AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is dated as of
May 14, 2009 (the “Effective Date”) by
and between OCTAVIAN GLOBAL TECHNOLOGIES, INC., a Delaware corporation (the
“Company”), and XXXXXX
XXXXXXXXXXXXXX (the “Executive”).
WHEREAS,
the parties desire to amend and restate that certain Employment Agreement dated
October 30, 2008 by and between the Company and the Executive, as amended on
December 8, 2008 (the “Prior Agreement”) by
entering into this Agreement, the terms of which shall supersede and replace the
terms of the Prior Agreement and govern the relationship between the parties
hereto regarding the subject matter set forth herein as of the date
hereof.
WHEREAS,
as of the Effective Date, the Company desires to employ the Executive and to
enter into an agreement embodying the terms of such employment and the Executive
desires to accept such employment and enter into such an agreement on the terms
and conditions contained herein.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein and for
other good and valuable consideration, the parties agree as
follows:
1. Term of
Employment. Subject to the provisions of Section 5 of this
Agreement, the Executive shall be employed by the Company for a period
commencing on the Effective Date and ending on December 31, 2013 (the “Term”). The Term may be renewed
in accordance with a writing executed by both parties hereto.
2. Position.
(a) Duties. The
principal duties of the Executive shall be to serve in the position of Chief
Executive Officer of the Company and of the Company’s subsidiary, Octavian
International Limited, a privately-held corporation incorporated
under the laws of the United Kingdom (“Octavian
Limited”). The Executive
shall have the duties and responsibilities delegated to him by the Company’s
Board of Directors (the “Board”), which shall
be consistent with those duties and responsibilities normally associated with
the position of chief executive officer and highest ranking executive in
corporations of similar size and nature to the Company, and to render such other
services as are reasonably necessary or desirable to protect and advance the
best interests of the Company
(b) Devotion of Time to
Company’s Business. The Executive shall use his best efforts,
skill and abilities to promote and protect the interests of the Company and
Octavian Limited and the Company’s other subsidiaries and affiliates (sometimes
collectively referred to hereafter as the “Company Affiliates”),
and devote all of his working time and energies to the business and affairs of
the Company and the Company Affiliates. Notwithstanding anything to
the contrary contained herein the Executive (i) may serve on the boards of
additional companies or organizations and receive compensation for such services
rendered; and (ii) may engage in charitable, civic, fraternal, professional and
trade association activities, provided that in each such case the activities
engaged in by the Executive do not materially interfere with his obligations to
the Company and the Company Affiliates and do not materially reduce the amount
of his working time devoted to the business and affairs of the Company and the
Company Affiliates
(c)
Service on the
Board. During the Term, the Company agrees to use its best efforts to
cause the Executive to be elected to the Board and to nominate the Executive as
a member of the management slate at each annual meeting of stockholders during
the Term at which the Executive’s election class comes up for
election. The Executive agrees to serve on the Board if
elected.
(d) Directors and Officers
Liability Insurance. The Executive shall be entitled to the
benefit of any directors and officers insurance coverage which is maintained by
the Company and made available to senior executives of the
Company. The organizational documents of the Company shall contain
provisions requiring it to provide the Executive the maximum indemnity
protection allowed under applicable law.
3. Compensation and
Benefits.
(a)
Base
Salary. The Executive shall be paid a base salary during the
Term, in consideration for his services provided to the Company and the Company
Affiliates, at the rate of Three Hundred Thousand Euros (€300,000) per annum (the "Base Salary"),
payable in accordance with the Company’s normal payroll practices.
(b) Bonus.
(i) Earn
Out.
