Exhibit 10.27
EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"), dated as of the 15th day
of April, 2002 by and between XXXXXX, INC., a New York corporation with offices
at 000 Xxxxxxx Xxxx, Xxxx Xxxx, XX 00000 ("Xxxxxx"), and XXXXXXX X. XXXXXXX,
residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the "Executive").
WHEREAS, Xxxxxx desires to employ the Executive as Vice President and
Chief Financial Officer of Xxxxxx, and the Executive desires to serve Xxxxxx in
such capacities, all upon the terms and subject to the conditions hereinafter
provided;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment.
Xxxxxx agrees to employ the Executive, and the Executive agrees to be
employed by Xxxxxx, upon the terms and subject to the conditions of this
Agreement.
2. Term.
The term of the Executive's employment under this Agreement shall
commence on the date hereof and shall continue through April 15, 2005 (the
"Term"), unless earlier terminated as hereinafter provided. The Executive's
employment shall continue after the Initial Term on a year-to-year basis (each,
an "Additional Term" and, together with the Initial Term, the "Term") unless
either the Executive or Xxxxxx gives written notice to the other not later than
forty-five (45) days prior to the expiration of the Initial Term or any such
Additional Term, as the case may be, of the decision not to extend the
Executive's employment.
3. Duties; Efforts.
(a) During the Term of this Agreement, the Executive shall
serve as the Vice President and Chief Financial Officer of Xxxxxx and shall
perform all duties customary to and commensurate with his position and such
other duties as may be assigned to him by the president and chief executive
officer (the "President and Chief Executive Officer"), or the Board of Directors
(the "Board"), of Xxxxxx. The Executive shall report directly to the President
and Chief Executive Officer.
(b) The Executive shall devote all of his business time,
attention and energies to the business and affairs of Xxxxxx and its affiliated
corporations, shall use his best efforts to advance the best interests of
Xxxxxx; provided, however, that, it shall not be
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a violation of this Agreement for the Executive to (i) subject to approval by
the Board in its sole discretion, serve on professional, industry, civic or
charitable boards, committees or organizations, and (ii) manage passive personal
investments, so long as any such activities do not interfere with the
performance of the Executive's responsibilities as an employee of Xxxxxx in
accordance with this Agreement.
(c) The Executive's principal office location will be at
Xxxxxx'x executive offices, which shall be located in (i) Long Island, but no
more than fifty miles driving distance east from 000 Xxxxxxx Xx, Xxxx Xxxx, XX,
(ii) New York City (other than Staten Island), or (iii) lower Westchester
County. The Executive shall travel to other locations as may be necessary for
the Executive to perform his duties.
4. Compensation and Benefits.
(a) Base Salary. Commencing on the date hereof, Xxxxxx shall
pay to the Executive a base salary (the "Base Salary") of $175,000 per year
during the Term as compensation for the performance of services under this
Agreement and the Executive's observance and performance of all of the
provisions hereof. The Base Salary shall be paid in accordance with Xxxxxx'x
payroll practices for its executive employees and shall be subject to
withholding for applicable taxes and other amounts. The Executive's performance
and Base Salary shall be reviewed annually.
(b) Annual Bonus. At the Board's discretion, the Executive
shall be eligible to receive, with respect to each calendar year, a cash bonus
(the "Bonus"), in addition to and separate from the Executive's Base Salary. In
the event that the Executive dies, suffers a Disability (as defined in Section
5(c)), is terminated by Xxxxxx without Cause or terminates his employment for
Good Reason, then, at the end of the calendar year in which such termination
occurs, the Company shall determine the amount of the Bonus which would have
been paid to the Executive with respect to such calendar year and the Executive
shall receive a pro rata portion of such Bonus through the date of such
termination, which Bonus shall be paid in the same manner as bonuses are paid to
other senior executives of the Company.
