EXHIBIT 10.2
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EXECUTION COPY
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EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 1st day of July, 2005 by and between
ACHIEVEMENT DATA, INC., a Minnesota corporation with its principal
place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx,
XX 00000 (the "Corporation") and XXXXXX XXXX, an individual
residing at 00000 00xx Xxxxxx Xxxxx, Xxxxxxxx, XX 00000
("Employee").
W I T N E S S E T H:
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WHEREAS, on the Effective Date hereof, the Corporation has
become a wholly-owned subsidiary of Touchstone Applied Science
Associates, Inc. ("TASA"), a Delaware corporation; and
WHEREAS, the Corporation recognizes the importance of
retaining its highly qualified employees by offering a certain
degree of security to such individuals against changes; and
WHEREAS, the Corporation desires to assure fair treatment of
such qualified employees and thereby increasing their willingness
to remain with the Corporation; and
WHEREAS, the Board of Directors (the "Board") of the
Corporation in recognition of the acquisition of the Corporation by
TASA, believes it is essential to provide Employee with such degree
of security and secure the services of Employee for the
Corporation, and, in order to accomplish these objectives, the
Board has caused the Corporation to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements set forth herein, the parties hereto, intending
to be legally bound, agree as follows:
1. EMPLOYMENT AND TERM. Subject to the terms and conditions
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of this Agreement, the Corporation agrees to employ Employee, and
Employee hereby accepts employment by the Corporation, for a term
beginning July 1, 2005 (the "Effective Date") and, except as set
forth in the next sentence, ending on October 31, 2008 ("Employment
Term"). In the event of a "Change of Control" of the Corporation
(as defined in Section 2 below) during the term of this Agreement,
this Agreement shall remain in effect for the period commencing on
the date of Change of Control and ending on the later of: (x) the
date, not to exceed October 31, 2008, provided by Employee in a
written notice of his election to terminate the Agreement (the
"Change of Control Election Notice"); provided Employee has given
such Change of Control Election Notice to the Corporation and TASA
within thirty (30) days of the date of the Change of Control; and
(y) if no Change of Control Election Notice is given within such
thirty (30) day period, the last day of the Employment Term; in
each case unless sooner terminated as provided in this Agreement.
2. CERTAIN DEFINITIONS.
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(a) A reference herein to a section of the Internal
Revenue Code of 1986, as amended (the "Code") or a subdivision
thereof shall be construed to incorporate reference to any section
or subdivision of the Code enacted as a successor thereto, any
applicable proposed, temporary or final regulations promulgated
pursuant to such sections and any applicable interpretation thereof
by the Internal Revenue Service.
(b) A reference herein to a section of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any rule
or regulation promulgated thereunder shall be construed to
incorporate reference to any section of the Exchange Act or any
rule or regulation enacted or promulgated as a successor thereto.
(c) "Subsidiary(ies)" means a company 50% or more of the
voting securities of which are owned by TASA, the Corporation or a
Subsidiary of TASA or the Corporation.
(d) "Employee Benefit Plan" means any written plan
providing benefits for employees of the Corporation.
(e) CHANGE OF CONTROL. For the purposes of this
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Agreement, a "Change of Control" shall be deemed to have occurred
upon the happening of any of the following:
(i) A. The acquisition (other than from ADI or
TASA) by any person, entity or "group", within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act, (excluding, for
this purpose TASA or its Subsidiaries, or any Executive Benefit
Plan which acquired beneficial ownership of voting securities of
TASA or ADI) or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) or an underwriter
temporarily holding securities pursuant to an offering of such
securities) of: (x) 40% or more of then outstanding shares of
TASA's common stock, or the combined voting power of TASA's then
outstanding voting securities entitled to vote generally in the
election of directors; or (y) 50% or more of the then outstanding
shares of ADI's common stock or the combined voting power of ADI's
then outstanding voting securities entitled to vote generally in
the election of directors; provided, however, that for purposes of
determining whether or not a "Change of Control" has occurred with
respect to TASA, the following transactions shall be excluded from
the calculation of the change in ownership of TASA's securities:
(1) The offer or issuance of shares of
common stock pursuant to, or upon the exercise of any stock
incentive plan, of TASA, or the reservation of shares for issuance
pursuant to such plans;
(2) The offer, sale, assignment or
transfer of any of the shares of common stock of TASA owned
beneficially owned beneficially or otherwise by Xxxxxx Xxxxxxx
Strategic Partners Fund, L.P. and Strategic Associates, L.P.;
B. Any stockholder-approved
liquidation or dissolution or sale of all or substantially all of
ADI's assets
and
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(ii) As a condition of, or in connection with,
continuing employment of Employee by TASA, ADI or any successor
thereto, either:
A. Employee is required to, and refuses to,
relocate more than fifty (50) miles from Minneapolis, MN; or
B. There is a material change in duties
inconsistent with Employee's position (including status, offices
and titles and authority, duties or responsibilities as
contemplated by Section 3 of this Agreement, and excluding
isolated, insubstantial and inadvertent actions which are remedied
by the Corporation promptly after receipt of notice thereof given
by Employee).
