1
EXHIBIT 10.18
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 7th day of August, 1998, between ICARUS
International, Inc., a Maryland corporation and ICARUS Corporation, a Maryland
Corporation (both companies referred to herein collectively as the "Corporation"
or "Employer"), and Xxxxxxxx X. Xxxxxxx (the "Counsel").
WITNESSETH
WHEREAS, the Counsel is presently the outside general counsel of the
Corporation; and
WHEREAS, the Employer has determined that in consideration of its growth
over the years, it has a need for a full time, in-house general counsel, and in
light of the Counsel's qualifications and experience, and in particular, the
Counsel's experience as counsel to the Corporation, desires to engage the
services of the Counsel as in-house general counsel in the business of the
Employer; and
WHEREAS, in order to induce the Counsel to enter into the employ of the
Employer and in consideration of the Counsel's agreement to remain in the employ
of the Employer pursuant to the terms and conditions hereof, the parties desire
to specify the terms and conditions of Counsel's employment with the Corporation
and to provide certain severance benefits which shall be due the Counsel in the
event that his employment with the Employer is terminated under specified
circumstances;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) AFFILIATES. "Affiliates" of the Corporation, or a person "affiliated"
with the Corporation, are any persons or entities which, directly or indirectly,
through one or more intermediaries, controls or are controlled by or are under
common control with, the persons or entities specified.
(b) AVERAGE ANNUAL COMPENSATION. The Counsel's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Counsel by the Employer or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination (or such shorter period as the Counsel was employed), including Base
Salary and bonuses or other compensation under any employee benefit plans of the
Employer.
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(c) BASE SALARY. "Base Salary" shall have the meaning set forth in Section
3(a) hereof.
(d) CAUSE. Termination of the Counsel's employment for "Cause" shall mean
termination because of willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order or material breach of any provision of
this Agreement. For purposes of this paragraph, no act or failure to act on the
Counsel's part shall be considered "willful" unless done, or omitted to be done,
by the Counsel not in good faith and without reasonable belief that the
Counsel's action or omission was in the best interest of the Employer. Cause
shall be determined in good faith by the affirmative vote of a majority of the
whole Board of Directors (excluding the Counsel) after the Counsel has been
provided the opportunity to make a presentation to the Board which presentation
to the Board may be with counsel.
(e) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under Exchange Act; provided that, without limitation, such a change in control
shall be deemed to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than the Counsel or the
Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) during any period of twenty
four consecutive months, individuals who, at the beginning of such period
constituted the Board of Directors of the Corporation, cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period.
(f) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Counsel's employment is terminated for Cause, Disability or for Retirement, the
date specified in the Notice of Termination, and (ii) if the Counsel's
employment is terminated for any other reason, the date on which a Notice of
Termination is given or as specified in such Notice.
(h) DISABILITY. Termination by the Employer of the Counsel's employment
based on "Disability" shall mean termination because of any physical or mental
impairment which qualifies the Counsel for disability benefits under the
applicable long-term disability plan maintained by the Employer or any
subsidiary or, if no such plan applies, which would qualify the Counsel for
disability benefits under the Federal Social Security System.
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(i) GOOD REASON. Termination by the Counsel of the Counsel's employment
for "Good Reason" shall mean termination by the Counsel following a Change in
Control of the Corporation based on:
(i) Without the Counsel's express written consent, the failure
to elect or to re-elect or to appoint or to re-appoint the
Counsel to the position of general counsel of the Employer
or a material adverse change made by the Employer in the
Counsel's functions, duties or responsibilities as general
counsel of the Employer;
(ii) Without the Counsel's express written consent, a material
reduction (i.e., 10% or more) by the Employer in the
Counsel's Base Salary as the same may be increased from time
to time or, except to the extent permitted by Section 3(b)
hereof, a material reduction in the package of fringe
benefits provided to the Counsel, taken as a whole;
(iii) Without the Counsel's express written consent, the Employer
requires the Counsel to work in an office which is more than
30 miles from the location of the Employer's current
principal executive office, or requires extensive travel on
business of the Employer to an extent substantially greater
than required prior to the Change in Control;
(iv) Any purported termination of the Counsel's employment for
Cause, Disability or Retirement which is not effected
pursuant to a Notice of Termination satisfying the
requirements of paragraph (k) below and Section 5 hereof; or
(v) The failure by the Employer to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 13 hereof.