(c) Stock Options. In addition to the Executive's Base Salary
and Bonus, Xxxxxx shall xxxxx to the Executive, as of the date hereof, options
to purchase 90,000 shares of its common stock (the "Options") under Xxxxxx'x
2001 Stock Incentive Plan (the "2001 Stock Incentive Plan"), at an exercise
price of $8.07 per share. The Options shall be issued pursuant to a stock option
agreement ("Stock Option Agreement") and are intended to be incentive stock
options under the Internal Revenue Code of 1986, as amended ("Code"). Subject to
acceleration or termination in accordance with the provisions of the Stock
Option Agreement, Options for 20,000 shares shall vest on each of the first and
second anniversary dates of the Stock Option Agreement and Options for 50,000
shares shall vest on the third anniversary date of the Stock Option Agreement.
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(d) Out-of-Pocket Expenses. Xxxxxx shall promptly pay to the
Executive the reasonable expenses incurred by him in the performance of his
duties hereunder, including, without limitation, those incurred in connection
with business related travel or entertainment, or, if such expenses are paid
directly by the Executive, shall promptly reimburse him for such payment,
provided that the Executive properly accounts therefor and submits appropriate
receipts therefor in accordance with Xxxxxx'x expense policy.
(e) Participation in Benefit Plans. The Executive, subject to
the terms, conditions and eligibility requirements applied generally, shall be
entitled to participate in or receive benefits under any pension plan, health
and accident plan or any other employee benefit plan or arrangement made
available now or in the future by Xxxxxx to its employees and senior executives
including, without limitation, 401(k) plans, medical, dental, life and
disability plans of Xxxxxx. Nothing herein shall be deemed to require Xxxxxx to
establish or retain any such plans.
(f) Vacation. The Executive shall be entitled to four (4)
weeks of paid vacation in each calendar year (pro rated for the number of days
in any such year during which he is so employed) and to all paid holidays given
by Xxxxxx to its employees. No more than two consecutive weeks of vacation shall
be taken at any one time without the prior approval of the President and Chief
Executive Officer, and the Executive shall schedule vacations in a manner
consistent with Xxxxxx'x seasonal or other significant business requirements.
5. Termination.
The Executive's employment hereunder shall terminate, or may be
terminated, as follows:
(a) For Cause. Xxxxxx shall have the right to terminate the
Executive's employment for "Cause". A termination for "Cause" is a termination
by the President and Chief Executive Officer or by the Board, if the President
and Chief Executive Officer or the Board makes a finding that the Executive has:
(i) breached, failed, or refused to comply with any
of the material terms of this Agreement;
(ii) refused, neglected or failed to perform his
material duties under this Agreement;
(iii) willfully or intentionally failed to carry out,
in any material respect, instructions of the President and Chief Executive
Officer or the Board which are not inconsistent with his position;
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(iv) been convicted of or admitted to (including nolo
contendere) any act of fraud, larceny, misappropriation of funds or embezzlement
or to or of a crime other than traffic offenses;
(v) has been found personally (but not vicariously)
guilty (civilly or criminally) of acts constituting sexual harassment; or
(vi) repeatedly engaged in substance abuse; provided,
however, that
(A) in the case of clauses (i), (ii) and
(iii) above, provided the Executive shall have received written notice at least
30 days prior to such termination specifying the actions constituting Cause,
during which period he shall have the opportunity to cure such conduct; and
(B) in the case of paragraphs (iv), (v), and
(vi) above, the President and Chief Executive Officer or the Board may terminate
the Executive immediately upon delivery of a notice of termination.
(b) Other than For Cause. Xxxxxx shall have the right to
terminate Executive's employment with Xxxxxx at any time without Cause upon
thirty (30) days written notice to the Executive.
