EXHIBIT 10.8
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is
made effective as of the 20th day of June, 2003 by and between Xxxxxx Xxxx, a
resident of New York (the "Employee"), and Orbit/FR, Inc., a Delaware
corporation (the "Company").
WHEREAS, Employee has been employed by the Company as its CEO and President
since October 2001 pursuant to an Executive Employment Agreement between the
Company and the Employee dated as of October 15, 2001 (the "Original
Agreement"); and
WHEREAS, the Company and Employee desire to amend and restate the Original
Agreement to reflect certain agreed upon changes to the Employee's
compensation..
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and intending to be legally bound, the parties, subject to the
terms and conditions set forth herein, agree to amend and restate the Original
Agreement to read in its entirety as follows:
1. Employment and Term. The Company hereby employs Employee, and Employee
hereby accepts employment with the Company, as President and CEO (the
"Position") for a period (the "Term") commencing on the date hereof and
continuing until terminated pursuant to the provisions of Section 8 hereof.
2. Duties. During the Term, Employee shall serve the Company faithfully
and to the best of his ability and shall devote his full time, attention, skill
and efforts to the performance of the duties required by or appropriate for the
Position. Employee will be reporting directly to the company's Chairman, Vice
Chairman and Board of Directors.
3. Other Business Activities. During the Term, Employee will not, without
the prior written consent of the Board of Directors of the Company in its sole
discretion, directly or indirectly engage in any other business activities or
pursuits whatsoever, except activities in connection with charitable or civic
activities, personal investments and serving as an executor, trustee or in other
similar fiduciary capacity; provided, that such activities do not interfere with
his performance of his responsibilities and obligations pursuant to this
Agreement.
4. Compensation. The Company shall pay Employee, and Employee hereby
agrees to accept, as compensation for all services rendered hereunder and for
Employee's covenants provided for in Sections 5, 6 and 7 hereof, the
compensation set forth in this Section 4.
4.1. Base Salary. The Company shall pay Employee a base salary at the annual
rate of One Hundred Fifty thousand dollars ($150,000) (the "Base Salary"). The
Base Salary shall be inclusive of all applicable income and other taxes and
charges that are required by law to be withheld by the Company, are requested to
be withheld by Employee, and shall be withheld and paid in accordance with the
Company's normal payroll practice for its similarly situated employees from time
to time in effect. Upon commencement of Employee's employment hereunder,
Employee shall be entitled to a special payment in an amount equal $6,667.
4.2. Bonus Program. Employee may be entitled to an annual bonus (the "Bonus")
based upon the achievement (during any calendar year) of such written individual
and corporate annual objectives (the "Objectives") as the Board of Directors may
from time to time establish. Employee acknowledges that such Objectives may be
amended from time to time without Employee's consent. Employee further
acknowledges that any Bonus shall be deemed earned on the last day of the
applicable calendar year and shall be payable to Employee by the end of the
first quarter of the following calendar year, except as expressly otherwise set
forth in Section 8 hereof in connection with a pro-rata payment upon
termination. Without limiting the generality of the foregoing, Employee shall be
entitled to (a) a Bonus in the amount of $15,000 on account of calendar year
2002, and (b) a Bonus on account of calendar year 2003 in the amount of (i) 0.5%
of the amount of the Net Operating Profit Improvement (defined below) up to an
aggregate of $1 million Net Operating Profit Improvement, plus (ii) 2% of the
amount of Net Operating Profit Improvement in excess of $1 million and up to
$1.5 million, plus (iii) 2.5% of the amount of Net Operating Profit Improvement
in excess of $1.5 million and up to $2 million, plus (iv) 4% of the amount of
Net Operating Profit Improvement in excess of $2 million. The term "Net
Operating Profit Improvement" means the amount by which the Company's net
operating profits in calendar year 2003 improved relative to the Company's net
operating profits in 2002. For clarification purposes, a reduction in net
operating losses shall also be considered a Net Operating Profit Improvement.
4.3. Fringe Benefits. Employee shall be entitled to participate in any
health, life and disability insurance, 401(k) and other fringe benefit programs
(collectively the "Benefits") of the Company to the extent and on substantially
similar terms and conditions as are accorded to other executives of the Company
and its affiliates (the "Orbit Group"). Provided, that Employee may, subject to
applicable laws, waive in writing participation in the Company's health
insurance plan and receive, in lieu thereof, an additional compensation at an
annual rate of $10,000 (inclusive of all applicable income and other taxes)
payable ratably along with each Base Salary payment.
