Exhibit 10.19
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the 14th
day of April, 2006, between Optium Corporation, a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxx ("Executive").
WHEREAS, the Company desires to employ Executive and Executive desires to
be employed by the Company on the terms contained herein; and
WHEREAS Executive has or in simultaneously entering into the Company's
Employee Agreement Regarding Inventions, Confidentiality and Non-Competition
(the "Employee Agreement").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. The term of this Agreement shall extend from the date hereof
(the "Commencement Date") until the second anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the second anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change in Control
occurs during the original or extended term of this Agreement, the term of this
Agreement shall continue in effect for a period of not less than twelve (12)
months beyond the month in which the Change in Control occurred. The term of
this Agreement shall be subject to termination as provided in Paragraph 6 and
may be referred to herein as the "Period of Employment."
2. POSITION AND DUTIES. During the Period of Employment, Executive shall
have the title of Vice President of Sales and Marketing of the Company or such
other title as determined by the Board of Directors of the Company (the "Board")
or Chief Executive Officer, and shall have such powers and duties as may from
time to time be prescribed by the Board, Chief Executive Officer or other
authorized executive. Executive shall devote his full working time and efforts
to the business and affairs of the Company. Notwithstanding the foregoing,
Executive may serve on other boards of directors, with the approval of the
Board, or engage in religious, charitable or other community activities as long
as such services and activities are disclosed to the Board and do not materially
interfere with Executive's performance of his duties to the Company as provided
in this Agreement.
3. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY AND INCENTIVE COMPENSATION. Executive's initial annual
base salary shall be $176,000. Executive's base salary shall be redetermined
annually by the Board or a Committee thereof; provided, that following a Change
in Control (as defined below), Executive's base salary may not be reduced except
for across-the-board reductions similarly affecting all or substantially all
management employees. The base salary in effect at any given time is referred to
herein as "Base Salary." The Base Salary shall be payable in substantially equal
bi-weekly
installments. In addition to Base Salary, Executive shall be eligible to receive
cash incentive compensation as determined by the Board or a Committee thereof
from time to time, and shall also be eligible to participate in such incentive
compensation plans as the Board or a Committee thereof shall determine from time
to time for employees of the same status within the hierarchy of the Company.
(b) EXPENSES. Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him in performing services
hereunder during the Period of Employment, in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers.
(c) OTHER BENEFITS. During the Period of Employment, Executive shall
be entitled to participate in or receive benefits under all of the Company's
Employee Benefit Plans in effect for all executive level personnel or applicable
generally to employees of the Company from time to time, subject to the terms
and conditions of such plans. As used herein, the term "Employee Benefit Plans"
includes, without limitation, each pension and retirement plan; supplemental
pension, retirement and deferred compensation plan; savings and profit-sharing
plan; stock ownership plan; stock purchase plan; stock option plan; life
insurance plan; medical insurance plan; disability plan; and health and accident
plan or arrangement established and maintained by the Company on the date hereof
for employees of the same status within the hierarchy of the Company. To the
extent that the scope or nature of benefits described in this section is
determined under the policies of the Company based in whole or in part on the
seniority of an employee's service, Executive shall be deemed to have seniority
with the Company equal to the actual time of Executive's service with the
Company. During the Period of Employment, Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement which may, in the future, be made available by the Company to its
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plan or
arrangement. Any payments or benefits payable to Executive under a plan or
arrangement referred to in this Subparagraph 3(c) in respect of any calendar
year during which Executive is employed by the Company for less than the whole
of such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar
year during which he is so employed. Should any such payments or benefits accrue
on a fiscal (rather than calendar) year, then the proration in the preceding
sentence shall be on the basis of a fiscal year rather than calendar year.
(d) PAID TIME OFF. Executive shall be entitled to twenty (20) days of
paid time off in each calendar year usuable in accordance with the Company's
policies, which shall be accrued ratably during the calendar year. Executive
shall also be entitled to all paid holidays given by the Company to its
executives. To the extent that the scope or nature of benefits described in this
section are determined under the policies of the Company based in whole or in
part on the seniority or tenure of an employee's service, Executive shall be
deemed to have a tenure with the Company equal to the actual time of Executive's
service with Company.
