EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT entered into as of January 14, 2003 by and between
X.X. XXXXXXXX & CO., INC., a New Jersey corporation ("MHM" or "Employer"), with
offices located at Newport Office Tower, 525 Washington Boulevard, 00xx Xxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000, and XXXX X. XXXXXXXX, residing at 000 Xxxxxx
Xxxx., Xxxxxx Xxxx, Xxx Xxxx 00000 ("Employee").
W I T N E S S E T H :
A. MHM is engaged in business as a registered securities broker-dealer
("Employer's Business").
B. Employer desires to employ Employee as its Chief Executive Officer, for the
purpose of exercising such authority and performing such executive duties as are
commensurate with the duties of Chief Executive Officer of Employer, as well as,
where requested by the Board of Directors of Employer, supervising or assisting
in operations of Employer's affiliates and subsidiaries. Employee's management
responsibilities shall include trading, hiring, firing, capital commitments,
budgeting, leases, major contracts, including clearing contracts, vendor
contracts, financings, borrowings and determination of salaries and bonuses of
employees and officers, subject to approval of Employer's Board of Directors
where required. In addition to the above, Employee acknowledges that management
responsibility also includes the necessity of reducing costs if the Milestones
(as hereinafter defined) are not met. These cost reductions reference
compensation to Employee as well as recruited staff and current staff.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Employment
a. During the Term of Employment as defined in Section 2, Employer
agrees to employ Employee, as Employer's Chief Executive Officer, with
the management responsibilities set forth in Recital B. above. Employee
agrees to act in the foregoing capacities, in accordance with the terms
and conditions contained in this Agreement.
b. Employee shall devote all of Employee's working time to the
performance of his duties under this Agreement. Employee shall render
services, without additional compensation, in connection with the
operation of Employer's business, including activities of affiliates
and subsidiaries of Employer. As used in this Agreement, the term
"affiliate" shall mean any entity or person that, directly or
indirectly, is controlled by or under common control with Employer.
c. In view of Employee's duties and responsibilities hereunder,
Employee shall continue to maintain his existing licenses with the
National Association of Securities Dealers, Inc. (the "NASD")
including, without limitation, his Series 4, 7, 24, 55 and 63
registrations, as well as to undertake to qualify for any other NASD
license tests or applicable regulatory
requirements necessary or convenient to enable Employee to undertake
and fulfill his functions, from time to time, under this Agreement.
2. Term
The initial term of Employee's employment under this Agreement shall be
for a period of three (3) years, to commence on January 14, 2003 and
end on January 13, 2006 (the "Term of Employment").
3. Compensation
a. Employer shall pay to Employee an annual base salary of (i) Four
Hundred and Fifty Thousand Dollars ($450,000) for the first year of the
Term of Employment; (ii) Six Hundred and Seventy-Five Thousand Dollars
($675,000) for the second year of the Term of Employment; and (iii) Six
Hundred and Seventy-Five Thousand Dollars ($675,000) for the third year
of the Term of Employment . All payments shall be made in equal
bi-weekly installments, in arrears, or such other installments as may
be consistent with the payroll practices of Employer for its Employees.
b. Notwithstanding anything to the contrary contained in sub-section
(a) above, payment of the salary provided for hereunder shall not
commence until April 14, 2003. In accordance therewith, Employee shall
be paid the full base salary of Four Hundred and Fifty Thousand Dollars
($450,000) for the first year of the Term of Employment during the
period April 14, 2003 through January 31, 2004.
