EMPLOYMENT AGREEMENT
Exhibit
10.1
AGREEMENT
dated as of March 6, 2007, between MOHEN INC., d/b/a SpiralFrog, a Delaware
corporation (the “Corporation”), and XXX XXXXXXXXXX (the
“Executive”).
WHEREAS,
it is important to the Corporation that it have the benefit of the Executive’s
services, experience and loyalty, and the Executive has indicated his
willingness to provide his services on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties, subject to the terms and conditions set forth below,
intending to be legally bound, agree as follows:
1. Employment
Term.
(a) The
Corporation agrees to employ the Executive, and the Executive agrees to be
so
employed, of the period commencing on the date hereof and ending on the third
anniversary of the date hereof or on such later date to which the employment
by
the Corporation of the Executive may be extended as provided in Section 1(b)
hereof (the “Term”), subject to earlier termination as provided
herein.
(b)
If
neither party gives to the other party notice of non-renewal on or before ninety
(90) days prior to the third anniversary hereof, the Term shall continue from
the third anniversary hereof for successive one year periods thereafter unless
either party gives notice of non-renewal not less than ninety (90) days prior
to
the next succeeding expiration date hereunder.
2. Duties
and Responsibilities.
(a) The
Executive shall be employed as the Chief executive Officer of the Corporation
and will have full authority and responsibility for the management and
operations of the Corporation commensurate with such positions, subject to
the
supervision of the Board of Directors of the Corporation (the
“Board”).
(b)
During the Term, the Executive shall devote substantially all of his business
time, energy and skill to the business and affairs of the Corporation, and
not
engage in any activities which would detract from the proper performance of
his
duties hereunder.
(c)
Notwithstanding anything to the contrary contained herein, the Executive may
(i)
engage in civic and political activities and (ii) serve on the board of
directors of any non-Affiliate corporation or organization.
3. Compensation
and Other Benefits.
(a)
Base
Salary.
Prior
to the company receiving financing and revenues the base salary shall be zero.
After the receipt of financing and revenues, the Company shall pay the Executive
Base Salary and incentive compensation as provided in Section 3(b),
below.
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(b)
During the Term, for services hereunder the Executive shall receive a base
salary as follows: Prior to the Company receiving United States-based revenue
(not including Canada-based revenue), a base salary of One Hundred Ninety-Eight
Thousand Dollars ($198,000); after the Company launches its music services
and
is receiving United States-based revenues (not including Canada-based revenue),
a base salary of two hundred sixty-five thousand dollars ($265,000) per annum
will go into effect, upon the company having a cash flow positive run rate
then
the executives base salary will be $350,000. The Company shall pay the Executive
incentive compensation at an annual rate of fifty percent (50%) of base salary
in each of the three stair-stepped scenarios’ and the company’s compensation
committee will determine the criteria. All incentive compensation shall be
payable quarterly on the first day of each calendar quarter. Furthermore, such
base salary and incentive compensation shall be payable in accordance with
the
Corporation’s policies relation to payment of salary and incentive compensation
from time to time in effect, subject to the terms and conditions of Section
3(b)
hereof. This base salary will be subject to an annual performance review with
a
minimum increase by no less than eight percent (8%) per annum, or such greater
amount as shall be determined by the compensation committee of the Board (the
“Compensation Committee”).
(c)
Benefits.
The
Executive shall be entitled during the Term to benefits as follows:
(i) The
Executive shall be entitled to receive twenty (20) days paid vacation for each
twelve (12) month period during the Term. Unused vacation time shall be carried
forward during the Term; provided, however, that the Executive shall not take
more than three consecutive weeks of vacation at any time or during any
month.
(ii) The
Corporation shall reimburse the Executive for (A) the lease of an automobile
to
be selected by the Executive (or the Corporation shall pay to the Executive
a
monthly automobile allowance, at the Executive’s option), at an amount which
shall not exceed one thousand dollars ($1,000) monthly, and will adhere to
the
IRS regulation (B) any expenses associated with the lease or use of such
automobile including taxes, insurance, tolls, gasoline, parking garage and
repairs subject to the presentation by the Executive of appropriate receipts
or
other satisfactory evidence in accordance with the Corporation’s reimbursement
policy.