(x) In
addition to the Base Salary payable to the Executive hereunder, and subject to
any adjustments as provided hereafter, the Company shall issue to the Executive
shares of the Company’s common stock, par value $0.001 per share (”Common Stock”),
subject to the Company’s achieving not less than the following earnings before
interest, tax, depreciation and amortization (“EBITDA”), as reported
in the Company’s audited financial statements for the applicable periods
described below (the “Earn-Out
Shares”):
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Year Ended December 31,
|
EBITDA
|
Number of
Shares of
Common
Stock
|
||||||
|
2008
|
-0- | 214,000 | 1 | |||||
|
2009
|
$ | 9,200,000 | 642,000 | |||||
|
2010
|
$ | 16,500,000 | 428,000 | |||||
|
2011
|
$ | 21,900,000 | 428,000 | |||||
|
2012
|
$ | 27,100,000 | 428,000 | |||||
|
2013
|
$ | 35,726,016 | 640,000 | |||||
1 Previously received and
acknowledged.
2
Earn-Out
Shares shall only be issued to the Executive, with respect to any year, to the
extent that the Company has reported EBITDA of at least the amount set forth for
that year. The Company’s failure to achieve the EBITDA set forth
above for any applicable year shall not preclude the Executive from receiving
Earn-Out Shares for any future years, to the extent that the applicable EBITDA
amounts are achieved for any such future years. In the event that the
Executive is entitled to the issuance of Earn-Out Shares for any year provided
herein, the Company shall issue a certificate to the Executive for the
applicable number of shares on or before the earlier of ten (10) days after (i)
the date of filing of the Company’s Annual Report on Form 10-K for the
applicable year or (ii) the 100th day
after the end of the applicable year.
(y) If
the Company, at any time during the period that any Earn Out Shares are issuable
hereunder: (i) pays a stock dividend or otherwise make a distribution or
distributions on shares of its Common Stock or any other equity or equity
equivalent securities payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii)
combines (including by way of reverse stock split) outstanding shares of Common
Stock into a smaller number of shares or (iv) issues by reclassification of
shares of the Common Stock any shares of capital stock of the Company, then in
each case the number of Earn-Out Shares which the Company shall issue to the
Executive shall be multiplied by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding immediately after such event and of
which the denominator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding immediately before such
event. Any adjustment made pursuant to this subparagraph (y) shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification. Notwithstanding anything to the
contrary contained herein, the adjustment provisions of this subparagraph (y)
shall not be applicable to the 1-for-5.0174 reverse stock split that the
Company’s stockholders approved as of November 27, 2008, which the Company
expects to be effective on or around December 12, 2008 and no adjustment shall
be made to the number of Earn-Out Shares issuable to the Executive with respect
to such reverse stock split.
(z) The
Company shall provide the Executive with prompt written notice after the
occurrence of any of the events described in subparagraph (y) above that result
in an adjustment to the Earn-Out Shares issuable to him hereunder.
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(ii) Warrant. In
addition to the Base Salary payable to the Executive and any other compensation
payable to the Executive hereunder, the Company, on the Effective Date, shall
issue to the Executive a warrant, in the form of Exhibit A annexed
hereto (the “Warrant”) pursuant to
which the Executive shall have the right, for a period of seven (7) years after
the Effective Date, to purchase up to 2,720,833 shares of Common Stock at an
exercise price of $3.10 per share, subject to certain adjustments as provided in
the Warrant.
(iii) Additional
Compensation. In addition to the Base Salary payable to the
Executive hereunder and any other compensation payable to the Executive
hereunder, the Executive also shall be entitled to receive additional
compensation, in consideration for his services provided to the Company and the
Company Affiliates, at such times and in such amounts as shall be determined in
the sole discretion of the Board or any committee of the Board which determines
such compensation. The Board shall conduct a review not less than
once each year, and such additional compensation, if any, shall be based on,
among other things, the Executive’s and the Company’s performance.
(c)
Stock Options,
Restricted Stock Awards, etc. In addition to the other
compensation payable to the Executive hereunder, the Executive shall also be
entitled to receive grants of stock options, restricted stock and/or any other
equity incentive awards available to senior executives of the Company, under
equity incentive plans adopted by the Company, at such times and in such amounts
as shall be determined in the sole discretion of the Board or any committee of
the Board which determines such equity grants.
