AGREEMENT
EXHIBIT 10.20
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 Xxxx X.
Xxxxx (“Xxxxx”)
is hereby entered into and effective as of December 18, 2008.
RECITALS
WHEREAS,
the Company wishes to engage the services of Xxxxx, from the date hereof through
and including February 28, 2009, to render consultation and advisory services
with respect to the business and operations of the Company, pursuant to the
terms and conditions set forth herein; and
WHEREAS,
the Company wishes to employ Xxxxx, from March 1, 2009 through the Employment
Term (as defined below), as its Chief Commercial Officer, and Executive Vice
President of Sales and Marketing, and Xxxxx wishes to be employed by the Company
in such capacities, 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. Consulting
Arrangement. The Company hereby engages Xxxxx’x services to
render consultation and advisory services with respect to the business and
operations of the Company, on the following conditions (the “Consulting
Arrangement”):
(a) Term. Subject to
Section 1(g) below, the term of the Consulting Arrangement shall commence on the
date hereof and continue through and including February 28, 2009, subject to
earlier termination as provided herein (the “Consulting
Term”).
(b) Consulting Fee. In
consideration of Xxxxx’x agreement to provide the Consulting Services (as
defined below), the Company shall pay to Xxxxx during the Consulting Term
$10,349.46 for the partial month of December 2008 and thereafter $22,916.66 per
whole month (the “Consulting Fee”). The
Consulting Fee shall be paid ratably until the end of the Consulting Term at
such times as the Company makes payroll payments to its employees.
(c) Equity. Upon the
execution of this Agreement (the “Date of Grant”), the
Company shall issue to Xxxxx options to purchase 250,000 shares of the Company’s
common stock (the “Options”) under the
Company’s 2007 Equity Incentive Plan (the “Incentive Plan”). The
Options will (1) bear an exercise price per share equal to 100% of the closing
price of the underlying shares on the Date of Grant, (2) be exercisable for a
period of 7 years from the Date of Grant, (3) provide for vesting of 100,000
shares on the one year anniversary of the Date of Grant, 100,000 shares on the
two year anniversary of the Date of Grant and 50,000 shares on the three year
anniversary of the Date of Grant, (4) immediately vest in full, to the extent
unvested, and be fully exercisable, upon any termination of Xxxxx by the Company
without cause or by Executive for Good Reason (as defined in Section 5(d)
hereof), (5) be subject to termination and
other
provisions as set forth in the Stock Option Agreement setting forth the terms of
the Options, attached hereto as Exhibit A, and (6) otherwise have such other
terms and conditions that are no less favorable to Xxxxx than the terms and
conditions applicable to stock options granted at or about the same time to
other consultants and senior executives of the Company. Notwithstanding the
foregoing, the grant of the Options shall be subject to the Company
obtaining the approval of its stockholders, at a special meeting of stockholders
to be held on or about December 23, 2008, to increase the number of shares
available under the Incentive Plan to 2,300,000, and the Options shall be
terminated and of no force and effect in the event of the Company’s failure to
so obtain stockholder approval.
(d) Expenses. In
connection with the performance of Consulting Services, the Company shall
reimburse Xxxxx for all reasonable and necessary business expenses that have
been approved in advance by the Company in writing, including without limitation
the sum of $5,000.00 for legal expenses, reimbursable to Xxxxx upon execution of
this Agreement. In connection with such expenses (other than the legal
expenses), Xxxxx shall submit documentation substantiating such expenses, e.g.,
receipts, and shall be reimbursed within fifteen (15) business days of the
Company’s receipt of an invoice together with such substantiating
documentation.
(e) Services. Xxxxx
shall report to the Board of Directors of the Company (the “Board”) or the Chief
Executive Officer of the Company, and shall furnish such consulting services and
perform such duties concerning the business and operations of the Company as are
set forth on Schedule A hereto, as well as such related duties as the Chief
Executive Officer of the Company, or his designees, may from time to time direct
(collectively, the “Consulting
Services”). Xxxxx shall perform the Services in a diligent, prudent and
professional manner.
