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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of December 1st, 1997 (the "Agreement"),
by and between Optical Systems, Inc., a Florida corporation (the "Company"), and
Xxxxxxxxx X. Xxxxxx ("Executive").
RECITALS:
WHEREAS, Executive is a key employee who has been instrumental in
achieving the success of the Company; and
WHEREAS, Executive has devoted his entire business time and attention
to securing the technology for the Company and helping to develop the activities
and policies of the Company, and has served as its Director, Communications and
Information Services, since the Company's inception; and
WHEREAS, the Company has recently issued shares of its common stock,
par value $.0001 per share ("Common Stock"), and warrants to purchase shares of
Common Stock (the "Warrants") pursuant to a private placement of securities (the
"504 Offering") in accordance with the provisions of Rule 504 of Regulation D
promulgated under the Securities Act of 1933, as amended (the "Securities Act");
and
WHEREAS, the Board has approved, in connection with the 504 Offering,
the Company's grant to Executive of incentive compensation in the form of shares
of Common Stock ("Incentive Shares") issuable upon the Company's attainment of
certain economic goals; and
WHEREAS, the Company and Executive wish to set forth in writing the
terms of Executive's employment with the Company, including the terms of the
issuance of Incentive Shares to Executive, and the terms of severance payments
to Executive in the event of the termination of his employment with the Company
under certain circumstances.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto hereby agree as follows:
1. Employment.
1.1 General. The Company hereby employs Executive in the
capacity of Sr. Manager, Document Management Solutions of the Company, and
Executive hereby accepts such employment subject to the terms and conditions
herein contained. In such capacities, Executive will perform and carry out such
duties and responsibilities as may be reasonably assigned to him from time to
time by the Board. Subject to the foregoing, Executive shall be required to
report to or take direction from the President or his designate. Executive shall
have such powers, rights, duties and obligations as are commensurate with his
positions.
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1.2 Full-Time Positions. Executive hereby agrees that, during
the Employment Period, he shall devote substantially all of his business time,
attention and skills to the business and affairs of the Company.
2. Compensation and Benefits.
2.1 Salary. The Company will pay to Executive, and Executive
will accept, a base salary during the Employment Period pursuant to the
following schedule:
(i) at the annual rate of $75,000 for the period
commencing upon the execution of this Employment Agreement;
(a) provided, however, that if aggregate
gross revenues for the first fiscal year of this Agreement
exceeds the Base Revenue Amount, as that term is defined in
paragraph 2.3(a) below, on or before April 1st, 1998, the base
salary paid to Executive shall be at an annual rate of $80,000
for the remainder of that first fiscal year and thereafter.
(ii) at the annual rate of $90,000 from and after
such time as the Company's Gross Revenues (as hereinafter defined) for
a fiscal year shall equal between 3,000,000 and $5,000,000;
(iii) at the annual rate of $100,000 from and after
such time as the Company's Gross Revenues for a fiscal year shall equal
between $5,000,001 and $10,000,000;
(iv) at the annual rate of $110,000 from and after
such time as the Company's Gross Revenues for a fiscal year shall
exceed $10,000,001 and at all times thereafter or at such higher rates
as the President, in its sole discretion, may hereafter from time to
time grant to executive (the "Base Salary"); provided, however, that no
salary increases pursuant to this paragraph will occur unless the
Company enjoys positive net earnings in the fiscal year for which the
increase is granted.
2.2 The Base Salary shall be payable in accordance with the
regular payroll practices of the Company applicable to senior executives.
Provided, however, that in the event the Base Salary increases in any given
fiscal year by reason of increased Gross Revenues pursuant to paragraph 2.1
above, the additional Base Salary shall be considered earned on the last day of
the fiscal year and shall be paid to Executive on or before the thirtieth day
after the last day of the fiscal year.