(d) Withholding. All
salaries, bonuses and other benefits payable to the Executive shall be subject
to payroll and withholding taxes as may be required by law. The
Executive shall be responsible to pay any income taxes with respect to the
Company’s provision of benefits payable or made available to the Executive
hereunder.
4. Employee Benefits; Business
Expenses.
(a) Employee
Benefits. During the Term, the Executive and his dependents
shall be entitled to participate in the Company’s welfare benefit plans, fringe
benefit plans and any qualified or non-qualified retirement plans (the “Company Plans”) as in
effect from time to time (collectively, the “Employee Benefits”),
on the same basis as those benefits are made available to the other senior
executives of the Company, in accordance with the Company’s policies as in
effect from time to time.
(b) Perquisites. During
the Term, the Executive shall be entitled to receive such perquisites as are
made available to other senior executives of the Company in accordance with the
Company’s policies as in effect from time to time as determined by the Board;
provided that the Executive shall be entitled to not less than four (4) weeks of
paid vacation per annum, which shall be subject to the Company’s vacation policy
applicable to the other senior executives of the Company and in accordance with
the Company’s policies as in effect from time to time.
(c) Life
Insurance. During the Term, the Company will reimburse the
Executive for a policy or policies insuring the life of the Executive for a face
amount up to a maximum of US$10,000,000; provided, however, that the
Company shall not be required to reimburse the Executive for premiums in excess
of US$50,000 per annum.
4
(d) Cell
Phone. During the Term, the Company will reimburse the
Executive for all reasonable charges in connection with his use of one (1) cell
phone.
(e) Expenses. The
Executive shall be entitled to reimbursement for reasonable and necessary
business expenses incurred by him in the performance of his duties and
responsibilities to the Company and the Company Affiliates, in accordance with
the Company’s reimbursement and expenses policies, as in effect from time to
time, including the Company’s rules regarding proper documentation.
5. Termination.
(a) Definitions. For
purposes of this Agreement:
“Cause” shall mean (i)
the Executive’s gross negligence or willful misconduct in the performance of his
material duties with respect to the Company or the Company Affiliates as
provided hereunder, (ii) the conviction by the Executive of a crime constituting
a felony and (iii) the Executive shall have committed any material act of
malfeasance, disloyalty, dishonesty or breach of trust against the
Company.
“Date of Termination”
shall mean the date the Notice of Termination is given to the respective party;
provided, however, that with respect to a termination for Cause by the Company,
the Date of Termination shall not occur prior to the expiration of any
applicable cure period.
“Disability” shall
mean the Executive has become physically or mentally incapacitated and is
therefore unable for a period of three (3) consecutive months to perform
substantially all of the material elements of his duties with the Company or any
Company Affiliate. Any question as to whether the Executive has a
Disability as to which he (or his legal representative) and the Company cannot
agree shall be determined in writing by a qualified independent physician
mutually acceptable to the Executive (or his legal representative) and the
Company. If the Executive (or his legal representative) and the
Company cannot agree as to a qualified independent physician, each shall appoint
such a physician and those two physicians shall select a third who shall make
such determination in writing. The determination of whether the
Executive has a Disability made in writing to the Company and the Executive
shall be final and conclusive for all purposes of this Agreement.
“Good Reason” shall
mean (i) the Company’s breach of any of its material obligations or covenants
set forth in this Agreement, (ii) a material diminution in the title of the
Executive’s position with the Company or a material reduction of the duties or
responsibilities of the Executive, (iii) a reduction in Base Salary or any
material benefits provided to the Executive, (iv) the assignment to the
Executive of any duties or responsibilities that are inconsistent, in any
significant respect, with his position; (v) the Company’s relocation of the
place where the Executive is to render his services to a location more than one
hundred twenty five (125) miles from its current location, or (vi) any action by
the Company which materially adversely affects the ability of the Company or the
Executive to perform their respective obligations hereunder in a manner
substantially consistent with how such obligations were performed immediately
prior to the occurrence of such action.