4.4. Reimbursement of Expenses. Employee shall be reimbursed for all normal
items of travel and entertainment and miscellaneous expenses reasonably incurred
by him on behalf of Company, provided that such expenses are documented and
submitted to the Company all in accordance with the reimbursement policies of
the Company as in effect from time to time.
4.5. Stock Options. Subject to approval by the Company's Board of Directors,
Employee shall be granted stock options (the "Options") for 60,000 shares of the
Company's common stock. The Options shall vest in three (3) equal annual
installments, commencing on the first anniversary hereof, and shall otherwise be
subject to all of the terms and conditions of the Company's Employee Stock
Option Plan. Provided, that the award of the Options shall provide for an
acceleration of vesting upon a change in control (i.e. a change of more than 50%
of the beneficial ownership of the Company's capital stock). The Company shall
consider whether to grant Employee additional Options in June 2003.
4.6. Use of Company Car. The Company shall make available to the Employee a
car of a standard suitable for his position owned or leased by the Company for
the Employee's business and reasonable personal use during the Term. The Company
shall be responsible for the cost of insurance and maintenance for the vehicle.
The Employee shall be responsible for overseeing the proper maintenance of the
vehicle. Employee shall be solely responsible, and shall indemnify the Company,
for the payment of any fines, costs or expenses incurred in connection with
moving or parking violations (the "Violations") involving the vehicle, other
than Violations that occurred while the vehicle was under the control of an
employee of the Company (other than Employee) for business purposes only.
4.7 M&A. In the event of a Change in Control (defined below) of the Company
during the term hereof, Employee shall be entitled to a special compensation in
an amount equal to five percent (5%) of an amount equal to (i) the aggregate
value of consideration paid in the Change in Control to the Company (in the case
of an asset sale) or its shareholders (in the case of a merger or a stock sale)
(the "Purchase Price"), minus (ii) [$3,000,000] (the "Base Value"). The term
"Change in Control" means a change in the majority ownership of the Company, or
of substantially all of its business, as a result of a bona-fide acquisition by
a third party, and expressly excluding a reorganization involving the Company
and its controlling shareholder. In the event of a sale (the "Partial Business
Sale") of one or more of the Company's business units (the "Sold BU") to a third
party in a bona-fide sale which does not constitute a Change in Control,
Employee shall be entitled to a special compensation in an amount equal to five
percent (5%) of an amount equal to (x) the aggregate value of consideration paid
to the Company in the Partial Business Sale, minus (y) the Relative Base Value.
The term "Relative Base Value" means a percentage of the Base Value equal to the
percentage of the gross revenues of the Sold BU relative to the gross revenues
of the Company during the twelve months immediately preceding the effective date
of the Partial Business Sale.
5. Confidentiality.
5.1. Employee recognizes and acknowledges that he will obtain Proprietary
Information (as hereinafter defined) of the Company and other Orbit Group
entities in the course of his employment as an executive employee of the
Company. Employee further recognizes and acknowledges that the Proprietary
Information is a valuable, special and unique asset of the Company and the Orbit
Group. As a result, Employee shall not, without the prior written consent of the
Company, for any reason either directly or indirectly divulge to any third-party
or use for his own benefit, or for any purpose other than the
exclusive benefit of the Company, any confidential, proprietary, business and
technical information or trade secrets (the "Proprietary Information") of the
Company or any other Orbit Group entity revealed, obtained or developed in the
course of his employment with the Company. Proprietary Information shall
include, but shall not be limited to, any information relating to methods of
production, manufacture and research; computer hardware and software
configurations, computer inputs and outputs (regardless of the media on which
stored or located) and computer processing systems, techniques, designs,
architecture, and interfaces; the identities of, the relationship with, the
terms of contracts and agreements with, the needs and requirements of, and the
course of dealing with, the respective Orbit Group entities' actual and
prospective customers, contractors and suppliers; and any other materials
prepared by Employee in the course of his employment by the Company, or prepared
by any other employee or contractor of the Orbit Group for the Orbit Group's
customers, (including concepts, layouts, flow charts, specifications, know-how,
plans, sketches, blueprints, costs, business studies, business procedures,
finances, marketing data, methods, plans, personnel information, customer and
vendor credit information and any other materials that have not been made
available to the general public). Nothing contained herein shall restrict
Employee's ability to make such disclosures during the course of the employment
as may be necessary or appropriate to the effective and efficient discharge of
the duties required by or appropriate for the Position or as such disclosures
may be required by law. Furthermore, nothing contained herein shall restrict
Employee from divulging or using for his own benefit or for any other purpose
any Proprietary Information that is readily available to the general public so
long as such information did not become available to the general public as a
direct or indirect result of Employee's breach of this Section 5. Failure by the
Company (or any other Orbit Group entity) to xxxx any of the Proprietary
Information as confidential or proprietary shall not affect its status as
Proprietary Information under the terms of this Agreement.