2.3 Bonus. In addition to the Base Salary, Executive shall be
entitled to receive the following bonus payments:
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(a) Gross Revenue Bonus. In each fiscal year during
the Employment Period, commencing with the Company's fiscal year ending
September 30, 1997 ("Fiscal 1997"), in which the Company's gross
revenues, determined in accordance with Section 2.3(c) hereof ("Gross
Revenues"), equal or exceed the Base Revenue Amount (as hereinafter
defined), the Company shall pay to Executive $5,000 for each $100,000
increment of such excess; provided, however, that the aggregate bonus
payable to Executive pursuant to this Section 2.3(a) shall not exceed
$7,500 in any given fiscal year. For purposes of this Agreement, the
"Base Revenue Amount" shall mean $1,116,000, the amount of the
Company's gross revenues over the nine-month period ended June 30,
1997, annualized to September 30, 1997, based on financial statements
prepared by the Company's independent public accountants (the "Company
Accountants") in accordance with generally accepted accounting
principles ("GAAP") applied consistently with the practices of the
Company (the "Gross Revenue Bonus").
(b) Net Earnings Bonus. In each fiscal year during
the Employment Period, commencing with Fiscal 1997, in which the
Company's net earnings, determined in accordance with Section 2.3(c)
hereof ("Net Earnings"), exceed its Net Earnings for the prior fiscal
year, the Company shall pay to Executive $ 250 for each $25,000
increment of such excess; provided, however, that the aggregate bonus
payable to Executive pursuant to this Section 2.3(b) shall not exceed
$2,500 (the "Net Earnings Bonus"). Provided, however, that no bonus
shall be paid in excess of positive net earnings.
(c) Determination of Gross Revenues and Net Earnings.
The amount of the Company's Gross Revenues and Net Earnings in any
fiscal year shall be determined by the Board of the Company based on
audited financial statements prepared by the Company's regular
independent certified public accountants in accordance with GAAP,
applied consistently with the practices of the Company (the "Audited
Financial Statements").
(d) Payment of Bonus. Any Gross Revenue Bonus or Net
Earnings Bonus due hereunder shall be paid within thirty (30) days
following the delivery of the Audited Financial Statements to the
Company with respect to the applicable fiscal year.
(e) Pro Rata Payment. In determining the amount of
any annual bonus payable under this Section 2.3, if Executive shall
have been employed under this Agreement for less than an entire fiscal
year of the Company for which a bonus is calculated, such bonus shall
be reduced proportionately to reflect the portion of such fiscal year
that Executive was employed hereunder.
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2.4 Executive Benefits.
(a) Expenses. The Company will promptly reimburse
Executive for expenses he reasonably incurs in connection with the
performance of his duties (including business travel and entertainment
expenses) hereunder, all in accordance with the Company's policies with
respect thereto as in effect from time to time.
(b) Company Benefit Plans. Executive will be entitled
to participate in such employee benefit and welfare plans and programs
as the Company may from time to time offer or provide to its executive
officers, including, but not limited to, participation in life
insurance, health and accident, medical plans and programs and profit
sharing and retirement plans.
(c) Vacation. Executive will be entitled to such
vacation time as may be determined to be in the best interests of
Executive and the Company, but in no case less than three weeks
vacation for each twelve (12) month period Executive is employed by the
Company.
3. Employment Period; Termination.
3.1 Employment Period. Executive's employment by the Company
hereunder shall commence on the date hereof (the "Effective Date") and shall
continue until _______, 2002 (the "Initial Period"); provided, however, that,
commencing on _______, 2002, and on each _______ thereafter (each a "Renewal
Date"), the term of this Agreement shall be automatically extended by an
additional period of one year unless Executive or the Company shall elect by
written notice to the other given no later than sixty (60) days prior to any
Renewal Date that he or it does not wish the term of this Agreement to be so
extended (the Initial Period, together with any subsequent employment period,
being referred to herein as the "Employment Period"). The Employment Period may
be terminated, prior to its scheduled expiration date, as provided in Section
3.2 hereof. Upon termination of the Employment Period pursuant to Sections
3.2(a) through 3.2(f) hereof, inclusive, Executive will be released from any
duties hereunder (except as set forth in Section 5 hereof) and the obligations
of the Company to Executive will be as set forth in Section 3.3 and Section 4
hereof.
The parties hereto agree that the failure to extend the
Employment Period on any Renewal Date in accordance with the provisions of this
Section 3.1 shall not constitute a termination of the Employment Period pursuant
to Section 3.2 hereof.