(iii) The
Corporation shall reimburse the Executive for his monthly cellular, home
internet and telephone services.
(iv) The
Corporation shall reimburse the Executive for reasonable and necessary expenses
related to the Executive’s performance of his duties under this Agreement,
including travel, hotel, and other expenses relating to the performance of
his
duties hereunder, upon submission of detailed vouchers therefore in accordance
with the Corporation’s standard practices as in effect from time to
time.
(v) The
Executive shall be entitled to participate in all employee benefit plans,
programs, and arrangements of the Corporation, which shall include medical,
dental and vision plans, now or hereafter made available to senior executives
of
the Corporation on a basis which is no less favorable than is made available
to
any other senior executive of the Corporation. To the extent not covered under
the Corporation’s medical plan, the Corporation shall reimburse the Executive
for the cost of an annual physical examination.
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(vi) The
Corporation will use its best efforts to purchase, at its expense, a disability
policy upon reasonable and customary terms that insures against disability
(as
defined in such policy) and, if commercially reasonable, pays seventy percent
(70%) of the Base Salary upon the terms set forth in such policy.
(vii) Once
the
Corporation becomes cash flow positive, the following benefits shall be
paid:
(1)
The
Corporation shall reimburse the Executive for premiums for life insurance on
the
life of the Executive of the benefit of the Executive’s estate with a minimum
death benefit of two million dollars ($2,000,000).
(2)
The
Corporation will reimburse the Executive for premiums for long-term care
coverage.
(d)
Incentive.
The
Executive became the Chief Executive Officer of the Corporation on December
29,
2006 and received a grant on January 11, 2007 of one million (1,000,000) shares
of Mohen Inc. Restricted Common Stock, subject to a vesting schedule commencing
on December 29, 2006. If the corporation goes public by registering any of
its
shares with the Securities and Exchange Commission or foreign equivalent, then
one half of the Executive’s Restricted Common Stock which is not yet vested will
immediately vest.
4. Termination.
(a) (i)
The Corporation shall have the right to terminate this Agreement and the
Executive’s employment for cause. As used herein, “cause” shall mean (A) the
Executive’s alcohol or other substance abuse which materially and adversely
affects the continuing performance of his duties hereunder, (B) the Executive’s
violation of the provisions of Section 6 hereof, (C) the Executive’s indictment
for or conviction of an act of fraud or theft, or his willful malfeasance,
(D)
the Executive’s Indictment for or conviction of (or his plea of nolo contendere
to) any
felony, and/or (E) his material breach of the terms hereof (including his
termination of this Agreement during the Term hereof except as provided in
Sections 4(b), 4(c), or 4(d) hereof), except as otherwise addressed in clause
(B) hereof.
(ii) A
majority of the members of the Board, excluding the Executive, may make a
preliminary determination that “cause” exists at any time, and thereupon
immediately suspend the duties of the Executive and the payment of his Base
Salary hereunder. Within thirty (30) days from such time as the Corporation
provides the Executive written notification, in accordance with Section 7
hereof, that the Corporation is considering terminating this Agreement “for
cause” (the “Cause Notice”), the Executive may present to the Board his view of
the relevant facts and circumstances. The final determination as to whether
to
terminate the Executive “for cause” shall require the affirmative vote of a
majority of the members of the Board, excluding the Executive, and shall be
made
within such time as the earlier of (a) twenty-five (25) days after the
Executive’s presentation of his views to the Board or (b) fifty-five (55) days
from such time at the Corporation provides the Executive with the Cause Notice.
If the Board does not vote to terminate the Executive “for cause” within such
time, the Executive shall be reinstated to his position and shall be paid his
Base Salary, retroactive to the date of suspension as if such suspension had
never occurred, and shall resume his duties.
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(iii) Subject
to the provision of Section 4(a)(ii), if this Agreement is terminated for cause,
then this Agreement shall terminate on the date fixed by the Board.
