EMPLOYMENT AND NON-COMPETITION AGREEMENT
Exhibit 10.2
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”), executed
this 15th day of November 2019 (the “Effective Date”) is
between IOTA Communications, Inc., a Delaware corporation (the
“Employer" or
the "Company"), and
Xxxxx Xxx, an individual resident of the State of Maryland
(“Employee”).
R E C I T A L
S:
A.
Employee is
knowledgeable with respect to the business of the Employer,
including the business to be engaged in by Employer following
Employer’s acquisition of assets from Link Labs, Inc.
(“Link”) pursuant to an Asset Purchase Agreement dated
as of the Effective Date among Employer, Link and the stockholders
of Link.
B.
Employer desires to
offer employment to Employee and Employee desires to be employed by
Employer.
C.
Employer and
Employee agree to enter into an Employment Agreement providing for
the term set forth in Section 3 below, with automatic annual
one-year renewals thereafter on the terms and conditions herein
provided.
NOW,
THEREFORE, in consideration of Employer’s agreement to employ
Employee pursuant to the terms of this Agreement and
Employee’s future employment with Employer, and other good
and valuable consideration, the parties agree as
follows:
Section 1. Employment. Employer hereby employs
Employee, and Employee hereby accepts employment, upon the terms
and subject to the conditions stated in this
Agreement.
Section 2. Duties. Employee shall be employed as
the Chief Technology Officer of Employer, or such other comparable
positions with Employer to which he may be appointed by the Chief
Executive Officer of Employer (the “CEO”). Employee
shall have such duties and responsibilities as are normally
associated with the foregoing position and such additional duties
and responsibilities as he may be assigned from time to time by the
CEO. It is understood that Employee may be requested from time to
time to provide assistance or services to Employer’s
Affiliates (defined below). Employee shall perform such services
without additional compensation other than the compensation set
forth in this Agreement. Employee agrees to devote his full work
time and best efforts to the performance of the duties as an
employee of Employer and to the performance of such other duties as
assigned him from time to time by Employer. As used herein, the
term “Affiliates” means with respect to an entity, any
entity controlled by, controlling or under common control with such
entity.
Section 3. Term. The Agreement shall commence on
the Effective Date and continue through November 14, 2021 (the
“Initial
Term”). Unless Employer or Employee shall provide the
other with at least 60 days written notice, this Agreement shall
automatically renew thereafter on the anniversary of this Agreement
for an additional one-year term, commencing on such anniversary
date and continuing for 12 months thereafter (each, an
“Extension
Term” and together with the Initial Term, the
“Employment
Period”). The foregoing notwithstanding, the
Employment Period may be terminated early in accordance with
Section 6 of this Agreement.
Section 4. Compensation and Benefits. In
consideration for the services of Employee hereunder, Employer
shall compensate Employee as follows during the Employment
Period:
(a) Base Salary. Employer shall pay
Employee a base salary at the rate of at least $250,000 per year,
payable in accordance with the regular payroll practices of
Employer for employees. The Base Salary shall be reviewed annually
by the board of directors of Employer (the “Board”)
during the last quarter of each contract year and shall be
increased by such amount, if any, as the Board shall deem
appropriate, based upon market factors, effective as of the first
day of the next contract year.
(b) Bonuses. Employee shall be eligible to
receive such annual bonuses from Employer at the discretion of the
Board in an amount of up to 50% of the annual base salary based
upon the achievement of milestones established by the Board. The
Board shall provide written milestone guidance to Employee within
90 days of Effective Date. If written business objectives are not
established for Employee within 90 days, 50% bonus will be paid in
full.
(c) Stock Options. On the Effective Date,
Employee shall receive stock options to purchase 1,000,000 shares
of Employer’s common stock under Employer’s 2017 Equity
Incentive Plan. Options to purchase 250,000 of such shares shall
vest on the 1-year anniversary of the Effective Date. The remaining
unvested shares shall vest monthly thereafter on a pro-rata basis
over the 36-month period following such 1-year anniversary.
