AGREEMENT
EXHIBIT
10.21
AGREEMENT
This
Agreement (the “Agreement”) by and
between Medis Technologies Ltd., a Delaware corporation (the “Company”) with
executive offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Xxxxxx Xxxx
(“Xxxx”) is
hereby entered into on February 17, 2009 and effective as of
January 13, 2009 (the “Effective
Date”).
RECITALS
WHEREAS,
the Company wishes to employ Xxxx, effective as of the Effective Date through
the Employment Term (as defined below), as its Executive Vice President, and
Xxxx wishes to be employed by the Company in such capacity, pursuant to the
terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is hereby agreed as
follows:
AGREEMENTS
1. [Intentionally
Omitted]
2. Employment and
Duties.
(a) During
the Employment Term (as defined below), the Company shall employ Xxxx in the
position of Executive Vice President of the Company (and such other positions
consistent with his status as the Executive Vice President of the Company as
shall be reasonably assigned to Xxxx by the Company’s Chief Executive Officer or
Board of Directors of the Company (the “Board”)). Xxxx shall
report to the Chief Executive Officer. Xxxx shall have all of the normal and
customary responsibilities, duties and authorities customarily accorded to, and
expected of, such position, including those as may be reasonably established by
the Chief Executive Officer or the Board; provided that the nature of such
responsibilities, duties and authorities shall not be materially inconsistent
with Xxxx’x positions and duties hereunder or with those customarily accorded
to, and expected of, those of an equivalent role of a company similar to
the Company.
(b) Xxxx
hereby accepts this employment upon the terms and conditions contained herein
and agrees to devote his full business time, attention and efforts to promote
and further the business of the Company. Xxxx shall not, during the Employment
Term, be engaged in any other business activity pursued for gain, profit or
other pecuniary advantage without the prior consent of the Board.
Notwithstanding the foregoing limitations, provided that such activities neither
interfere with the discharge of the employment duties and responsibilities of
Finn hereunder nor violate the terms of Section 4 hereof, Xxxx shall be able to:
(i) devote occasional business time to charitable, industry trade group and
community activities and making personal passive investments in publicly traded
securities in general and in competitors of the Company and its subsidiaries and
affiliates; provided that Xxxx shall not in any event own more than 2% of the
issued and outstanding securities of any such publicly traded
company.
(c) The
Company may, from time to time, require Xxxx to travel in reasonable amounts in
carrying out his employment duties pursuant to this Agreement, including but not
limited to the Company’s other offices and facilities.
(d) Finn
faithfully shall adhere to, execute and fulfill all policies lawfully
established by the Chief Executive Officer and/or the Board acting in good
faith.
3. Compensation. For
all employment services rendered by Finn in any capacity required hereunder, the
Company shall compensate Xxxx as follows:
(a) Base Salary. Commencing the
Effective Date, Xxxx shall be paid a base salary at a rate of $220,000 per year
(or pro rated amount for any partial period (the “Base Salary”)),
payable on a regular basis in accordance with the Company’s standard payroll
procedure, but no less frequently than monthly; provided, however, that Xxxx’x
Base Salary from the Effective Date through March 14, 2009 shall be payable at
or promptly after the end of such term. For the Initial Employment Term and for
each successive Renewal Employment Term (as defined in Section 5 hereof), the
Base Salary shall be reviewed by the CEO after consultation with Xxxx and may be
increased (but not decreased). This process of reviewing the Base Salary and
assessing performance will commence on the 6th month
anniversary of this Agreement, with respect to the Initial Employment Term, and
thereafter no less frequently than once a year.
(b) Equity Incentive
Compensation. Subject to the penultimate sentence of this
Section 3(b), the Company shall issue to Xxxx restricted shares of the Company’s
common stock (the “Restricted Shares”)
under the Company’s 2007 Equity Incentive Plan (the “Incentive Plan”). The
Restricted Shares, the initial amount of which shall be determined in accordance
with Section 3(d) hereof as if it were a Bonus, but estimated to be no less than
150,000 Restricted Shares, shall have such terms and conditions that are no less
favorable to Xxxx than the terms and conditions applicable to restricted stock
granted at or about the same time to other executive officers of the Company.
Notwithstanding the foregoing, the grant of the Restricted Shares shall be
subject to (i) the Company obtaining the approval of its stockholders, at the
next annual meeting of stockholders, to increase the number of shares available
under the Incentive Plan, which approval the Board of Directors of the Company
shall undertake best efforts to recommend and obtain, and the Restricted Shares
shall not be granted and the Company’s obligations related to the Restricted
Shares shall be terminated and of no force and effect in the event of the
Company’s failure to so obtain stockholder approval and (ii) Xxxx achieving
performance goals reasonably set by the Board or the Compensation Committee
thereof (the “Compensation
Committee”) in good faith. The Company may at any time and from time to
time in its sole discretion consider Xxxx for future annual or other grants of
stock options, restricted shares or other forms of equity incentive
compensation.