(iv) In
the
event that the Corporation shall terminate this Agreement for cause, the
Corporation shall have no further obligations hereunder for any period
subsequent to the date of termination, except as required by law.
(b)
The
Executive shall have the right to terminate the Term and his employment
hereunder at any time immediately by written notice to the Corporation for
good
reason; however, if subject to cure, the Corporation shall have an opportunity
to so cure for a period of twenty (20) days from the delivery thereof. If no
cure has been made by the Corporation in such 20-day period, the notice of
termination shall be effective at the expiration thereof. As used herein, “good
reason” shall mean (i) the Corporation’s material breach of the terms of this
Agreement, (ii) a meaningful and detrimental alteration in the Executive’s
position or in the nature or status of his responsibilities without his consent,
so that he is no longer the most senior executive officer of the Corporation,
(iii) the relocation of the office of the Corporation outside the New York
metropolitan area, or (iv) a Change of Control of the Corporation, if upon
such
Change of Control, the Executive is not offered or does not accept, in his
sole
discretion, an offer of employment with the successor of the Corporation.
“Change of Control” as used herein shall be deemed to occur if (A) the
Corporation merges or consolidates into or with another corporation (except
in
the case of a reverse merger, or one in which the holders of capital stock
of
the Corporation immediately prior to such merger or consolidation continue
to
hold at least a majority of the voting power of the capital stock of the
surviving corporation, or one in which the executive remains CEO of the
resultant entity), (B) the Corporation sells all or substantially all of the
assets of the Corporation in a single transaction or a series of related
transactions, or (C) the occurrence of an event in which any “person,” as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934,
as amended (the “Exchange Act”), is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing fifty percent (50%) or more of the
combined voting power of the Corporation’s then outstanding
securities.
(c)
This
Agreement shall terminate upon written notice by the Corporation to the
Executive if during the Term the Executive shall become Permanently Disabled.
“Permanently Disabled” shall mean the inability of the Executive to
substantially perform the services that the Executive is required to perform
pursuant to this Agreement due to physical or mental disability which continues
for one hundred eighty (180) days in the aggregate in any 365-day period.
Evidence of such disability shall be certified by a physician reasonably
acceptable to both the Executive and the Corporation. The Executive shall be
entitled to receive, subject to Section 12 below, (i) any Base Salary owed
through the date of termination, (ii) any Bonuses to which the Executive would
have been entitled had he remained employed for the entire calendar year in
which the Executive’s employment was terminated, pro rated through the date of
termination, (iii) reimbursement of any business expenses incurred and unpaid
prior to termination, (iv) all health, dental and life insurance benefits
provided for under this Agreement maintained for a period of one year from
the
date of termination, (v) all earned but unpaid Bonus amounts payable as set
forth in Section 3(c), and (vi) all disability benefits payable under the
applicable disability policy.
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(d)
If
the Executive dies prior to the expiration of the Term, this Agreement shall
terminate on the date of death and the Executive’s beneficiary, designee, or
estate shall be entitled to receive (i) any Base Salary owed through the date
of
death, (ii) all earned by unpaid Bonus amounts, (iii) any Bonuses to which
the
Executive would have been entitled had he remained employed for the entire
Fiscal Year in which the Executive dies, pro rated through the date of
termination, (iv) reimbursement for any business expenses incurred and unpaid
prior to the Executive’s death, and (v) all health and dental benefits provided
for under this Agreement maintained for the Executive’s family at the expense of
the Corporation for a period of one (1) year following the date of
death.