3.2 Events of Termination. The Employment Period will
terminate upon the occurrence of any one or more of the following events:
(a) Death. In the event of Executive's death, the
Employment Period will terminate on the date of his death.
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(b) Without Cause By Executive. Executive may
terminate the Employment Period at any time for any reason whatsoever
by giving a Notice of Termination (as such term is defined in Section
3.5 hereof) to the Company. The date of termination of the Employment
Period pursuant to this Section 3.2(b) shall be the earlier of (i) the
date, following the date of the Notice of Termination, upon which a
suitable replacement for Executive is found by the Company; or (ii) 30
days after the date of receipt by the Company of the Notice of
Termination.
(c) Disability. In the event of Executive's
Disability (as hereinafter defined), the Company will have the right to
terminate the Employment Period by giving a Notice of Termination to
Executive. The Notice of Termination shall specify the date of
termination, which date shall not be earlier than thirty (30) days
after the Notice of Termination is given. For purposes of this
Agreement, "Disability" means the inability of Executive for 180
consecutive days to substantially perform his duties hereunder as a
result of a physical or mental illness, all as determined in good faith
by the Board of the Company.
(d) Cause. The Company may, at its option, terminate
the Employment Period for "Cause" by giving a Notice of Termination to
Executive. For purposes of this Agreement, "Cause" shall mean any of
the following that is materially detrimental to the goodwill of the
Company or materially damaging to the relationship of the Company with
its customers or employees: (i) an act of willful misconduct or gross
negligence by Executive in the performance of his material duties or
obligations to the Company; (ii) conviction of Executive of a felony or
of a misdemeanor involving moral turpitude; or (iii) a material act of
dishonesty or breach of trust on the part of Executive resulting or
intended to result directly or indirectly in personal gain or
enrichment at the expense of the Company. No purported termination of
Executive's employment for Cause shall be effective without a Notice of
Termination.
(e) Without Cause By The Company. The Company may, at
its option, terminate the Employment Period for any reason or no reason
whatsoever (other than for the reasons set forth elsewhere in this
Section 3.2) by giving a Notice of Termination to Executive. The Notice
of Termination shall specify the date of termination of the Employment
Period, which date shall not be earlier than thirty (30) days after the
Notice of Termination is given.
(f) The Company's Material Breach. Executive may, at
his option, terminate the Employment Period upon the Company's material
breach of this Agreement and the continuation of such breach for more
than thirty (30) days after written demand for cure of said breach is
given to the Company by Executive (which demand will identify the
manner in which the Company has materially breached this Agreement);
provided, however, that no such demand will be required if Executive
determines in good faith that such material breach is not capable of
being cured by the Company within said thirty (30) day period. The
Company's material breach of this Agreement shall include, but not be
limited to (i) the failure of the Company to make any payment which it
is
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required to make hereunder to Executive when such payment is due or
within five (5) business days thereafter; (ii) the assignment to
Executive without Executive's express written consent of any duties
inconsistent with his positions, duties, responsibilities and status
with the Company, or a change in Executive's reporting
responsibilities, titles or offices or any plan, act, scheme or design
to constructively terminate Executive, or any removal of Executive from
or any failure to use its best efforts to re-elect Executive to any of
such positions, except in connection with the termination of the
Employment Period by the Company for Cause or Disability or as a result
of Executive's death or voluntary resignation or by Executive other
than pursuant to this Section 3.2(f); and (iii) a reduction by the
Company in Executive's Base Salary.
3.3 Certain Obligations of the Company Following Termination
of the Employment Period. Following termination of the Employment Period under
the circumstances described below, the Company will pay to Executive the
following compensation and provide the following benefits, in addition to any
Incentive Shares issuable to Executive in accordance with the terms and
conditions of Section 4 hereof, in full satisfaction and final settlement of any
and all claims and demands that Executive then has or hereafter may have
hereunder against the Company.