(j) IRS. "IRS" shall mean the Internal Revenue Service.
(k) NOTICE OF TERMINATION. Any purported termination of the Counsel's
employment by the Employer for any reason, including without limitation for
Cause, Disability or Retirement, or by the Counsel for any reason, including
without limitation for Good Reason, shall be communicated by a written "Notice
of Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Counsel's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30)
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nor more than ninety (90) days after such Notice of Termination is given, except
in the case of the Employer's termination of Counsel's employment for Cause for
which the Date of Termination may be the date of the notice; and (iv) is given
in the manner specified in Section 14 hereof.
(l) RETIREMENT. "Retirement" shall mean voluntary termination by the
Counsel in accordance with the Employer's retirement policies, including early
retirement, generally applicable to the Employer's salaried employees.
(m) SUBSIDIARY. "Subsidiary" shall mean any subsidiary of the Corporation.
2. TERM OF EMPLOYMENT.
(a) The Employer hereby employs the Counsel as general counsel, and
Counsel hereby accepts said employment and agrees to render such
services to the Employer, on the terms and conditions set forth in this
Agreement. Unless extended as provided in this Section 2, this Agreement shall
terminate five (5) years after the date first above written; provided, however,
this Agreement shall be automatically renewed commencing on its third
anniversary date ("Annual Renewal Date") each year for one (1) additional year
so that this Agreement shall thereafter continue in effect for a period ending
three (3) years from each Annual Renewal Date unless either party shall give
written notice of non-renewal, in accordance with Section 14 hereof to the
other party at least thirty (30) days prior to an Annual Renewal Date, in which
event this Agreement shall continue in effect for a term ending on the fifth
consecutive Annual Renewal Date immediately following such notice. Reference
herein to the term of this Agreement shall refer both to the initial term and
any successive term as the context requires.
(b) During the term of this Agreement, the Counsel shall perform such
services for the Employer as is consistent with his title of general counsel and
as directed, from time to time, by the Board of Directors and/or the President
and Chief Executive Officer, including but not limited to, the supervision of
the Corporation's legal affairs. The Counsel shall devote his full time,
attention and energies to the business of the Corporation and shall not, during
the term hereof (as defined in Section 2(a)), be employed or involved in any
other business activity (excluding investment activities), whether or not such
activity is pursued for gain, profit or other pecuniary advantage, except for
(i) volunteer services for or on behalf of such religious, educational,
non-profit and/or other eleemosynary organization as Counsel may wish to serve,
and (ii) such other activities as may be specifically approved by
the Board of Directors (without the Counsel's participation or vote). This
restriction shall not, however, preclude the Counsel from employment in any
capacity with affiliates of the Corporation.
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(c) Employment of the Counsel shall commence upon effective date of this
Agreement, provided the Counsel shall be afforded ample opportunity to wind down
his private law practice and withdraw from his law firm in an orderly manner,
prior to commencing the performance of services at the offices of Employer; and
further provided that prior to the full time service at the Employer's offices,
legal services performed for the Company by Counsel shall be deemed to continue
to be provided in the capacity of outside general counsel for which the Company
shall be invoiced at the hourly rates presently charged by Counsel's law firm.
3. COMPENSATION AND BENEFITS.
(a) For services rendered hereunder by the Counsel, the Employer shall
compensate and pay Counsel for his services during the term of this
Agreement at a minimum base salary of two hundred dollars ($200,000.00) per
year ("Base Salary"), which may be increased from time to time in such amounts
as may be determined by the Board of Directors of the Employer. In addition to
his Base Salary, the Counsel shall receive such cash bonuses to be determined
by the Board of Directors (or the Compensation Committee thereof) and based
upon the Counsel's management of the Corporation's legal affairs. In addition
to any bonus paid or should the Board of Directors not provide any bonus to
Counsel for any year, the Counsel's Base Salary shall automatically be
increased by the amount of the prior year's increase in the "Consumer Price
Index for all Urban Consumers (1982-84=100), Washington, D.C. Area, All Items,"
as published by the United States Department of Labor, Bureau of Labor
Statistics (the "CPI").