5
“Notice of
Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated, and shall be
communicated, in writing, to the other party hereto in accordance with the
provisions of Section
10(g) hereafter.
(b)
By the Company for
Cause or by the Executive Without Good Reason.
(i) The
Term and the Executive’s employment hereunder may be terminated by the Company
for Cause, immediately upon the delivery of a Notice of Termination by the
Company to the Executive (except where the Executive is entitled to a cure
period, in which case such Date of Termination shall be upon the expiration of
such cure period, if such matter constituting Cause is not cured) and shall
terminate automatically upon the Executive’s resignation (other than for Good
Reason or due to the Executive’s death or Disability).
(ii) If
the Executive’s employment is terminated by the Company for Cause, or if the
Executive resigns other than for Good Reason, the Executive shall be entitled to
receive:
(A)
any accrued but unpaid Base Salary through the Date of Termination;
(B) reimbursement
for any unreimbursed business expenses incurred by the Executive in accordance
with Company policy referenced in Section 4 above prior
to the Date of Termination (with such reimbursements to be paid promptly after
the Executive provides the Company with the necessary documentation of such
expenses to the extent required by such policy); and
(C) such
Employee Benefits, if any, as to which the Company may be entitled upon
termination of employment hereunder (including under the applicable provisions
of Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
Following
the Executive’s termination of employment by the Company for Cause or if he
resigns other than for Good Reason, except as set forth above or as required by
applicable law, the Executive shall have no further rights to any compensation
or any other benefits under this Agreement.
(c) Death or
Disability. The Executive’s employment hereunder shall
terminate upon the Executive’s death and may be terminated by the Company,
within ten (10) days after the delivery of a Notice of Termination by the
Company to the Executive (or his legal representative) in the event of the
Executive’s Disability. Upon termination of the Executive’s
employment hereunder for either Disability or death, the Executive shall be
entitled to receive the same payments and other items as set forth in clause
(ii) of Section
5(b) hereof and, in addition, accrued but unpaid vacation time, if
any. Following the Executive’s termination of employment due to death
or Disability, except as set forth herein or as required by applicable law, the
Executive shall have no further rights to any compensation or any other benefits
under this Agreement.
6
(d) By the Company without
Cause; By the Executive for Good Reason. The Executive’s
employment hereunder may be terminated by the Company without Cause or by the
Executive for Good Reason at any time, upon delivery of a Notice of Termination
by the applicable party at least thirty (30) days prior to the Date of
Termination. If the Executive’s employment is terminated by the
Company without Cause or by the Company for Good Reason, the Executive shall be
entitled to receive the same payments and other items as set forth in clause
(ii) of Section
5(c) hereof and, in addition, any Base Salary that would have otherwise
been payable to the Executive from the Date of Termination through the end of
the then current Term had the Executive’s
employment not been terminated prior to the expiration of the then current
Term (hereinafter
referred to as the “Termination
Payment”). In addition, from the Date of Termination until the
end of the period for which the Termination Payment is due hereunder, (x) the
Company shall reimburse the Executive, on a monthly basis, for any amounts paid
by him for health insurance benefits, up to a maximum amount per month equal to
the monthly payments made by the Company, on the Executive’s behalf, under the
Company’s then current health insurance plan and (y) the Executive shall
continue to have the right to be issued shares of Common Stock, pursuant to the
earn out provisions of Section 3(b)(i) hereof, with respect to each year through
the year ending December 31, 2013. Following the Executive’s
termination of employment by the Company without Cause or by the Executive for
Good Reason, except as set forth herein, the Executive shall have no further
rights to any compensation or any other benefits under this
Agreement.
(e) Payment of Amounts Owed upon
Termination of Employment. Any amounts payable to the
Executive for accrued but unpaid Base Salary and accrued and unpaid vacation
time through the Date of Termination shall be paid within ten (10) business days
after the Date of Termination. Any Termination Payment that is
payable to the Executive hereunder shall be payable, at the sole election of the
Company, either (i) on the normal payroll dates from the Date of Termination
through the original expiration date of the then current Term or (ii) in one (1)
lump-sum cash payment within thirty (30) days after the Date of
Termination.