4. Additional Employee Benefits
a. Employer shall reimburse Employee for all expenses reasonably
incurred by Employee in connection with the performance of Employee's
duties under this Agreement against Employee's submitted documented
vouchers for such expenses.
b. Employee shall be entitled to reasonable vacation periods each year,
as the case may be, and other general medical and employee benefit,
retirement and compensation plans (including profit sharing or pension
plans) as shall have been established and are continuing for senior
management. Employer shall make available to Employee either Employer's
car and driver or a car service when necessary for the performance of
his duties hereunder.
c. Subject to MHM's achieving the Milestones, during the Term of
Employment Employer shall pay Employee a semi-annual cash incentive
bonus (the "Incentive Bonus") of twelve and one-half (12.5%) percent of
MHM's "Income before income taxes" ("Pre-tax Earnings") as reflected in
MHM's periodic filings with the Securities and Exchange Commission (the
"SEC"). The Incentive Bonus is payable as follows: (i) the Incentive
Bonus for the six-month period ending July 31st shall be paid thirty
(30) days after MHM files its Report on Form 10-Q for the quarter ended
July 31st of the applicable year with the SEC; and (ii) the Incentive
Bonus for the period ending January 31st shall be paid thirty (30)
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days after MHM's independent auditors (the "Auditors") shall have
completed their audit of the applicable fiscal year's results.
d. Employer shall pay Employee a performance bonus (the "Performance
Bonus") of $1,000,000 if MHM's Revenues (as ultimately reported in
MHM's periodic filings with the SEC) during any 12 month period during
the Term of Employment are equal to or greater than $50,000,000 (but
less than $100,000,000) and MHM has $3,000,000 pre-tax profit for such
period. Employee may only receive the Performance Bonus for reaching
the $50,000,000 target once during the Term of Employment. In the event
that Employee receives such $1,000,000 Performance Bonus, he shall then
be eligible to receive an additional $2,000,000 Performance Bonus
whenever Revenues (as ultimately reported in MHM's periodic filings
with the SEC) during any 12-month period during the Term of Employment
(which may include Revenues earned during the time period in which the
$1,000,000 Performance Bonus was earned) exceed $100,000,000 and MHM
has $5,000,000 pre-tax profit for such period. Employee may only
receive a $2,000,000 Performance Bonus once for reaching the
$100,000,000 target during the Term of Employment. All calculations
shall be (i) inclusive of Employee's base compensation and (ii)
calculated after giving effect to the payment of all other cash bonuses
to Employer's senior management. Employee shall be paid twenty-five
(25%) percent of the Performance Bonus at the time that he becomes
entitled to such bonus, with the balance to be paid after the Auditors
shall have completed their audit for the fiscal year during which the
Performance Bonus was earned
e. All calculations of the Incentive Bonuses and Performance Bonuses
shall be adjusted upwards or downwards, as the case may be, and any
required additional payments by Employer or repayments by Employee of
excess payments shall be made after the auditors shall have completed
their audit of the applicable fiscal year's results.
f. Concurrently with the execution of this Agreement, Employer is
issuing to Employee three hundred seventy-five thousand (375,000)
shares (the "Shares") of Employer's common stock, par value $.01 per
share ("Common Stock"). The Shares are unregistered and fully vested on
the date hereof.
g. Concurrently with the execution of this Agreement, Employer is
granting Employee fully-vested options to purchase three hundred
seventy-five thousand (375,000) shares of Common Stock at an exercise
price of $.40 per share (the "Options"). The terms and conditions
governing the Options are set forth in the Option Agreement dated the
date hereof, which Option Agreement will include, without limitation,
that the grant of the Options is conditioned upon obtaining shareholder
and, if needed, NASD approval in order to comply with applicable rules
and regulations of the SEC, NASD and Internal Revenue Code of 1986, as
amended, as more fully detailed in the Option Agreement.
h. Concurrently with the execution of this Agreement, Employer is
issuing Employee warrants to purchase 1,000,000 shares of Common Stock
at an exercise price of $.40 per share (the "Warrants"). The Warrants
shall vest in equal installments upon MHM's achieving the First, Second
and/or Third Milestones. The terms and conditions governing the
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Warrants are set forth in the Warrant Agreement dated the date hereof,
which Warrant Agreement will include, without limitation, that the
issuance of the Warrants is conditioned upon obtaining shareholder and,
if needed, NASD approval in order to comply with applicable rules and
regulations of the NASD, as more fully detailed in the Warrant
Agreement.