(f) Independent
Contractor. During the Consulting Term, Xxxxx shall serve as
an independent contractor of the Company in providing the Consulting Services,
and shall be responsible for payment of all taxes on the payment of the
Consulting Fee to him hereunder without deduction for tax withholding. The
Company shall not provide Xxxxx with, nor shall Xxxxx be entitled to, any
benefits of employment, including, without limitation, health insurance, medical
insurance, life insurance, disability insurance or unemployment or workmen’s
compensation insurance. During the Consulting Term, this agreement shall not be
construed to create between the Company, on the one hand, and Xxxxx, on the
other hand, a relationship of principal or agent, joint venturers, co partners
or employer and employee, the existence of which is hereby expressly denied by
the Company and Xxxxx. During the Consulting Term, Xxxxx is not and shall not be
an agent of the Company for any purpose whatsoever and shall have no right or
authority to bind the Company or create any obligations, express or implied, on
behalf of or in the name of the Company, unless expressly authorized in writing
to do so.
(g) Extension of Consulting
Term. The Company shall have the absolute right and
discretion, notwithstanding anything to the contrary in the remainder of this
Agreement, to elect to continue the Consulting Term through December 31, 2009
upon the same terms set forth above in this Section 1 and not to employ Xxxxx
pursuant to Section 2. In the event of such election, the Company shall give
Xxxxx written notice thereof at least fifteen (15) days prior to the end of the
Consulting Term and the employment provisions herein shall have no force and
effect.
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(h) Option to Terminate
Services. In the event the Company does not enter into a
mutually acceptable indemnification agreement with Xxxxx pursuant to Section
1(i) below prior to the end of the Consulting Term, Xxxxx shall have the option,
in his absolute right and discretion, to terminate his Consulting Services as of
the end of the Consulting Term (subject to Section 1(g) above) and the
employment provisions herein shall have no force and effect.
(i) Indemnification. Prior
to the end of the Consulting Term, the Board shall consider whether to cause the
Company to enter into an indemnification agreement with Xxxxx that would provide
for indemnification rights to Xxxxx separate and distinct from the
indemnification rights that would be provided to Xxxxx pursuant to the Company’s
By-Laws in effect from time to time. Nothing in this Section 1(i) shall be
deemed to require the Company to enter into any such agreement with Xxxxx or
otherwise to provide indemnification rights to Xxxxx that are different from the
other officers of the Company.
2. Employment and
Duties.
(a) During
the Employment Term (as defined below), the Company shall employ Xxxxx in the
positions of Chief Commercial Officer and Executive Vice President of Sales and
Marketing of the Company (and such other positions consistent with his status as
the Chief Commercial Officer and Executive Vice President of Sales and Marketing
of the Company as shall be reasonably assigned to Xxxxx by the Company’s Chief
Executive Officer or Board). Xxxxx shall report to the Chief Executive Officer
of the Company. Xxxxx shall have all of the normal and customary
responsibilities, duties and authorities customarily accorded to, and expected
of, such positions, including those as may be 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 Xxxxx’x positions and
duties hereunder or with those customarily accorded to, and expected of, a chief
commercial or sales and marketing officer of a company similar to the
Company.
(b) Xxxxx
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. Xxxxx 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 Xxxxx hereunder nor violate the terms of Section 4 hereof,
Xxxxx 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 Xxxxx shall not in
any event own more than 2% of the issued and outstanding securities of any such
publicly traded company; and (ii) continue to serve as a member of the Board of
Directors of Sonim Technologies, Inc. and VNL (Vihaan Networks Limited), and
serve on any committee thereof.
(c) During
the Employment Term, the Company shall provide to Xxxxx offices in the City of
New York, County of New York for the performance of his employment services
hereunder. The Company may, from time to time, require Xxxxx 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) Xxxxx
faithfully shall adhere to, execute and fulfill all policies lawfully
established by the Chief Executive Officer and the Board acting in good
faith.
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3. Compensation. For
all employment services rendered by Xxxxx in any capacity required hereunder,
the Company shall compensate Xxxxx as follows:
(a) Base
Salary. During the Initial Employment Term (as defined in
Section 4 hereof), Xxxxx shall be paid a base salary at a rate of $275,000 per
year (or pro-rated amount for any partial year during the Initial Employment
Term) (the “Base
Salary”), payable on a regular basis in accordance with the Company’s
standard payroll procedures, but not less frequently than monthly. For each
successive Renewal Employment Term (as defined in Section 5 hereof), the Base
Salary shall be reviewed by the Board or the
compensation committee thereof (the “Compensation
Committee”) after consultation with
Xxxxx and may be increased (but not decreased), as determined in good faith
relying in part on such consultation, by the Board or the Compensation
Committee.