4. TERMINATION. Executive's employment hereunder may be terminated without
any breach of this Agreement under the following circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon his
death.
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(b) DISABILITY. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from his duties
hereunder on a full-time basis for one hundred eighty (180) calendar days in the
aggregate in any twelve (12) month period, the Company may terminate Executive's
employment hereunder.
(c) TERMINATION BY COMPANY FOR CAUSE. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by the Chief Executive Officer or not less than
a majority of the Board at a meeting of the Board called and held for such
purpose. For purposes of this Agreement, "Cause" shall mean: (A) conduct by
Executive constituting a material act of willful misconduct in connection with
the performance of his duties, including, without limitation, misappropriation
of funds or property of the Company or any of its affiliates other than the
occasional, customary and de minimis use of Company property for personal
purposes; (B) criminal or civil conviction or indictment of Executive, a plea of
nolo contendere by Executive or conduct by Executive that would reasonably be
expected to result in material injury to the reputation of the Company if he
were retained in his position with the Company, including, without limitation,
conviction or indictment of a felony involving moral turpitude; (C) continued,
willful and deliberate non-performance by Executive of his duties hereunder
(other than by reason of Executive's physical or mental illness, incapacity or
disability) which has continued for more than thirty (30) days following written
notice of such non-performance from the Chief Executive Officer or the Board;
(D) a breach by Executive of any of the material provisions of the Executive's
Employee Agreement regarding Inventions, Confidentiality and Non-Competition
(the "Employee Agreement") which is not or cannot be cured within ten (10) days
following written notice of such breach from the Chief Executive Officer or the
Board; or (E) a material violation by Executive of the Company's employment
policies which has continued following written notice of such violation from the
Chief Executive Officer or the Board. In the event that the agreements or plans
governing any of Executive's stock-based grants and awards include and use a
definition of "Cause", the definition of Cause above shall supercede and apply
in place of any such definition in the applicable agreement and/or plan with
respect to Executive's applicable stock-based grants and awards.
(d) TERMINATION WITHOUT CAUSE. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by the Board at a meeting of the Board
called and held for such purpose. Any termination by the Company of Executive's
employment under this Agreement which does not constitute a termination for
Cause under Subparagraph 4(c) or result from the death or disability of the
Executive under Subparagraph 4(a) or (b) shall be deemed a termination without
Cause. If the Company provides notice to Executive under Paragraph 1 that it
does not wish to extend the Period of Employment, such action shall be deemed a
termination without Cause.
(e) TERMINATION BY EXECUTIVE. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any reason;
PROVIDED, that Executive may terminate his employment for Constructive
Termination only within twelve (12) months after the occurrence of the first
event constituting a Change in Control. If Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment, such action shall be deemed a voluntary termination by Executive and
one without Constructive Termination. For purposes of this Agreement,
"Constructive Termination" shall
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mean that Executive has complied with the "Constructive Termination Process"
(hereinafter defined) following the occurrence of any of the following events
within twelve (12) months after the occurrence of the first event constituting a
Change in Control: (A) a substantial diminution or other substantive adverse
change, not consented to by Executive, in the nature or scope of Executive's
responsibilities, authorities, powers, functions or duties other than to reflect
the integration of the Company into any acquiring entity; (B) an involuntary
reduction in Executive's Base Salary except for across-the-board reductions
similarly affecting all or substantially all management employees; (C) a breach
by the Company of any of its other material obligations under this Agreement and
the failure of the Company to cure such breach within thirty (30) days after
written notice thereof by Executive; (D) the involuntary relocation of the
Company's offices at which Executive is principally employed to a location more
than thirty (30) miles from such offices, or the requirement by the Company that
Executive be based anywhere other than the Company's offices at such location on
an extended basis, except for required travel on the Company's business to an
extent substantially consistent with Executive's business travel obligations; or
(E) the failure of the Company to obtain the agreement from any successor to the
Company to assume and agree to perform this Agreement as required by Paragraph
8. "Constructive Termination Process" shall mean that (i) Executive reasonably
determines in good faith that a "Constructive Termination" event has occurred;
(ii) Executive notifies the Company in writing of the occurrence of the
Constructive Termination event; (iii) Executive cooperates in good faith with
the Company's efforts, for a period not less than sixty (60) days following such
notice, to modify Executive's employment situation in a manner acceptable to
Executive and Company; and (iv) notwithstanding such efforts, one or more of the
Constructive Termination events continues to exist and has not been modified in
a manner acceptable to Executive. If the Company cures the Constructive
Termination event in a manner acceptable to Executive during the sixty (60) day
period, Constructive Termination shall be deemed not to have occurred. In the
event that the agreements or plans governing any of Executive's stock-based
grants and awards include and use a definition of "Constructive Termination",
the definition of Constructive Termination above shall supercede and apply in
place of any such definition in the applicable agreement and/or plan with
respect to Executive's applicable stock-based grants and awards.