(c) Vacation and
Leave. During the Employment Term, Xxxx shall be entitled to 4
weeks (i.e., 20 days) paid vacation per year, pro-rated for partial years (the
“Annual Vacation
Days”); provided, however, that Xxxx shall not be compensated for any
unused Annual Vacation Days or Carryforward Vacation Days (as defined below)
upon termination of this Agreement or Xxxx’x employment by the Company. Xxxx
shall be entitled to carry forward his unused Annual Vacation Days from each
year, but only up to the lesser of (i) thirty percent (30%) of the Annual
Vacation Days or (ii) the number of unused Annual Vacation Days from that year
(by way of
2
illustration,
if no vacation is taken in a particular year, then 6 days will be carried
forward to the next year (30% of 20 days), but if 15 days of vacation are taken
in a particular year, then 5 days will be carried forward to the next year) (the
“Carryforward Vacation
Days”). Xxxx shall be entitled to disability and other leave as provided
by the policies of the Company from time to time.
(d) Incentive Bonus
Plan. Commencing on and for the fiscal year ending December
31, 2009, and annually thereafter until termination of this Agreement, Finn
shall be eligible to receive a performance bonus (the “Bonus”), which shall
constitute a wage, based upon the Company’s level of achievement of
pre-established performance goals that shall be determined by the Chief
Executive Officer and the Compensation Committee (acting in good faith) pursuant
to discussions to be commenced in the first quarter of 2009, but only after
consultation with Finn, based on the Board approved budget for such year
(excluding extraordinary gains). Such pre-established performance goals shall be
reduced to writing and delivered to Xxxx upon adoption prior to the commencement
of the fiscal year to which such pre-established performance goals relate or, in
the event of the Bonus for fiscal 2009, upon confirmation of the aforementioned
pre-established performance goals. The Company shall review Xxxx’x performance
and the Bonus for fiscal year 2009 promptly after June 30, 2009, which shall
include consultation with Xxxx, and the Company shall make such adjustments to
the Bonus for such fiscal year as shall be determined pursuant to such review.
The Bonus, if any, will be paid to Xxxx in accordance
with policies established by the Board or the Compensation Committee, from time
to time, with respect to the method and timing for payment of bonuses to senior
executive officers of the Company generally, and shall be paid pro rata for
partial fiscal years.
(e) Benefits and Other
Compensation. During the Employment Term, Xxxx shall be
entitled to receive additional benefits and compensation from the Company in
such form and to such extent as specified below:
|
(i)
|
The
Company shall include Xxxx as a covered insured under its Directors and
Officers insurance policy and any other liability or similar insurance
policies (“Insurance”), if
provided to other senior executives of the Company. The Company shall
provide a copy to Xxxx of its policies of Insurance, together with all
amendments thereto or replacements thereof, from time to time. If this
Agreement is terminated for any reason, the Company shall continue to
provide such documents to Xxxx for a period of 5 years following the date
of termination.
|
|
(ii)
|
The
Company shall provide Xxxx any and all other benefits of employment
generally provided to other senior executive officers of the Company,
which may include, for example and without limitation, health insurance,
medical insurance, life insurance, disability insurance, unemployment or
workers’ compensation insurance, profit sharing, 401(k), and other
employee benefits.
|
3
|
(iii)
|
Reimbursement
for all business travel and other out-of-pocket expenses actually,
reasonably and properly incurred by Xxxx in the performance of his
services pursuant to this Agreement. All reimbursable expenses shall be
appropriately documented in reasonable detail by Finn upon submission of
any request for reimbursement, and in a format and manner consistent with
the Company’s expense reporting policy, and shall be reimbursed no less
than on a monthly basis.
|
|
(iv)
|
An
automobile allowance of $400.00 per month during the Employment
Term.
|
|
(v)
|
To
the extent provided to other executive officers of the Company, the
Company shall enter into an indemnification agreement with Xxxx that would
provide for indemnification rights to Xxxx separate and distinct from the
indemnification rights that would be provided to Xxxx pursuant to the
Company’s By-Laws in effect from time to time. Nothing in this Section
3(e)(v) shall be deemed to require the Company to enter into any such
agreement with Xxxx or otherwise to provide indemnification rights to Finn
that are different from the other senior executive officers of the
Company.
|
(f) Payment. Except as
otherwise provided herein, payment of all compensation and benefits to Finn
hereunder shall be made in accordance with the relevant Company policies in
effect from time to time, including normal payroll practices, and shall be
subject to all applicable employment and withholding taxes and source
deductions.
(g) Cessation of
Employment. In the event Xxxx shall cease to be employed by
the Company for any reason, Xxxx’x compensation and benefits with respect to
such employment shall cease on the date of such event, except as otherwise
provided herein.
4. Non-Competition
Agreement.