(b) Equity Incentive
Compensation. The Company may at any time and from time to
time in its sole discretion consider Xxxxx 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, Xxxxx 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 Xxxxx shall not be compensated for any
unused Annual Vacation Days or Carryforward Vacation Days (as defined below)
upon termination of this Agreement or Xxxxx’x employment by the Company. Xxxxx
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 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”). Xxxxx 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, Xxxxx
shall be eligible to receive a fiscal year end 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 December 2008, but only after consultation
with Xxxxx, 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 Xxxxx 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, prior to Xxxxx’x commencement of employment.
The Company shall review Xxxxx’x performance and the
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Bonus for
fiscal 2009 promptly after June 30, 2009, which shall include consultation with
Xxxxx, 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 Xxxxx 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
executives of the Company generally, and shall be paid pro rata for partial
fiscal years.
(e) Benefits and Other
Compensation. During the Employment Term, Xxxxx shall be
entitled to receive additional benefits and compensation from the Company in
such form and to such extent as specified below:
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(i)
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The
Company shall include Xxxxx 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 Xxxxx 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 Xxxxx for a period of 5 years following the date
of termination.
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(iii)
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An
automobile allowance of $600.00 per month during the Employment
Term.
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(f) Payment. Except as
otherwise provided herein, payment of all compensation and benefits to Xxxxx
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 Xxxxx shall cease to be employed by
the Company for any reason, Xxxxx’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) Xxxxx
shall not, without the prior consent of the Board, during any Consulting Term or
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:
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(i)
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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 Xxxxx’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;
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(ii)
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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 Xxxxx or any other Person; provided, however,
that this Section 4(a)(ii) shall not apply to any person who independently
contacts Xxxxx during the Applicable Period in response to a general
solicitation by a person or entity with which Xxxxx is affiliated
published in a newspaper, website or other publication of general
circulation that is not specifically targeted at the Company’s employees;
or
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(iii)
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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 in competition
with the Company.
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For the
purposes of this Agreement the term “Applicable Period”
shall mean twelve (12) months from the later of the (A) date Xxxxx ceases to be
a consultant to the Company and (B) the date Xxxxx ceases to be an employee of
the Company, in either case 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, Xxxxx 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 Xxxxx in light of the activities, business and plans of
the Company on the date of the execution of this Agreement, and Xxxxx’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
Xxxxx 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.
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(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 Xxxxx 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 Severance (as defined in Section 5(e) hereof) and
the Company’s breach of such obligation is a result of circumstances other than
Xxxxx’x breach of Section 4 or Section 7 hereof.
(f) Notwithstanding
any of the foregoing, if any applicable law shall reduce the time period or
scope during which Xxxxx shall be prohibited from engaging in any competitive
activity described in Section 4(a) hereof, the period of time or scope for which
Xxxxx 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. Subject to Section 1(g) hereof, the term of
employment under this Agreement shall begin on March 1, 2009 and shall continue
until December 31, 2011 (the “Initial Employment
Term”) and, unless terminated as herein provided, 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
Xxxxx 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 Xxxxx’x consultancy or employment, as the case may
be, may be terminated in any one of the following ways:
(a) Death. Xxxxx’x
employment hereunder shall immediately terminate upon his death, and the Company
shall pay to Xxxxx’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 Xxxxx’x incapacity due to physical or mental illness, Xxxxx 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, Xxxxx’x employment under this Agreement may be terminated by the Company
upon ten (10) days written notice if Xxxxx is unable to resume his full time
duties at the conclusion of such notice period. Xxxxx’x compensation
during any period of disability prior to the effective date of
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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 Xxxxx under any Company disability program. Xxxxx 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.
(c) Termination by
Company.
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(i)
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For
Cause. The Company may terminate this Agreement
immediately upon written notice to Xxxxx for cause, which shall mean: (1)
Xxxxx’x willful misconduct or gross negligence in the performance or
nonperformance of any of Xxxxx’x material duties and responsibilities
hereunder; (2) Xxxxx’x continued and willful refusal promptly to follow
any lawful direction of the Chief Executive Officer or the Board, provided
that if Xxxxx 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 Xxxxx 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, Xxxxx shall promptly follow and comply
with such lawful direction of the Chief Executive Officer or the Board, as
the case may be; (3) Xxxxx’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)
Xxxxx’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)
Xxxxx’x conviction of or plea of nolo contendere to a
felony or other crime involving moral turpitude; (6) Xxxxx’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 Xxxxx or is incapable of cure;
or (7) any other willful and material breach by Xxxxx of this Agreement
that is not cured within ten (10) days of written notice to Xxxxx 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 Xxxxx
or to provide any other benefits to him hereunder except for any
Consulting Fee or Base Salary, as applicable, reimbursement or other
benefits that have accrued or vested but not been paid as of the effective
date of such termination.