(f) NOTICE OF TERMINATION. Except for termination as specified in
Subparagraph 4(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) DATE OF TERMINATION. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
4(b) or by the Company for Cause under Subparagraph 4(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 4(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 4(e), thirty (30) days after the date on which a
Notice of Termination is given.
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5. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary to the date of his death, plus his accrued and unpaid
incentive compensation, if any, under Subparagraph 3(a), plus his unused paid
time off. All stock-based grants and awards held by Executive shall be treated
upon the death of the Executive in accordance with their terms. For a period of
one (1) year following the Date of Termination, the Company shall pay such
health insurance premiums as may be necessary to allow Executive's spouse and
dependents to receive health insurance coverage substantially similar to
coverage they received prior to the Date of Termination. In addition to the
foregoing, any payments to which Executive's spouse, beneficiaries, or estate
may be entitled under any employee benefit plan shall also be paid in accordance
with the terms of such plan or arrangement. Such payments, in the aggregate,
shall fully discharge the Company's obligations hereunder.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid Base Salary and accrued and
unpaid incentive compensation, if any, under Subparagraph 3(a), until
Executive's employment is terminated due to disability in accordance with
Subparagraph 4(b) or until Executive terminates his employment in accordance
with Subparagraph 4(e), whichever first occurs. All stock-based grants and
awards held by Executive shall be treated upon the Date of Termination in
accordance with their terms. For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive and Executive's spouse and dependents to receive
health insurance coverage substantially similar to coverage they received prior
to the Date of Termination. Upon termination due to death prior to the
termination first to occur as specified in the preceding sentence, Subparagraph
5(a) shall apply.
(c) If Executive's employment is terminated by Executive other than
for Constructive Termination as provided in Subparagraph 4(e), then the Company
shall, through the Date of Termination, pay Executive his accrued and unpaid
Base Salary at the rate in effect at the time Notice of Termination is given,
plus his unused paid time off. Thereafter, the Company shall have no further
obligations to Executive except as otherwise expressly provided under this
Agreement, provided any such termination shall not adversely affect or alter
Executive's rights under any employee benefit plan of the Company in which
Executive, at the Date of Termination, has a vested interest, unless otherwise
provided in such employee benefit plan or any agreement or other instrument
attendant thereto. All stock-based grants and awards held by Executive shall be
treated upon the Date of Termination in accordance with their terms.
(d) If Executive's employment is terminated by the Company without
Cause as provided in Subparagraph 4(d), then the Company shall, through the Date
of Termination, pay Executive his accrued and unpaid Base Salary at the rate in
effect at the time Notice of Termination is given and his accrued and unpaid
incentive compensation, if any, under Subparagraph 3(a), plus his unused paid
time off. In addition, subject to signing by Executive of a general mutual
release of claims in a form and manner satisfactory to the Company,
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(i) the Company shall pay Executive an amount equal to one (1)
times the sum of Executive's current Base Salary and his Average
Incentive Compensation (the "Severance Amount"). The Severance Amount
shall be paid out in substantially equal bi-weekly installments over
twelve (12) months, in arrears. For purposes of this Agreement, "Average
Incentive Compensation" shall mean the average of the annual incentive
compensation under Subparagraph 3(a) received by Executive for the three
(3) immediately preceding fiscal years or such fewer number of complete
fiscal years as Executive may have been employed by the Company. In no
event shall "Average Incentive Compensation" include any sign-on bonus,
retention bonus or any other special bonus. Notwithstanding the
foregoing, if the Executive breaches any of the material provisions
contained in the Employee Agreement, all payments of the Severance Amount
shall immediately cease; and
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance
policies, the Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive and Executive's spouse and dependents to
continue to receive health insurance coverage.