6. Restrictive
Covenants.
(a) Non-solicitation. The
Executive agrees that during the Term and for a period of twelve months (12)
months thereafter,
he will not, directly or indirectly including through any other person or entity
(i) solicit, raid, entice or induce any person or entity who is at such time or
was within six (6) months prior to such date, a client or customer of the
Company or a Company Affiliate to become a customer for, the same or similar
services or products which it received or purchased from the Company or a
Company Affiliate, for himself or any other person or entity, (ii) approach any
such person or entity for such purpose or authorize or knowingly approve the
taking of such actions by any other person or entity for any other person or
entity, (iii) influence or attempt to influence any client or customer of the
Company or a Company Affiliate to divert its business or patronage from the
Company or a Company Affiliate to any other person, (iv) make any statement or
do any act intended to cause existing or potential clients or customers of the
Company or a Company Affiliate to make use of the services or purchase the
products of any competitive business or (v) hire, solicit, raid, entice or
induce or attempt to induce any employee of the Company or a Company Affiliate
to be employed by any other person or entity.
7
(b) Non-competition. During
Executive's employment hereunder and for a period of twelve (12) months
thereafter in the event that the Executive’s employment is terminated for any
reason other than by the Company without Cause or by the Executive for Good
Reason, without the prior written consent of the Company, Executive shall not
directly or indirectly engage in a Competitive Business in any country in which
the Company or any Company Affiliate conducts business. For the
purpose of this Agreement “Competitive Business” means any business involved in
providing products or services relating to (i) gaming machines for casinos or
otherwise, (ii) products used in the lottery industry and/or (iii) any
additional business conducted by the Company and/or any Company Affiliate, in
the future. Notwithstanding the foregoing, the Executive may acquire
securities in Competitive Businesses that are publicly-held companies that will
not be significant and that, in any event, will not exceed two percent (2%) of
any outstanding class of equity of any such company
(c) Confidential
Information.
(i) Agreement to Preserve
Confidentiality.
The Executive shall maintain in confidence and shall not, either during the Term
or at any time after his employment with the Company, except as permitted under
the terms of this Agreement or as otherwise agreed to by Company, communicate or
disclose to, or use for the benefit of the Executive or any other person or
entity, any proprietary or confidential information, trade secret or know-how
belonging to Company or a Company Affiliate (collectively, the "Confidential
Information"), whether or not such Confidential Information is in written
or permanent form, except to the extent required to perform his duties described
in this Agreement. Such Confidential Information includes, but is not
limited to, all business information, trade secrets, information about products,
processes and services, technological information, intellectual property,
confidential records, pricing information, accounting, merchandising, or
marketing information, sales techniques, client, customer or manufacturer lists,
information about client requirements, terms of contracts with suppliers and
clients, internal business procedures, business methods used or developed by or
for the Company pr a Company Affiliate, computer codes, hardware system
information, planning and financial information, product development plans,
marketing plans and future business plans, and Confidential Information of
customers or other third parties that has been disclosed to the Company or a
Company Affiliate in confidence. Notwithstanding the foregoing, the
term Confidential Information shall not include any information that (i) is or
becomes in the public domain, including information that is publicly known or
generally utilized by others engaged in the same business as the Company or a
Company Affiliate, other than as a result of a disclosure in violation of this
Agreement; (ii) is known by the Executive prior to his employment with the
Company or is developed by Executive outside the scope of his duties, on behalf
of Company or any Company Affiliate, without using any Confidential Information;
or (iii) is required to be disclosed by the Executive by law, provided that the
Executive shall provide the Company with prompt written notice of any such
requirement so that the Company may seek a protective order or other appropriate
remedy, if it so chooses. In the event that such protective order or
other remedy is not obtained, or the Company chooses not to seek such relief,
the Executive agrees to furnish only that portion of the Confidential
Information which the Executive is advised by written opinion of counsel is
legally required to be disclosed and the Executive agrees to exercise his best
efforts to obtain assurance that confidential treatment will be accorded such
Confidential Information. The foregoing obligations with respect to
the Confidential Information extends to information belonging to customers and
suppliers of the Company and the Company Affiliates who may have disclosed such
information to the Company or any Company Affiliate or the Executive as a result
of the Executive’s status as an employee of the Company. In
addition to the foregoing, unless the Executive receives permission from the
Company to do so, he will not: (i) remove any Confidential
Information from the premises of the Company or any Company Affiliate;
(ii) copy or reverse engineer any Confidential Information; or
(iii) keep any Confidential Information in his possession.