(a) Xxxx
shall not, without the prior consent of the Board, during the Employment Term
and for the Applicable Period, for himself or on behalf of, or in conjunction
with, any other person, company, partnership, corporation, entity or business of
whatever nature, either directly or indirectly:
|
(i)
|
engage,
as an officer, director, shareholder, member, manager, owner, partner,
joint venturer, trustee, or in a managerial capacity, whether as an
executive, independent contractor, agent, consultant or advisor, or as a
sales representative, in any business selling any products or services
that compete with the products or services offered by the Company at the
later of the time of termination of Xxxx’x consultancy or employment, as
the case may be, hereunder, anywhere in the United States and in any other
country in which the Company does
business;
|
4
|
(ii)
|
solicit
any person who is at that time, or at any time within the preceding ninety
(90) days of the time of the proposed call was, an employee of the
Company, for the purpose, or with the intent, of enticing such employee
away from, or out of, the employ of the Company or for the purpose of
hiring such employee for Finn or any other Person; provided, however, that
this Section 4(a)(ii) shall not apply to any person who independently
contacts Finn during the Applicable Period in response to a general
solicitation by a person or entity with which Xxxx is affiliated published
in a newspaper, website or other publication of general circulation that
is not specifically targeted at the Company’s employees;
or
|
|
(iii)
|
solicit
any person or entity that is at that time, or that was, at any time within
the twelve (12) months prior to that time, a customer of the Company, for
the purpose of soliciting or selling products or services offered by the
Company.
|
For the
purposes of this Agreement the term “Applicable Period”
shall mean twelve (12) months from the date Xxxx ceases to be an employee of the
Company, regardless of the reason for separation.
(b) Because
of the difficulty of measuring economic losses to the Company as a result of a
breach of the foregoing covenant, and because of the immediate and irreparable
damage that could be caused to the Company for which it would have no other
adequate remedy, Xxxx agrees that the foregoing covenant may be enforced by the
Company in the event of breach by him, by injunctions and restraining orders,
without the necessity of posting a bond or other security.
(c) It is
agreed by the parties that the foregoing covenants in this Section 4 impose a
reasonable restraint on Xxxx in light of the activities, business and plans of
the Company on the date of the execution of this Agreement, and Xxxx’x fees or
compensation, as the case may be, hereunder, in part, constitutes consideration
for this covenant; but it is also the intent of the Company and Xxxx that such
covenants be construed and enforced in accordance with any change in the
activities, business or plans of the Company throughout the term of this
Agreement.
(d) The
covenants in this Section 4 are severable and separate, and the unenforceability
of any specific covenant or part thereof shall not affect the remainder of such
covenant or provisions of any other covenant.
(e) All of
the covenants in this Section 4 shall be construed as an agreement independent
of any other provision in this Agreement, and the existence of any claim or
cause of action of Xxxx against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement of
such covenants; provided that the Company is not in breach of any obligation
with respect to the payment of any compensation or Severance (as defined in
Section 5(e) hereof) and the Company’s breach of such obligation is a result of
circumstances other than Xxxx’x breach of Section 4 or Section 7
hereof.
5
(f) Notwithstanding
any of the foregoing, if any applicable law shall reduce the time period or
scope during which Xxxx shall be prohibited from engaging in any competitive
activity described in Section 4(a) hereof, the period of time or scope for which
Xxxx shall be prohibited pursuant to Section 4(a) hereof shall be the maximum
time or scope permitted by law.
5. Term; Termination; Rights on
Termination. The term of employment under this Agreement shall
have begun on the Effective Date and shall continue until December 31, 2011 (the
“Initial Employment
Term”) and, unless terminated as herein provided or otherwise modified by
mutual agreement, shall be automatically renewed at the end of the Initial
Employment Term for a period of one (1) year and thereafter for successive one
(1) year terms (each such one (1) year term, a “Renewal Employment
Term”), on the same terms and conditions contained herein with such
changes, additions, deletions or modifications as may be agreed to in writing by
Xxxx and the Company (the Initial Employment Term and each Renewal Employment
Term, each an “Employment Term”),
until either party notifies the other party in writing at least one hundred
twenty (120) days prior to the expiration of the then current Employment Term
that he or it does not want the Employment Term to so renew. It is acknowledged
and understood that this Agreement shall remain in full force and effect during
any notice period until the actual termination date hereof, subject to the terms
hereof. This Agreement and Xxxx’x consultancy or employment, as the case may be,
may be terminated in any one of the following ways:
(a) Death. Xxxx’x
employment hereunder shall immediately terminate upon his death, and the Company
shall pay to Xxxx’x estate (i) all Base Salary earned as of the date of his
death but unpaid, (ii) Bonus amounts, if any, earned as of the date of his death
but unpaid and (iii) all other unpaid benefits from the period prior to the date
of his death.
(b) Disability. If, as
a result of Xxxx’x incapacity due to physical or mental illness, Finn shall not
have performed his duties hereunder on a full-time basis for three (3)
consecutive months or for one hundred twenty (120) days in any twelve (12) month
period, Xxxx’x employment under this Agreement may be terminated by the Company
upon ten (10) days written notice if Xxxx is unable to resume his full time
duties at the conclusion of such notice period. Xxxx’x compensation during any
period of disability prior to the effective date of such termination shall be
the amounts normally payable to him in accordance with his then current annual
Base Salary, reduced by the amounts of disability pay, if any, paid to Xxxx
under any Company disability program. Xxxx shall not be entitled to any further
salary or other compensation from the Company for any period subsequent to the
effective date of such termination, except for (i) all Base Salary earned as of
the date of such termination but unpaid, (ii) Bonus amounts, if any, earned as
of the date of his termination but unpaid, (iii) all other unpaid benefits from
the period prior to the date of such termination, and (iv) any other pay and
benefits, if any, in accordance with then existing severance policies of the
Company and Company benefit plans.