(b) During the term of the Agreement, Counsel shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, the 401(k) plan, profit sharing, stock option, employee stock
ownership, or other plans, benefits and privileges given to employees and
executives of the Employer, to the extent commensurate with his then duties and
responsibilities, as fixed by the Board of Directors of the Employer. In
addition to his Base Salary, the Counsel shall receive an option to purchase
25,000 shares of the Employer's common stock, granted on the first date options
are granted to any other employee(s) of the Corporation, pursuant to the
Corporation's 1998 Stock Option Plan, with an exercise price equal to the lesser
of (i) the price per share in the Company's initial public offering of stock, or
(ii) the price per share of contained in options granted any other employee. The
Employer shall not make any changes in such plans, benefits or privileges which
would adversely affect Counsel's rights or benefits thereunder, unless such
change occurs pursuant to a program applicable to all executive officers of the
Employer and does not result in a proportionately greater adverse change in the
rights of or benefits to Counsel as compared with any other executive officer of
the Employer. Nothing paid to Counsel under any plan or arrangement presently in
effect or made available in the future shall be deemed to be in lieu of the Base
Salary payable to Counsel pursuant to Section 3(a) hereof.
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(c) During the term of this Agreement, Counsel shall be entitled to two
(2) weeks (10 working days) vacation during his first five years of
employment and, thereafter, to four (4) weeks (20 working days) paid vacation
in each calendar year to be taken and determined in accordance with the
vacation policies and procedures as established from time to time by the
Employer. Counsel shall also be entitled to all paid holidays to which
similarly situated key management employees of the Corporation are entitled.
The Counsel shall be entitled to paid leave due to physical illness in each
calendar year to be taken and determined in accordance with the policies and
procedures as established from time to time by the Board of Directors. Counsel
shall not be entitled to receive any additional compensation from the Employer
for failure to take a vacation, or failure to use "sick days," nor shall
Counsel be able to accumulate unused vacation or "sick" time from one year to
the next, except to the extent authorized by the Board of Directors of the
Employer.
(d) During the term of this Agreement, Counsel shall not be required to
work in an office which is more than thirty (30) miles from the Employer's
present headquarters at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX; nor shall Counsel be
required to travel extensively on the business of Employer.
(e) Employer shall obtain and pay for (i) appropriate professional
liability insurance coverage for Counsel, (ii) a professional liability "tail"
policy, to provide coverage of Counsel's prior acts with his prior law firm,
(iii) Counsel's continued Maryland and District of Columbia bar memberships,
federal court bar dues (if any), American, Maryland, District of Columbia and
Xxxxxxxxxx County Bar Association Dues/Fees, Commercial Law League Dues/Fees and
such other memberships as Counsel and Employer agree are relevant to Counsel's
services as general counsel; (iv) such subscriptions appropriate to Counsel's
services as general counsel; and (v) such other fees/cost appropriate to the
practice of law as general counsel and customarily provided for in-house general
counsel.
(f) Counsel shall be provided with legal secretarial and other support as
necessary to the performance of his services.
4. EXPENSES. The Employer shall reimburse Counsel or otherwise provide for
or pay for all reasonable expenses incurred by Counsel in furtherance of, or in
connection with the business of the Employer, including, but not by way of
limitation, traveling expenses, and all reasonable entertainment expenses
(whether incurred at the Counsel's residence, while traveling or otherwise),
subject to such reasonable documentation and other limitations as may be
established by the Board
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of Directors of the Employer. Employer shall reimburse Counsel for his
expenses incidental to his transition from his prior employment. If such
expenses are paid in the first instance by Counsel, the Employer shall
reimburse the Counsel therefor.
5. TERMINATION.
(a) The Employer shall have the right, at any time upon prior Notice of
Termination, to terminate the Counsel's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and Counsel shall have the right, upon prior Notice of Termination, to terminate
his employment hereunder for any reason.
(b) In the event that (i) Counsel's employment is terminated by the
Employer for Cause or (ii) Counsel terminates his employment hereunder other
than for Good Reason, Counsel shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination.