8
(ii) Return of
Property. Upon the termination of the Executive’s employment,
or at any time when so requested by the Company, the Executive agrees to
promptly return all documents of the Company and the Company Affiliates and any
other property in the Executive’s possession or control belonging to Company or
any Company Affiliate, and any other materials containing Confidential
Information, including all copies of same, and records, notes, compilations or
other matter relating thereto.
(d) Ownership of Product Ideas
and Assignment.
(i) Product
Ideas. The Executive will maintain current and adequate
written records on the development of, and disclose to Company, all Product
Ideas (as herein defined). “Product Ideas” shall
mean all ideas, potential marketing and sales relationships, inventions,
copyrightable expressions, research, plans for products or services, marketing
plans, original works of authorship, know-how, trade secrets, information, data,
developments, discoveries, improvements, modifications, technology and designs,
whether or not eligible for patent or copyright protection, made, conceived,
expressed, developed, or actually or constructively reduced to practice by the
Executive solely or jointly with others during the Term.
(ii) Ownership of Product Ideas
and Assignment. The Executive acknowledges and agrees that the
Product Ideas and any resulting patents or trademarks shall be the exclusive
property of the Company, and that all of said Product Ideas shall be considered
as "work made for hire" belonging to the Company. To the extent that
any such Product Ideas, under applicable law, may not be considered work made
for hire by the Executive for the Company, the Executive hereby assigns and,
upon its creation, automatically and irrevocably assigns to the Company, without
any further consideration, all right, title and interest in and to such Product
Ideas, including, without limitation, any copyright, other intellectual property
rights, all contract and licensing rights, and all claims and causes of action
of any kind with respect to such materials. The Company shall have
the exclusive right to use the Product Ideas, whether original or derivative,
for all purposes without additional compensation to the Executive. At
the Company’s expense, the Executive will assist the Company in every proper way
to perfect the Company’s rights in the Product Ideas and to protect the Product
Ideas throughout the world, including, without limitation, promptly executing
and delivering such patent, copyright, trademark or other applications,
assignments, descriptions and other instruments and to take such actions for and
on behalf of the Executive as may be reasonably, necessary, or proper in the
reasonable opinion of the Company to vest title to and/or defend or enforce the
rights of the Company in the Product Ideas.
(iii) Certain
Exceptions. Notwithstanding anything
to the contrary contained herein, the provisions of this Section 6(d) shall
not apply to developments which do not relate to the business or research and
development of the Company or the Company Affiliates and which are made and
conceived by the Executive not during normal working hours, not on the premises
of the Company or any Company Affiliate and not using the tools, devices,
equipment or supplies of the Company or any Company Affiliate or any
Confidential Information.
9
(e) Scope. In
the event that any of the provisions of this Section 6 shall be
adjudicated to exceed the time, geographic or other limitations permitted by
applicable law in any jurisdiction, then such provision shall be deemed reformed
in any such jurisdiction to the maximum time, geographic or other limitations
permitted by applicable law.