3. DUTIES. During the Term of this Agreement, Employee
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shall serve in a capacity as President and Chief Executive Officer
and shall serve in such other capacity or capacities as the
Corporation may from time to time prescribe. Employee shall report
to the President of TASA. Employee shall do and perform all
services, acts or things necessary or advisable to manage and
conduct the business of the Corporation and which are normally
associated with the position of Chief Executive Officer, consistent
with the Bylaws of the Company and as required by the Board of
Directors of the Corporation, including, but not limited to
executive, administrative, development, production, marketing and
other services and duties for the Corporation, at the present
location of the Corporation or any office or location fifty (50) or
less miles from Minneapolis, MN. The employment relationship
between the parties shall be governed by the policies and practices
established by the Board of Directors, except that when the terms
of this Agreement differ from or are in conflict with the policies
or practices of the Corporation, this Agreement shall control.
During the Employment Term, and excluding any periods of vacation
and sick leave, Employee agrees to devote full time, best efforts
to the business and affairs of the Corporation and to perform
faithfully and efficiently such responsibilities. During the
Employment Term it shall not be a violation of this Agreement for
Employee to (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures to fulfill speaking engagements
and (C) manage personal investments, so long as Employee's duties
in connection therewith do not interfere with Employee's duties
under this Agreement.
4. COMPENSATION.
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(a) BASE SALARY. During the Term of this Agreement, the
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Corporation shall pay to Employee, in equal installments at such
intervals as are in effect from time to time for officers of TASA,
an annual base salary (the "Base Salary") of One Hundred Seventy-
Five Thousand ($175,000.00) Dollars.
(b) BONUS. In addition to Base Salary, from and after
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November 1, 2005, and in connection with each twelve month period
thereafter during the Employment Term (November 1 - October 31),
Employee shall be eligible to participate in such Senior Level
Bonus Program as is established for executive level employees of
TASA and approved by the Compensation Committee of TASA.
(c) INCENTIVE, SAVINGS, WELFARE BENEFIT PLANS AND
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RETIREMENT PLANS. In addition to Base Salary, Employee shall be
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eligible to participate in or benefit from, such medical insurance,
life insurance, disability insurance, pension, bonus, profit-
sharing, stock option, stock purchase and any other fringe benefit
plans, practices, programs or policies provided by the Corporation
or TASA to executive level employees as a class in accordance with
the terms of such plans, practices, programs and policies, as
amended from time to time.
(d) KEY MAN INSURANCE. Employee agrees that, subject to
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approval of the Chief Executive Officer of TASA, the Corporation or
TASA may obtain key man life insurance with respect to Employee,
and in connection therewith, Employee agrees to submit to all
reasonable and customary examinations requested by the provider of
such life insurance.
(e) EXPENSES. Employee shall be entitled to
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reimbursement for all normal and reasonable travel, entertainment
and other expenses necessarily incurred by him in the performance
of his duties hereunder in accordance with the policies, practices
and procedures of the Corporation as amended from time to time.
(f) VACATION. During the Employment Term, Employee
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shall be entitled to paid vacation in accordance with the plans,
practices, policies and programs of the Corporation as amended from
time to time.
(g) DISABILITY. The Corporation shall pay Employee for
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any period, up to a maximum of two months in each thirty-six month
period during the Term of this Agreement in which, pursuant to
written certification of his physician, he is unable substantially
to perform his duties because of physical or mental disability or
incapacity, an amount equal to the Base Salary due him for such
period pursuant to Section 4(a), less the aggregate amount of all
income disability benefits which for such period he may receive by
reason of (i) any group health insurance plan, or disability
insurance plan paid for by the Corporation, in each case which is
intended to function as a salary replacement plan, (ii) any
applicable compulsory state disability law, (iii) the Federal
Social Security Act, (iv) any applicable workmen's compensation law
or similar law and (v) any plan towards which the Corporation or
any subsidiary or affiliate of the Corporation (including TASA) has
contributed or for which it has made payroll deductions, such as
group accident or health policies, other than those which reimburse
for actual medical expenses.