i. Employer agrees, after obtaining the shareholder approvals referred
to in sub-clauses (g) and (h) above, to promptly file Registration
Statements on (i) Form S-3 ( or if Form S-3 is not available, on Form
S-1 or Form SB-2, if available) for resale of the shares of Common
Stock issuable upon exercise of the Warrants and (ii) Form S-8 for the
Shares of Common Stock issuable upon exercise of the Options. The
Registration Statement on Form S-8 will include, if necessary, a
re-sale prospectus allowing Employee to sell the shares of Common Stock
issuable upon exercise of the Options.
j. During the Term of Employment, if Employee introduces Employer to an
unaffiliated third-party which consummates an acquisition transaction
with Employer resulting in a Change of Control (as hereinafter
defined), Employer shall upon the consummation of such transaction, as
compensation for such introduction, pay Employee, in addition to all
other compensation provided for hereunder and the acceleration of the
Warrants then held by Employee, an aggregate sum of (i) Six Hundred
Thousand Dollars ($600,000) and (ii) the sum determined by multiplying
(x) the number of unexercised Options and Warrants then held by
Employee, whether vested or not, by (y) the difference between (A) the
per share price paid in the acquisition transaction (or the fair market
value of the non-cash consideration paid if the purchase price is not
paid in cash) and (B) the average closing price of the Common Stock on
the NASDAQ market for the last forty-five (45) days prior to the
consummation of the acquisition transaction. Upon payment of the
amounts set forth in sub-clauses (i) and (ii) above and any other
amounts then due Employee under this Agreement, with the consent of the
acquiring entity (which consent shall be in the acquiring entity's sole
discretion), this Agreement shall cease to have any further binding
effect. For purposes of this Agreement, a "Change in Control" of
Employer shall be deemed to have occurred if (i) any person, entity or
group of persons or entities acting in concert, excluding any officer
or director of Employer or any person or entity that directly, or
indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with any officer or director
of Employer (collectively, a "Third Person") becomes the beneficial
owners of 50% or more of the then outstanding shares of Common Stock of
Employer, (ii) any Third Person holds revocable or irrevocable proxies
entitling them to vote 50% or more of the then outstanding shares of
Employer's Common Stock (other than the persons named as proxies in any
Proxy Statement prepared by management of Employer in connection with
an annual or special meeting of stockholders called by an officer or
the Board of Directors), (iii) a merger, sale of substantially all the
assets of Employer, share exchange, consolidation or other business
combination (as defined in the New Jersey Business Corporation Law) of
Employer and any other Third Person, as a result of which Employer's
Common Stock becomes exchangeable for other securities or property or
cash, or (iv) if a majority of the members of the Board of Directors is
replaced during any 12-month period during the Term of Employment but
only if the directors who replace such majority have not been elected
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either by the remaining members of the Board of Directors or by the
stockholders of Employer.
k. Payment of the Incentive Bonus and vesting of the Warrants are
subject to the following milestones (collectively, the "Milestones"):
i. For the period commencing February 1, 2003 and ending July 31,
2003, MHM must achieve Pre-tax Earnings of Five Hundred Thousand
Dollars ($500,000) (the "First Milestone");
ii. For the period commencing August 1, 2003 and ending January 31,
2004, MHM must achieve Pre-tax Earnings of One Million Dollars
($1,000,000) (the "Second Milestone"); and
iii. For the period commencing February 1, 2004 and ending July 31,
2004, MHM must achieve Pre-tax Earnings of One Million Five Hundred
Thousand Dollars ($1,500,000) (the "Third Milestone").
iv. For the period commencing August 1, 2004 and ending January 31,
2005, MHM must achieve Pre-tax Earnings of One Million Five Hundred
Thousand Dollars ($1,500,000) (the "Fourth Milestone").
v. For the period commencing February 1, 2005 and ending July 31,
2005, MHM must achieve Pre-tax Earnings of One Million Five Hundred
Thousand Dollars ($1,500,000) (the "Fifth Milestone").
vi. For the period commencing August 1, 2005 and ending January 13,
2006, MHM must achieve Pre-tax Earnings of One Million Five Hundred
Thousand Dollars ($1,500,000) (the "Sixth Milestone").