Following the Effective Date, Employee will be eligible to receive
additional stock options at the discretion of the Board. All common
stock of Employer acquired by Employee shall be acquired by
Employee for his own account for investment only and not with a
view towards, or for resale in connection with, the public sale or
distribution thereof, except pursuant to sales registered or
exempted under the Securities Act; provided, however, that by
making the representations herein, Employee reserves the right to
dispose of such common stock at any time in accordance with or
pursuant to an effective registration statement covering such
common stock, or an available exemption under the Securities Act.
The Employee agrees not to sell, hypothecate or otherwise transfer
such common stock unless such common stock is registered under the
federal and applicable state securities laws or unless, in the
opinion of counsel satisfactory to the Employer, an exemption from
such law is available. Employee further agrees not to sell any such
common stock while in possession of material, non-public
information.
(d) Vacation. Employee shall be entitled to
paid vacation and time off in accordance with Employer’s
vacation and absence policy, as it may be modified from time to
time during Employee’s employment hereunder; provided that
Employee will have no less than four (4) weeks of paid vacation
per annum.
(e) Group Insurance Benefits. Employee
shall be entitled to participate in Employer’s group health,
life and disability programs as are made available to
Employer’s other employees and Employee’s participation
in such programs shall be at the same rates that are available to
Employer’s other employees. Nothing herein shall be deemed to
require Employer to adopt and maintain a group health, life and
disability program or to limit or prohibit Employer’s right
to amend or terminate any group health, life or disability program
adopted by Employer.
(f) Savings Plans. Employee shall be
entitled to participate in Employer’s 401(k) savings plan,
profit sharing plan, or other retirement or savings plans as are
made available to Employer’s employees on the same terms that
are available to Employer’s employees. Nothing herein shall
be deemed to require Employer to adopt and maintain a 401(k)
savings plan or other retirement or savings plans or to limit or
prohibit Employer’s right to amend or terminate any 401(k)
savings plan or other retirement or savings plans adopted by
Employer.
Section 5. Expenses. The parties anticipate that in
connection with the services to be performed by Employee pursuant
to the terms of this Agreement, Employee may be required to make
payments for travel, entertainment and similar expenses. In the
event that any such expenses are paid by Employee using personal
funds, Employer shall promptly reimburse Employee for such expenses
upon presentation of receipts therefor or other reasonable evidence
thereof. Notwithstanding the foregoing, expense reimbursements
shall require prior written approval by Employer. Employee shall
also comply with such budget limitations and approvals and
reporting requirements with respect to expenses as Employer may
reasonably establish from time to time for all
employees.
Section 6. Termination.
(a) General. Employee’s employment
hereunder shall commence on the Effective Date and continue until
the end of the Employment Period, except that the employment of
Employee hereunder shall terminate prior to such time in accordance
with the following:
(i) Death or Disability. Upon the death of
Employee during the Employment Period or, at the option of
Employer, in the event of Employee’s Disability, upon 30
days’ notice to Employee. “Disability” with
respect to Employee shall be deemed to exist if Employee meets the
definition of either “disabled” or
“disability” under the terms of Employer’s
long-term disability benefit program (including the definitions for
total or partial disability) or if there is no such definition or
program, if Employee is unable to perform his obligations under
this Agreement for a period of 30 consecutive days or 60 days in
any twelve month period. Any refusal by Employee to submit to a
reasonable medical examination to determine whether Employee is so
disabled shall be deemed to constitute conclusive evidence of
Employee’s non-disability.
(ii) For
Cause. Immediately upon written notice from Employer
specifying that one or more of the following events has occurred
(except that Employee shall have 14 days after such notice to cure
or otherwise resolve the occurrence of the events set forth in
paragraphs 3, 4 or 5):
(1)
Employee is
convicted of fraud, bribery, embezzlement or other material
dishonesty with the respect to the business of Employer, or
Employer discovers that Employee has been convicted of any such act
in the past with respect to a previous employer; or
(2)
Employee is
convicted of a felony or any criminal act involving moral turpitude
or Employer discovers that Employee has been convicted of any such
act in the past; or
(3)
Employee commits a
material breach of any of the covenants, representations, terms or
provisions hereof (for purposes of this Section 6(a)(ii)(3), a
material breach shall be a breach that materially and adversely
affects Employer’s business or reputation); or
(4)
Employee violates
any material instructions or policies of Employer with respect to
the operation of its business or affairs or Employee fails in a
material way to obey written directions delivered to Employee by
the CEO, provided that Employee shall not be subject to termination
if Employee can reasonably demonstrate that any verbal or written
instruction or direction is illegal or unethical or would require
Employee to perform an illegal or unethical act; or
(5)
Employee commits or
omits to perform any act the performance of which, or the omission
of which, constitutes substantial failure of Employee to diligently
and effectively perform his duties to Employer or has a material
adverse effect or could materially adversely affect
Employer’s business reputation; or
(6)
Employee uses drugs
that are illegal according to U.S. federal law.
