersey and New York, New York, subject
to necessary travel requirements of his position and duties hereunder.
4. COMPENSATION
(a) As compensation for his services hereunder and in
consideration of his agreement not to compete as set forth in paragraph 8 below,
during the Term, the Company shall pay the Executive, in accordance with its
normal payroll practices, the base salary at an annual rate of $200,000 for the
first year of the Term. After the first year of the Term, the Executive's annual
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rate of salary compensation may be increased in accordance with the salary
review policy of the Company (currently every 12 months) and within the
guidelines and budgeting procedures of the Company. Any adjustment to the
Executive's salary shall become effective on the applicable salary review date.
5. PERFORMANCE BONUS
(a) During the first year of Executive's employment, Executive
will be eligible for performance bonuses (the "Performance Bonus") based on the
Company's achievement of the revenue targets stated below.
(b) The Performance Bonus, if any, will be paid, within 45 days
of the end of the applicable quarter, as follows:
(i) if the Company achieves (A) $8,297,192 in Gross
Revenues in connection with sales of Products during the
three month period ending on June 30, 1997, Executive will
be paid $7,291, and (B) $6,233,423 in Gross Revenues in
connection with sales of Services during such period,
Executive will be paid $7,291;
(ii) if the Company achieves (A) $8,637,995 in
Gross Revenues in connection with sales of Products during
the three month period ending on September 30, 1997,
Executive will be paid $7,291, and (B) $9,544,138 in Gross
Revenues in connection with sales of Services during such
period, Executive will be paid $7,291;
(iii) if the Company achieves (A) $8,904,896 in
Gross Revenues in connection with sales of Products during
the three month period ending on December 31, 1997,
Executive will be paid $7,291, and (B) $13,743,247 in
Gross Revenues in connection with sales of Services during
such period, Executive will be paid $7,291;
(iv) if the Company achieves less than 100% but
greater than 75% of the Gross Revenues amounts stated in
(i) through (iv) above, in any of the time periods stated
above, then the portion of the Performance Bonus which
would otherwise paid by the Company with respect to such
period shall be reduced pro rata (i.e. if the Company
achieves 80% of the Gross Revenues amounts, Executive will
be paid 80% of the Performance Bonus contemplated above
for the relevant period); and
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(v) if the Company achieves greater than 100% of
the Gross Revenues amounts stated in (i) through (iv)
above, in any of the time periods stated above, then the
portion of the Performance Bonus that would otherwise paid
by the Company with respect to such period shall be
increased pro rata (i.e. if the Company achieves 110% of
the Gross Revenues amounts, Executive will be paid 110% of
the Performance Bonus contemplated above for the relevant
period).
(c) For purposes of this Agreement, (i) "PRODUCTS" and "SERVICES"
shall be defined and accounted for as currently defined and accounted for in the
Company's financial statements; and (ii) "GROSS REVENUES" shall be those amounts
stated in the Company's financial statements.
6. STOCK OPTION CONTRACT.
Simultaneously with the execution hereof, Executive and the
Company are entering into a Stock Option Contract and related Stockholder
Agreement substantially in the form of Exhibit A hereto. It is understood and
agreed that the exercise price of the options to be granted under the Stock
Option Agreement shall be at the price per share which is equal to the price per
share in the initial private equity financing which is consummated by the
Company within 180 days immediately following the execution of this Agreement;
provided however, that if there is no such private equity financing consummated
within 180 days following the execution of this Agreement, the price per share
shall be the fair market value price as of the date of this Agreement.
7. EXPENSES; FRINGE BENEFITS
(a) In addition to the compensation provided for under paragraphs
4 and 5, the Company agrees to pay or to reimburse the Executive during the Term
for all reasonable, ordinary and necessary, and reasonably documented business
or entertainment expenses incurred in the performance of his services hereunder
in accordance with the policy of the Company as from time to time in effect. The
Executive, as a condition precedent to obtaining such payment or reimbursement,
shall provide to the Company any and all statements, bills or receipts
evidencing the travel or out-of-pocket expenses for which the Executive seeks
payment or reimbursement, and any other information or materials, as the Company
may from time to time reasonably require.