(c) Upon Death or For Disability. The Executive's employment
with Xxxxxx shall immediately terminate upon his death without any further
action. Xxxxxx shall have the right to terminate the Executive's employment
immediately upon delivery of notice to the Executive as a result of the
Executive's Disability. For purposes of this Agreement, a "Disability" shall be
deemed to have occurred if the Executive has been unable due to any physical or
mental illness or injury substantially to perform his duties hereunder for at
least 60 consecutive days or for more than 120 days in any 360 day period.
(d) By the Executive for Good Reason. The Executive shall have
the right to terminate his employment with Xxxxxx for Good Reason. For purposes
of this Agreement, "Good Reason" shall mean:
(i) Removal from his position as Vice President and
Chief Financial Officer (other than for Cause or by reason of the Executive's
death or Disability);
(ii) Material diminution in the Executive's title,
position, duties or responsibilities, or the assignment to the Executive of
duties that are inconsistent, in a material respect, with the scope of duties
and responsibilities associated with the position of Vice President or Chief
Financial Officer, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith;
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(iii) Reduction in the Executive's Base Salary
without his consent or failure to implement or pay any compensation arrangements
(including stock options) contemplated by this Agreement; provided, however,
that Good Reason shall not exist pursuant to subsection (i), (ii) and (iii) of
this Section 5(d) unless the Executive shall have delivered to the Board written
notice at least thirty (30) days prior to such termination, specifying the
actions constituting Good Reason, during which period Xxxxxx shall have the
opportunity to cure such conduct;
(iv) The occurrence of a Change of Control (as
defined in Section 12(b) herein); provided, however, that a Change of Control
shall be deemed Good Reason only if the Executive delivers to Xxxxxx a written
notice of resignation (which notice shall not be required to state any reason)
during the last 90 days of the 365 day period following the effective date of a
Change of Control, which resignation may be effective no earlier than thirty
(30) days following delivery thereof; or
(v) Relocation of the offices of Xxxxxx without the
consent of the Executive to a location other than a location which is (A) in
Long Island but no more than fifty miles driving distance east from 000 Xxxxxxx
Xxxx, Xxxx Xxxx, Xxx Xxxx, (X) in New York City (other than Staten Island), or
(C) in lower Westchester County.
(e) By the Executive other than for Good Reason. The Executive
shall have the right to terminate his employment with Xxxxxx at any time without
Good Reason upon thirty (30) days written notice to Xxxxxx.
6. Payments Upon Termination.
(a) Death or Disability. In the event of the termination of
the Executive's employment as a result of his death or Disability, Xxxxxx shall:
(i) pay to the Executive or his estate, as the case
may be, the Base Salary through the date of his death or Disability (pro rated
for any partial month);
(ii) pay to the Executive or his estate, as the case
may be, any accrued and unpaid Bonus in accordance with Section 4(b);
(iii) provide to the Executive and/or his family, as
the case may be, (A) for the first year after the Executive's death or
Disability, continued coverage under all welfare benefit plans, including
medical, accident, life or other disability plans and programs, in which the
Executive and his family participated immediately prior to his death or
Disability to the extent such plans are maintained by Xxxxxx, and sharing in the
cost of such benefit coverage in the same proportion as was in effect for the
Executive immediately prior to his death or Disability, and (B) after such one
(1) year period, the Executive or his estate, as the case may be, shall be
responsible for the full cost of the Executive's COBRA coverage.
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(b) By Xxxxxx for Cause or by the Executive other than for
Good Reason. In the event that the Executive's employment is terminated by
Xxxxxx for Cause or by the Executive other than for Good Reason, Xxxxxx shall
pay to the Executive the Base Salary through date of termination, and the
Executive shall have no further entitlement to any other compensation or
benefits from Xxxxxx. All vested and unvested options held by the Executive
shall be cancelled and of no effect. In addition, the Executive shall be deemed
to have offered any shares of Common Stock purchased by him pursuant to the
Stock Option Agreement to Xxxxxx at a price per share equal to the lower of the
Exercise Price or the fair market value (as determined pursuant to the 2001
Stock Incentive Plan) of the Common Stock at the time of such termination.