5. STOCK OPTIONS.
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(a) As part of the consideration to be paid to Employee
for his services hereunder, Employee shall be eligible to
participate in any stock incentive plan adopted by TASA (the
"Plan") for which an executive level employee may participate.
(b) TASA hereby agrees that it shall cause to be filed
with the Securities and Exchange Commission a registration
statement on Form S-8 (or equivalent form as may be in effect at
such time) with respect to all options heretofore granted to
Employee under the Plan. TASA covenants that it will keep such
registration statement current until Employee is no longer employed
by the Corporation. TASA hereby agrees that, for so long as either
TASA does not have an effective registration statement on Form S-8
or TASA has an effective registration statement on Form S-8 but
Employee is restricted in his ability to resell shares acquired
pursuant to the exercise of options because of the provisions of
General Instruction C.2(b) to Form S-8, Employee shall have
"piggyback" registration rights with respect to the options granted
to Employee under the Plan and the shares underlying such options.
(c) As an incentive to enter into this Agreement, TASA,
immediately upon the Effective Date of this Agreement, shall
deliver to Employee a Stock Option Agreement pursuant to its 2000
Stock Option Incentive Plan, granting to Employee ten (10) year
options for 40,000 shares of the common stock of the Corporation at
fair market value as of the Effective Date, exercisable one year
after the anniversary of the date of the grant.
6. RIGHTS OF TERMINATION.
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(a) CAUSE. During the Term of this Agreement, the
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Corporation shall have the right, at any time effective upon notice
to Employee, to terminate Employee's employment for "Cause" (as
hereinafter defined). For purposes of this Agreement, "Cause"
shall mean (i) an act or acts of personal dishonesty engaged in by
Employee, which in the reasonable opinion of the President of TASA
is intended to result in material personal enrichment of Employee
or any material detriment to the Corporation, (ii) failure by
Employee to perform any of Employee's material obligations under
Section 3 of this Agreement which are not remedied within twenty
(20) days after receipt of written notice from the Corporation;
provided, however, that Employee shall be subject to immediate
termination hereunder if Employee has previously engaged in and
received notice to cure such failure; (iii) conviction by Employee
of a felony, (iv) any act of embezzlement or misappropriation of
funds, (v) material breach of any representation or warranty
hereunder; (vi) fraud or gross negligence in the performance of his
duties hereunder, or (vii) material breach of the provisions of
Section 8 or 9 hereof.
(b) DISABILITY; DEATH. In the event that Employee, due
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to physical or mental disability or incapacity, is unable to fully
perform his duties hereunder in the reasonable opinion of the
President of TASA for (i) a period of ninety (90) or more days in
any one hundred and eighty (180) day period, the Corporation may
terminate Employee's employment hereunder upon 30 days' prior
written notice and termination shall be effective on the 30th day
after such notice is given to Employee (the "Disability Effective
Date"). In the event that Employee is able to and recommences
rendering services and fully performing his duties hereunder within
such 30-day notice period, Employee shall be reinstated and such
notice shall be without further force or effect. If Employee dies
during the Term, this Agreement shall terminate immediately upon
his death.
(c) NOTICE OF TERMINATION. Any termination of
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Employee's employment by the Corporation or by Employee shall be
communicated by Notice of Termination to the other party hereto
given in accordance with Section 17 of this Agreement.
(d) DATE OF TERMINATION. "Date of Termination" means
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the date a Notice of Termination is given, or any later date
specified therein, as the case may be; provided, however, that if
Employee's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of
Employee or the Disability Effective Date, as the case may be.