5.2. All right, title and interest in and to Proprietary Information shall be
and remain the sole and exclusive property of the respective Orbit Group entity.
During the Term, Employee shall not remove from the Company's offices or
premises any documents, records, notebooks, files, correspondence, reports,
memoranda or similar materials of or containing Proprietary Information, or
other materials or property of any kind belonging to the Company unless
necessary or appropriate in accordance with the duties and responsibilities
required by or appropriate for the Position and, in the event that such
materials or property are removed, all of the foregoing shall be returned to
their proper files or places of safekeeping as promptly as possible after the
removal shall serve its specific purpose. Employee shall not make, retain,
remove and/or distribute any copies of any of the foregoing for any reason
whatsoever except as may be necessary in the discharge of the assigned duties
and shall not divulge to any third person the nature of and/or contents of any
of the foregoing or of any other oral or written information to which he may
have access or with which for any reason he may become familiar, except as
disclosure shall be necessary in the performance of the duties; and upon the
termination of his employment with the Company, he shall return to the Company
all originals and copies of the foregoing then in the possession, whether
prepared by Employee or by others.
6. Assignment of Developments
6.1. If at any time or times during Employee's employment with the Company,
he shall (either alone or with others) make, discover or reduce to practice any
invention, modification, discovery, design, development, improvement, process,
software program, work of authorship, documentation, formula, data, technique,
know-how, secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registrable under copyright or similar
statutes or subject to analogous protection) (herein called "Developments") that
(i) relates to the then current business of the Company or any then current
customer of or supplier to the Company or any of the products or services being
developed, manufactured or sold by the Company, (ii) results from tasks assigned
me by the Company or (iii) results from any use of premises or personal property
(whether tangible or intangible) owned, leased or contracted for by the Company,
such Developments and the benefits thereof shall immediately become the sole and
absolute property of the Company and its assigns, and Employee shall promptly
disclose to the Company (or any persons designated by it) each such Development
and Employee hereby assigns any rights he may have or acquire in the
Developments, and benefits and/or rights resulting therefrom, to the Company and
its assigns without further compensation and shall communicate, without cost or
delay, and without publishing the same, all available information relating
thereto (with all necessary plans and models) to the Company.
6.2. Upon disclosure of each Development to the Company, Employee will,
during his employment with the Company, and at any time thereafter, at the
request and cost of the Company, sign, execute, make and do all such deeds,
documents, acts and things as the Company and its duly authorized agents may
reasonably require (i) to apply for, obtain and vest in the name
of the Company alone (unless the Company otherwise directs) letters patent,
copyrights or other analogous protection in any country throughout the world and
when so obtained or vested to renew and restore the same; and (ii) to defend any
opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
6.3. In the event the Company is unable, after all diligent effort, to secure
Employee's signature on any letters patent, copyright or other analogous
protection relating to a Development, whether because of Employee's physical or
mental incapacity or for any other reason whatsoever, Employee hereby
irrevocably designate and appoint the Company through its duly authorized
president as his agent and attorney-in-fact, to act for and in his behalf and
stead solely to execute and file any such application or applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent, copyright or other analogous intellectual property protection
thereon with the same legal force and effect as if executed by him.