Xxxxxx shall have 30 days from the date of termination to deliver written notice
to the Executive electing to purchase such shares.
(c) By the Executive for Good Reason or by Xxxxxx other than
for Cause or the Executive's Death or Disability. In the event that the
Executive's employment is terminated by the Executive for Good Reason or by
Xxxxxx other than for Cause or the Executive's death or Disability, then Xxxxxx
shall:
(i) pay to the Executive the Base Salary through the
date of termination, within thirty (30) days of termination of his employment;
(ii) continue to pay Executive for a period of twelve
(12) months his Base Salary in effect on the date of termination;
(iii) pay to the Executive any accrued and unpaid
Bonus in accordance with Section 4(b) ; and
(iv) pay or reimburse the Executive for twelve (12)
months after the Executive's termination, for continued coverage under all
welfare benefit plans, including medical, accident, life or other disability
plans and programs, in which the Executive participated immediately prior to his
termination, (provided that the Executive will share the cost of such benefit
coverage in the same proportion as was in effect for the Executive immediately
prior to his termination).
(d) The Executive acknowledges that upon the termination of
his employment pursuant to Sections 5(a) - 5(e), he shall not be entitled to any
payments or benefits that are not explicitly provided herein.
7. Covenant Regarding Inventions.
The Executive shall disclose promptly to Xxxxxx any and all
inventions, discoveries, improvements, designs, processes, techniques, and
patentable or copyrightable works developed, initiated, conceived or made by
him, either alone or in conjunction with others, whether or not through the use
of Company time, materials,
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facilities, or otherwise, during the Term hereof, all of which shall be
considered "work for hire" (as that term is defined under the Copyright Act of
1976, as amended) and he assigns and shall assign, without additional
consideration, all of his right, title and interest therein to Xxxxxx or its
nominee. Whenever requested to do so by Xxxxxx, the Executive shall execute any
and all applications, assignments or other instruments that Xxxxxx shall xxxx
necessary to apply for and obtain letters patent, trademarks or copyrights of
the United States or any foreign country, or otherwise protect Xxxxxx'x interest
therein. These obligations shall continue beyond the conclusion of the Term with
respect to inventions, discoveries, improvements or copyrightable works made by
the Executive during the Term and shall be binding upon the Executive's assigns,
executors, administrators and other legal representatives.
8. Protection of Confidential Information.
As an inducement to Xxxxxx to enter into and perform its
obligations under this Agreement, the Executive acknowledges that he has been
and will be provided with information about, and his employment by Xxxxxx will,
throughout the Term, bring him into close contact with, many confidential
affairs of Xxxxxx and its subsidiaries and affiliates, including proprietary
information about the business including, without limitation, costs, profits,
finances, internal financial statements, projections, markets, sales, customers,
advertisers, vendors, products, key personnel, pricing policies, operational
methods, technical processes and methods, plans for future developments,
software, data bases, computer programs, specifications, documentation, designs,
trade secrets, technology, know-how, research and development, inventions,
patents and copyrights (and any renewals, reissues, extensions, divisions,
continuations and continuations in part thereof and registrations, applications,
patents of addition and inventors certificates) and other information not
available to the public (collectively "Confidential Information"), all of which
are highly confidential and proprietary and all of which were developed by
Xxxxxx at great effort and expense. The Executive further acknowledges that the
services to be performed by him under this Agreement are of a special unique,
unusual, extraordinary and intellectual character and that the nature of the
relationship of the Executive with Xxxxxx is such that the Executive is capable
of competing with Xxxxxx. In recognition of the foregoing, the Executive
covenants and agrees during the Term and thereafter he will:
(a) keep secret all Confidential Information and not disclose
them to anyone outside of Xxxxxx, either during or after the Term, except (i)
with Xxxxxx'x prior written consent; (ii) if required to be disclosed by law or
by any government, regulatory or self-regulatory agency or body, except with
respect to Confidential Information which the Executive is advised in writing by
counsel to Xxxxxx is not required to be disclosed, provided that Executive shall
have given Xxxxxx prompt notice of any such order or subpoena so that Xxxxxx may
contest any such production; or (iii) for such Confidential Information which is
or becomes generally available to the public other than as a result of the
Executive's breach of this Section 8(a);
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(b) not make use of any of any Confidential Information for
his own purposes or the benefit of anyone other than Xxxxxx; and
(c) deliver promptly to Xxxxxx on termination of this
Agreement, or at any time Xxxxxx may so request, all Confidential Information,
including but not limited to memoranda, notes, records, computer software discs,
reports and other confidential documents (and all copies thereof) relating to
the business, that he may then possess or have under his control, except that he
may retain personal notes, notebooks, journals and diaries provided that such
materials do not contain confidential information.