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(ii)
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Without Cause. The
Company may at any time during any Employment Term terminate this
Agreement, if such termination is approved by the Board. In the 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 Xxxxx in good faith wishes to renew such Employment Term, the
Company’s obligations hereunder shall be as follows: (1) paying Severance
to Xxxxx 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
Xxxxx’x performance to date against the Company’s goal(s) to date); and (3) providing to Xxxxx 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
Xxxxx’x employment not have terminated hereunder. The Company’s obligation to pay the amount
referred to in subsection 5(c)(ii)(1) shall be subject to Xxxxx’x duty to mitigate his
damages following the date on which this Agreement is terminated in
accordance with this subsection 5(c)(ii); provided, however, that the duty
to mitigate shall not require Xxxxx to accept a position at lesser
annual compensation if the lesser annual compensation would be less
than 90% of Xxxxx’x annual salary at the time of termination, or that requires Xxxxx to relocate his primary residence. 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 Xxxxx hereunder shall be inclusive of all statutory or
other legal severance entitlements of
Xxxxx.
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(d) Termination by
Xxxxx. Xxxxx may at any time during the Employment Term
terminate his employment hereunder (i) upon One Hundred Twenty (120) days prior
written notice to the Company for any reason other than for Good Reason or (ii)
for Good Reason. For purposes of this Agreement, “Good Reason” means
the occurrence of any one or more of the following events unless Xxxxx
specifically agrees in writing by the Company and Xxxxx 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
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Good
Reason unless Xxxxx 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 Xxxxx 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); or (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. 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, any change in reporting relationship, in each case from that
specifically described in this Agreement, relocation of Xxxxx’x place of
employment to a location more than 50 miles from his then current residence or
the termination of employment of Xxxx Xxxxx for any reason. Termination of
Xxxxx’x Consulting Services pursuant to Section 1(h) shall not be considered
termination by Xxxxx for Good Reason and Xxxxx shall not be entitled to any
Severance upon such a termination.
(e) Severance. If
Xxxxx’x employment is terminated by the Company pursuant to Section 5(c)(ii) or
by Xxxxx for Good Reason, the Company shall continue to pay Xxxxx his then
current Base Salary (the “Severance”) for a
period of twelve (12) months (the “Severance Period”);
provided that the payment to Xxxxx of the Severance shall be subject to Xxxxx’x
execution of a release, whereby Xxxxx 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 Xxxxx’x employment and/or
termination (but excluding any claims or rights relating to the Company's
obligations (i) to pay Xxxxx Severance 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 Xxxxx (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 Xxxxx’x termination of employment for Cause, circumstances
arise or are discovered pursuant to which Xxxxx 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 Xxxxx 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 Xxxxx executes a Release in accordance with this Section 5(e), the
Company shall execute a release, whereby the Company releases Xxxxx from all
statutory and other claims or rights that the Company may have against Xxxxx;
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 Xxxxx’x termination of employment circumstances arise or are
discovered with respect to Xxxxx 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,
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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 Xxxxx 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 Xxxxx’x “separation from service” (as
such term is defined under Section 409A) or (ii) the date of Xxxxx’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 Xxxxx 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 Xxxxx that would not be required to
be delayed if the premiums therefore were paid by Xxxxx, he will pay the full
cost of premiums for such welfare benefits during the Delay Period and the
Company will pay Xxxxx an amount equal to the amount of such premiums paid by
Xxxxx during the Delay Period promptly after its conclusion.
6. Inventions. Xxxxx
shall disclose promptly to the Company any and all significant conceptions and
ideas for inventions, improvements and valuable discoveries, whether patentable
or not, that have been conceived or made prior to
the date hereof or that are conceived or made by Xxxxx following the date hereof, solely or jointly with
another, during any Consulting Term or
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. Xxxxx 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 Xxxxx hereby expressly waives any and all moral rights he may
have in or in relation to such intellectual
property. Xxxxx 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. Xxxxx 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. Xxxxx 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, Xxxxx 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,
11
trademarks,
copyrights and any other proprietary rights arising therefrom. Xxxxx
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 Xxxxx for the materials and the contributions he will make to
the development of any such information or materials. Xxxxx 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. Xxxxx 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. Xxxxx 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:
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·
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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;
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·
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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
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·
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All
information derived from such Confidential
Information.