(e)
In
the event that the Corporation shall terminate this Agreement other than
pursuant to Sections 4(a), 4(c) and 4(d) above or in the event that the
Executive shall terminate this Agreement for good reason, then the Executive
shall be entitled, subject to Section 12 below, to an aggregate amount equal
to
the Base Salary and Bonus due to him hereunder for the immediately preceding
year and for a period (the “Severance Period”) of three (3) months following
such termination, whether or not the Term terminates during such 12-month
period, such aggregate amount payable immediately, except that in the case
of a
Change of Control such aggregate amount shall be payable in a single payment
within ten days thereof. The provisions of Sections 5(a) and 5(c) below shall
cease to apply to the Executive at the end of the Severance Period; provided
that, in the case of severance being paid in a single payment in connection
with
a Change of Control, the provisions of Section 5(a) and 5(c) shall continue
to
apply to the Executive for a one-year period following termination of the
Executive’s employment, as provided in such sections (notwithstanding a shorter
Severance Period). In addition, the Corporation shall be obligated to pay for
the Executive’s COBRA benefits for a period of eighteen (18) months and to
maintain all other benefits under this Agreement (excluding the payment of
Base
Salary and any Bonus, except as otherwise described in this paragraph (e))
for
such period. Furthermore, the Corporation shall pay to the Executive a
consulting fee for transitioning to management all aspects of the Corporationy
in the amount of twenty-five thousand dollars ($25,000) per month in each of
the
twelve months (12) following the Termination Date; provided,
however, that
no consulting fee shall be paid for any month after the date which would have
been the end of the Term hereof (whether the Term was the initial Term of three
years or extended under the provision of Section 1(b), above.
All
unvested Restricted Common Stock granted by the Corporation to, and held by,
the
Executive, including, without limitation, the Restricted Common Stock described
at Section 3(d), above, shall continue to vest through the end of the period
during which consulting fees are paid.
5. Agreement
Not to Compete; Confidentiality; Non-Solicitation.
The
Executive is not subject to any other non-competition agreement or provision
and
recognizes that the services to be performed by the Executive hereunder will
be
special, unique and extraordinary, and that by reason of such employment the
Executive will acquire highly confidential information and trade secrets of
great value to the Corporation concerning the Corporation’s operations, the use
or disclosure of which could materially adversely affect the Corporation.
Accordingly, it is agreed that:
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(a)
During the Term and the one-year period following termination of the Executive’s
employment for any reason hereunder (or for a shorter Severance Period, if
applicable, under Section 4(e)), the Executive will not, directly or indirectly,
as an officer, director, shareholder, partner, associate, owner, employee,
consultant or otherwise, become or be interested in or associated with (although
the Executive may conduct activities to seek employment or see a consultancy)
any other corporation, firm or business engaged in the same or a similar or
competitive business with the Corporation or any Affiliate or Subsidiary in
any
geographical area in which the Corporation or any Affiliate or Subsidiary is
then engaged (each, a “Competing Activity”), provided that the Executive’s
ownership, directly or indirectly, of less than five (5%) percent of the issued
and outstanding stock of a corporation the shares of which are regularly traded
on a national securities exchange or in the over-the-counter market shall not,
in any event, be deemed to be a violation of the provisions of this Section
5(a).
(b)
Except as directed by the Corporation, the Executive shall not use or divulge
or
communicate to any entity or person other than authorized employees or
representatives of the Corporation or any Affiliate or Subsidiary during the
Term and thereafter any information acquired by the Executive concerning the
Corporation’s or an Affiliate’s or Subsidiary’s customer lists, processes,
costs, profits, markets, sales, products, key personnel, pricing policies,
operational methods, concepts, applications and other business affairs and
methods or any other of its or their trade secrets, except information which
is
available to the public in published literature or becomes public knowledge
through no fault of the Executive (the “Information”). The Executive
acknowledges that all Information the disclosure of which is prohibited hereby
is of a confidential and proprietary character and of great value to the
Corporation or an Affiliate or Subsidiary and all Information shall be the
exclusive property of the Corporation or an Affiliate or Subsidiary and that
the
Executive will keep secret all Information and will not directly or indirectly
use it for his own benefit or communicate, disseminate or otherwise disclose
it
to, or use it for the benefit of, anyone (other than may be required in
connection with his employment by the Corporation), either during or after
his
employment by the Corporation. The Executive agrees and acknowledges that the
foregoing shall not be deemed to limit or restrict the Executive’s obligations
under any other agreement with the Corporation related to trade secrets or
work
products. The Executive agrees also during the Term and for an eighteen month
period thereafter not to disclose the terms of this Agreement to any person
other than the Executive’s immediate family, attorneys, accountants and other
professional advisors or a prospective employer permitted hereby, except as
otherwise required by law. The Executive further covenants and agrees
that:
(i)
During the Term hereof and for a period of one year after the termination hereof
(or for a shorter Severance Period, if applicable under Section 4(e)), the
Executive will not induce or attempt to induce any officer, employee, agent,
consultant or independent contractor who or which was such within one year
prior
to the termination hereof of the Corporation or any of its Affiliates or
Subsidiaries, to discontinue such affiliation with Corporation or any such
Affiliate or Subsidiary; and
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(ii)
During the Term hereof and for a period of one year after the termination
hereof, the Executive will not induce or attempt to induce any office, employee,
agent, consultant or independent contractor, supplier or customer of the
Corporation or an Affiliate or Subsidiary (x) which had such a relationship
with
the Corporation or an Affiliate or Subsidiary on the date hereof and/or at
any
time during the one-year period thereto or (y) who becomes such after the date
of this Agreement of the Corporation or any Affiliate or Subsidiary, to
discontinue or reduce the extent of any employment or business relationship
or
to refrain from entering into new or incremental business relationships with
the
Corporation or any such Affiliate or Subsidiary.