(c) In the event that (i) Counsel's employment is terminated by the
Employer for other than Cause, including termination due to Disability,
Retirement or the Counsel's death, or (ii) such employment is terminated by the
Counsel due to a material breach of this Agreement by the Employer, which breach
has not been cured within fifteen (15) days after a written notice of
non-compliance has been given by the Counsel to the Employer, then the Employer
shall, subject to the provisions of Section 6 hereof, if applicable,
(A) Pay to the Counsel, in a lump sum or in thirty-six (36) equal
monthly installments (at the Counsel's option) beginning with the first business
day of the month following the Date of Termination, a cash severance amount
equal to five (5) times the Counsel's Average Annual Compensation, provided,
however, that after five (5) years of continuous employment, the cash severance
herein specified shall be reduced to an amount equal to three (3) times the
Counsel's Average Annual Compensation, and
(B) Maintain and provide for a period ending at the earlier of (i)
the expiration of the remaining term of employment pursuant hereto prior to the
Notice of Termination or (ii) the date of the Counsel's full-time employment by
another employer (provided that the Counsel is entitled under the terms of such
employment to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Counsel, the Counsel's continued
participation in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and arrangements in which
the Counsel was entitled to participate immediately prior to the Date of
Termination (other than stock option and restricted stock plans of the
Employer), provided that in the event that the Counsel's participation in any
plan, program or arrangement as provided in this subparagraph (B) is barred or
during such period any such plan, program or arrangement is discontinued or the
benefits thereunder are materially reduced, the Employer shall arrange to
provide
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the Counsel with benefits substantially similar to those which the Counsel was
entitled to receive under such plans, programs and arrangements immediately
prior to the Date of Termination.
(d) In the event that Counsel's employment is terminated by the Counsel
for Good Reason subsequent to a Change in Control, then the Employer shall:
(A) Pay to the Counsel, in a lump sum payable within five business
days following the Date of Termination, a cash severance amount equal to five
(5) times the Counsel's Average Annual Compensation, and
(B) Maintain and provide for a period ending at the earlier of (i)
the expiration of the remaining term of employment pursuant hereof prior to the
Notice of Termination or (ii) the date of the Counsel's full-time employment by
another employer (provided that the Counsel is entitled under the terms of such
employment to benefits substantially similar to those described in this
subparagraph (B)), at no cost to the Counsel, the Counsel's continued
participation in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and arrangements in which
the Counsel was entitled to participate immediately prior to the Date of
Termination (other than stock option and restricted stock plans of Employer),
provided that in the event the Counsel's participation in any plan, program or
arrangement is discontinued or the benefit thereunder are materially reduced,
the Employer shall arrange to provide the Counsel with benefits substantially
similar to those which the Counsel was entitled to receive under such plans,
programs and arrangements immediately prior to the Date of Termination.
6. ADDITIONAL BENEFITS UNDER CERTAIN CIRCUMSTANCES.
(a) If the Counsel becomes liable, in any taxable year, for the repayment
of an excise tax under Section 4999 of the Code on account of any payments to
the Counsel pursuant to Section 5, and the Employer chooses not to contest the
liability or has exhausted all administrative and judicial appeals contesting
the liability, the Employer shall pay the Counsel (i) an amount equal to the
excise tax for which the Counsel is liable under Section 4999 of the Code, (ii)
the federal, state, and local income taxes, and interest if any, for which the
Counsel is liable on account of the payments pursuant to item (i), and (iii) any
additional excise tax under Section 4999 of the Code and any federal, state and
local income taxes for which the Counsel is liable on account of payments made
pursuant to items (i) and (ii).
(b) This Section 6(b) applies if the amount of payments to the Counsel
under Section 6(a) has not been determined with finality by the exhaustion of
administrative and judicial appeals. In such circumstances, the Employer and the
Counsel shall, as soon as practicable after the event or series of events have
occurred giving rise to the imposition of the excise tax, cooperate in
determining the amount of the Counsel's excise tax liability for purposes of
paying the estimated tax.
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The Counsel shall thereafter furnish to the Employer or its successors a copy of
each tax return which reflects a liability for an excise tax under Section 4999
of the Code at least thirty (30) days before the date on which such return is
required to be filed with the IRS. The liability reflected on such return shall
be dispositive for the purposes hereof unless, within twenty (20) days after
such notice is given, the Employer furnishes the Counsel with a letter of the
auditors or tax advisor selected by the Employer indicating a different
liability or that the matter is not free from doubt under the applicable laws
and regulations and that the Counsel may, in such auditor's or advisor's
opinion, cogently take a different position, which shall be set forth in the
letter with respect to the payments in question. Such letter shall be addressed
to the Counsel and state that he is entitled to rely thereon. If the Employer
furnishes such a letter to the Counsel, the position reflected in such letter
shall be dispositive for purposes of this Agreement, except as provided in
Section 6(c) below.