7. EFFECTS OF TERMINATION. In the event that Employee's
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employment is terminated pursuant to Section 6 hereof, Employee's
employment hereunder shall terminate without further obligations to
Employee, other than those obligations accrued or earned and vested
(if applicable) by Employee through the Date of Termination,
including for this purpose all "Accrued Obligations", defined as
those obligations accrued or earned and vested (if applicable) by
Employee as of the Date of Termination, including, for this purpose
(i) Employee's pro rata Base Salary accrued but unpaid as of the
Date of Termination, (ii) any compensation previously deferred by
Employee (together with any accrued earnings thereon) and not yet
paid by the Corporation, (iii) any accrued vacation pay not yet
paid by the Company (iv) if applicable, all amounts payable to the
estate or designated beneficiaries of Employee under any pension,
savings, life insurance or other plans, practices, policies and
programs of the Corporation and (v) if termination is a result of
the death or Disability of Employee, such Bonus, if any, pursuant
to Section 4(b) hereof calculated pro rata, based upon the actual
number of complete months that Employee is employed in the
applicable fiscal year of the Corporation. In addition:
(i) All Accrued Obligations specified in:
(x) Sections 7(i), (ii) and (iii) shall be
paid to Employee in a lump sum in cash within 30 days of the Date
of Termination.
(y) Section 7(iv) shall be paid in accordance
with Employee's specific elections pursuant to, and otherwise in
accordance with the terms of, any plan, practice, policy or program
providing benefits forming a part of such Accrued Obligations; and
(z) Section 7(v), if any, shall be paid not
later than the date bonuses are paid to executive level employees
under the Senior Level Bonus Program in effect for the applicable
fiscal year of termination.
(ii) all then non-exercisable options shall
immediately and automatically terminate, and
(iii) any registration rights theretofore
granted which have not been invoked with respect to shares of
Common Stock of the Corporation either acquired by Employee
pursuant to the exercise of stock options or underlying vested
options shall immediately and automatically terminate.
8. CONFIDENTIALITY.
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(a) Employee understands and acknowledges that as a
result of Employee's employment with the Corporation, and
involvement with the business of the Corporation he is or shall
necessarily become informed of, and have access to, confidential
information of the Corporation including, without limitation,
inventions, patents, patent applications, technology, processes,
formulas, software, inventions and developments whether patented or
not, trade secrets, technical information, know-how, plans,
specifications, financial information and business strategy,
marketing plans and information, pricing information, identity of
customers and prospective customers and identity of suppliers and
vendors, research and development reports, industry and competitive
analyses, invention records and agreements, opinions of counsel,
employee intellectual property and confidentiality agreements,
licenses to and from third parties, and the like, and that such
information, even though it may have been or may be developed or
otherwise acquired by Employee, is the exclusive property of the
Corporation to be held by Employee in trust and solely for the
Corporation's benefit. Employee shall not at any time, either
during or subsequent to his employment hereunder, reveal, report,
publish, transfer or otherwise disclose to any person, corporation
or other entity, or use, any of the Corporation's confidential
information, without the written consent of the Board, except for
use on behalf of the Corporation in connection with the
Corporation's business, and except for such information which
legally and legitimately is or becomes of general public knowledge
from authorized sources other than Employee.
(b) Upon the termination of his employment with the
Corporation for any reason, Employee shall promptly deliver to the
Corporation, and keep no copies of, all confidential information,
whether drawings, manuals, letters, notes, notebooks, reports, and
all other materials regardless of the media in which stored or the
form thereof, and copies thereof, including, without limitation,
those of a secret or confidential nature, relating to the
Corporation's business which are in Employee's possession or
control.
(c) For purposes of this Section 8 and Section 9, the
term "Corporation" includes the Corporation, TASA and any other
predecessor corporation, and Subsidiaries and joint ventures of
either.
(d) Employee represents and warrants to the Corporation
that the execution and delivery of this Agreement shall not
conflict with, or violate the terms of, or constitute a breach of
any other agreement or document to which he is a party, including,
but not limited to any employment, consulting, non-competition,
restrictive covenant or similar agreement or form of
confidentiality agreement.
(e) Employee represents and warrants to the Corporation
that all data provided in his resume, related papers and oral
interviews is true, complete and correct and acknowledges that
falsification, misrepresentation or deliberate omission of data
will be deemed a material breach of this Agreement and sufficient
cause for immediate termination of employment. Employee shall
provide such information and consents as shall be requested in
connection with a background investigation to be conducted by the
Corporation, including, but not limited to, criminal conduct.