Each Milestone is an independent Milestone and must be satisfied
separately. That is, if the First Milestone is not met, the payment for
such First Milestone cannot be recovered based on the results for the
Second or Third Milestone. Furthermore, results achieved during the
period comprising the First Milestone shall not be counted towards the
Second Milestone. For example, if for the period comprising the First
Milestone pre-tax earnings are Four Hundred Thousand Dollars
($400,000), the First Milestone has not been met. In order to meet the
Second Milestone, MHM must have pre-tax earnings of One Million Dollars
($1,000,000) during the period comprising the Second Milestone, without
including the Four Hundred Thousand Dollars ($400,000) achieved during
the First Milestone.
l. Employee acknowledges that payment of the Incentive Bonus and/or a
Performance Bonus could have an adverse impact on Employer's ability to
maintain compliance with the net capital rules promulgated under the
Securities Exchange Act of 1934, as amended (the "Net Capital Rules").
Accordingly, Employer and Employee agree that if payment or accrual for
payment of the amount due pursuant to an Incentive Bonus or a
Performance Bonus
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would cause Employer to have less than One Million Five Hundred
Thousand Dollars ($1,500,000) in Net Capital (as defined under the Net
Capital Rules), Employer shall only be required to pay Employee, or
accrue for payment, such amount of the Incentive Bonus or Performance
Bonus as would allow Employer to maintain Net Capital of not less than
One Million Five Hundred Thousand Dollars ($1,500,000) and the balance
of such Incentive Bonus or Performance Bonus shall be forfeited by
Employee.
m. Notwithstanding MHM's failure to meet the First Milestone or Second
Milestone, if such failure occurs, if at any time during the period
commencing February 1, 2003 and ending July 31, 2004, MHM's "Income
before income taxes" as reflected in MHM's periodic filings with the
SEC aggregate Three Million Dollars ($3,000,000), all Warrants shall be
accelerated and fully vested.
n. Notwithstanding anything to the contrary contained in the foregoing,
in no event shall Employee's aggregate annual cash compensation exceed
fifty (50%) percent of MHM's Pre-tax Earnings for any given year during
the Term of Employment.
5. Termination.
a. Employer may terminate this Agreement for cause.
b. "Cause" within the meaning of this Agreement shall mean any one or
more of the following:
i. Employee's breach of any of the material provisions of this
Agreement; or
ii. Employee's failure or refusal to follow any specific material
written directions of Employer's Board of Directors (which
directions include a statement to the effect that failure or
refusal to follow such directions shall constitute cause for
termination of the employment of Employee hereunder); or
iii. Employee's failure or refusal to perform Employee's duties in
accordance with Recital B or Section 1 hereof, provided Employee
shall have been given written notice by Employer's Board of
Directors of such failure or refusal to perform these duties and
three business days within which to cure the same; or
iv. Failure by Employee to comply in any material respect with the
terms of any provision contained in this Agreement, if any, or any
written policies or directives of Employer's Board of Directors,
provided Employee shall have been given written notice of such
failure or refusal to perform these duties and three business days
within which to cure the same; or
v. Physical incapacity or disability of Employee to perform the
services required to be performed under this Agreement. For
purposes of this Section 5(b)(v), Employee's incapacity or
disability to perform such services for any cumulative
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period of ninety (90) days during any twelve-month period, or for
any consecutive period of sixty (60) days, shall be deemed "cause"
hereunder; or
vi. Employee is convicted of, pleads guilty or no contest to, or
admits or confesses to any felony or any act of fraud,
misappropriation or embezzlement; or
vii. Employee engages in an intentional fraudulent act or dishonest
act to the damage or prejudice of Employer and/or its affiliates or
in conduct or activities damaging to the property, business or
reputation of Employer and/or its affiliates; or
viii. If Employee is registered or licensed with the NASD or any
other regulatory authority, federal or state, and has violated any
applicable rule of any such regulatory authority.