7. Covenant not to Compete.
7.1. Employee shall not, during the Term and for a period of two (2) years
after termination hereof for any reason whatsoever (the "Restricted Period"), do
any of the following directly or indirectly without the prior written consent of
the Company in its sole discretion:
7.1.1. engage or participate, directly or indirectly, in any business
activity competitive with the business of the Company or any other Orbit Group
entity (collectively the "Business") as conducted during the Term;
7.1.2. become interested (as owner, stockholder, lender, partner,
co-venturer, director, officer, employee, agent, consultant or otherwise) in any
person, firm, corporation, association or other entity engaged in any business
that is competitive with the Business as conducted during the Term, or become
interested in (as owner, stockholder, lender, partner, co-venturer, director,
officer, employee, agent, consultant or otherwise) any portion of the business
of any person, firm, corporation, association or other entity where such portion
of such business is competitive with the Business as conducted during the Term
(notwithstanding the foregoing, Employee may hold not more than one percent (1%)
of the outstanding securities of any class of any publicly-traded securities of
a company that is engaged in activities competitive with the Business as
conducted during the Term);
7.1.3. solicit or call on, either directly or indirectly, any (i) customer
with whom the Company shall have dealt at any time during the Term, or (ii)
supplier with whom the Company shall have dealt at any time during the one (1)
year period immediately preceding the termination of Employee's employment
hereunder;
7.1.4. influence or attempt to influence any supplier, customer or potential
customer of the Company to terminate or modify any written or oral agreement or
course of dealing with the Company; or
7.1.5. influence or attempt to influence any person either (i) to terminate
or modify the employment, consulting, agency, distributorship or other
arrangement with the Company or the Orbit Group, or (ii) to employ or retain, or
arrange to have any other person or entity employ or retain, any person who has
been employed or retained by the Company or the Orbit Group as an employee,
consultant, agent or distributor of the Company or the Orbit Group at any time
during the one (1) year period immediately preceding the termination of
Employee's employment hereunder.
7.2. Employee acknowledges that he has carefully read and considered the
provisions of this Section 7. Employee acknowledges that the foregoing
restrictions may limit his ability to earn a livelihood in a business similar to
the Business, but he nevertheless believes that he has received and will receive
sufficient consideration and other benefits in connection with the payment by
the Company of the compensation set forth in Section 4 to justify such
restrictions, which restrictions Employee does not believe would prevent him
from earning a living in businesses that are not competitive with the Business
and without otherwise violating the restrictions set forth herein.
7.3. Any reference to the "Company" in Section 7.1 above shall mean the
Company and its subsidiaries, individually and collectively, as appropriate in
context.
8. Early Termination. Employee's employment hereunder may be terminated
during the Term upon the occurrence of any one of the events described in this
Section 8. Upon termination, Employee shall be entitled only to such
compensation and benefits as described in this Section 8.
8.1. Termination for Disability.
8.1.1. In the event of the disability of Employee such that Employee is
unable to perform the duties and responsibilities hereunder to the full extent
required by this Agreement by reasons of illness, injury or incapacity for a
period of more than ninety (90) consecutive days or more than one hundred eighty
(180) days, in the aggregate, during any twenty four (24) months period,
Employee's employment hereunder may be terminated by the Company by written
notice to Employee.
8.1.2. In the event of a termination of Employee's employment hereunder
pursuant to Section 8.1.1, Employee shall be entitled to receive all accrued but
unpaid (as of the effective date of such termination) Base Salary, Benefits and
a pro-rata amount (as determined in good faith by the Company's Board of
Directors) of the Bonus applicable to the then calendar year. Except as
specifically set forth in this Section 8.1, the Company shall have no liability
or obligation to Employee hereunder by reason of such termination, except that
Employee shall be entitled to receive any payment prescribed under any
disability benefits plan in which he is a participant as an employee of the
Company, and to exercise any rights afforded under any other benefit plan then
in effect.
8.2. Termination by Death. In the event that Employee dies during the Term,
Employee's employment hereunder shall be terminated thereby and the Company
shall pay to Employee's executors, legal representatives or administrators an
amount equal to the accrued and unpaid (as of the effective date of such
termination) Base Salary, Benefits and a pro-rata amount (as determined in good
faith by the Company's Board of Directors) of the Bonus applicable to the then
calendar year. Except as specifically set forth in this Section 8.2, the Company
shall have no liability or obligation hereunder to Employee's executors, legal
representatives, administrators, heirs or assigns (or any other person claiming
under or through him by reason of Employee's death), except that Employee's
executors, legal representatives or administrators will be entitled to receive
the payment prescribed under any death or disability benefits plan in which he
is a participant as an employee of the Company, and to exercise any rights
afforded under any benefit plan then in effect.
8.3. Termination for Cause.
8.3.1. The Company may terminate Employee's employment hereunder at any time
for "cause" upon written notice to Employee. For purposes of this Agreement,
"cause" shall mean:
8.3.1.1 any breach by Employee of any of the
covenants under Sections 5, 6 or 7 of this Agreement;
8.3.1.2 Employee has been grossly negligent or has
committed willful misconduct in carrying out his duties hereunder and either
continues to be grossly negligent or commit willful misconduct for a period of,
or fails to cure the results of his gross negligence or willful misconduct
within, 30 days after written notice from the Company to Employee thereof;
8.3.1.3 conduct of Employee involving any type of
insubordination, or disloyalty to the Company, or willful misconduct with
respect to the Company, including without limitation fraud, embezzlement, theft
or proven dishonesty in the course of the employment;
8.3.1.4 conviction of a felony or other criminal act
punishable by more than one (1) year in prison; and
8.3.1.5 commission by Employee of an intentional
tort or an act involving moral turpitude or constituting fraud.