9. Restriction of Competition; Interference; Non-Solicitation.
(a) As an inducement to Xxxxxx to enter into and perform its
obligations under this Agreement, the Executive covenants and agrees that,
during the period of his employment and, for a period of one (1) year after the
termination of his employment for any reason, neither the Executive nor his
affiliates will, anywhere in the United States of America, Canada, Europe, or
any other geographic area where Xxxxxx or its subsidiaries or affiliates does
business or in which any of Xxxxxx'x or Xxxxxx'x subsidiaries' or affiliates'
products are marketed, directly or indirectly, for their account or on behalf of
any other Person (as defined in Section 9(b) below) or as an employer, employee,
consultant, manager, agent, broker, contractor, stockholder, director or officer
of a corporation, investor, owner, lender, partner, joint venturer, licensor,
licensee, sales representative, distributor, or otherwise:
(i) Solicit or engage in any business competitive
with the type of business engaged in by Xxxxxx or its subsidiaries or affiliates
during the Term (each, a "Competitive Business");
(ii) Directly or indirectly for his own account or
the benefit of others solicit, hire or retain any employee of Xxxxxx or its
subsidiaries or affiliates or persuade or entice any employee of Xxxxxx or its
subsidiaries or affiliates to leave the employ of Xxxxxx or its affiliates;
(iii) Molest or interfere with the goodwill and
relationship with any of the customers or suppliers of Xxxxxx or its affiliates;
(iv) Persuade, accept, induce or solicit any of the
customers, subscribers or accounts of Xxxxxx or its affiliates, now existing or
hereafter obtained, to engage anyone, other than Xxxxxx or its affiliates, to
design, manufacture or market foot and gait-related biomechanical products for
such customers, subscribers or accounts;
(v) invest in, lend money or give financial support
to any Competitive Business; or
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(vi) use or purport to authorize any Person to use
any name, xxxx, copyright, logo, trade dress, or other identifying words or
images which are the same or similar to those used currently or in the past by
Xxxxxx or its subsidiaries or affiliates in connection with any product or
service, whether or not such use would be in a Competitive Business.
(b) Nothing contained in this Section 9 shall be deemed to
prohibit the Executive from directly acquiring or holding, solely for
investment, securities of any entity some of the activities of which constitute
a Competitive Business so long as such securities do not, in the aggregate,
constitute more than five percent (5%) of any class or series of outstanding
securities of such entity. For the purpose of this Agreement, "Person" shall
mean any individual, entity or group within meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(c) Notwithstanding the foregoing, if Xxxxxx shall fail to
make any payment due to the Executive under Section 6(c) which failure shall
continue for thirty (30) days after delivery to Xxxxxx of written notice of
non-payment, the restrictions set forth in subsection (a) above shall terminate.