(c)
The
Corporation, in addition to any other right and remedy it may have at law or
in
equity related to breaches of this Agreement by the Executive, shall be entitled
to an injunction, without the posting of any bond or other security, enjoining
or restraining the Executive from any violation of this Section 5, and the
Executive hereby consents to the issuance of such an injunction. This Section
5
shall survive the Term and any termination or expiration of this Agreement.
The
Executive understands that each of the agreements and covenants of the Executive
contained in this Section 5 is an essential element of this Agreement and that
the obligations of the Executive hereunder will survive the termination of
this
Agreement.
(d)
The
time period during which the restrictions set forth in this Section 5 apply
shall be extended by the length of time during which the Executive violates
these restrictions in any respect.
(e)
For
the purposes hereof, “Affiliate” of any person or entity means (i) any person or
entity that directly or indirectly, through one or more intermediaries, controls
such person or entity or (ii) any person or entity which is controlled by or
is
under common control with a controlling person, with “control” meaning
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person or entity, whether through
the ownership of voting securities, by contract or otherwise. “Subsidiary” means
any corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors
or
other persons performing similar functions are at the time directly or
indirectly owned by the Corporation.
6. Intellectual
Property.
The
Executive acknowledges that the Executive’s responsibilities hereunder may
include the conception, development, and refinement of certain Intellectual
Property. The Executive hereby acknowledges and agrees that all rights and
interests in any such Intellectual Property conceived, developed to refined,
in
whole or in part, by the Executive during the Executive’s employment with the
Corporation (whether or not during usual business hours or on the premises
of
the Corporation or any affiliate thereof and whether or not alone or in
conjunction with any other person) are owned exclusively by the Corporation
and
the Executive hereby disclaims any interest in any such Intellectual Property.
Without limiting the generality of the foregoing, the Executive will convey
and
assign, as necessary, to the Corporation or its designee, the sole and exclusive
right, title and interest in the ownership of any such Intellectual Property,
including all right, title and interest in and to any derivative works of such
Intellectual Property that may have been created by the Executive. If the
Corporation is unable, after reasonable effort, to secure the signature of
the
Executive on any such papers, any executive officer of the Corporation shall
be
entitled to execute on any such papers as the agent and the attorney-in-fact
of
the Executive, and the Executive hereby irrevocably designates and appoints
each
executive officer of the Corporation as his agent and attorney-in-fact to
execute any such papers on his behalf, and to take any and all actions as the
Corporation may deem necessary or desirable in order to protect its rights
and
interests in any Intellectual Property, under the conditions described in this
sentence.
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For
purposes hereof, “Intellectual Property” shall mean all patents, patent
applications, trademarks and service marks, trademark and service xxxx
applications, trade names, logos, domain names and other indications of origin,
the goodwill associated with the foregoing, copyright registrations and
applications, licenses of third party software (other than licenses of “off the
shelf” or standard software products), proprietary software and processes,
procedures, trade secrets, methods, know-how, confidential information,
inventions (whether or not patentable and whether or not reduced to practice),
drawings, specifications, designs, plans, proposals, technical data,
copyrightable works and other proprietary technical information presently used
or intended to be used by the Corporation in connection with its
business.