8.3.2. In the event of a termination of Employee's employment hereunder
pursuant to Section 8.3 Employee shall be entitled to receive all accrued but
unpaid (as of the effective date of such termination) Base Salary and Benefits.
All Base
Salary and Benefits shall cease at the time of such termination. Employee shall
not be entitled to receive any Bonus (whether or not then earned) for (i) the
then calendar year, and (ii) the calendar year in which the event giving rise to
the termination for "cause" occurred. Except as specifically set forth in this
Section 8.3, the Company shall have no liability or obligation to Employee
hereunder by reason of such termination.
8.4. Termination Without Cause.
8.4.1. The Company may terminate Employee's employment hereunder at any time,
for any reason whatsoever, with or without cause, effective upon the date
designated by the Company upon one hundred and eighty (180) days (the "Notice
Period") prior written notice to Employee.
8.4.2. In the event of a termination of Employee's employment hereunder
pursuant to Section 8.4, Employee shall be entitled to receive all accrued but
unpaid (as of the effective date of such termination) Base Salary, Benefits, use
of company car (or economic value thereof) and a pro-rata amount (as determined
in good faith by the Company's Board of Directors) of the Bonus applicable to
the then calendar year. Employee shall further be deemed to have a vested
interest in such portion of the Options equal to the number of months from the
date hereof until the effective date of termination of his employment hereunder,
divided by 36. Except as specifically set forth in this Section 8.4, the Company
shall have no liability or obligation to Employee hereunder by reason of such
termination.
8.4.3. During the Notice Period, Employee (i) shall not be entitled to retain
the Position, and (ii) shall cooperate in good faith with the Company in
transitioning the duties of the Position to one or more successors as determined
by the Board of Directors or the Chairman.
8.4.4. The Company shall be deemed to have effected a termination of
Employee's employment under this Section 8.4 in the event of a Change in Control
(defined above). The Notice Period shall commence upon the effective date of the
Change in Control.
8.4.5. The Company may, at its sole discretion, in lieu of continuing the
Employee's employment during the Notice Period (or any part thereof) terminate
the Employee's employment immediately during the Notice Period by written notice
to the Employee, and pay the Employee, as liquidated damages, an amount equal to
the Base Salary, Bonus, Benefits and other payments which the Employee would
have been entitled to had his employment continued from the date of such
termination until a date (the "Last Payment Date") which is the earlier of (i)
the end of the Notice Period or (ii) the date on which the Employee commences a
new employment. Any such payment shall be made on such dates, and in such form,
as would have been made had the Employee's employment continued through the Last
Payment Date. For the purpose of vesting of Options, the termination of the
Employee's employment hereunder shall be deemed to occur on the Last Payment
Date notwithstanding an earlier termination pursuant to this section 8.4.5.8.5.
Termination By Employee.
8.5.1. Employee may terminate Employee's employment hereunder at any time for
any reason effective upon the date designated by Employee in written notice of
the termination of the employment hereunder pursuant to this Section 8.5;
provided that, such date shall be at least ninety (90) days after the date of
such notice.
8.5.2. In the event of a termination of Employee's employment hereunder
pursuant to Section 8.5 hereof, Employee shall be entitled to receive all
accrued but unpaid (as of the effective date of such termination) Base Salary
and Benefits. All Base Salary and Benefits shall cease at the time of such
termination, subject to the terms of any benefit plan then in force and
applicable to Employee. Employee shall not be entitled to receive any Bonus on
account of the then current year. Except as specifically set forth in this
Section 8.5, the Company shall have no liability or obligation to Employee
hereunder by reason of such termination.
9. Representations, Warranties and Covenants of Employee.
9.1. Employee represents and warrants to the Company that:
9.1.1. There are no restrictions, agreements or understandings whatsoever to
which Employee is a party which would prevent or make unlawful Employee's
execution of this Agreement or Employee's employment hereunder, or which is or
would be inconsistent or in conflict with this Agreement or Employee's
employment hereunder, or would prevent, limit or impair in any way the
performance by Employee of the obligations hereunder;
9.1.2. Employee has disclosed to the Company all restraints, confidentiality
commitments or other employment restrictions that he has with any other
employer, person or entity; and
10. Survival of Provisions. The provisions of this Agreement set forth in
Sections 5, 6, 7, 9, 10, 16 and 19 hereof shall survive the termination of
Employee's employment hereunder for any reason whatsoever.
11. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Company and Employee and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided that neither
Employee nor the Company may make any assignments of this Agreement or any
interest herein, by operation of law or otherwise, without the prior written
consent of the other parties hereto; except that, without such consent, the
Company may assign this Agreement to any successor to all or substantially all
of its assets and business by means of liquidation, dissolution, merger,
consolidation, transfer of assets, or otherwise, provided that such successor
assumes in writing all of the obligations of the Company under this Agreement.
12. Notice. Any notice hereunder by either party shall be given by personal
delivery or by sending such notice by certified mail, return-receipt requested,
or telecopied, addressed or telecopied, as the case may be, to the other party
at its address set forth below or at such other address designated by notice in
the manner provided in this section. Such notice shall be deemed to have been
received upon the date of actual delivery if personally delivered or, in the
case of mailing, two (2) days after deposit with the U.S. mail, or, in the case
of facsimile transmission, when confirmed by the facsimile machine report.
If to Employee:
Xxxxxx Xxxx
000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
If to the Company:
Orbit/FR, Inc.
Att: Chairman
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxxxxxx Xxxxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
13. Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding of the parties hereto relating to the subject matter
hereof, and merges and supersedes all prior and contemporaneous discussions,
agreements and understandings of every nature between the parties hereto
relating to the employment of Employee with the Company. This Agreement may not
be changed or modified, except by an agreement in writing signed by each of the
parties hereto.
14. Waiver. The waiver of the breach of any term or provision of this
Agreement shall not operate as or be construed to be a waiver of any other or
subsequent breach of this Agreement.
15. Governing Law. This Agreement shall be construed and enforced in
accordance with the substantive laws of the State of Delaware, without regard to
the principles of conflicts of laws of any jurisdiction.
16. Invalidity. If any provision of this Agreement shall be determined to
be void, invalid, unenforceable or illegal for any reason, the validity and
enforceability of all of the remaining provisions hereof shall not be affected
thereby. If any particular provision of this Agreement shall be adjudicated to
be invalid or unenforceable, such provision shall be deemed amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable, such
amendment to apply only to the operation of such provision in the particular
jurisdiction in which such adjudication is made; provided that, if any provision
contained in this Agreement shall be adjudicated to be invalid or unenforceable
because such provision is held to be excessively broad as to duration,
geographic scope, activity or subject, such provision shall be deemed amended by
limiting and reducing it so as to be valid and enforceable to the maximum extent
compatible with the applicable laws of such jurisdiction, such amendment only to
apply with respect to the operation of such provision in the applicable
jurisdiction in which the adjudication is made.
17. Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
18. Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and legal
holidays; provided that, if the final day of any time period falls on a
Saturday, Sunday or day which is a legal holiday in the location of the
principal place of business of the Company, then such final day shall be deemed
to be the next day which is not a Saturday, Sunday or legal holiday.
19. Specific Enforcement; Extension of Period.
19.1. Employee acknowledges that the restrictions contained in Sections 5, 6,
and 7 hereof are reasonable and necessary to protect the legitimate interests of
the Company and its affiliates and that the Company would not have entered into
this Agreement in the absence of such restrictions. Employee also acknowledges
that any breach by him of Sections 5, 6, or 7 hereof will cause continuing and
irreparable injury to the Company for which monetary damages would not be an
adequate remedy. Employee shall not, in any action or proceeding to enforce any
of the provisions of this Agreement, assert the claim or defense that an
adequate remedy at law exists. In the event of such breach by Employee, the
Company shall have the right to enforce the provisions of Sections 5, 6, and 7
of this Agreement by seeking injunctive or other relief in any court, and this
Agreement shall not in any way limit remedies of law or in equity otherwise
available to the Company.
19.2. The periods of time set forth in Section 7 hereof shall not include,
and shall be deemed extended by, any time required for litigation to enforce the
relevant covenant periods, provided that the Company is successful on the merits
in any such litigation. The "time required for litigation" is herein defined to
mean the period of time from the earlier of Employee's first breach of such
covenants or service of process upon Employee through the expiration of all
appeals related to such litigation.
20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
UNDER SEAL as of the day and year first written above.
Orbit/FR, Inc. Xxxxxx Xxxx
By:______________________[SEAL] ______________________[SEAL]
Xxxx Xxxxx, Chairman