10. Specific Remedies.
It is understood by the Executive and Xxxxxx that the
covenants contained in this Section 10 and Sections 7, 8 and 9 are essential
elements of this Agreement and that, but for the agreement of the Executive to
comply with such covenants, Xxxxxx would not have agreed to enter into this
Agreement. If the Executive commits a material breach of any of the provisions
of Sections 7, 8 or 9 hereof, which is not cured or rectified within the time
periods set forth in Section 5(a) above, such breach shall be grounds for
termination for Cause. In addition, the Executive acknowledges that Xxxxxx may
have no adequate remedy at law if he violates any of the terms thereof. The
Executive therefore understands and agrees that Xxxxxx shall have, without
prejudice as to any other remedies, the right upon application to any court of
proper jurisdiction and without posting of any bond or other security
whatsoever, to a temporary restraining order, preliminary injunction,
injunction, specific performance or other equitable relief, it being
acknowledged and agreed that any such breach will cause irreparable injury to
Xxxxxx and that money damages will not provide an adequate remedy to Xxxxxx. If
any provisions of Sections 7, 8 or 9 relating to the time period, scope of
activities or geographic area of restrictions is declared by a court of
competent jurisdiction to exceed the maximum permissible time period, scope of
activities or geographic area, the maximum time period, scope of activities or
geographic area, as the case may be, shall be reduced to the maximum which such
court deems enforceable. If any provisions of Sections 7, 8 or 9 other than
those described in the preceding sentence are adjudicated to be invalid or
unenforceable, the invalid or unenforceable provisions shall be deemed amended
(with respect only to the jurisdiction in which such adjudication is made) in
such manner as to render them enforceable and to effectuate as nearly as
possible the original intentions and agreement of the parties.
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11. Acknowledgments of the Executive and Xxxxxx.
(a) The Executive represents that (i) he has the right to
enter into this Agreement and this Agreement constitutes a valid and binding
obligation enforceable in accordance with its terms, except to the extent that
enforcement is limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity, (ii) his execution and delivery of this Agreement,
and the performance of his obligations hereunder are not in violation of, and do
not conflict with or constitute a default under any agreement by which he is
bound or any order, decree or judgment to which he is subject, and (iii) the
provisions of Section 7, 8 and 9 will not impose a hardship, financial or
otherwise, on the Executive nor prevent him from being gainfully employed.
(b) Xxxxxx represents that (i) it has all requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, (ii) the execution and delivery of this Agreement by Xxxxxx and the
performance by Xxxxxx of the transactions contemplated herein have been duly and
validly authorized by all necessary corporate action, (iii) this Agreement is a
legal, valid and binding obligation of Xxxxxx, except to the extent that
enforcement is limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity and (iv) the execution and delivery of this
Agreement by Xxxxxx and the performance of its obligations hereunder are not in
violation of, and do not conflict with or constitute a default under any
agreement by which Xxxxxx is bound or any order, decree or judgment to which
Xxxxxx is subject.
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12. Change of Control.
(a) If the Executive elects to terminate his employment
pursuant to Section 5(d)(iv), Xxxxxx shall pay the Executive the amounts
provided under Section 6(c) of this Agreement. Such amount shall be payable by
Xxxxxx to the Executive as provided in Section 6(c). The Executive shall be
responsible for payment of all income or excise taxes which may be imposed on
the Executive as a result of the characterization of any such payments by the
Internal Revenue Service upon audit of his tax returns as "excess parachute
payments," as such phrase is defined in Section 280G of the Code.