(iii) By
Employee for Good Reason. Employee may terminate his
employment hereunder for Good Reason upon written notice to the
Company setting forth the nature of such Good Reason in reasonable
detail (except that Employer shall have 14 days after such notice
to cure or otherwise resolve the occurrence of the events set forth
in paragraphs 1, 2, 3). “Good Reason” shall
mean:
(1)
Employer commits a
material breach of any of the covenants, representations, terms or
provisions hereof or fails to provide Employee the Base Salary and
incentive compensation and benefits in accordance with the terms of
Section 4 herein; or
(2)
any material and
adverse diminution in Employee’s duties or responsibilities
with Employer; or
(3)
at any time upon
written notice by Employee to Employer within 12 months after (A) a
merger or consolidation of Employer with any person or entity; or
(B) the sale, lease, or other disposition of all or substantially
all of Employer’s assets to any person or entity; unless in
each case, the majority of the Board or other governing body of the
surviving person, entity or acquirer, as the case may be, is the
same as the majority of the Board immediately before such
transaction.
(iv) Voluntary
Termination. Either Party may voluntarily terminate the
employment of Employee upon thirty (30) days’ written notice
to the other. Any such termination by Employer shall be without
Cause if the notice of termination fails to specify one of the
reasons set forth in Section 6(a)(ii) (or if any such reason is
specified that may be cured by Employee has been cured within the
applicable cure period). Any such termination by Employee shall be
without Good Reason if the notice of termination fails to specify
one of the reasons set forth in Section 6(a)(iii) (or if any such
reason is specified that may be cured by Employer has been cured
within the applicable cure period).
(b)
Severance Benefits.
(i) In the event that
Employee’s employment hereunder is terminated as a result of
Employee’s death or disability pursuant to Section 6(a)(i),
Employer shall pay Employee (or his estate) a cash amount equal to
Employee’s Base Salary for the lesser of (A) the period prior
to the commencement of benefits under any death or disability
insurance provided by Employer; or (B) the remaining term of this
Agreement (without further renewals). In addition to the payment
under the first sentence of this subsection, Employer shall pay all
unpaid expense reimbursements under Section 5 for expenses incurred
in accordance with the terms hereof prior to termination, and all
accrued compensation as of the date of termination.
(ii) In
the event that Employee’s employment hereunder is terminated
by Employer for Cause pursuant to Section 6(a)(ii), Employee
provides Employer notice that the Agreement will not be renewed for
any Extension Term, or voluntarily by Employee pursuant to Section
6(a)(iv), Employer shall have no obligation to make any payments to
Employee except for payments of Employee’s Base Salary
accruing prior to the date of termination.
(iii) In
the event that Employee’s employment hereunder is terminated
by Employee for Good Reason pursuant to Section 6(a)(iii), Employer
provides Employee with notice that the Agreement will not be
renewed for any Extension Term, or voluntarily by Employer pursuant
to Section 6(a)(iv), Employer shall pay Employee a cash amount
equal to Employee’s Base Salary for a period of twelve (12)
months; and all options, grants, or other rights issued to Employee
under Employer’s 2017 Equity Incentive Plan, shall
immediately vest and be exercisable for the lesser of twelve (12)
months or the remaining term of such rights, whichever is less. For
the purposes of this paragraph 6(b)(iii), Employee will be deemed
to have been employed by Employer on the Effective
Date.
This
Section 6 shall survive any expiration or termination of this
Agreement or Employee’s employment hereunder.
Section 7. Inventions; Assignment.