c. If Employer notifies Employee of its election to terminate this
Agreement for cause, this termination shall become effective at the
time notice is deemed to have been given in accordance with Section 9.
d. This Agreement shall automatically terminate upon the death of
Employee.
e. Employer may terminate this Agreement without cause upon giving
Employee fourteen (14) days' prior written notice. If this Agreement is
terminated without cause, (i) Employer shall pay Employee all base
salary that would have been paid to Employee if he completed the Term
of Employment, (ii) Employee shall be entitled to payment of the
Incentive Bonus provided for in Section 4(c) hereof if the applicable
Milestone is met; (iii) Employee shall be entitled to payment of a
Performance Bonus provided for in Section 4(d) hereof if the required
Revenues targets are achieved, and (iv) the Warrants shall be fully
vested. In the event that Employer does not make any of the foregoing
cash payments when due, interest shall accrue on such unpaid amount in
the amount of the then-current broker's loan rate plus five (5%)
percent per annum. Employer will also reimburse Employee for Employee's
reasonable legal fees incurred in enforcing the provisions of this
Section 5(e). Notwithstanding the forgoing, Employer may satisfy its
obligations to Employee under this Section 5(e) by paying Employee a
lump sum of One Million Five Hundred Thousand Dollars ($1,500,000).
Each of Employer and Employee will execute a release concerning the
other's obligations hereunder.
6. Non-Solicitation, Non-Disclosure, Shop Rights and Xxxxxxx Xxxxxxx.
a. Non-Solicitation.
During Employee's Term of Employment with Employer, and for a
period of one (1) year from the date of expiration or termination of
such employment (the "Restricted Period"), Employee covenants and
agrees that Employee will not, directly or indirectly, either for
itself or for any other person or business entity, (i) solicit any
employee of Employer to terminate his employment with
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Employer or employ such individual during his employment with Employer,
or (ii) make any disparaging statements concerning Employer, Employer's
Business or its officers, directors, or employees, that could injure,
impair or damage the relationships between Employer or Employer's
business on the one hand and any of the employees, customers or
suppliers of Employer's business, or any lessor, lessee, vendor,
supplier, customer, distributor, employee or other business associate
of Employer's Business. During the Restricted Period, Employer
covenants and agrees that Employer will not, directly or indirectly,
either for itself or for any other person or business entity, make any
disparaging statements concerning Employee, subject to Employer's
regulatory obligations.
b. Non-Disclosure and Non-Use.
i. Description of Confidential Information. For purposes of this
Section 6(b), Confidential Information means any information
disclosed during the Restricted Period, which is clearly either
marked or reasonably understood as being confidential or
proprietary including, but not limited to, information disclosed in
discussions between the parties in connection with technical
information, data, proposals and other documents of Employer
pertaining to its business, products, services, finances, product
designs, plans, customer lists, public relations and other
marketing information and other unpublished information.
Confidential Information shall include all tangible materials
containing Confidential Information including, but not limited to,
written or printed documents and computer disks and tapes, whether
machine or user readable.
ii. Standard of Care. Employee shall protect the Confidential
Information from disclosure to any person other than other
employees of Employer who have a need to know, by using a
reasonable and prudent degree of care, in light of the significance
of the Confidential Information, to prevent the unauthorized use,
dissemination, or publication of such Confidential Information.
iii. Exclusion. This Section 6(b) imposes no obligation upon
Employee with respect to information that: (a) was in Employee's
possession before receipt from Employer; (b) is or becomes a matter
of public knowledge through no fault of Employee; (c) is rightfully
received by Employee from a third party who does not have a duty of
confidentiality; (d) is disclosed under operation of law, except
that Employee will disclose only such information as is legally
required and give Employer prompt prior notice; or (e) is disclosed
by Employee with Employer's prior written consent.