6
(c) Termination by
Company.
|
(i)
|
For
Cause. The Company may terminate this Agreement
immediately upon written notice to Xxxx for cause, which shall mean: (1)
Xxxx’x willful misconduct or gross negligence in the performance or
nonperformance of any of Xxxx’x material duties and responsibilities
hereunder; (2) Xxxx’x continued and willful refusal promptly to follow any
lawful direction of the Chief Executive Officer or the Board consistent
with the provisions for such contained herein, provided that if Finn
disagrees in good faith with such lawful direction in writing within a
reasonable period of time after such lawful direction is given, then the
Chief Executive Officer or the Board, as the case may be, and Xxxx shall
in good faith discuss such disagreement and attempt to resolve same within
a reasonable period of time based on the facts and circumstances of the
disagreement, provided further that if such disagreement is not so
resolved, Finn shall promptly follow and comply with such lawful direction
of the Chief Executive Officer or the Board, as the case may be; (3)
Xxxx’x willful misconduct or gross negligence in the performance or
intentional nonperformance of his duties and responsibilities (regardless
of materiality) under this Agreement, which in the aggregate, constitute a
material nonperformance hereunder; (4) Xxxx’x willful misrepresentation,
fraud, illegal drug abuse, or misconduct with respect to the business or
affairs of the Company, which materially and adversely affects, or can
reasonably be expected so to affect, the operations, prospects or
reputation of the Company; (5) Xxxx’x conviction of or plea of nolo contendere to a
felony or other crime involving moral turpitude; (6) Xxxx’x material
breach of any fiduciary duty owed to the Company or breach of the
provisions of Section 4 or Section 7 hereof, which breach is not cured
within ten (10) days of written notice to Xxxx or is incapable of cure; or
(7) any other willful and material breach by Finn of this Agreement that
is not cured within ten (10) days of written notice to Xxxx or is
incapable of cure. In the event of a termination for cause, as contemplated in this subsection 5(c)(i),
the Company shall have no further obligation to make any payments to Xxxx
or to provide any other benefits to him hereunder except for the Base
Salary, reimbursement or other benefits that have accrued or vested but
not been paid as of the effective date of such
termination.
|
|
(ii)
|
Without Cause. The
Company may, at any time during any Employment Term, terminate this
Agreement other than for Cause, if such termination is approved by the
Board. In the
|
7
|
|
event
of a termination by the Company without cause, or upon the failure by the
Company to agree to renew the Employment Term pursuant to Section 5 hereof
and Xxxx in good faith wishes to renew such Employment Term, the Company’s
obligations hereunder shall be as follows: (1) paying Severance to Xxxx in
accordance with subsection 5(e)
hereof; (2) paying a pro rata Bonus for the year of such termination
(determined by applying the prior year’s Bonus methodology to Xxxx’x
performance to date against the Company’s goal(s) to date); and (3) providing to Finn any other
benefits hereunder that have accrued or vested but have not been paid as
of the effective date of such termination. The payments hereunder shall be
made as and when such payments would have been made had Xxxx’x employment
not have terminated hereunder. Except as provided herein, all other
obligations of the Company under this Agreement shall cease as of the date
of termination. The payments and other
benefits due to Finn hereunder shall be inclusive of all statutory or
other legal severance entitlements of Xxxx.
|
(d) Termination by
Xxxx. Xxxx may at any time during the Employment Term
terminate his employment hereunder upon 120 days prior written notice to the
Company for any reason other than for Good Reason. Xxxx may, at any time during
the Employment Term, terminate his employment hereunder immediately for Good
Reason. For purposes of this Agreement, “Good Reason” means
the occurrence of any one or more of the following events unless Xxxx
specifically agrees in writing by the Company and Xxxx that such event shall not
be Good Reason: (A) any material breach of this Agreement by the Company;
provided, however, that no such material breach described in this subsection
shall constitute Good Reason unless Xxxx gives the Company ten (10) days’ prior
written notice of such act or omission and the Company fails to cure such act or
omission within the ten (10) day period after delivery of such notice (except
that Xxxx shall not be required to provide such notice in case of intentional
acts or omissions by the Company or more than once in cases of repeated acts or
omissions); (B) the failure of the Company to assign this Agreement
to a successor to the Company or failure of a successor to the Company to
explicitly assume and agree to be bound by this Agreement; or (C) there is a
change of ownership or control of the Company and Xxxx in his sole discretion
chooses not to work for that new ownership or successor of the Company. For
purposes of clause (A) of this Section 5(d), a material breach shall include,
but not be limited to, a demotion, material reduction in responsibilities,
decrease in Base Salary or any change in reporting relationship, in each case
from that specifically described in this Agreement.