(a) Death; Disability; For Cause. In the event that
the Employment Period is terminated pursuant to Section 3.2(a), 3.2(c)
or 3.2(d) hereof, the Company will pay to Executive or his estate or
legal representatives, as the case may be, his (i) Base Salary through
the Date of Termination in accordance with its regular payroll
practices; [and (ii) Gross Revenue Bonus and Net Earnings Bonus, in
accordance with the terms of Section 2.2 hereof]. In the event that the
Employment Period is terminated pursuant to Section 3.2(c) hereof,
Executive will also be entitled to receive any unpaid disability
benefits under any insurance program in effect on the date of
termination.
(b) Without Cause by the Company; Material Breach by
the Company. In the event that the Employment Period is terminated
pursuant to Section 3.2(e) or Section 3.2(f) hereof, the Company will
pay to Executive:
(i) the Base Salary through the Date of
Termination at the rate in effect at the time the Notice of
Termination is received;
(ii) in lieu of any further salary or other
payments to Executive for periods subsequent to the Date of
Termination, the Company will pay as severance pay to
Executive, on the 10th business day following the Date of
Termination (the "Payment Date"), a lump sum equal to the
higher of (A) $250,000, or (B) two (2) times the sum of (I)
Executive's then current annual Base Salary (unless the
Employment Period has been terminated by Executive pursuant to
Section 3.2(f) hereof by reason of a reduction by the Company
of Executive's Base Salary, in which case Executive's Base
Salary immediately prior to such reduction shall be used), and
(II) the sum of Executive's most recent Gross Revenue Bonus
and Net Earnings Bonus; provided, however, that in the
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event of the imposition of an excise tax on Executive under
Section 4999 or 280(G) of the Internal Revenue Code of 1986,
as amended, as the same may be amended or renumbered from time
to time, the Company shall reimburse Executive for the full
amount of such excise tax;
(iii) the Company will reimburse Executive
for all reasonable legal fees and expenses incurred by
Executive in enforcing any right or benefit provided by this
Section 3.3(b); and
(iv) the Company will maintain all life
insurance, medical, health and accident, and disability plans
and programs in which Executive was entitled to participate
immediately prior to the Date of Termination in full force and
effect, for Executive's continued benefit until the earlier of
(A) twelve (12) months from the Date of Termination, or (B)
the date on which Executive is covered for such benefits by
reason of his being employed with any other person or entity;
provided, however, that Executive's continued participation is
possible under the general terms and provisions of the
Company's plans and programs. In the event that Executive's
participation in any such plan or program is barred, the
Company, at its sole cost and expense, will use its reasonable
efforts to provide Executive with benefits substantially
similar to those which Executive was entitled to receive under
such plans and programs.
(c) Without Cause By Executive. In the event that the
Employment Period is terminated by Executive pursuant to Section 3.2(b)
hereof, the Company will pay to Executive the Base Salary and the
benefits set forth in Sections 2.3(a) and 2.3(b) hereof through the
Date of Termination.
3.4 "Notice of Termination" Defined. For purposes of this
Agreement, "Notice of Termination" shall mean a written notice which (a)
indicates the specific termination provision relied upon by the Company or
Executive, (b) except in the case of termination pursuant to Sections 3.2(b) or
3.2(e) hereof, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employment Period under the
termination provision so indicated, and (c) if the Date of Termination is to be
other than the date of receipt of such notice, specifies the termination date;
provided, however, that in the case of a termination of Executive's employment
pursuant to Section 3.2(d) hereof, the Notice of Termination shall include a
copy of a resolution duly adopted by the Board at a meeting called and held for
such purpose, finding that, in the reasonable and good faith opinion of the
Board, Executive was guilty of conduct constituting Cause.
3.5 "Date of Termination" Defined. For purposes of this
Agreement, "Date of Termination" shall mean such date as the Employment Period
is terminated in accordance with Section 3.2 hereof; provided, however, that in
the event that within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, the Date of Termination will be the
date on which the dispute is finally determined.
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4. Issuance of Incentive Shares. In addition to the compensation and
benefits set forth in Section 2 hereof, the Company shall issue to Executive
Incentive Shares in accordance with the terms and conditions of this Section 4.