(b) During the Term, the Executive and, to the extent eligible,
his dependents, shall be entitled to participate in and receive all benefits
under any welfare benefit plans and programs provided by the Company to senior
management of the Company (including without limitation, medical, dental,
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disability, group life (including accidental death and dismemberment) and
business travel insurance plans and programs) applicable generally to senior
management of the Company, subject, however, to the applicable eligibility and
other provisions of the various plans and programs in effect from time to time.
During the period of employment with the Company in which Executive is not
eligible for medical and dental coverage by the Company's welfare benefit plans
and programs, the Company will reimburse Executive for Executive's expenses
which are estimated at $725.00 in connection with the continuation of medical
and dental coverage from Executive's previous employer under COBRA.
(c) During the Term, the Executive shall be entitled to
participate in all retirement plans and programs (including without limitation
any profit sharing/401(k) plan) applicable generally to senior management of the
Company, subject, however, to applicable eligibility and other provisions of the
various plans and programs in effect from time to time. In addition, during the
Term, the Executive shall be entitled to receive fringe benefits and perquisites
in accordance with the plans, practices, programs and policies of the Company
from time to time in effect and available generally to the senior management of
the Company and consistent with the applicable guidelines determined by the
Company.
(d) The Executive shall be entitled to three (3) weeks paid
vacation during each calendar year during the Term, to be taken at such time(s)
as shall not materially interfere with the Executive's fulfillment of his duties
hereunder, and shall be entitled to as many holidays, sick days and personal
days as are in accordance with the Company's policy then in effect for its
senior management generally, upon such terms as may be provided of general
application to senior management of the Company.
(e) During the Term, Executive shall have the use of a
Company-owned car to be used in connection with Executive's travel and commuting
needs which will be provided at no expense to Executive.
(f) Notwithstanding anything to the contrary contained above, the
Company shall be entitled to terminate or reduce any employee benefit or
perquisite enjoyed by the Executive pursuant to the provisions of paragraph
7(b), (c), or (d) above if such reduction is part of a reduction applicable to
senior management of the Company generally.
8. TERMINATION
(a) The Company, by direction of the President and/or the Board,
shall be entitled to terminate the Term and to discharge the Executive for
"cause" effective immediately upon the giving of written notice. The term
"cause" shall include the following:
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(i) After notice and a fifteen (15) day
opportunity to cure, in the case of either of the
following: (x) the Executive's failure or refusal
to perform his duties and responsibilities as set
forth in paragraph 3 hereof in any material
respect, or (y) the failure of the Executive to
devote substantially all of his business time and
attention exclusively to the business and affairs
of the Company in accordance with the terms hereof;
(ii) The misappropriation of funds or
property of the Company;
(iii) The use of alcohol or illegal drugs,
materially interfering with the performance of the
Executive's obligations under this Agreement,
continuing after written warning;
(iv) The conviction in a court of law of, or
entering a plea of guilty or no contest to, any
felony or any crime involving moral turpitude,
dishonesty or theft;
(v) The commission by the Executive of any
willful or intentional act which injures or could
reasonably be expected to injure the reputation,
business or business relationships of the Company,
including without limitation, a breach of the
provisions of paragraphs 10 and 11 of this
Agreement; and
(vi) Any material breach (not covered by any
of the clauses (i) through (v) above) of any term,
provision or condition of this Agreement.
(b) Upon the termination of the employment of the Executive with
the Company (x) pursuant to paragraph 8(a) or (y) any termination by the
Executive other than a termination contemplated under paragraph 8(c) below, the
Company shall pay the Executive, subject to any appropriate offsets, as
permitted by applicable law, for debts or money due to the Company
(collectively, "OFFSETS"), his salary compensation, Performance Bonus
compensation earned but unpaid, any unused accrued vacation only through, and
any unpaid reimbursable expenses outstanding as of, the Date of Termination. In
the event that Executive's Date of Termination is other than the last day of a
period used to determine a Performance Bonus, Executive shall be paid a
Performance Bonus for the period in which the Date of Termination occurs pro
rated to the Date of Termination in accordance with the provisions of paragraph
5(b) above. Any benefits to which the Executive or his beneficiaries may be
entitled under the plans and programs described in paragraphs 7(b) and (c)
above, or any other applicable plans and programs, as of his Date of
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Termination shall be determined in accordance with the terms of such plans and
programs. In connection with the Executive's termination by the Company for
cause, except as provided in this paragraph 8(b), the Company shall have no
further liability to the Executive or the Executive's heirs, beneficiaries or
estate for damages, compensation, benefits, severance, indemnities or other
amount of whatever nature.