(f) Injunctive
Relief. Without intending to limit the remedies available to
the Company, the Executive agrees that damages at law will be an insufficient
remedy to the Company in the event that the Executive violates any of the terms
of this Section
6, and that the Company may apply for and obtain immediate injunctive
relief in any court of competent jurisdiction to restrain the breach or
threatened breach of, or otherwise to specifically enforce, any of the
agreements and covenants contained herein, without the requirement of having to
post bond. The parties hereto understand that each of the agreements
and covenants of the Executive contained in those sections are an essential
element of this Agreement and agree that the obligations of the Executive
hereunder will survive the termination of this Agreement.
7. Representations, Warranties,
Covenants and Indemnification.
(a) Company.
(i) The
Company is not a party to any existing agreement which would preclude or prevent
it from entering into this Agreement with the Executive.
(ii) The
Company has the full legal right, power and authority to enter into this
Agreement with the Executive and has obtained all necessary approvals from third
parties, to the extent required.
(b) Executive.
(i) The
Executive is not a party to any existing agreement which would preclude or
prevent him from entering into this Agreement with the Company.
(ii) The
Executive will not use any Product Ideas, the rights to which are owned by any
former employer of the Executive or other person from whom the Executive has not
obtained all required rights, and all Product Ideas developed by the Executive
while employed with the Company shall be original to the Executive or developed
in corroboration with other employees of the Company, and shall not infringe
upon the intellectual property rights of any third party.
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8.
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Indemnification.
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(a) By the
Executive. The Executive agrees to indemnify and hold the
Company and the Company Affiliates, and each of their officers, directors,
employees, agents and representatives harmless from and against any losses,
claims, damages, liabilities, settlement costs and expenses including, without
limitation, reasonable attorneys’ fees relating to any action or claim arising
from Executive’s breach of any of his representations and warranties contained
herein or the Executive’s acceptance of employment with the
Company.
10
(b) By
the Company.
(i) The
Company agrees to indemnify and hold the Executive harmless from and against any
losses, claims, damages, liabilities, settlement costs and expenses including,
without limitation, reasonable attorneys’ fees relating to any action or claim
arising from the Company’s breach of any of its representations and warranties
contained herein.
(ii) The
Company hereby agrees to indemnify and hold the Executive harmless from and
against any losses, claims, damages, liabilities, settlement costs and expenses
including, without limitation, reasonable attorneys’ fees relating to any action
or claim by reason of the fact that he is or was a director, officer or employee
of the Company or any Company Affiliate, or is or was serving at the request of
the Company or any Company Affiliate as a director, officer, manager, employee
or agent of another corporation, limited liability company, partnership, joint
venture, trust or other enterprises, to the fullest extent permitted under
Delaware law, as the same exists or may hereafter be amended; and the
Company further covenants and agrees that it shall, unless not permitted under
Delaware law, advance all attorneys’ fees and costs associated with the
indemnification of the Executive in connection with any such action or
proceeding.
9. Arbitration. Except
with respect to the restrictive covenants referenced in Section 6 hereof, any
other dispute arising out of or asserting breach of this Agreement, or any
statutory or common law claim by the Executive relating to his employment under
this Agreement or the termination thereof (including any tort or discrimination
claim), shall be exclusively resolved by binding statutory arbitration in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association. Such arbitration process shall take place in
New York, New York. A court of competent jurisdiction may enter
judgment upon the arbitrator’s award. Each party shall pay the costs
and expenses of arbitration (including fees and disbursements of counsel)
incurred by such party in connection with any dispute arising out of or
asserting breach of this Agreement.
11
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10.
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Miscellaneous.
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(a) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
(b) Entire
Agreement/Amendments. This Agreement contains the entire
understanding of the parties with respect to the employment of the Executive by
the Company. There are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with respect to the
subject matter herein other than those expressly set forth
herein. This Agreement may not be altered, modified, or amended
except by written instrument signed by the parties hereto.
(c) No
Waiver. No waiver of any of the provisions of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
or be construed as a further, continuing or subsequent waiver of any such
provision or as a waiver of any other provision of this Agreement. No
failure to exercise and no delay in exercising any right, remedy or power
hereunder will preclude any other or further exercise of any other right, remedy
or power provided herein or by law or in equity.