(e) If Executive's employment is terminated by the Company for Cause
as provided in Subparagraph 4(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary at the rate in
effect at the time Notice of Termination is given, plus his unused paid time
off. Thereafter, the Company shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement, provided any such
termination shall not adversely affect or alter Executive's rights under any
employee benefit plan of the Company in which Executive, at the Date of
Termination, has a vested interest, unless otherwise provided in such employee
benefit plan or any agreement or other instrument attendant thereto. All
stock-based grants and awards held by Executive shall be treated upon the Date
of Termination in accordance with their terms.
(f) Nothing contained in the foregoing Subparagraphs 5(a) through 5(e)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
6. CHANGE IN CONTROL PAYMENT. The provisions of this Paragraph 6 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage in
advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 5(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within twelve (12) months
after the occurrence of the first event constituting a Change of Control,
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning twelve
(12) months after the occurrence of a Change of Control.
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(a) CHANGE IN CONTROL.
(i) If within twelve (12) months after the occurrence of the
first event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 4(d)
or Executive terminates his employment for Constructive Termination as
provided in Subparagraph 4(e), then the Company shall pay Executive a
lump sum in cash in an amount equal to his unused paid time off, plus one
(1) times the sum of (A) Executive's current Base Salary plus (B)
Executive's most recent annual incentive compensation under Subparagraph
3(a) for the most recent fiscal year, excluding any sign-on bonus,
retention bonus or any other special bonus;
(ii) Executive shall be entitled to any rights and benefits with
respect to stock-related awards, to the extent and upon the terms
provided in the applicable incentive agreement or any agreement or other
instrument attendant thereto pursuant to which such options or awards
were granted; and
(iii) The Company shall, for a period of one (1) year commencing
on the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependents to
continue to receive health insurance coverage substantially similar to
the coverage they received prior to the Date of Termination.
(b) DEFINITIONS. For purposes of this Paragraph 6, the following terms
shall have the following meanings:
Prior to the consummation of the Company's initial public offering of its
common stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "IPO"), "Change of Control" shall have
the meaning ascribed to such term in the Company's 2000 Stock Incentive Plan, as
amended. Thereafter, "Change in Control" shall mean any of the following:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Act")
(other than the Company, any of its subsidiaries, or any trustee,
fiduciary or other person or entity holding securities under any employee
benefit plan or trust of the Company or any of its subsidiaries),
together with all "affiliates" and "associates" (as such terms are
defined in Rule 12b-2 under the Act) of such person, shall acquire (as
such term is defined in Rule 13d-3 under the Act), directly or
indirectly, securities of the Company representing twenty-five percent
(25%) or more of either (A) the combined voting power of the Company's
then outstanding securities having the right to vote in an election of
the Company's Board ("Voting Securities") or (B) the then outstanding
shares of Company's common stock, par value $0.0001 per share ("Common
Stock") (other than by a person who holds, as of the Effective Date,
directly or indirectly securities of the Company representing twenty
percent (20%) or more of either (A) the combined voting power of the
Company's then outstanding Voting Securities or (B) the then outstanding
shares of Company's Common Stock); or
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(ii) persons who, as of the Commencement Date, constitute the
Company's Board (the "Incumbent Directors") cease for any reason,
including, without limitation, as a result of a tender offer, proxy
contest, merger or similar transaction, to constitute at least a majority
of the Board, provided that any person becoming a director of the Company
subsequent to the Commencement Date shall be considered an Incumbent
Director if such person's election was approved by or such person was
nominated for election by a vote of at least a majority of the Incumbent
Directors then constituting the Board or the nominating committee
thereof; but provided further, that any such person whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of members of the Board or
other actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Board, including by reason of agreement
intended to avoid or settle any such actual or threatened contest or
solicitation, shall not be considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such
term is defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate more than fifty percent (50%) of the
voting shares of the Company issuing cash or securities in the
consolidation or merger (or of its ultimate parent corporation, if any),
(B) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a single