4.1 Number of Incentive Shares to be Issued.
(a) Gross Revenue Goals. In each fiscal year during
the Employment Period, commencing with Fiscal 1997, in which the
Company's Gross Revenues equal or exceed the Base Revenue Amount, the
Company hereby agrees to issue to Executive 8,333 Incentive Shares,
subject to adjustment as provided in Section 4.3 hereof, for each
$100,000 increment of such excess; provided, however, that the
aggregate number of Incentive Shares to be issued pursuant to this
Section 4.1(a) shall not exceed 400,000 Shares.
(b) Net Earnings Goals. In each fiscal year during
the Employment Period, commencing with Fiscal 1997, in which the
Company's Net Earnings exceed its Net Earnings for the prior fiscal
year, the Company hereby agrees to issue to Executive 8,333 Incentive
Shares, subject to adjustment as provided in Section 4.3 hereof, for
each $25,000 increment of such excess; provided, however, that the
aggregate number of Incentive Shares to be issued pursuant to this
Section 4.1(b) shall not exceed 183,333 Shares.
(c) Termination of Employment. In the event that the
Employment Period is terminated prior to the expiration thereof for any
reason except by Executive pursuant to Section 3.2(b) hereof, the
Company will issue to Executive or his estate or legal representatives,
as the case may be, a number of Incentive Shares determined by
multiplying the aggregate number of Incentive Shares issuable to
Executive pursuant to Sections 4.1(a) and 4.1(b) hereof by a fraction,
the numerator of which shall be the number of days which have elapsed
prior to the Date of Termination during the employment year in which
such Date of Termination shall occur, and the denominator of which
shall be 365.
4.2 Taxes. To the extent that any grant of Incentive Shares
hereunder shall result in the imposition of any tax(es) on Executive, the
Company shall cause a bonus to be paid to Executive in an amount equal to the
amount of such tax(es) plus the amount of any additional tax(es) imposed as a
result of the payment of such bonus(es).
4.3 Adjustments. In the event of a capital adjustment
resulting from a stock dividend, stock split, reverse stock split,
reorganization, merger, consolidation or a combination or exchange of the
Company's shares of Common Stock, the number of Incentive Shares issuable to
Executive pursuant to Section 4.1 hereof shall be adjusted consistently with
such capital adjustment. The agreement to issue Incentive Shares to Executive
under the terms and conditions hereof shall not affect in any way the right or
power of the Company to make
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adjustments, reorganizations, reclassifications or changes of its capital or
business structure, or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
4.4 Delivery of Incentive Shares. The Company shall deliver a
certificate or certificates representing the number of Incentive Shares to be
issued to Executive for each fiscal year calculated in accordance with Section
4.1 hereof within thirty (30) days following the delivery of the Audited
Financial Statements to the Company with respect to the applicable fiscal year.
4.5 Additional Documents. The Board may require, as a
condition of the issuance of the Incentive Shares, that Executive deliver to the
Company such documents, including such appropriate investment representations,
as may reasonably be required by counsel for the Company to effectuate
compliance with applicable securities laws.
4.6 Piggyback Registration Rights. If the Company at any time
proposes to register any of its securities under the Securities Act for sale to
the public, whether for its own account or for the account of other security
holders or both (except with respect to registration statements on Forms X-0,
X-0, or another form not available for registering the Incentive Shares for sale
to the public), each such time it will give written notice to such effect to
Executive at least thirty (30) days prior to such filing. Upon the written
request of Executive received by the Company within twenty (20) days after the
giving of any such notice by the Company, to register any outstanding
unregistered Incentive Shares, the Company will cause the Incentive Shares as to
which registration shall have been so requested to be included in the securities
to be covered by the registration statement proposed to be filed by the Company,
all to the extent requisite to permit the sale or other disposition by Executive
of the Incentive Shares so registered.
Notwithstanding the foregoing, in the event that any
registration pursuant to this Section 4.6 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of Incentive Shares to
be included in such an underwriting may be reduced if and to the extent that
such inclusion would reduce the number of shares to be offered by the Company;
provided, however, that such number of Incentive Shares shall not be reduced if
any shares of Common Stock are to be included in such underwriting for the
account of any person other than the Company or Executive.