(e) Severance. If
Xxxx’x employment is terminated by the Company pursuant to Section 5(c)(ii) or
by Xxxx for Good Reason, the Company shall continue to pay Xxxx his then current
Base Salary (the “Severance”) for a
period of twelve (12) months (the “Severance Period”);
provided that the payment to Xxxx of the Severance shall be subject to Xxxx’x
execution of a release, whereby Xxxx releases the Company from all statutory and other claims or rights that he may have against the Company
and its current and former officers,
directors, and employees, including, but not limited to, all statutory claims or rights relating to Xxxx’x
8
employment
and/or termination (but excluding any claims or rights relating to the Company's
obligations (i) to pay Xxxx Xxxxxxxxx due and owing to him hereunder, and (ii)
for indemnification according to the terms in effect as of the date of
termination), in a form reasonably acceptable to the Company and to Xxxx (a
“Release”);
provided further that such Release shall immediately and with no further action
on the part of either party be of no force and effect, and shall be null and
void, if following Xxxx’x termination of employment for Cause, circumstances
arise or are discovered pursuant to which Finn should not have been terminated
for Cause, but only with respect to those circumstances. The Severance is
expressly understood and agreed not to be salary or payroll compensation to an
executive, but rather, severance to a former executive. Notwithstanding anything
herein to the contrary, if Xxxx has breached a provision of Section 7 of this
Agreement, or has breached a provision of Section 4 or Section 6 of this
Agreement and he has failed to cure such breach within ten (10) days of notice
from the Company describing such breach in reasonable detail, then the Severance
payments shall terminate immediately. In
the event Finn executes a Release in accordance with this Section 5(e), the
Company shall execute a release, whereby the Company releases Xxxx from all
statutory and other claims or rights that the Company may have against Xxxx;
provided that such release shall immediately and with no further action on the
part of either party be of no force and effect, and shall be null and void, if
following Xxxx’x termination of employment circumstances arise or are discovered
with respect to Finn that would have constituted cause for termination of
employment hereunder, but only with respect to those circumstances.
(f) Deferral of Payments Necessary to
Avoid Taxation Under Code Section 409A. The intent of the
parties is that payments and benefits under this Agreement, to the extent
applicable, comply with Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations and guidance promulgated thereunder (collectively
“Section 409A”)
and, accordingly, to the maximum extent permitted, this Agreement will be
interpreted to be in compliance therewith. Notwithstanding any provision to the
contrary in this Agreement, to the extent that Xxxx is a “specified employee”
within the meaning of that term under Section 409A(a)(2)(B) of the Code, then
with regard to any payment or the provision of any benefit that is required to
be delayed in compliance with Section 409A(a)(2)(B) of the Code, such payment or
benefit will not be made or provided prior to the earlier of (i) the expiration
of the six-month period measured from the date of Xxxx’x “separation from
service” (as such term is defined under Section 409A) or (ii) the date of Xxxx’x
death (the “Delay
Period”). Upon the expiration of the Delay Period, all payments and
benefits delayed pursuant to this Section 5(f) (whether they would have
otherwise been payable in a single sum or in installments in the absence of such
delay) will be paid or reimbursed to Xxxx in a lump sum, and any remaining
payments and benefits due under this Agreement will be paid or provided in
accordance with the normal payment dates specified for them herein.
Notwithstanding the foregoing, to the extent that the foregoing applies to the
provision of any ongoing welfare benefits to Finn that would not be required to
be delayed if the premiums therefore were paid by Xxxx, he will pay the full
cost of premiums for such welfare benefits during the Delay Period and the
Company will pay Xxxx an amount equal to the amount of such premiums paid by
Xxxx during the Delay Period promptly after its conclusion.
6. Inventions. Xxxx
shall disclose promptly to the Company any and all significant conceptions and
ideas for inventions, improvements and valuable discoveries, whether patentable
or not, that are conceived or made by Xxxx following the Effective Date, solely or jointly with
9
another,
during the Employment Term and that are
directly related to the business or activities of the Company whether or not
conceived during or after regular business hours or using any property or
facilities of the Company. Xxxx hereby assigns and agrees to assign all of his
right, title and interest in and to any such
intellectual property to the Company or its nominee and Xxxx hereby
expressly waives any and all moral rights he may have in or in relation to such
intellectual property. Xxxx
covenants and agrees to sign all such documents, instruments or agreements and
to perform all such acts or otherwise assist the Company as are reasonably
necessary in order to perfect and give effect to the foregoing assignment of
intellectual property rights and, to the extent applicable, waiver of moral
rights therein. Xxxx agrees that all such materials that he develops or
conceives and/or documents related thereto during such period shall be deemed
works made-for-hire for the Company within the meaning of the copyright laws of
the United States or any similar or analogous law or statute of any other
jurisdiction, and accordingly, the Company shall be the sole and exclusive owner
for all purposes for the distribution, exhibition, advertising and exploitation
of such materials or any part of them in all media and by all means now known or
that may hereafter be devised, throughout the universe in perpetuity. Xxxx
agrees that in furtherance of the foregoing, he shall disclose, deliver and
assign to the Company all such conceptions, ideas, improvements and discoveries
and shall execute all such documents, including patent, trademark and copyright
applications, as the Company reasonably shall deem necessary to further document
the Company’s ownership rights therein and to provide the Company the full and
complete benefit thereof. Should any arbitrator or court of competent
jurisdiction ever hold that such materials do not constitute works
made-for-hire, Xxxx hereby irrevocably assigns to the Company, and agrees that
the Company shall be the sole and exclusive owner of, all right, title and
interest in and to all such materials, including the patents, trademarks,
copyrights and any other proprietary rights arising therefrom. Xxxx reserves no
rights with respect to any such materials, and hereby acknowledges the adequacy
and sufficiency of the fees and/or compensation paid and to be paid by the
Company to Xxxx for the materials and the contributions he will make to the
development of any such information or materials. Xxxx agrees to cooperate with
all lawful efforts of the Company to protect the Company’s rights in and to any
or all of such information and materials and will, at the request of the
Company, execute any and all instruments or documents reasonably necessary or
desirable in order to register, establish, acquire, prosecute, maintain, perfect
or defend the Company’s rights in and to such information and
materials.