(a) Inventions Defined. All rights to
discoveries, inventions, improvements, designs and innovations
(including all data and records pertaining thereto) that relate to
the business of Employer, including its Affiliates, whether or not
able to be patented, copyrighted or reduced to writing, that
Employee may discover, invent or originate during the term of his
employment hereunder either alone or with others and whether or not
during working hours or by the use of the facilities of Employer
(“Inventions”), shall be
the exclusive property of Employer. Employee shall promptly
disclose all Inventions to Employer, shall execute at the request
of Employer any assignments or other documents Employer may deem
necessary to protect or perfect its rights therein, and shall
assist Employer, at Employer’s expense, in obtaining,
defending and enforcing Employer’s rights therein. Employee
hereby appoints Employer as his attorney-in-fact to execute on his
behalf any assignments or other documents deemed necessary by
Employer to protect or perfect its rights to any
Inventions.
(b) Covenant to Assign and Cooperate.
Without limiting the generality of the foregoing, Employee shall
assign and transfer to Employer the worldwide right, title and
interest of Employee in the Inventions. Employee agrees that
Employer may apply for and receive patent rights (including Letters
Patent in the United States) for the Inventions in Employer’s
name in such countries as may be determined solely by Employer.
Employee shall communicate to Employer all facts known to Employee
relating to the Inventions and shall cooperate with
Employer’s reasonable requests in connection with vesting
title to the Inventions and related patents exclusively in Employer
and in connection with obtaining, maintaining and protecting
Employer’s exclusive patent rights in the
Inventions.
(c) Successors and Assigns.
Employee’s obligations under this Section 7 shall inure to
the benefit of Employer, its Affiliates and their respective
successors and assigns and shall survive the expiration of the term
of this Agreement for such time as may be necessary to protect the
proprietary rights of Employer and its Affiliates in the
Inventions.
Section 8. Confidential Information.
(a) Acknowledgment of Proprietary Interest.
Employee acknowledges the proprietary interest of Employer and its
Affiliates in all Confidential Information (as defined below).
Employee agrees that all Confidential Information learned by
Employee during his employment with Employer or otherwise, whether
developed by Employee alone or in conjunction with others or
otherwise, is and shall remain the exclusive property of Employer.
Employee further acknowledges and agrees that his disclosure of any
Confidential Information may result in irreparable injury and
damage to Employer.
(b) Confidential Information Defined.
“Confidential Information” means all trade secrets,
copyrightable works, confidential or proprietary information of
Employer or its Affiliates, including without limitation, (i)
information derived from reports, investigations, experiments,
research and work in progress, (ii) methods of operation, (iii)
market data, (iv) proprietary computer programs and codes, (v)
drawings, designs, plans and proposals, marketing and sales
programs, (vii) the identities of clients or customers, (viii)
historical financial information and financial projections, (ix)
pricing formulae and policies, (x) all other concepts, ideas,
materials and information prepared or performed for or by Employer
and (xi) all information related to the business, services,
products, purchases or sales of Employer or any of its suppliers
and customers, other than information that is publicly
available.
(c) Covenant Not To Divulge Confidential
Information. Employer is entitled to prevent the disclosure
of Confidential Information. As a portion of the consideration for
the employment of Employee and for the compensation being paid to
Employee by Employer, Employee agrees to hold in strict confidence
and not to disclose or allow to be disclosed to any person, firm or
corporation, other than to persons engaged by Employer to further
the business of Employer, and not to use except in the pursuit of
the business of Employer, the Confidential Information, without the
prior written consent of Employer.
(d) Return of Materials at Termination. In
the event of any termination or cessation of his employment with
Employer for any reason, Employee shall promptly deliver to
Employer all documents, data and other information derived from or
otherwise pertaining to Confidential Information. Employee shall
not take or retain any documents or other information, or any
reproduction or excerpt thereof, containing or pertaining to any
Confidential Information.
(e) The obligations of
Employee set forth in this Section 8 shall not apply to any
information that (i) enters the public domain or is generally known
to the public without any failure on the part of Employee to honor
any obligation under this Section 8, (ii) is disclosed by Employer
to a third party without restriction as to such information’s
disclosure, (iii) is disclosed by a person or entity not subject to
restrictions concerning the disclosure of such information, or (vi)
is required to be disclosed pursuant to court order or other legal
process.