(c) In the event that the Company is in default of a material
term of this Agreement (including, without limitation, the assignment to the
Executive of duties which are materially inconsistent with the duties described
in paragraph 3(b) above), which default remains uncured for a period of 30 days
after written notice of such default from the Executive to the Company (such
notice to specify the specific nature of the claimed default and the manner in
which the Executive requires such default to be cured), and Executive elects to
terminate his employment hereunder, then the Executive shall be deemed to have
been terminated by the Company without cause. Such termination by the Executive,
or in the event the Company terminates the employment of the Executive other
than for cause as contemplated in paragraph 8(a) above shall hereinafter be
referred to as a "TERMINATION WITHOUT CAUSE".
(d) Notwithstanding any other provision of this agreement to the
contrary, the Executive shall be deemed to have been terminated without cause in
the case of any of the following:
(i) a change in Executive's title or reporting
structure such that a demotion can reasonably be inferred from such change;
provided however, that nothing contained herein shall be deemed to limit
Company's ability to change the reporting structure hereunder in such a manner
that a demotion would not be reasonably inferred (e.g. Company may choose to
have Executive report to another member of senior management);
(ii) a reduction in excess of 10% in Executive's
base compensation or the elimination of an opportunity for a raise in the normal
course, other than as generally applicable to other members of senior
management;
(iii) a material reduction in, interference with or
elimination of a performance bonus opportunity or incentive stock option, other
than as generally applicable to other members of senior management; provided
however that nothing contained herein shall be deemed to (i) modify in any
respect the rights and obligations of the parties hereto under the Stock Option
Contract; or (ii) obligate Company to grant additional incentive stock options
during the Term solely as a result of the Company's election to grant incentive
stock options to another member or a minority of members of senior management,
provided further, however, that during the first six months of the
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Term, the Company may grant incentive stock options to any member or members of
senior management or to employees generally without regard to the limitation
stated in this paragraph 8(d)(iii); or
(iv) a change in job location outside of 50 miles
of the Company's current offices; provided however, so long as the Company
agrees to pay Executive's reasonable moving and relocation expenses; such change
in job location shall not be deemed to be termination without cause.
(e) In the event of a termination without cause by the Company,
as liquidated damages, the Executive shall be entitled to continue to receive
from the Company, subject to any Offsets, for so long as the Executive is not in
breach of his obligations to the Company under paragraphs 10 and 11 hereof, (i)
his then applicable salary compensation when otherwise payable through the Date
of Termination and for a period of six (6) months (or twelve (12) months if
extended pursuant to the terms of paragraph 10(c) hereunder) commencing on the
Date of Termination (the "Severance Period'), and (ii) any unpaid reimbursable
expenses outstanding, Performance Bonus earned but unpaid, and any unused
accrued vacation, as of the Date of Termination. In the event that Executive's
Date of Termination is other than the last day of a period used to determine a
Performance Bonus, Executive shall be paid a Performance Bonus for the period in
which the Date of Termination occurs pro rated to the Date of Termination in
accordance with the provisions of paragraph 5(b) above. Furthermore, during the
Severance Period, Executive shall also continue to participate in or receive,
without cost to Executive, all of the plans and programs stated in paragraphs
7(b) and (c) above, as well as life insurance policies, if any, stated in
paragraph 16, all of which were provided to Executive prior to the Date of
Termination. Except as specifically provided in this paragraph 8(c), the Company
shall have no further liability to the Executive or the Executive's heirs,
beneficiaries or estate for damages, compensation, benefits, severance,
indemnities or other amount of whatever nature.