(d) Severability. In
the event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) Assignment. This
Agreement, and all of the Executive’s rights and duties hereunder, shall not be
assignable or delegable by the Executive; provided, however, that if the
Executive shall die, all amounts then payable to the Executive hereunder shall
be paid in accordance with the terms of this Agreement to the Executive’s
devisee, legatee or other designee or, if there be no such devisee, legatee or
designee, to his estate. This Agreement may be assigned by the
Company to a person or entity which is an affiliate including, without
limitation, any Company Affiliate, and shall be assigned to any successor in
interest to substantially all of the business operations of the
Company. Upon such assignment, the rights and obligations of the
Company hereunder shall become the rights and obligations of such affiliate or
successor person or entity. Further, the Company will
require any successor (whether, direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, “Company” shall mean
the Company as defined above and any successor to its business and/or assets
which assumes and agrees to perform this Agreement by operation of law, or
otherwise.
(f) Set Off;
Mitigation. The Company’s obligation to pay the Executive the
amounts provided and to make the arrangements provided hereunder shall not be
subject to set-off, counterclaim or recoupment, other than amounts loaned or
advanced to the Executive by the Company. The Executive shall not be
required to mitigate the amount of any payment provided for pursuant to this
Agreement by seeking other employment or otherwise and the amount of any payment
provided for pursuant to this Agreement shall not be reduced by any compensation
earned as a result of the Executive’s other employment or
otherwise.
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(g) Notices. For
the purpose of this Agreement, notices and all other communications provided for
in the Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand or internationally recognized courier service addressed
to the respective addresses set forth below in this Agreement, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt.
If to the
Company:
c/o
Octavian International Limited
Bury
House
0-0 Xxxx
Xxxxxx
Xxxxxxxxx,
Xxxxxx
XX@
0XX
XXXXXX
XXXXXXX
Attention:
Xxxxx Xxxxxxx, President
Fax: x00
0000 000000
E-mail:
x.xxxxxxx@xxxxxxxxxxxxxx.xx.xx
With a
copy to:
Xxxxxxx
Xxxxxxxxx & Xxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx, Esq.
Fax:
(000) 000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
If to the
Executive:
To the
most recent address of the Executive set forth in the personnel records of the
Company.
(h) Prior
Agreements. This Agreement supersedes all prior agreements and
understandings (including verbal agreements) between the Executive and the
Company regarding the terms and conditions of the Executive’s employment with
the Company.
(i) Cooperation. The
Executive shall provide his reasonable cooperation in connection with any action
or proceeding (or any appeal from any action or proceeding) which relates to
events occurring during the Executive’s employment hereunder, but only to the
extent the Company requests such cooperation with reasonable advance notice to
the Executive and in respect of such periods of time as shall not unreasonably
interfere with the Executive’s ability to perform his duties with any subsequent
employer; provided, however, that the Company shall pay any reasonable travel,
lodging and related expenses that the Executive may incur in connection with
providing all such cooperation, to the extent approved by the Company prior to
incurring such expenses.
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(j) Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that the
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.
(k) Fees and
Expenses. In the event that the Company shall fail or refuse
to make or authorize any payment of any amount otherwise due to the Executive
hereunder within the appropriate period of time, then the Company shall
reimburse the Executive for all reasonable expenses (including reasonable
counsel fees) incurred by him in enforcing the terms hereof, within five (5)
business days after demand accompanied by evidence of fees and expenses
incurred. Any reimbursement hereunder shall be paid to the Executive
promptly and in no event later than the end of his taxable year next following
the taxable year in which the expense was incurred.
[Signature
Page Follows]
14
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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By:
|
/s/ Xxxxx Xxxxxxx | ||
| Name: Xxxxx Xxxxxxx | |||
| Title: President | |||
|
/s/ Harmen
Brennikmeijer
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XXXXXX
XXXXXXXXXXXXXX
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15
EXHIBIT
A
Form of
Warrant