7. Notices.
All
communications, notices, requests, consents or demands given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by courier or overnight service, by hand or by registered or certified
mail, first class postage prepaid, or transmitted by telecopier or
telegram:
If
to the
Executive, to:
XXX
XXXXXXXXXX
0000
Xxxxxx Xxxxxx, Xxx. 00X
Xxxx
Xxx,
Xxx Xxxxxx 00000
If
to the
Corporation, to:
MOHEN
INC.
SPIRAL
FROG
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
With
a
Copy to:
Xxxxx
Xxxxxxx, Esq.
Xxxxxx,
Xxxxxxx and Xxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
or
to
such other address as any party shall have specified for himself, herself or
itself from time to time to the other parties in writing. All such notices
shall
be conclusively deemed to be received and shall be effective, if sent by
registered or certified mail, five (5) days after the mailing thereof, by first
class, postage prepaid mail, or if transmitted by telecopy or hand delivery
upon
receipt.
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8. Legal
Fees.
The
Corporation shall reimburse the Executive for all reasonable legal fees and
expenses incurred or otherwise arising in connection with (i) the review and
negotiation of this Agreement; and (ii) the Executive’s enforcement of the terms
and provisions of this Agreement, if the Executive prevails in the enforcement
thereof.
9. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York without giving effect to its principles of
conflicts of laws.
10. Assignment.
This
Agreement may not be assigned by the Corporation to any successor in interest;
provided, however, that the Corporation may assign this Agreement and its
rights, together with its obligations, hereunder in connection with any sale,
transfer or other disposition of all or substantially all of its assets or
business, whether by merger, consolidation or otherwise, including a merger
of
the Corporation without the consent of the Executive; and provided further
that
nothing in this Section 10 shall be deemed to limit the Executive’s rights under
Section 4(b)(iv). This Agreement is personal to the Executive and the Executive
may not assign any rights or delegate any responsibilities hereunder without
the
prior approval of the Corporation in its sole discretion.
11. Enforcement.
Because
the Executive’s services are unique and because the Executive has access to
Information and Intellectual Property, the parties hereto agree that money
damages may be an inadequate remedy for any breach of this Agreement. Therefore,
notwithstanding Section 17, in the event of a breach or threatened breach of
this Agreement, the Corporation and any of its affiliates or their successors
or
assign may, in addition to other rights and remedies existing in their favor
at
law or in equity, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof (without posting a bond or other
security).
12. Payment
of Severance.
In
addition to the provisions of Section 11 herein, and not in any way in
limitation thereof, or in limitation of any right or remedy otherwise available
to the Corporation, if the Executive violates any provision of Section 5 above,
any severance payments of Base Salary and Bonus then or thereafter due from
the
Corporation to the Executive shall be terminated forthwith and the Corporation’s
obligation to pay and the Executive’s right to receive such severance payments
shall terminate and be of no further force or effect, in each case without
limiting or affecting the Executive’s obligations under such Section 5 or the
Corporation’ other rights and remedies available at law or equity.
13. Entire
Agreement; Amendment and Waiver.
This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof and supersedes any and all other agreements or understanding
between the Executive and the Corporation entered into prior to the date hereof
relating thereto. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, heirs and permitted assigns.
This Agreement may not be altered, modified, changed or discharged except in
writing signed by both of the parties. Any waiver of any rights or failure
by
any party hereto to act in a specific instance shall relate only to such
instance and shall not be construed as an agreement to waive any rights or
fail
to act in any other instance, whether or not similar.
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14. Severability.