4.7 Restriction on Transfer of Incentive Shares. Executive
acknowledges that the Incentive Shares have not been registered under the
Securities Act and that, subject to Section 4.6 hereof, the Company is not
obligated to register such securities under the Securities Act. Anything in this
Agreement to the contrary notwithstanding, Executive hereby agrees that he shall
not sell, transfer by any means or otherwise dispose of the Incentive Shares
acquired by him without registration under the Securities Act, or in the event
that they are not so registered, unless (i) an exemption from registration under
the Securities Act is available thereunder; and (ii) Executive has furnished the
Company with notice of such proposed transfer and the Company's legal counsel,
in its reasonable opinion, shall deem such proposed transfer to be so exempt.
Executive further acknowledges that in the event the Incentive Shares are not
registered under
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the Securities Act, the certificates evidencing the Incentive Shares shall bear
the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR UNDER ANY STATE SECURITIES OR BLUE SKY LAWS. THE SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY
EXEMPTION THEREFROM UNDER SAID ACT OR LAWS.
5. Confidentiality and Nonsolicitation.
5.1 "Confidential Information" Defined. For purposes of this
Agreement, "Confidential Information" shall mean any and all information (oral
or written) relating to the Company or any person controlling, controlled by, or
under common control with the Company or any of its activities, including, but
not limited to, information relating to: technology, research, test procedures
and results, trade secrets, machinery and equipment; manufacturing processes;
financial information; products; identity and description of materials and
services used; purchasing; costs; pricing; customers and prospects; advertising,
promotion and marketing; and selling, servicing and information pertaining to
any governmental investigation, except such information which is generally in
the public domain (such information not being deemed to be in the public domain
merely because it is embraced by more general information which is in the public
domain), other than as a result of a breach of the provisions of Section 5.2
hereof.
5.2 Non-Disclosure of Confidential Information. Executive will
not at any time (other than as may be required or appropriate directly in
connection with the performance by him of his duties hereunder), directly or
indirectly, use, communicate, disclose or disseminate any Confidential
Information in any manner whatsoever (except as may be required under legal
process by subpoena or other court order).
5.3 Non-Solicitation. Executive will not, during the
Employment Period and for a period of one (1) year following the termination or
expiration thereof, directly or indirectly, hire, offer to hire, solicit, entice
away or in any other manner persuade or attempt to persuade any officer,
employee, agent, lessor, lessee, licensor, licensee, customer, prospective
customer or supplier of the Company to discontinue or alter his or its
relationship with the Company.
5.4 Non-Competition. Executive will not, during the Employment
Period and for a period of one (1) year following the termination or expiration
thereof, engage or participate in, directly or indirectly (whether as an
officer, director, employee, partner, consultant, equityholder, lender or
otherwise), any business competitive with that in which the Company is then
engaged.
5.5 Injunctive Relief. The parties hereby acknowledge and
agree that (a) the Company will be irreparably injured in the event of a breach
by Executive of any of his obligations under this Section 5; (b) monetary
damages will not be an adequate remedy for any
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such breach; (c) the Company will be entitled to injunctive relief, in addition
to any other remedy which it may have, in the event of any such breach,
including, but not limited to, termination of the Employment Period for Cause;
and (d) the existence of any claims which Executive may have against the
Company, whether under this Agreement or otherwise, will not be a defense to the
enforcement by the Company of any of its rights under this Section 5.
5.6 Non-Exclusivity and Survival. The covenants of Executive
contained in this Section 5 are in addition to, and not in lieu of, any
obligations which Executive may have with respect to the subject matter hereof,
whether by contract, as a matter of law or otherwise, and such covenants and
their enforceability will survive any termination of the Employment Period by
either party and any investigation made with respect to the breach thereof by
the Company at any time.
6. Miscellaneous Provisions.
6.1 Severability. If, in any jurisdiction, any term or
provision hereof is determined to be invalid or unenforceable, (a) the remaining
terms and provisions hereof shall be unimpaired, (b) any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, and (c) the invalid or
unenforceable term or provision shall, for purposes of such jurisdiction, be
deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision.