(b) For the purpose of this Agreement, a "Change of Control"
shall be deemed to have occurred if (i) any Person (other than (A) Xxxxxx or any
subsidiary, (B) any pension, profit sharing, employee stock ownership or other
employee benefit plan of Xxxxxx or any subsidiary or any trustee of or fiduciary
with respect to any such plan when acting in such capacity or (C) any Person who
is directly or indirectly controlled by Xxxxxx Xxxxxxx or the Executive) is or
becomes, after the date of this Agreement, the beneficial owner of 50.1% or more
of the total voting power of the voting securities of Xxxxxx, (ii) during any
period of up to two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of Xxxxxx and any new director whose
election or appointment by the Board of Directors of Xxxxxx or nomination or
recommendation for election by Xxxxxx'x stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof, or (iii) a merger or consolidation of Xxxxxx is consummated
with any other entity, (other than a merger or consolidation with an entity
which is directly or indirectly controlled by Xxxxxx Xxxxxxx or the Executive or
a merger for the purpose of changing Xxxxxx'x state of incorporation), or (iv)
the stockholders of Xxxxxx approve a plan of complete liquidation of Xxxxxx or
an agreement for the sale or disposition by Xxxxxx of all or a majority of
Xxxxxx'x operating assets.
13. Notices.
Any notice or other communications required or permitted hereunder shall be
in writing and shall be deemed effective (a) upon personal delivery, if
delivered by hand, (b) upon receipt of electronic confirmation, if sent by
facsimile transmission, (c) three (3) days after the date of deposit in the
mails, if mailed by certified or registered mail (return receipt requested), or
(c) on the next business day, if mailed by an overnight mail service to the
parties:
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if to Xxxxxx: if to the Executive:
------------ -------------------
Xxxxxx, Inc. Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000 Xxxxxxxxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxx Xxxxxx Facsimile: ___________________
Facsimile: (000) 000-0000
With a copy to: With a copy to:
Xxxx Xxxxxxx, P.C. Xxxxxxx X. Xxxxxxxxxx, Esq.
1350 Avenue of the Americas 00 Xxxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000-0000 Xxxxx Xxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq. Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address or facsimile number as either party may from time to
time specify to the other.
14. Miscellaneous.
(a) Successors; Binding Effect; Third Party Beneficiaries. In
the event of a future disposition by Xxxxxx (whether direct or indirect, by sale
of assets or stock, merger, consolidation or otherwise) of all or substantially
all of its business and/or assets, Xxxxxx will require any successor, by
agreement in form and substance reasonably satisfactory to the Executive or by
operation of law, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Xxxxxx would be required to perform if
no such disposition had taken place. As used in this Agreement, "Xxxxxx" shall
mean Xxxxxx as herein before defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
This Agreement is personal to the Executive and, without the
prior written consent of Xxxxxx, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution with respect to
the Executive's rights, if any, to be paid or receive benefits hereunder. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. Except for the foregoing, this Agreement shall not create
any rights in favor of any party other than the parties hereto or their
respective successors and assigns.
(b) Law Governing; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without giving effect to the principles of conflicts of law). Xxxxxx and the
Executive each agrees that the
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federal or state courts located in New York County, New York shall have
exclusive jurisdiction in connection with any dispute arising out of this
Agreement. Any litigation proceeding under this Agreement shall be confidential
in nature to the fullest extent permitted by applicable law.
(c) Severability. If any provision of this Agreement, or any
part of any of them, is hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the remainder of the covenants or
rights or remedies which shall be given full effect without regard to the
invalid portions. If any of the covenants set forth herein is held to be invalid
or unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and in its
reduced form said provision shall then be enforceable.
(d) Headings. The headings of this Agreement are for
convenience of reference only and shall not affect in any manner any of the
terms and conditions hereof.
(e) Acts and Documents. The parties agree to do, sign and
execute all acts, deeds, documents and corporate proceedings necessary or
desirable to give full force and effect to this Agreement.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
(g) Modifications and Waivers. No term, provision or condition
of this Agreement may be modified or discharged unless such modification or
discharge is authorized by the Board and is agreed to in writing and signed by
the Executive. No waiver by either party hereto of any breach by the other party
hereto of any term, provision or condition of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
(h) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter herein and
supersedes all prior agreements, negotiations and discussions between the
parties hereto, there being no extraneous agreements. This Agreement may be
amended only in writing executed by the parties hereto affected by such
amendment.
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35
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first set forth above.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
36