(f) With respect to
Employer’s trade secrets and subject to Section 8(e), this
Section 8 shall indefinitely survive any expiration or termination
of this Agreement. As to all other Confidential Information, this
Section 8 shall expire three (3) years after any expiration or
termination of this Agreement.
Section 9. Non-Solicitation.
(a) Solicitation of Employees. During
Employee’s employment with Employer and for a period equal to
the greater of (i) 12 months after termination of such employment
at any time and for any reason, or (ii) the term of any severance
benefits payable under Section 6 hereof, Employee shall not
solicit, participate in or promote the solicitation of any person
who was employed by Employer or any of its Affiliates at the time
of Employee’s termination of employment with Employer to
leave the employ of Employer or any of its Affiliates, or, on
behalf of himself or any other person, hire, employ or engage any
such person. Employee further agrees that, during such time, if an
employee of Employer or any of its Affiliates contacts Employee
about prospective employment, Employee will inform such employee
that he or she cannot discuss the matter further without the
consent of Employer (and the applicable Affiliate).
(b) Solicitation of Clients, Customers,
Etc. During Employee’s employment with Employer and
for a period of 12 months after termination of Employee’s
employment at any time and for any reason, Employee shall not,
directly or indirectly, solicit any person who during any portion
of the time of Employee’s employment or at the time of
termination of Employee’s employment with Employer, was a
client, customer, policyholder, vendor, consultant or agent of
Employer or its Affiliates to discontinue business, in whole or in
part, with Employer or its Affiliates. Employee further agrees
that, during such time, if such a client, customer, policyholder,
vendor, or consultant or agent contacts Employee about
discontinuing business with Employer or moving that business
elsewhere, Employee will inform such client, customer,
policyholder, vendor, consultant or agent that he or she cannot
discuss the matter further without the consent of Employer (and the
applicable Affiliate).
Section 10. Non-Compete. Employer agrees to disclose
to Employee and Employee agrees to receive from Employer
Confidential Information (as set forth above) which would provide
competitors of Employer with an unfair advantage. In consideration
for such disclosure by Employer, Employee agrees as
follows:
(a) Competition During Employment. Employee
agrees that during the term of his employment with Employer,
neither he nor any of his Affiliates (Employee’s Affiliates
is defined as any legal entity in which Employee directly or
indirectly owns at least a 25% interest) will directly or
indirectly compete with Employer or its Affiliates in any way in
any business in which Employer or its Affiliates is engaged in, and
that he will not act as an officer, director, employee, consultant,
shareholder, lender, or agent of any entity which is engaged in any
business of the same nature as, or in competition with the
businesses in which Employer and its Affiliates are now engaged or
in which Employer or its Affiliates become engaged during the term
of employment; provided, however, that this Section 10(a) shall not
prohibit Employee or any of his Affiliates from purchasing or
holding an aggregate equity interest of up to 10% in any publicly
traded business in competition with Employer and its Affiliates, so
long as Employee and his Affiliates combined do not purchase or
hold an aggregate equity interest of more than 10%. Furthermore,
Employee agrees that during the term of employment, he will not
accept any board of director seat or officer role or undertake any
planning for the organization of any business activity competitive
with Employer and Employee will not combine or conspire with any
other employees of Employer and its Affiliates for the purpose of
the organization of any such competitive business
activity.
(b) Competition Following Employment. In
order to protect Employer against the unauthorized use or the
disclosure of any Confidential Information of Employer and its
Affiliates presently known or hereinafter obtained by Employee
during his employment under this Agreement, Employee agrees that
for a period of twelve (12) months following the termination of
this Agreement for any reason, neither Employee nor any of his
Affiliates, shall, directly or indirectly, for itself or himself or
on behalf of any other corporation, person, firm, partnership,
association, or any other entity (whether as an individual, agent,
servant, employee, employer, officer, director, shareholder,
investor, principal, consultant or in any other
capacity):
(i) engage or
participate in any business which engages in competition with such
businesses being conducted by Employer or any of its Affiliates
during the term of employment anywhere in any state in the United
States or in any foreign country where Employer or any of its
Affiliates is engaged; or
(ii) assist
or finance any person or entity in any manner or in any way
inconsistent with the intents and purposes of this
Agreement.