9. DISABILITY: DEATH
(a) In the event the Executive shall be unable to perform his
duties hereunder by virtue of illness or physical or mental incapacity or
disability (from any cause or causes whatsoever) in substantially the manner and
to the extent required hereunder prior to the commencement of such disability
(all such causes being herein referred to as "disability") and the Executive
shall fail to perform such duties for periods aggregating 180 days, whether or
not continuous, in any continuous period of 270 days, the Company shall have the
right, in addition to all of its other rights hereunder, to terminate the
Executive's employment hereunder as at the end of any calendar month after the
180th day of disability, upon at least 30 days' prior written notice to him. In
the event of the Executive's death, the Date of Termination shall be the date of
such death.
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(b) In the event the Executive's employment terminates pursuant
to paragraph 9(a), the Executive, or in the case of his death, the Executive's
estate, shall be entitled to receive when otherwise payable, subject to any
Offsets, (i) all salary compensation and Performance Bonus earned but unpaid as
of the Date of Termination and (ii) any unpaid reimbursable expenses
outstanding, and any unused accrued vacation, as of such date. Any benefits to
which the Executive or his beneficiaries may be entitled under the plans and
programs described in paragraphs 7(b) and (c) above, or any other applicable
plans and programs, as of his Date of Termination shall be determined in
accordance with the terms of such plans and programs. In the event of the
Executive's termination due to disability or death, except as provided in this
paragraph 9(b), the Company shall have no further liability to the Executive or
the Executive's heirs, beneficiaries or estate for damages, compensation,
benefits, severance, indemnities or other amounts of whatever nature.
10. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION
(a) The Executive agrees that his services hereunder are of a
special, unique, extraordinary and intellectual character, and his position with
the Company places him in a position of confidence and trust with the clients
and employees of the Company. The Executive acknowledges that the rendering of
services to the clients of the Company necessarily requires the disclosure to
the Executive of confidential information and trade secrets of the Company (such
as, without limitation, marketing plans, media plans, budgets, corporate
policies, client preferences, proprietary technologies, technical specifications
and the like, and policies, and identity of appropriate personnel of clients
with sufficient authority to influence a shift in suppliers). The parties hereto
agree that, in the course of the Executive's employment with the Company, the
Executive has and will continue to develop a personal relationship with the
Company's clients and a knowledge of those clients' affairs and requirements,
and that the relationship of the Company with its established clientele will
therefore be placed in the Executive's hands in confidence and trust. The
Executive consequently agrees that it is reasonable and necessary for the
protection of the trade secrets, goodwill and business of the Company that the
Executive make the covenants contained herein. Accordingly, the Executive agrees
that, while he is in the employ of the Company and for a one-year period after
the Date of Termination, he shall not except on behalf of the Company, directly
or indirectly, and regardless of the reason for his ceasing to be employed by
the Company:
(i) attempt in any manner, either on his own behalf
or on behalf of any other person or entity, to solicit
from any client business of the type performed by the
Company or to persuade any client to cease to do business
or to reduce the amount of
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business which any such client has customarily done or
is reasonably expected to do with the Company, whether or
not the relationship between the Company and such client
was originally established in whole or in part through his
efforts; or
(ii) employ as an employee or retain as consultant
any person who is then or at any time during the preceding
twelve months was an employee of or consultant to the
Company, or persuade or attempt to persuade any employee
of or consultant to the Company to leave the employ of the
Company or to become employed as an employee or retained
as a consultant by anyone other than the Company; or
(iii) render to or for any client any services of
the type rendered by the Company.
As used in this paragraph 10, the noun "COMPANY" shall include subsidiaries and
affiliates of the Company and the term "CLIENT" shall mean (1) anyone who is a
client of the Company on the Date of Termination or, if the Executive's
employment shall not have terminated, at the time of the alleged prohibited
conduct (the "DETERMINATION DATE"); (2) anyone who was a client of the Company
at any time during the two year period immediately preceding the Determination
Date; and (3) any prospective clients to whom the Company had made a new
business presentation at any time during the one year period immediately
preceding the Determination Date.