7. Confidential Information and
Trade Secrets. Xxxx acknowledges and agrees that all
Confidential Information, Trade Secrets and other property delivered to, or
compiled by, him by or on behalf of the Company or its representatives, vendors
or customers that pertain to the business of the Company shall be, and remain,
the property of the Company and be subject at all times to its discretion and
control. Xxxx agrees that he shall maintain strictly the confidentiality of, and
shall not disclose any such Confidential Information or Trade Secrets to any person without the prior written consent of the
Board.
For
purposes hereof, the parties agree that “Confidential
Information” means and includes:
|
·
|
All
business or financial information, plans, processes and strategies, market
research and analyses, projections, financing arrangements, franchising
arrangements and agreements, consulting and sales methods and techniques,
expansion plans, forecasts and forecast assumptions, business practices,
operations and procedures, marketing and merchandising information,
distribution techniques, customer information and other business
information, including records, designs, patents, business plans,
financial statements, manuals, memoranda, lists and other documentation
respecting the Company;
|
10
|
·
|
All
information and materials that are proprietary and confidential to a third
party and that have been provided to the Company by such third party for
the Company’s use; and
|
|
·
|
All
information derived from such Confidential
Information.
|
Confidential
Information shall not include information and materials that are (i) already, or
otherwise become, known by, or generally available to, Xxxx or the public, other
than as a result of an act or omission by Xxxx in breach of the provisions of
this Agreement or any other applicable agreement between Xxxx and the Company or
by another party in violation of an obligation of confidentiality to the
Company; (ii) required to be disclosed for Xxxx not to be in violation of
any applicable law or regulation; (iii) required to be disclosed by Finn in
connection with the enforcement of any of his rights under this Agreement or any
other agreements between Xxxx and the Company; or (iv) required to be
disclosed pursuant to an order of, or are necessary to be disclosed in
connection with any litigation or other proceeding in which testimony is
compelled before, any court or like entity or governmental authority; provided
that in any such case, Xxxx shall provide the Company with prompt notice of such
request, order or intended disclosure, cooperate reasonably with the Company in
resisting or limiting, as appropriate, the disclosure of such Confidential
Information via a protective order or other appropriate legal action, and shall
not make disclosure pursuant thereto until the Company has had a reasonable
opportunity to resist such disclosure, unless he is ordered otherwise pursuant
to an order of a court of competent jurisdiction or he is advised by his counsel
that such disclosure must be made at such time to avoid any legal
penalty.
For
purposes hereof, the term “Trade Secret” shall
mean trade secrets of the Company, including, without limitation, the whole or
any portion or phase of any scientific or technical information, design,
process, formula, concept, data organization, manual, other system
documentation, or any improvement of any thereof, in any case that is valuable
and secret (in the sense that it is not generally known to the Company’s
competitors).
8. Return of Company Property;
Termination of Consultancy or Employment. At such time as
Xxxx’x consultancy or employment with the Company is terminated for any reason,
he shall be required to participate in an exit interview for the purpose of
assuring a proper termination of his consultancy or employment, as the case may
be, and his obligations hereunder. On or before the actual date of any
termination, Xxxx or his representatives shall return to the Company all of the
Company’s records, materials and other physical objects obtained during his
consultancy and/or employment with the Company, including, without limitation,
all Company credit cards and access keys and all materials, containing or
derived from any Trade Secrets or Confidential Information.
9. No Prior
Agreements. Xxxx hereby represents and warrants to the Company
that the execution of this Agreement by him and his consultancy and/or
employment by the Company and the performance of his duties hereunder will not
violate or be a breach of any agreement with a former employer, client or any
other person or entity. Further, Xxxx agrees to indemnify
11
the
Company for, and hold the Company harmless from, and against, all claims by any
third party that such third party may now have, or may hereafter come to have,
against the Company based upon, or arising out of, any violation of breach or
any noncompetition, invention or secrecy agreement between Xxxx and such third
party that was in existence as of the date of this Agreement, and all other
expenses directly related thereto incurred by the Company, including, but not
limited to, reasonable attorneys’ fees and expenses and expenses of
investigation.