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Confidential
Information shall not include information and materials that are (i) already, or
otherwise become, known by, or generally available to, Xxxxx or the public,
other than as a result of an act or omission by Xxxxx in breach of the
provisions of this Agreement or any other applicable agreement between Xxxxx and
the Company or by another party in violation of an obligation of confidentiality
to the Company; (ii) required to be disclosed for Xxxxx not to be in
violation of any applicable law or regulation; (iii) required to be
disclosed by Xxxxx in connection with the enforcement of any of his rights under
this Agreement or any other agreements between Xxxxx 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, Xxxxx 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.
12
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
Xxxxx’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, Xxxxx 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. Xxxxx 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, Xxxxx agrees to indemnify 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 Xxxxx 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) Xxxxx 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 Xxxxx. 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. Xxxxx understands that
he has been selected by the Company on the basis of his personal qualifications,
experience and skills. Xxxxx agrees, therefore, that he cannot assign
all or any portion of his performance obligations under this
Agreement.
13
12. Complete
Agreement. Xxxxx 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,
the Schedule and the Exhibit hereto. This written Agreement, the Schedule and
Exhibit hereto are the final, complete and exclusive statement and expression of
the agreement between the Company and Xxxxx regarding the subject matter
contained herein and therein and of all the terms of this Agreement, the
Schedule and the Exhibit, 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:
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(i)
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delivered personally to Xxxxx or, in the case of
the Company, to the address and person noted
below,
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|
(ii)
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sent to the party entitled to receive it by
registered mail, postage prepaid, mailed in the United States,
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(iii)
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sent by facsimile
machine.
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(b) Notices shall be sent to the following addresses or
facsimile numbers:
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(i)
|
in the case of
Xxxxx,
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Xxxx X.
Xxxxx
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
Facsimile: (000)
000-0000
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(ii)
|
in the case of the
Company,
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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
14
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:
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(i)
|
if delivered as aforesaid, be deemed to have been
given, sent, delivered and received on the date of
delivery;
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(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
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(iii)
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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.
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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 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. Xxxxx 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 Xxxxx 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 Xxxxx 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
00
Xxxxxx
Xxxxxx Xxxxxxxx Xxxxx 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 Xxxxx 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. The losing party shall pay the attorneys’ fees,
expenses and costs of the prevailing party in any litigation
hereunder.
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 Xxxxx 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 Xxxxx 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.
20. XXXXX
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. XXXXX 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. XXXXX 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;
16
(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. The losing party
shall also pay the Arbitrator’s fees and expenses. In the event there
are multiple issues presented, the Arbitrator shall reasonably allocate the
aforesaid costs between the parties.
[SIGNATURES
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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COMPANY:
By:
/s/ Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title: President
and Chief Executive Officer
XXXXX:
/s/ Xxxx
Xxxxx
XXXX
X. XXXXX
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18
SCHEDULE
A
SERVICES
The
position of Chief Commercial Officer reports to the President and CEO and has
worldwide accountability for leading and managing the external facing functions
of the company Sales, Sales Support, Channel Programs, Strategic Alliances and
those activities related to the 4 Ps Branding, Advertizing, Public Relations,
Analyst Relations, Product Marketing, Events/Campaigns, Sponsorship and
Website. The CCO will be a key member of the Executive Officer team
supporting the President in the mission to lift Medis Technologies to the next
level of commercial maturity and create a great company to work for that
generates above average return to employees and shareholders.
Priority
Deliverables
Sales
Programs Major
customer account plans
Develop
On-line sales channels
Create
Sales Channel Partners Program
Generate
Retail Sales leads
Seek OEM
Partner/License Opportunities
Marketing
Programs Customer
segmentation model
Product
Development/Market Requirements Feedback Process
End User
Market Research
Active
Analyst Outreach
Pricing
Strategy
Packaging
e-commerce
portal
Sales
Support
Tools Sales
forecasting process
Sales
support programs and tools
Establish
Key Deal Review Process
Marcom
Advertizing Program
Point of
Sale Promotion
Events
and Sponsorships
Public
Relations Strategy
Product
Branding and Naming Architecture
Web site
refresh
Search
Marketing
Brand
Strategy and Positioning
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EXHIBIT
A
OPTION
AGREEMENT
20