9. NON-COMPETITION.
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(a) Employee agrees that for a period commencing on the
date hereof and ending on October 31, 2008 unless a different date
applies pursuant to the provisions of 9(b) (the "Expiration Date"),
he shall not, anywhere in the United States (or for such lesser
area or such lesser period as may be determined by a court of
competent jurisdiction to be a reasonable limitation on the
competitive activity of Employee) directly or indirectly:
(i) own, manage, operate, control, or invest in,
any business which develops, publishes, manages, operates,
licenses, markets or distributes any software, web site and/or
internet-based distribution system relating to K-12 testing, test
development, test preparation and/or assessment business and
instructional materials related to any such K-12 testing, test
development, test preparation and/or assessment business, or render
any services as an officer, director, employee, partner, member,
consultant or otherwise to, or have any interest as a stockholder,
partner, member, investor, lender or otherwise in, any entity which
is engaged in such activities, in each case whether in print, film,
tape, electronic, internet or other media or forms; provided
further that the foregoing shall not prohibit Employee from owning
in the aggregate less than 1% of any class of securities listed on
a national securities exchange or traded publicly in the over-the-
counter market; which, if performed by Employee would violate this
Section 9; or
(ii) solicit or attempt to solicit business of any
customers of the Corporation (including prospective customers
solicited by the Corporation during the term of his employment) for
products or services the same or in competition with those offered,
sold, produced or under development by the Corporation during the
term of his employment therewith or dealt in by Employee during his
employment with the Corporation.
(b) Notwithstanding the foregoing Section 9(a), the
terms and provisions of Section 9(a) shall not apply in the event
of a termination by the Corporation without Cause, and shall not
apply:
(i) twenty-four months after the date of
termination set forth by Employee in the Change of Control Election
Notice in the event a Change of Control occurs on or prior to June
30, 2006, and a Change of Control Election Notice is given by
Employee to terminate this Agreement as provided in Section 1
hereof; or
(ii) twelve months after the date of termination
set forth by Employee in the Change of Control Election Notice in
the event a Change of Control occurs after June 30, 2006, and a
Change of Control Election Notice is given by Employee to terminate
this Agreement as provided in Section 1 hereof; or
(iii) eighteen months after the Date of
Termination as set forth in the Notice of Termination as provided
in Section 6(c) in the event of a termination for Cause as defined
in Section 6 hereof on or prior to June 30, 2006; or
(iv) twelve months after the Date of Termination as
set forth in the Notice of Termination as provided in Section 6(c)
in the event of a termination for Cause as defined in Section 6
hereof after June 30, 2006.
(c) NON-SOLICITATION AND NON-HIRE. Employee agrees
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that for a period beginning on the date hereof and ending two years
after the applicable Expiration Date, he shall not, directly or
indirectly, solicit or attempt to solicit for any business endeavor
any employee of the Corporation, or solicit or attempt to solicit,
or interfere with any business relationship between the Corporation
and any other person or entity which existed during the term of
employment ("Current Business Relationship"); provided, however,
that for the two year period after the applicable Expiration Date,
"Current Business Relationship" shall be limited to any business
relationship between the Corporation and any other person or entity
existing on the applicable Expiration Date or which the Corporation
is taking reasonable steps to procure at the time of or immediately
prior to the applicable Expiration Date; and provided, further,
however, that nothing in this Section 9(c) shall prohibit Employee
from soliciting business from any such person or entity related to
a contract or business relationship that was not in existence on
the applicable Expiration Date or which expired after the
applicable Expiration Date by its terms without renewal or
extension or continuing negotiation with respect thereto.
(d) Nothing in this Section 9 shall waive any of the
obligations of Employee under Section 8.
10. REMEDIES AND SURVIVAL. Because the Corporation does not
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have an adequate remedy at law to protect its interest in its trade
secrets, privileged, proprietary or confidential information and
similar commercial assets, or its business from Employee's
competition, the Corporation shall be entitled to injunctive
relief, in addition to such other remedies and relief that would,
in the event of a breach of any of the provisions of Sections 8 or
9, be available to the Corporation. A breach of any provision of
Section 8 or 9 shall constitute irreparable harm and be deemed a
material breach under this Agreement. The provisions of Sections 8
and 9 and this Section 10 shall survive any termination of
Employee's employment with the Corporation for any reason
whatsoever.
11. SEVERANCE PAYMENT.
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(a) The Company shall pay to Employee a severance
payment in the amounts and under the circumstances set forth as
follows:
(i) in the event a Change of Control occurs on or
prior to June 30, 2006, and a Change of Control Election Notice is
given by Employee to terminate this Agreement as provided in
Section 1 hereof, twenty-four months of his then current base
salary as in effect on the Employee's last day of employment;
(ii) in the event a Change of Control occurs after
June 30, 2006, and a Change of Control Election Notice is given by
Employee to terminate this Agreement as provided in Section 1
hereof, twelve months of his then current base salary as in effect
on the Employee's last day of employment.