plan) of all or substantially all of the assets of the Company or (C) any
plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, following consummation of the IPO a
"Change of Control" shall not be deemed to have occurred for purposes of the
foregoing clause (a) solely as the result of an acquisition of securities by the
Company which, by reducing the number of shares of Common Stock or other Voting
Securities outstanding, increases the proportionate number of shares
beneficially owned by any person to twenty-five percent (25%) or more of either
(A) the combined voting power of all of the then outstanding Voting Securities
or (B) Common Stock; PROVIDED, HOWEVER, that if any person referred to in this
sentence (other than by a person who holds, as of the Effective Date, directly
or indirectly securities of the Company representing twenty percent (20%) or
more of either (x) the combined voting power of the Company's then outstanding
Voting Securities or (y) the then outstanding shares of Company's Common Stock)
shall thereafter become the beneficial owner of any additional shares of Voting
Securities or Common Stock (other than pursuant to a stock split, stock
dividend, or similar transaction or as a result of an acquisition of securities
directly from the Company) and immediately thereafter beneficially owns
twenty-five percent (25%) or more of either (A) the combined voting power of all
of the then outstanding Voting Securities or (B) Common Stock, then a "Change of
Control" shall be deemed to have occurred for purposes of the foregoing clause
(a). In the event that the agreements or plans governing any of Executive's
stock-based grants and awards include and use a definition of "Change of
Control", the definition of Change of Control above shall supercede and apply in
place of any such definition in the applicable agreement and/or plan with
respect to Executive's applicable stock-based grants and awards.
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7. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown in the Company's personnel records;
if to the Company:
Optium Corporation
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
8. SUCCESSOR TO COMPANY. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no succession had taken place. Failure of the Company
to obtain an assumption of this Agreement at or prior to the effectiveness of
any succession shall be a breach of this Agreement and shall constitute
Constructive Termination if the Executive elects to terminate employment.
9. MISCELLANEOUS. No provisions of this Agreement may be modified, waived,
or discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. This Agreement
replaces and supercedes in its entirety the Employment Agreement (other than
Sections 7, 8 and 9 thereof, which are continued in the form of the applicable
portions of the Employee Agreement) between the Executive and Company dated as
of April 9, 2001, as amended, which prior Employment Agreement is null and void.
No agreements or representations, oral or otherwise, express or implied, unless
specifically referred to herein, with respect to the subject matter hereof have
been made by either party which are not set forth (or in the case of the
Employee Agreement, referenced) expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the Commonwealth of Pennsylvania (without regard to
principles of conflicts of laws).
10. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if
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any, shall be modified by any court having jurisdiction to the extent necessary
to render such portion enforceable.
11. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12. ARBITRATION; OTHER DISPUTES. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Philadelphia, Pennsylvania, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to such a restraining order or injunction in any
court of competent jurisdiction to prevent any violation of the Employee
Agreement. Furthermore, should a dispute occur concerning Executive's mental or
physical capacity as described in Subparagraph 4(b), 4(c) or 5(b), a doctor
selected by Executive and a doctor selected by the Company shall be entitled to
examine Executive. If the opinion of the Company's doctor and Executive's doctor
conflict, the Company's doctor and Executive's doctor shall together agree upon
a third doctor, whose opinion shall be binding.
13. THIRD-PARTY AGREEMENTS AND RIGHTS. Executive represents to the Company
that Executive's execution of this Agreement, Executive's employment with the
Company and the performance of Executive's proposed duties for the Company will
not violate any obligations Executive may have to any employer or other party,
and Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
14. LITIGATION AND REGULATORY COOPERATION. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation and Average Incentive Compensation) for
requested litigation and regulatory cooperation that occurs after his
termination of employment, and reimburse Executive for all costs and expenses
incurred in
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connection with his performance under this Paragraph 14, including, but not
limited to, reasonable attorneys' fees and costs.
15. GENDER NEUTRAL. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
OPTIUM CORPORATION
By: /s/ Xxxxx Xxxxxx
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Its: CEO
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EXECUTIVE
/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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