iv. Stock Trading. If the information disclosed or of which
Employee becomes aware is material non-public information about the
Employer, then Employee agrees not to trade in the securities of
MHM, or in the securities of or any appropriate and relevant third
party, until such time as no violation of the applicable federal
and state securities laws would result from such securities
trading.
v. Return of Confidential Information. The Employee will
immediately destroy
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or return all tangible material embodying Confidential Information
(in any form and including, without limitation, all summaries,
copies and excerpts of Confidential Information) upon the earlier
of (i) the completion or termination of the dealings between the
Employer and Employee under the Agreement or (ii) at such time that
Employer may so request.
vi. Notice of Breach. Employee shall notify Employer immediately
upon discovery of any of his unauthorized use or disclosure of
Confidential Information, or any other breach of the Agreement by
Employee, and will cooperate with Employer in every reasonable way
to help Employer regain possession of Confidential Information and
prevents its further unauthorized use.
vii. Injunctive Relief. The Employee acknowledges that disclosure
or use of Confidential Information in violation of the Agreement
could cause irreparable harm to the Employer for which monetary
damages may be difficult to ascertain or an inadequate remedy. The
Employee therefore agrees that the Employer will have the rights in
addition to its other rights and remedies, to seek and obtain
injunctive relief from any violation of the Agreement.
c. Shop Rights and Inventions, Patents, and Technology.
Employee shall promptly disclose to Employer any developments,
designs, patents, inventions, improvements, trade secrets, discoveries,
copyrightable subject matter or other intellectual property conceived,
either solely or jointly with others, developed, or reduced to practice
by Employee during Employee's Term of Employment in connection with the
services performed for Employer (the "Company Developments") and shall
treat such information as proprietary to Employer. Employee agrees to
assign to Employer any and all of Employee's right, title and interest
in the Company Developments and Employee hereby agrees that Employee
shall have no rights in the Company Developments. Any and all Company
Developments in connection with the services performed for Employer
pursuant to the Agreement are "works for hire" created for and owed
exclusively by Employer.
7. Representation and Indemnification.
Employee hereby represents and warrants that Employee is not a party to
any agreement, whether oral or written, which would prohibit Employee from being
employed by Employer, and Employee further agrees to indemnify and hold
Employer, its directors, officers, shareholders and agents, harmless from and
against any and all losses, cost or expense of every kind, nature and
description (including, without limitation, whether or not suit be brought, all
reasonable costs, expenses and fees of legal counsel), based upon, arising out
of or otherwise in respect of any breach of such representation and warranty.
8. Injunctive Relief.
The parties acknowledge that the services to be rendered hereunder by
Employee are special,
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unique and of extraordinary character, and that in the event of a
breach or a threatened breach of Employee of any of Employee's
obligations under this Agreement, Employer will not have an adequate
remedy at law. Accordingly, in the event of any breach or threatened
breach of Employee, Employer shall be entitled to such equitable and
injunctive relief as may be available to restrain Employee and any
business, firm, partnership, individual, corporation or entity
participating in the breach of this Agreement. Nothing in this
Agreement shall be construed as prohibiting Employer from pursing any
other remedies available at law or in equity for such breach or
threatened breach, including the recovery of damages and the immediate
termination of the employment of Employee under this Agreement.