(c) Notwithstanding anything in this Agreement to the contrary, if the
Counsel's liability for the excise tax under Section 4999 of the Code for a
taxable year is subsequently determined to be less than the amount paid by the
Employer pursuant to Section 6(a), the Counsel shall repay the Employer at the
time that the amount of such excise tax liability is finally determined, the
portion of such income and excise tax payments attributable to the reduction
(plus interest on the amount of such repayment at the rate provided on Section
1274(b)(2)(B) of the Code) and if the Counsel's liability for the excise tax
under Section 4999 of the Code for a taxable year is subsequently determined to
exceed the amount paid by the Employer pursuant to Section 6(a), the Employer
shall make an additional payment of income and excise taxes in the amount of
such excess, as well as the amount of any penalty and interest assessed with
respect thereto at the time that the amount of such excess and any penalty and
interest is finally determined.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Counsel shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the Counsel
as a result of employment by another employer after the Date of Termination or
otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Counsel upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
8. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Counsel shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Employer may reasonably
determine should be withheld pursuant to any applicable law or regulation.
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9. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.
(a) The Counsel hereby acknowledges and recognizes the highly competitive
nature of the business of the Corporation and accordingly agrees that, during
the term of this Agreement and, in consideration of the receipt of all payment
due pursuant to this Agreement, for a period of two years following the date of
termination of the Counsel's employment under this Agreement, unless otherwise
agreed to in writing by the Corporation, the Counsel shall not, either directly
or indirectly, in any manner or capacity, whether as principal, agent, partner,
officer, director, employee, joint venturer, salesman, or corporate shareholder
or otherwise for the benefit of any Person (as defined below), (i) render
services to, or solicit the rendering of services to, any Person in competition
with the business of the Corporation, which then is, or at any time during a
period of one year prior to the termination of the Counsel's employment under
this Agreement (the "Termination Date"), was a Customer (as defined below) of
the Corporation, or (ii) solicit the rendering of services to any Person of any
kind whatsoever which is then or has been at any time during a period of one
year prior to the Termination Date a Customer, employee, salesperson, agent or
representative of the Corporation in any manner which interferes or might
interfere with the relationship of the Corporation with such Person, or in an
effort to obtain such Person as a customer, supplier, employee, salesperson,
agent or representative of any business in competition with the Corporation, or
(iii) for a period of two years following the Termination Date, hire or
participate in the hiring by any Person of an employee of the Corporation.
Nothing herein shall be deemed to preclude Counsel from returning to the private
practice of law subsequent to any such termination, and in such capacity
rendering legal services to any such Person, subject to paragraph 10 below.
"Person" means any individual, trust, partnership, corporation, limited
liability company, association, or other legal entity.
"Customer" means any Person with which the Corporation or any subsidiary
is currently engaged to provide goods or services, has been engaged to provide
goods or services within twelve (12) months prior to the Termination Date, or
actively marketed, discussed a project with, negotiated with, provided a bid to
or otherwise communicated with in an effort to obtain an engagement to provide
goods or services sold by the Corporation or any subsidiary within twelve (12)
months prior to the Termination Date.
(b) It is expressly understood and agreed that although the Counsel and
the Corporation consider the restrictions contained in Section 9(a) of this
Agreement reasonable for the purpose of preserving for the Corporation its good
will and other proprietary rights, if a final judicial determination is made by
a court having jurisdiction that the time or territory or any other restriction
contained in Section 9(a) of this Agreement is an unreasonable or otherwise
unenforceable restriction against the Counsel, the provisions of Section 9(a) of
this Agreement shall not be rendered void but
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shall be deemed amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or indicate to be
reasonable.
10. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Counsel acknowledges that
the Corporation's trade secrets, as they may exist from time to time, and
confidential information concerning its products, programs, technical
information, procurement and sales activities and procedures, identity of
customers and potential customers, business plans, promotion and pricing
techniques, and credit and financial data concerning customers are valuable,
special and unique assets of the Corporation. In light of the highly competitive
nature of the industry in which the Corporation's business is conducted, the
Counsel agrees that all knowledge and information described in the preceding
sentence not in the public domain and heretofore or in the future obtained by
the Counsel shall be considered confidential information. Counsel agrees that he
will not disclose any or such secrets, processes or information to any Person or
other entity for any reason or purpose whatsoever, except as necessary in the
performance of his duties as an employee of or consultant to the Corporation and
then only upon a written confidentiality agreement in such form and content as
requested by the Corporation from time to time, nor shall the Counsel make use
of any such secrets, processes or information (other than information in the
public domain) for his own purposes or for the benefit of himself, any Person or
other entity (except the Company and its subsidiaries) under any circumstances.
The provisions contained in this Section 10 shall also apply to information
obtained by the Counsel with respect to any future subsidiary of the
Corporation.
11. BUSINESS INFORMATION. Upon the termination of his employment with the
Corporation, Counsel (or, as appropriate, his personal representatives) shall
deliver to the Corporation (without retaining copies of the same), all plans,
source codes, designs, customer lists, correspondence, records, documents,
accounts and papers of any description and any other property of the Corporation
within the possession or under the control of Counsel (or, as appropriate, his
personal representatives) and relating to the affairs and business of the
Corporation, whether drafted, created or compiled by Counsel or received by
Counsel from other individuals or entities (whether employees of or affiliated
with the Corporation). The foregoing shall not apply to legal forms regardless
of how and when created by Counsel, subject to paragraph 10 above.
12. REMEDIES. The Counsel acknowledges and agrees that the Company's
remedy at law for a breach or threatened breach of any of the provisions of
Section 9, Section 10 or Section 11 of this Agreement would be inadequate and,
in recognition of this fact, in the event of a breach or threatened breach by
the Counsel of any of the provisions of Section 9, Section 10 or Section 11 of
this Agreement, it is agreed that, in addition to any remedy at law, the
Corporation shall be entitled to without posting any bond, and the Counsel
agrees not to oppose the Corporation's request in the nature of specific
performance, temporary restraining order, temporary or permanent injunction, or
any other equitable relief or remedy which may then be available, provided,
however, nothing herein shall be deemed to relieve the Corporation of its burden
to prove grounds warranting such relief nor
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preclude the Counsel from contesting such grounds or facts in support thereof.
Nothing herein contained shall be construed as prohibiting the Corporation form
pursuing any other remedies available to it for such breach or threatened
breach.
13. ASSIGNABILITY. The Employer shall assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation or other
entity with or into which the Employer may hereafter merge or consolidate or to
which the Employer may transfer all or substantially all of its assets, if in
any such case said corporation or other entity shall by operation of law or
expressly in writing assume all obligations of the Employer hereunder as fully
as if it had been originally made a party hereto, but may not otherwise assign
this Agreement or its rights and obligations hereunder. The Counsel may not
assign or transfer this Agreement or any rights or obligations hereunder.
14. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employer: Board of Directors
ICARUS International, Inc.
Xxx Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Chairman
With copies to: Xxxxxxx X. Xxxxxxx, Esq.
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
To the Counsel: Xxxxxxxx X. Xxxxxxx
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
15. AMENDMENT; WAIVER. This Agreement represents the entire agreement of
the parties relating to subject matter hereof. No provisions of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Counsel and such officer or
officers as may be specifically designated by the Board of Directors of the
Employer to sign on its behalf. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be
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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.
16. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Maryland.
17. NATURE OF OBLIGATIONS. The obligations of the Employer hereunder are
unsecured and the Counsel represents a general creditor of the Corporation for
compensation which may be due and owing. Nothing contained herein shall create
or require the Employer to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Counsel acquires a right to
receive benefits from the Employer hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employer.
18. INTERPRETATION AND HEADINGS. This Agreement shall be interpreted in
order to achieve the purposes for which it was entered into. The section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
19. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. With
respect to Section 9 of this Agreement, in the event any court of competent
jurisdiction determines that such provisions are unreasonable or contrary to law
with respect to their time or geographic restriction, or both, the parties
hereto authorize such court to substitute restrictions as it deems appropriate
without invalidating such paragraph or this Agreement.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: ICARUS INTERNATIONAL, INC.
-------------------------- By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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ICARUS CORPORATION
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
COUNSEL
By:
----------------------------------
Xxxxxxxx X. Xxxxxxx