Notwithstanding the
foregoing, the non-compete provision of this Section 10 shall not
prevent Employee from serving on the Board of Directors of Link
Labs, Inc. or continuing to serve as an advisor to Link Labs,
Inc.
Section 11. Right to Indemnification. To
the fullest extent permitted under the Employer’s charter
documents, D&O Insurance, and law, Employer shall indemnify,
defend, and hold harmless Employee from and against any and all
actions, costs, damages, expenses, fees (including, but not limited
to and without limitation, all court costs, mediation costs,
arbitration costs, and attorneys' costs, expenses, and fees, at all
levels), fines, judgments, penalties, proceedings, settlements, and
suits, whether civil, criminal, administrative, or investigative,
brought or threatened against or incurred by Employee by reason of
the fact that he is or was an employee of Employer or is or was
serving at the request of Employer as an employee, representative,
consultant, or agent of another entity, provided that with respect
to the matters giving rise to indemnification the Employee was not
guilty of gross negligence, fraud, willful breach of this Agreement
or a willful illegal act. The right to indemnification conferred in
this Section 11 shall include the right to be paid by Employer the
costs, fees, and expenses incurred by Employee in defending any
such action, proceeding, or suit in advance of its final
disposition; provided, however, that, if applicable law requires,
such advancement shall be made only upon delivery to Employer of an
undertaking by Employee to repay all amounts so advanced if
Employee is determined upon final adjudication to not be entitled
such advances. This Section 11 shall survive any expiration or
termination of this Agreement or Employee’s employment
hereunder and shall inure to the benefit of Employee’s heirs,
executors and administrators.
Section 12. General.
(a) Notices. All notices and other
communications hereunder shall be in writing or by written
telecommunication, and shall be deemed to have been duly given if
delivered personally and evidenced by a signed receipt of delivery
or if mailed by certified mail, return receipt requested or by
written telecommunication, to the relevant address set forth below,
or to such other address as the recipient of such notice or
communication shall have specified to the other party in accordance
with this Section 12(a):
If to
Employer, to:
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxxxxxxxxxxx,00000
Attention:
President and CEO
If to
Employee, to Employee’s last known address appearing on
Employer’s records.
(b) Withholding. All payments required to
be made to Employee by Employer under this Agreement shall be
subject to the withholding of such amounts, if any, relating to
federal, state and local taxes as may be required by law and such
amounts, if any, as Employee shall authorize in connection with
benefit plans in which Employee is a participant.
(c) Equitable Remedies. Each of the parties
hereto acknowledges and agrees that upon any breach by Employee of
his obligations under any of Sections 7, 8, 9, and 10, Employer
shall suffer immediate and irreparable injury and shall have no
adequate remedy at law. Accordingly, in event of such breach or
threatened breach, Employer shall be entitled, in addition to other
remedies and without showing actual damages, to specific
performance and other appropriate injunctive and equitable relief.
To the extent permitted by applicable law, Employer shall not be
obligated to provide a bond for any such injunction.
(d) Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable, such
provision shall be modified as to duration or geography to the
minimum extent necessary to make it legal, valid and enforceable
and as so modified enforced. If any such provision cannot be
modified to be made legal, valid and enforceable, such provisions
shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof, and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by
the illegal, invalid or unenforceable provision or by its
severance. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as part
of this Agreement a provision as similar in its terms to such
illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
(e) Effect on Other Agreements. This
Agreement modifies and amends, to the extent necessary to give
effect to the provisions hereof, any Stock Option Agreement, Stock
Grant, or other contract relating to the issuance of benefits under
Employer’s benefit plans.
(f) Waivers. No delay or omission by either
party in exercising any right, power or privilege hereunder shall
impair such right, power or privilege, nor shall any single or
partial exercise of any such right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power
or privilege.
(g) Counterparts. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the
same instrument.