Notwithstanding anything to the contrary contained herein, if any term or
provision hereof, or the application thereof to any circumstance, is held
invalid or unenforceable for any reason whatsoever, such invalid or
unenforceable term or provision shall be severable and such invalidity or
unenforceability shall not affect the validity or enforceability of any other
term provision hereof, or the application thereof to any other circumstances,
which can be given effect without such invalid or unenforceable term or
provision or application. If any of the covenants or provisions contained
herein, or any part thereof, is held to be invalid or unenforceable because
of
the duration thereof or the geographic area covered thereby, or the application
thereof to any circumstance is held to be invalid or unenforceable, the
Executive agrees that the court making such determination shall have the power
to reduce the duration and/or geographic area of such covenant or provision
or
modify the application thereof, and that, in its reduced or modified form,
such
covenant or provision shall then be enforceable.
15. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original. It shall not be necessary when making proof of this
Agreement to account for more than one counterpart.
16. Headings.
All
headings in this Agreement are for convenience only and will not affect the
meaning or interpretation of any provision hereof.
17. Arbitration.
This
parties agree that in the even of any dispute or controversy arising out of
or
in connection with this Agreement or any alleged breach thereof (a “Dispute”),
the parties shall submit the Dispute or arbitration in New York City before
three (3) arbitrators; one arbitrator shall be chosen by the Executive, one
arbitrator by the Corporation and the third by the two other arbitrators. If
any
party fails to choose its arbitrator within thirty (30) days after a request
is
made to designate an arbitrator, then that party waives its right to choose
an
arbitrator and the arbitration shall immediately go forward before the one
arbitrator chosen. The decision of the arbitrators will be final and binding
upon the parties, and the judgment of a court of competent jurisdiction may
be
entered thereon. Fees of the arbitrators and the cost of arbitration shall
be
borne as determined by the arbitrators.
18. JURISDICTION
AND SERVICE OF PROCESS.
EACH OF
THE PARTIES HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY
AGREES THAT, SUBJECT TO THE OTHER PROVISIONS OF THIS AGREEMENT, ALL ACTIONS
OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT WHICH MAY BE LITIGATED
SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO ACCEPTS FOR SUCH
PARTY AND IN CONNECTION WITH SUCH PARTY’S PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY TO CONNECTION WITH THIS AGREEMENT. EACH OF
THE
PARTIES HERETO AGREES TO ACCEPT SERVICE OF ALL PROCESS BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN ANY SUCH PROCEEDINGS IN ANY SUCH
COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY EACH SUCH PARTY TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. IF ANY AGENT APPOINTED BY ANY PARTY HERETO
REFUSES TO ACCEPT SERVICE, SUCH PARTY HEREBY AGREES THAT SERVICE UPON SUCH
PARTY
BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE
RIGHT OF THE PARTIES TO BRING PROCEEDINGS AGAINST THE OTHER PARTIES IN THE
COURTS OF ANY OTHER JURISDICTION.
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19. WAIVER
OF JURY.
THE
PARTIES EACH HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTERS (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT, THE TRANSACTION CONTEMPLATED HEREBY OR THE RELATIONSHIP ESTABLISHED
HEREUNDER. Each party certifies and acknowledges that (1) no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, see to enforce
the
foregoing wavier, (2) each party understands and has considered the implications
of this waiver, (3) each party makes this waiver voluntarily, and (4) each
party
has been induced to enter into this Agreement by, among other things, the mutual
waivers and certifications in this Section 19.
IN
WITNESS WHEREOF, the Corporation has caused its duly authorized officer to
execute and the Executive has executed this Agreement as of the day and year
first above written.
MOHEN
INC.
By:
/s/
Xxxxxxx Xxxxxx 3/9/2007
_______________________________
Xxxxxxx
Xxxxxx
Secretary
By:
/s/
Xxx Xxxxxxxxxx 3/9/2007
_______________________________
Xxx
XxxxxxxxxxChief
Executive Officer
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ACKNOWLEDGMENT
I,
the
undersigned, a Notary Public in and for said County, in the State aforesaid,
DO
HEREBY CERTIFY that Xxx Xxxxxxxxxx appeared before me this day in person, and
acknowledged that he signed and delivered the said instrument as his own free
and voluntary act for the uses and purposes therein set forth.
GIVEN
under my hand and Notarial Seal this 9th day of March, 2007.
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxx | |
|
Notary Public |
||
My
Commission Expires: [STAMP OF NOTARY PUBLIC]
12