10. Non-disparagement. The
Parties agree that, other than in connection with any lawsuit, arbitration or
other proceeding arising from or relating to this Agreement, (a) Finn will not
denigrate, disparage, criticize, or make any negative statements concerning the
Company or its affiliates or any of their respective officers, directors or
employees and (b) the Company will not denigrate, disparage, criticize, or make
any negative statements concerning Xxxx. Except as may be required by any
applicable law, rule or regulation or advisable in the good faith determination
of a party hereto, in the event of any termination of this Agreement for any
reason, the parties shall respond to any inquiries by stating that there was
mutual agreement to terminate this Agreement.
11. Binding Effect;
Assignment. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors and assigns. Xxxx understands that he has been
selected by the Company on the basis of his personal qualifications, experience
and skills. Xxxx agrees, therefore, that he cannot assign all or any portion of
his performance obligations under this Agreement.
12. Complete
Agreement. Xxxx has no oral representations, understandings or
agreements with the Company or any of its affiliates or any of its officers,
directors or representatives covering the same subject matter as this Agreement.
This written Agreement is the final, complete and exclusive statement and
expression of the agreement between the Company and Xxxx regarding the subject
matter contained herein and therein and of all the terms of this Agreement, it
cannot be varied, contradicted or supplemented by evidence of any prior or
contemporaneous oral or written agreements and any such prior agreements are
hereby superseded by this Agreement.
13. Notices.
(a) Any notice, designation, communication, request, demand
or other document, required or permitted to be given or sent or delivered
hereunder to any party hereto shall be in writing and shall be sufficiently given or sent or delivered if
it is:
|
(i)
|
delivered personally to Xxxx or, in
the case of the Company, to the address and person noted
below,
|
|
(ii)
|
sent to the party entitled to receive it by
registered mail, postage prepaid, mailed in the United States,
|
|
(iii)
|
sent by facsimile
machine.
|
12
(b) Notices shall be sent to the following addresses or
facsimile numbers:
|
(i)
|
in the case of Xxxx,
|
Xxxxxx
Xxxx
00000
Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Facsimile:
|
(ii)
|
in the case of the
Company,
|
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Facsimile: (000)
000-0000
with a
copy to,
Xxxxxxx,
Xxxxxxxxx LLP
0 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxx, Esq.
Facsimile:
(000) 000-0000
or to such other address or facsimile number as the
party entitled to or receiving such notice, designation, communication, request,
demand or other document shall, by a notice given in accordance with this
section, have communicated to the party giving or sending or delivering such
notice, designation, communication, request, demand or other
document.
(c) Any notice, designation, communication, request, demand
or other document given or sent or delivered as aforesaid
shall:
|
(i)
|
if delivered as aforesaid, be deemed to have been
given, sent, delivered and received on the date of
delivery;
|
|
(ii)
|
if sent by mail as aforesaid, be deemed to have
been given, sent, delivered and received (but not actually received) on
the third business day following the date of mailing;
and
|
|
(iii)
|
if sent by facsimile machine, be deemed to have
been given, sent, delivered and received on the date the sender receives
the facsimile answer back confirming receipt by the
recipient.
|
14. Severability;
Pleadings. It is the intention of the parties that the
provisions hereof shall be enforceable to the fullest extent permitted under
applicable law, and that the unenforceability of any provision hereof, or any
portion thereof, shall not render unenforceable
13
or
otherwise impair any other provisions or portions thereof. If any provision of
this Agreement is determined by a court of competent jurisdiction to be
unenforceable, void or invalid in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending provisions or
portions thereof and to alter the bounds thereof, including specifically, any
time, place and manner restrictions contained in any of the restrictive
covenants contained herein, in order to render it valid and enforceable. In any
event, the balance of this Agreement shall be enforced to the fullest extent
possible without regard to such unenforceable, void or invalid provisions or
part thereof. The Section headings herein are for reference purposes only and
are not intended in any way to describe, interpret, define or limit the extent
or intent of the Agreement or of any part hereof.
15. Company
Actions. Xxxx acknowledges that, except as provided in Section
4(e) hereof, in any action by the Company to enforce the provisions of this
Agreement, claims asserted by Xxxx against the Company arising out of his
consultancy or employment, as the case may be, with the Company or otherwise
shall not constitute a defense to enforcement of his obligations
hereunder.
16. Governing Law and
Forum. This Agreement shall in all respects be construed
according to the laws of the State of New York, without regard to its choice of
law principle (other than Section 5-1401 of the General Obligations Law of the
State of New York). Other than as expressly provided in Section 21 of this
Agreement, the Company and Xxxx agree that any claims concerning the rights and
obligations of the parties or any other issue arising under this Agreement shall
be brought in New York Supreme Court, County of New York, or the United States
District Court for the Southern District of New York, and that such courts shall
have exclusive jurisdiction over litigation involving any such claims. Other
than as expressly provided in Section 21 of this Agreement, the Company and Xxxx
agree to submit to the jurisdiction of such courts and that they will not raise
lack of personal jurisdiction or inconvenient forum as defenses in any such
litigation.