(h) Captions. The captions in this
Agreement are for convenience of reference only and shall not limit
or otherwise affect any of the terms or provisions
hereof.
(i) Interpretation of Agreement. This
Agreement shall be construed according to its fair meaning and not
for or against either party. The Parties have each been represented
by counsel (or advised of their right to be represented by counsel
and waived such right) and have participated in the drafting of
this Agreement. No rule of construction or interpretation shall be
applied that construes any provision against a Party because it was
drafted by such Party. Use of the words “herein,”
“hereof,” “hereto,” “hereunder”
and the like in this Agreement refer to this Agreement only as a
whole and not to any particular section or subsection of this
Agreement, unless otherwise noted. The masculine gender shall be
deemed to denote the feminine or neuter genders, the singular to
denote the plural, and the plural to denote the singular, where the
context so permits.
(j) Binding Agreement; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and shall be
enforceable by the personal representatives and heirs of Employee
and the successors and assigns of Employer. The Affiliates of
Employer shall be considered third party beneficiaries of this
Agreement with respect to any services provided by Employee to them
and in connection with Employee’s covenants in Sections 7, 8,
9 and 10 hereof. Employer may assign this Agreement to any person.
If Employee dies while any amounts would still be payable to him
hereunder, such amounts shall be paid to Employee’s estate.
This Agreement is not otherwise assignable by
Employee.
(k) Entire Agreement. This Agreement
contains the entire understanding of the parties, supersedes all
prior agreements and understandings relating to the subject matter
hereof and may not be amended except by a written instrument
hereafter signed by each of the parties hereto.
(l) Governing Law. This Agreement and the
performance hereof shall be construed and governed in accordance
with the laws of the State of New York, without regard to its
choice of law principles.
(m) Arbitration. Without limiting
Employer’s right to seek equitable remedies under Section
12(c) above, Employer and Employee agree that any dispute or
controversy arising under or in connection with this Agreement
shall be settled first by attendance at a mandatory mediation
process and, if not resolved by mediation, by arbitration. If the
parties are unable to agree on a mediator, either party may
petition a Lehigh County Pennsylvania state district court judge
for assistance in selecting a mediator. Arbitration under this
Agreement shall be governed by the Federal Arbitration Act and
proceed in Allentown, Pennsylvania in accordance with the rules of
the American Arbitration Association (“AAA”). Arbitration will
be conducted before a panel of three neutral arbitrators selected
from an AAA list of proposed arbitrators with business law
experience. Either party may take any legal action needed to
protect any right pending completion of the arbitration. The
arbitrator will determine whether an issue is arbitrable and will
give effect to applicable statutes of limitation. The arbitrator
has the discretion to decide, upon documents only or with a
hearing, any motion to dismiss for failure to state a claim or any
motion for summary judgment. Discovery shall be governed by the
Federal Rules of Civil Procedure and the Federal Rules of Evidence.
All information developed by the arbitration or litigation shall be
held in confidence subject to such protective orders as the
arbitrator deems useful to ensure complete confidentiality. The
decision of the arbitrator shall be final and binding on all
parties to this Agreement, and judgment thereon may be entered in
any court having jurisdiction over the parties. The party against
whom the arbitrator decides shall pay all costs of the arbitration
proceeding or litigation to enforce the arbitration
award.
EXHIBIT 10.2
(n) Employee Representations. Employee
represents and certifies to Employer that he: (i) has received a
copy of this Agreement for review and study and has had ample time
to review it before signing; (ii) has read this Agreement
carefully; (iii) has been given a fair opportunity to discuss and
negotiate the terms of this Agreement; (iv) understands its
provisions;
(v) has
had the opportunity to consult his attorney; (vi) has determined
that it is in his best interest to enter into his Agreement; (vii)
has not been influenced to sign this Agreement by any statement or
representation by Employer or its counsel not contained in this
Agreement; and
(viii)
enters into this Agreement knowingly and voluntarily.
EXECUTED as of the
date and year first above written.
EMPLOYER:
By:_/s/
Xxxxxxxx XxXxxxxx
Name:
Xxxxxxxx XxXxxxxx
EMPLOYEE:
/s/
Xxxxx Xxx
Name:
Xxxxx Xxx