6.2 Execution in Counterparts. This Agreement may be executed
in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement (and all signatures
need not appear on any one counterpart), and this Agreement shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
6.3 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given when
delivered by hand, or when delivered if mailed by registered or certified mail
or private courier service, postage prepaid, return receipt requested, or via
facsimile (with confirmed answerback) as follows:
If to the Company, to:
Optical Systems, Inc.
Xxxxxxx Xxxxx XX, Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Board of Directors
Telecopy No.: (000) 000-0000
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If to Executive, to:
Xxxxxxxxx X. Xxxxxx
c/o Optical Systems, Inc.
Xxxxxxx Xxxxx XX, Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Telecopy No.: (000) 000-0000
or to such other address(es) as a party hereto shall have designated by like
notice to the other parties hereto.
6.4 Amendment. No provision of this Agreement may be modified,
amended, waived or discharged in any manner except by a written instrument
executed by both the Company and Executive.
6.5 Entire Agreement; Effectiveness. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties hereto, oral or written.
6.6 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois applicable to
contracts made and to be wholly performed therein, without regard to its
conflicts or choice of law provisions.
6.7 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
6.8 Binding Effect; Successors and Assigns. Executive may not
delegate any of his duties or assign any of his rights hereunder. This Agreement
will inure to the benefit of, and be binding upon, the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns. The
Company shall require any successor (whether direct or indirect and whether by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by an agreement in form and substance
reasonably satisfactory to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.
6.9 Waiver, Etc. The failure of either of the parties hereto
to at any time enforce any of the provisions of this Agreement shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
affect the validity of this Agreement or any provision hereof or the right of
either of the parties hereto thereafter to enforce each and every provision of
this Agreement. No waiver of any breach of any of the provisions of this
Agreement shall be effective unless set forth in a written instrument executed
by the party against whom or which
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enforcement of such waiver is sought, and no waiver of any such breach shall be
construed or deemed to be a waiver of any other or subsequent breach.
6.10 Representations and Warranties.
(a) Executive hereby represents and warrants to the
Company that:
(i) he has full capacity to execute and
deliver this Agreement, and to perform his obligations
hereunder;
(ii) such execution, delivery and
performance will not (and with the giving of notice or lapse
of time or both would not) result in the breach of any
agreements or other obligations to which he is a party or he
is otherwise bound;
(iii) this Agreement is his valid and
binding obligation in accordance with its terms;
(iv) he will acquire any Incentive Shares
issued to him for his own account and not with a view towards
the distribution thereof;
(v) he must bear the economic risk of
investment in the Incentive Shares, which cannot be sold by
him unless they are registered under the Securities Act or an
exemption therefrom is available thereunder;
(vi) in his position with the Company, as an
officer of the Company, he has had both the opportunity to ask
questions of and receive answers from the officers and
directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the issuance of
Incentive Shares hereunder and to obtain any additional
information with respect thereto; and
(vii) he is aware that the Company shall
place stop-transfer orders with its transfer agent against the
transfer of Incentive Shares in the absence of registration
under the Securities Act or an exemption therefrom as provided
herein.
(b) The Company hereby represents and warrants to
Executive that:
(i) it has full power and authority to
execute and deliver this Agreement, and to perform its
obligations hereunder;
(ii) such execution, delivery and
performance will not (and with the giving of notice or lapse
of time or both would not) result in the breach of any
agreements or other obligations to which it is a party or it
is otherwise bound;
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(iii) this Agreement is its valid and
binding obligation in accordance with its terms; and
(iv) any Incentive Shares, when issued and
delivered by the Company to Executive in accordance with the
terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
6.11 Enforcement. If any party institutes legal action to
enforce or interpret the terms and conditions of this Agreement, the prevailing
party shall be awarded reasonable attorneys' fees at all trial and appellate
levels, and the expenses and costs incurred by such prevailing party in
connection therewith.
6.12 Approval by Certain Board Members. The effectiveness of
this Agreement is conditioned upon its approval by all of the members of the
Company's Board who are not employed by the Company on the date hereof.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
OPTICAL SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Treasurer
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/s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxxx X. Xxxxxx
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