(b) The severance payment shall be payable in full
within twenty (20) business days after the termination of
Employee's employment, unless the parties agree otherwise.
(c) The Employee agrees that prior to payment of the
severance payment pursuant to this Section 11, Employee shall, as a
condition thereto, execute a release, based on the Corporation's
standard form (including mutual confidentiality and non-
disparagement provisions), of any and all claims he may have
against the Corporation and TASA and each of its officers,
directors, employees and affiliates, except for his right to
enforce any post-employment obligations to him, including but not
limited to obligations of the Company under this Agreement and
stock option agreements.
12. GUARANTY OF OBLIGATIONS. To the extent that the
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Corporation is obligated to make payment to Employee under the
terms of this Agreement and, without defense or set-off therefore,
fails to do so, TASA hereby guarantees to Employee payment of such
payment obligations.
13. SET-OFF. The payments and performance by the Corporation
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as provided for in this Agreement shall be subject to any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Corporation may have against Employee.
14. ENTIRE AGREEMENT. This Agreement and the Employee
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Proprietary Rights Agreement between the Corporation and Employee
and dated the date hereof, sets forth the entire understanding of
the parties hereto with respect to its subject matter, merges and
supersedes any prior or contemporaneous agreements or
understandings with respect to its subject matter, and shall not be
modified or terminated except by another agreement in writing
executed by the Corporation and Employee. Failure of a party to
enforce one or more of the provisions of this Agreement or to
require at any time performance of any of the obligations hereof
shall not be construed to be a waiver of such provisions by such
party nor to in any way affect the validity of this Agreement or
such party's right thereafter to enforce any provision of this
Agreement, nor to preclude such party from taking any other action
at any time which it would legally be entitled to take.
15. SEVERABILITY. If any provision of this Agreement is held
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to be invalid or unenforceable by any court or tribunal of
competent jurisdiction, the remainder of this Agreement shall not
be affected by such judgment and such provision shall be carried
out as nearly as possible according to its original terms and
intent to eliminate such invalidity or unenforceability.
16. SUCCESSORS AND ASSIGNS. This Agreement is personal to
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Employee and shall not be assignable by Employee. This Agreement
shall inure to the benefit of and be enforceable by Employee's
legal representatives, heirs, and successors. This Agreement shall
inure to the benefit of and be binding upon the Corporation and its
successors and assigns. As used in the Agreement, "Corporation"
shall mean the Corporation as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes
and agrees to perform this Agreement by operation of law or
otherwise.
17. COMMUNICATIONS AND NOTICES. All notices and other
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communications under this Agreement shall be in writing and shall
be deemed to have been duly given three (3) business days after
they are mailed in any United States post office enclosed in a
registered or certified postage-paid envelope and addressed as set
forth at the beginning of this Agreement, or to such other address
as any party may specify by notice to the other party, or delivered
by overnight courier to such address with evidence of delivery;
provided, however, that any notice of change of address shall be
effective only upon receipt.
18. CONSTRUCTION; COUNTERPARTS. The headings contained in
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this Agreement are for convenience only and shall in no way
restrict or otherwise affect the construction of the provisions
hereof. References in this Agreement to Sections are to the
sections of this Agreement. This Agreement may be executed in
multiple counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
19. VALIDITY. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement. Failure
by a party to insist upon strict compliance with any provision
hereof shall not be deemed to be a waiver of such provision. This
Agreement contains the entire understanding of the Corporation and
Employee with respect to the subject matter hereof.
20. GOVERNING LAW. This Agreement shall be governed by and
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construed under the laws of the State of New York and any cause of
action asserted under this Agreement shall be brought in a court of
competent jurisdiction in the County of Xxxxxx and State of New
York.
IN WITNESS WHEREOF, the undersigned parties have executed and
delivered this Agreement as of the date first above written.
ACHIEVEMENT DATA, INC.
By:___/S/_______________________
Name: Xxxxxx X. Xxxxx
Title: Vice President
EMPLOYEE:
_____/S/____________________
Xxxxxx Xxxx
With respect to Paragraph 12:
TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC.
By:_/S/________________________
Name: Xxxxxx X. Xxxxx
Title: President