(b) The Executive also agrees that he will not at any time
(whether during the Term or after termination of this Agreement), disclose to
anyone any confidential information or trade secret of the Company, or any
client of the Company, or utilize such confidential information or trade secret
for his own benefit, or for the benefit of any third party. All memoranda,
notes, records or other documents compiled by him or made available to him
during the Term pertaining to the business of the Company or its respective
clients shall be the property of the Company and shall be delivered to the
Company immediately upon the termination of his employment or at any other time,
upon request. The term "confidential information or trade secret" does not
include information which (i) becomes generally available to the public other
than by breach of this provision or (ii) the Executive learns from a third party
who is not under an obligation of confidence to the Company. In the event that
the Executive becoMes legally required to disclose any confidential information
or trade secret, he will provide the Company with prompt notice thereof so that
the Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this paragraph 10(b). In the event that such
protective order or other remedy is not obtained, or that the Company waives
compliance with the provisions of this paragraph 10(b), the Executive will
furnish
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only that portion of the confidential information or trade secret which is
legally required and will exercise his best efforts to obtain a protective order
or other reliable assurance that confidential treatment will be accorded the
confidential information or trade secret.
(c) Executive agrees that during the Term and for a period of six
months thereafter (the "NON-COMPETITION PERIOD"), he shall have no interest
directly or indirectly in any business, the products or services of which
directly compete with the products or services of the Company, or its
affiliates, and Executive shall perform no services for nor lease, license or
sell any product or property to any person, firm or corporation engaged in any
such business other than for or on behalf of the Company and its affiliates.
Further, the Company may, at its option, at any time within 90 days after the
Date of Termination, by written notice to Executive in accordance with paragraph
17 hereof, elect to extend the Non-Competition Period for an additional six
months by agreeing to continue to pay the Executive the salary compensation
applicable to Executive's last regular pay period for such additional six month
period, payable in accordance with the Company's standard payroll practices,
commencing at the time that the Non-Competition Period would otherwise expire.
If the Company elects to extend the Non-Competition Period as contemplated
hereunder, Executive will continue to participate in or receive, without cost to
Executive, all of the plans and programs stated in paragraph 8(e). The foregoing
shall not preclude Executive from owning not more than one percent (1%) of the
outstanding common stock of any company whose shares are publicly traded; nor
preclude Executive from working for a division or part of such a firm or
corporation which division or part is not engaged in any manner in such
business.
(d) If the Executive commits a breach, or is about to commit a
breach, of any of the provisions of paragraphs 10(a), (b) or (c) above, the
Company shall have the right to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction without being
required to post bond or other security and without having to prove the
inadequacy of the available remedies at law, it being acknowledged and agreed
that any such breach or threatened breach will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company. In addition, the Company may take all such other actions and seek all
such other remedies available to them under law or in equity and shall be
entitled to such damages as they can show they have sustained by reason of such
breach.
(e) The parties acknowledge that the type and periods of
restriction imposed in the provisions of paragraphs 10(a), (b) and (c) above are
fair and reasonable and are reasonably required for the protection of the
Company and the goodwill associated with the business of the Company; and
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that the time, scope, geographic area and other provisions of this paragraph 10
have been specifically negotiated by sophisticated commercial parties, it being
understood that the clients of the Company may be serviced from any location and
accordingly it is reasonable that the restrictive covenants set forth herein are
not limited by narrow geographic area. The Executive specifically acknowledges
that his being restricted from servicing clients as provided in paragraph 10 of
this Agreement will not prevent him from being employed or earning a livelihood
in the type of business conducted by the Company. If any of the covenants in
paragraphs 10(a), (b) or (c) above, or any part thereof, is hereafter construed
to be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions. If any of the covenants contained in paragraphs 10(a), (b) or
(c), or any part thereof, is held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties agree that the court
making such determination shall have the power to reduce the duration and/or
areas of such provision and, in its reduced form, such provision shall then be
enforceable. The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in paragraphs 10(a), (b) and (c) above upon the
courts of any state or other jurisdiction within the geographical scope of such
covenants in which a breach or alleged breach of a covenant contained in
paragraph 10(a), (b) or (c) has been alleged to have occurred. In the event that
the courts of any one or more of such states or other jurisdictions shall hold
any such covenants wholly or partially unenforceable by reason of the breadth of
such scope or otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the right of the Company to the
relief provided above in the courts of any other states or other jurisdictions
within the geographical scope of such covenants, as to breaches of such
covenants in such other respective states or other jurisdictions, the above
covenants as they relate to each state or other jurisdiction being, for this
purpose, severable into diverse and independent covenants.