9. Notices.
All notices shall be in writing and shall be delivered personally
(including by courier), sent by facsimile transmission (with appropriate
documented receipt thereof), by overnight receipted courier service (such as UPS
or Federal Express) or sent by certified, registered or express mail, postage
prepaid, to the parties at their address set forth at the beginning of this
Agreement with Employer's copy being sent to Employer at its then principal
office. Any such notice shall be deemed given when so delivered personally, or
if sent by facsimile transmission, when transmitted, or, if mailed, forty-eight
(48) hours after the date of deposit in the mail. Any party may, by notice given
in accordance with this Section to the other party, designate another address or
person for receipt of notices hereunder. Copies of any notices to be given to
Employer shall be given simultaneously to: Xxxxxxx & Xxxxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, Esq. Copies of any
notices to be given to Employee shall be given simultaneously to: Davidson
Manchel & Xxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000,
Attention: Xxxx X. Xxxxxxxx, Esq.
10. Miscellaneous.
a. This Agreement shall be governed in all respects, including
validity, construction, interpretation and effect, by New Jersey law,
without giving effect to conflicts of laws. The parties hereby agree
that any action, proceeding or claim arising out of, or relating in any
way to, this Agreement shall be determined by arbitration, except for
injunction proceedings brought to enforce the provisions of this
Agreement which may be brought and enforced in the courts of the State
of New Jersey or of the United States of America for New Jersey, and
irrevocably submit to such jurisdiction, and waive any claim that such
courts represent an inconvenient forum. Any arbitration under this
Agreement shall be conducted pursuant to the Rules of the NASD and
before an arbitration panel appointed by the NASD. The award of the
arbitrator or a majority of them shall be final, and judgment on the
award may be entered in any state or federal court having jurisdiction.
In this regard, a request by either party for arbitration shall be
binding on the other. Any process or summons to be served upon either
party may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth hereinabove. Such mailing shall be
deemed personal service and shall be legal and binding upon said party
in any action, proceeding or claim.
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b. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written
instrument signed by authorized representatives of the parties or, in
the case of a waiver, by an authorized representative of the party
waiving compliance. No such written instrument shall be effective
unless it expressly recites that it is intended to amend, supersede,
cancel, renew or extend this Agreement or to waive compliance with one
or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right, power or privilege, or any single or
partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power
or privilege. The rights and remedies herein provided are cumulative
and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
c. In view of Employer's need and desire to maintain a proper working
environment with suitable demeanor of its employees and in light of
Employer's sensitivity to the views of its customers and potential
customers and to regulatory bodies having jurisdiction over Employer's
business activities, Employer has instituted a policy of requiring
employees to be subject to, at Employer's sole reasonable discretion,
alcohol and drug testing procedures and requirements. Employee
specifically consents to the same, agrees to be subject to whatever
reasonable procedures may now or hereinafter be put in place covering
such testing and understands and agrees that Employee's consent to this
is a material inducement to Employer to enter into this agreement and
to provide for the employment of Employee hereunder.
d. If any provision or any portion of any provision of this Agreement
or the application of any such provision or any portion thereof to any
person or circumstance, shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of
this Agreement, or the application of such provision or portion of such
provision as is held invalid or unenforceable to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and such provision or
portion of any provision as shall have been held invalid or
unenforceable shall be deemed limited or modified to the extent
necessary to make it valid and enforceable; in no event shall this
Agreement be rendered void or unenforceable.
e. The headings to the Sections of this Agreement are for convenience
of reference only and shall not be given any effect in the construction
or enforcement of this Agreement.
f. This Agreement shall inure to the benefit of and be binding upon the
successor and assigns of Employer, but no interest in this Agreement
shall be transferable in any manner by Employee.
g. This Agreement, the Letter Agreement dated of even date herewith and
the agreements referred to therein constitute the entire agreement and
understanding between the parties and supersedes all prior discussions,
agreements and undertakings, written or oral, of any and every nature
with respect thereto.
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h. This Agreement may be executed by the parties hereto in separate
counterparts which together shall constitute one and the same
instrument.
i. In the event of the termination or expiration of this Agreement, the
provisions of Sections 6, 7, 8 and 10 hereof shall remain in full force
and effect, in accordance with their respective terms.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
stated at the beginning of this Agreement.
X.X. XXXXXXXX & CO., INC.
By:/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chairman
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
12