17. Counterparts. This
Agreement may be executed in counterparts and any party hereto may execute any
such counterpart, each of which when executed and delivered shall be deemed to
be an original and all of which counterparts taken together shall constitute but
one and the same instrument. This Agreement shall become binding when all
counterparts taken together shall have been executed and delivered (which
deliveries may be by facsimile) by the parties.
18. Modifications. This
Agreement may not be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought, or his or its duly
authorized representative or officer. No waiver by Xxxx or the Company of any
breach of any provision hereof will be deemed a waiver of any prior or
subsequent breach of the same or any other provision. The failure of Xxxx or the
Company to exercise any right provided herein will not be deemed on any
subsequent occasions to be a waiver of any right granted hereunder to either of
them.
19. Survival. The provisions of Sections 4, 5(e), 5(f),
6, 7, 8, 9 and 10 hereof shall survive termination of this Agreement for any
reason.
14
20. XXXX
ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE WAS GIVEN AN OPPORTUNITY TO
READ IT, CAREFULLY EVALUATE IT, AND ASK ANY QUESTIONS HE MAY HAVE HAD REGARDING
IT OR ITS PROVISIONS. XXXX ALSO ACKNOWLEDGES THAT HE HAD THE RIGHT TO HAVE THIS
AGREEMENT REVIEWED BY INDEPENDENT LEGAL COUNSEL OF HIS CHOOSING AND THAT THE
COMPANY GAVE HIM A REASONABLE PERIOD OF TIME TO DO SO IF HE SO WISHED. XXXX
FURTHER ACKNOWLEDGES THAT HE IS NOT BOUND BY ANY AGREEMENT THAT WOULD PREVENT
HIM FROM PERFORMING HIS DUTIES AS SET FORTH HEREIN, NOR DOES HE KNOW OF ANY
OTHER REASON WHY HE WOULD NOT BE ABLE TO PERFORM HIS DUTIES AS SET FORTH
HEREIN.
21. Dispute
Resolution. Except with respect to disputes or claims under
Sections 4, 6 or 7 hereof or with respect to any equitable remedy sought by a
party hereto, which shall be governed by Section 16 hereof, this Agreement and
the rights of any and all parties hereto pursuant hereto shall be governed by
and construed in accordance with the Federal Arbitration Act, 9 U.S.C. Section
1, et seq. Any such
controversy or claim arising out of or relating to this Agreement, or any breach
hereof, shall be settled by the following procedures:
(a) any party
may send another party written notice identifying the matter in dispute and
invoking the procedures of this Section. Within fourteen (14) days, each party
involved in the dispute shall meet at a mutually agreeable location (which shall
be in the County of New York unless otherwise agreed to by the parties), for the
purpose of determining whether they can resolve the dispute themselves by
written agreement, and, if not, whether they can agree upon a third party
arbitrator (the “Arbitrator”) to whom
to submit the matter in dispute for final and binding arbitration;
(b) if such
parties fail to resolve the dispute by written agreement or fail to agree on the
identity of the Arbitrator within said fourteen (14) day period, then any such
party may make a written application to the Judicial Arbitration and Mediation
Services (“JAMS”) for a list of
five (5) potential Arbitrators in New York, New York, or other mutually agreed
upon location, to be mailed to the parties. The parties shall strike names of
the five (5) Arbitrators alternatively (with the non-initiating party striking
first) until only one named Arbitrator remains. If a party refuses to engage in
the striking process within seven (7) days of receipt of the list, JAMS shall
allow the party willing to engage in the striking process to strike three (3)
names and JAMS will select an Arbitrator from among the remaining two (2) names;
and
(c) within
thirty (30) days of such selection process, the parties involved in the dispute
shall meet in New York, New York, or other mutually agreed upon location with
the Arbitrator at a place and time designated by such Arbitrator, and present
their respective positions on the dispute. Each party shall have no longer than
one (1) day to present its position, the entire proceedings before the
Arbitrator shall be no more than two (2) consecutive days, and the decision of
the Arbitrator shall be made in writing no more than thirty (30) days following
the end of the proceeding. Such an award shall be a final and binding
determination of the dispute (a “Final Determination”)
and shall be fully enforceable as an arbitration decision in any court having
jurisdiction and venue over such parties. The arbitrator shall have the
authority to award any remedy and/or damages that could be awarded by a court.
The prevailing party (as determined by the Arbitrator) shall, in addition, be
awarded by the Arbitrator the prevailing party’s attorneys’ fees and expenses in
connection with such proceeding.
[SIGNATURES
APPEAR ON NEXT PAGE]
15
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
|
COMPANY:
By:
/s/ Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title: President
and Chief Executive Officer
XXXX:
/s/ Xxxxxx
Xxxx
XXXXXX
XXXX
|
16