11. INTELLECTUAL PROPERTY
During the Term, the Executive will disclose to the Company all ideas,
inventions and business plans developed by him during the course of employment
which relate directly or indirectly to the business of the Company, including
without limitation, any design, logo, slogan or campaign or any process,
operation, product or improvement which may be patentable or copyrightable. The
Executive agrees that all patents, licenses, copyrights, tradenames, trademarks,
service marks, advertising campaigns, promotional campaigns, designs, logos,
slogans and business plans developed or created by the Executive in the course
of his employment hereunder will be deemed works for hire and the sole and
absolute property of the Company. The Executive agrees that, at the Company's
request, at any time during the Term of this
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Agreement and thereafter, he will promptly take all steps necessary to secure
the rights thereto to the Company by patent, copyright or otherwise.
12. ENFORCEABILITY
The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other party's
right to enforce the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by any party of the breach of any provision
hereof be taken or held to be a waiver of any subsequent breach of such
provision or as a waiver of the provision itself.
13. ASSIGNMENT
This Agreement is a personal contract and the Executive's rights
and obligations hereunder may not be sold, transferred, assigned, pledged or
hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company; provided, however, the Company may not assign or transfer its
rights under this Agreement except in connection with a merger or consolidation
(whether or not the Company is the continuing entity), or the sale or
liquidation of all or substantially all the assets of the Company in connection
with which such assignee or transferee assumes the liabilities, obligations and
duties of the Company as contained in this Agreement, either contractually or as
a matter of law.
14. MODIFICATION
This Agreement may not be orally canceled, changed, modified or
amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement and approved by the President of the Company.
15. SEVERABILITY; SURVIVAL
In the event that any one or more of the provisions of this
Agreement shall be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected, or if any one or more of the provisions
contained herein shall be held to be excessively broad as to duration, activity
or subject, such provision shall be construed by limiting and reducing such
provisions so as to be enforceable to the maximum extent compatible with
applicable law. The respective rights and obligations of the parties hereunder
shall survive the
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termination of the Executive's employment to the extent necessary to the
intended preservation of such rights and obligations.
16. LIFE INSURANCE
The Executive agrees that the Company shall have the right to
obtain life insurance on the Executive's life, at the sole expense of the
Company, as the case may be, and with the Company as the sole beneficiary
thereof. The Executive shall (a) cooperate fully in obtaining such life
insurance, (b) sign any necessary consents, applications and other related forms
or documents and (c) take any reasonably required medical examinations. Upon
termination, Executive shall have the right to convert any such policy so
obtained by the Company for Executive's own benefit; provided however, that
Executive assumes all obligations pertaining to such policies including but not
limited to the payment of any and all premiums.
17. NOTICES
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon personal delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission or prepaid overnight courier service, and in each case,
addressed as follows:
If to the Executive:
Xx. Xxxxxxx X. Xxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Company:
ICon CMT Corp.
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Fax: 000 000-0000
Any party may change the address to which notices are to be sent
by giving notice of such change of address to the other party in the manner
herein provided for giving notice.
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18. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey, without application of conflict of law
provisions applicable herein.
19. NO CONFLICT
The Executive represents and warrants that he is not subject to
any agreement, instrument, order, judgment or decree of any kind, or any other
restrictive agreement of any character, which would prevent him from entering
into this Agreement or which would be breached by the Executive upon his
performance of his duties pursuant to this Agreement.
20. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Company and
the Executive with respect to the subject matter hereof, and all prior
agreements, plans and arrangements relating to the employment of the Executive
by the Company are nullified and superseded hereby.
21. HEADINGS
The headings contained in this Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of this
Agreement.
22. MISCELLANEOUS
(a) The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(b) Following the date hereof and regardless of any dispute that
may arise in the future, the Executive will not, and will use his best efforts
to cause his business associates to not, disparage, criticize or make statements
to the detriment of the Company, or any of their affiliates; and the Company
will not, and will use their best efforts to cause their affiliated companies to
not, disparage, criticize or make statements to the detriment of the Executive.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ICON CMT CORP.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: President & CEO
/s/ Xxxxxxx X. Xxxx
------------------------------------------
XXXXXXX X. XXXX
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