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EXHIBIT 10.15.2
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 16th day of December, 1997 by and between
Digital Solutions Inc. (the "Company"), a New Jersey corporation, with principal
offices at 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, and Xxxxxx X. Xxxxxx
("Xxxxxx"), an individual residing at 0 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx
00000.
W I T N E S S E T H :
WHEREAS, the Company and Xxxxxx entered into an employment Agreement
as of the 12th day of March, 1996 (the "Employment Agreement"), pursuant to
which Xxxxxx was employed as President and Chief Executive Officer of the
Company; and
WHEREAS, Xxxxxx was diagnosed with a malignant brain tumor in June
1997 and has undergone, and continues to undergo, treatment for this condition;
and
WHEREAS, Xxxxxx'x current condition renders him unable to perform all
of his usual duties and will continue to prevent him from performing such duties
for at least the immediate future within the contemplation of paragraph VIII of
the Employment Agreement; and
WHEREAS, the Company and Xxxxxx desire to relieve Xxxxxx of his
responsibilities as President and Chief Executive Officer on the ground of
Xxxxxx'x disability, and assign new responsibilities to Xxxxxx, and amend and
supersede the terms of the Employment Agreement with the terms set forth
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below,
IT IS NOW AGREED:
Subject to the terms and conditions set forth below, Xxxxxx and
the Company hereby agree to change Xxxxxx'x position with the Company and amend
the Employment Agreement effective as of the date first set forth above due to
Xxxxxx'x disability (the "Effective Date").
Xxxxxx and the Company hereby agree to change Xxxxxx'x position,
as of the Effective Date, from President and Chief Executive Officer of the
Company to special assistant on particular projects as reasonably specified by
the Company. Xxxxxx shall remain as a member of the Board of Directors until the
end of his current term.
In settlement of any and all compensation and reimbursement for
expenses due Xxxxxx under the terms of the Employment Agreement or otherwise
from the Company, the Company agrees to pay to Xxxxxx the following amounts on
the terms set forth below:
An amount equal to the cost during the period from the date
hereof through a date ending 18 months from the expiration of the original term
of the Employment Agreement (March 11, 1999), less the amount of such cost
currently paid by Xxxxxx, for medical, dental and life insurance currently
provided to Xxxxxx to be paid directly to the insurer on behalf of Xxxxxx by the
Company in payment of the continuation of such benefits and Xxxxxx'x COBRA
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responsibility; provided, that the Company's obligation under this subparagraph
3(a) is contingent upon Xxxxxx continuing to timely pay to the Company the
amount of such insurance costs currently paid by Xxxxxx either by deduction from
Xxxxxx'x compensation paid hereunder and/or direct payment by Xxxxxx to the
Company;
x. Xxxxxx shall continue to receive his Base Salary as defined in
the Employment Agreement payable in accordance with the Company's normal pay
periods until the expiration of the original term of the Employment Agreement;
provided, however, the Company shall receive a credit for all disability
insurance payments paid directly to Xxxxxx by any disability insurance policy
maintained by the Company on Xxxxxx. Xxxxxx further agrees that he will
cooperate with the Company in the Company's efforts to process any claim for
benefits under such policies, including, if requested by the carrier, to furnish
medical records and/or submit to a physical examination.
Xxxxxx'x employee stock options shall continue to vest and be
exercisable in accordance with their original terms. The original terms of such
options were for a period of five years; however, upon termination of
employment, the options which were exercisable on the date of termination are
only exercisable for a period of 90 days from such date of termination, not to
exceed the original term of the option; and upon death of the employee, all
options exercisable upon the date of death are exercisable by the estate of the
employee for a period of one year from the date of death.
The Company will indemnify and hold Xxxxxx harmless from any
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and all claims, liabilities, expenses or responsibilities arising out of the
actions commenced by any party arising out of Xxxxxx'x employment with the
Company, including costs of collection and reasonable attorneys' fees; provided,
however, that Xxxxxx shall not engage independent counsel unless the Company
consents to same or the representation of Xxxxxx in the matter for which Xxxxxx
intends to engage counsel would constitute a conflict of interest if Xxxxxx was
represented by counsel engaged by the Company.
6. Article V of the Employment Agreement (Non-Disclosure) shall be
deemed to remain in full force and effect.
7. Article VI of the Employment Agreement (Restrictive Covenant) shall
continue in full force and effect and Xxxxxx shall be deemed as if he had
voluntarily resigned for the purposes of such Article on March 11, 1999.
8. This Agreement is the entire agreement and supersedes any previous
agreement, understanding or representations between Xxxxxx and the Company with
respect to the subject matter. This Agreement may not be modified in any respect
except by a written agreement signed by both parties.
9. The provisions of this Agreement shall be binding upon the parties
and their respective agents, employees, directors, officers, shareholders,
heirs, executors, administrators, legal representatives, successors and assigns.
Specifically, and without limitation, in the event of Xxxxxx'x death, Xxxxxx'x
heirs shall receive all the benefits set forth in paragraphs 3(b) and 4 herein
through March 11, 1999.
10. In the event this Agreement, or any portion thereof, is held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of
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this Agreement shall not in any way be affected or impaired thereby.
11. This Agreement shall not be transferred or assigned without the
written consent of both parties.
12. All notices and other communications permitted or required under
this Agreement shall be in writing and shall be sufficiently given if and when
hand delivered to the persons set forth below, or if sent by registered or
certified mail, postage prepaid, return receipt requested, or by facsimile,
addressed as set forth below or to such other person or persons and/or at such
other address or addresses as shall be furnished in writing by any party to the
others or by personal delivery thereof. Any such notice or communication which
is mailed or faxed shall be deemed to have been given as of the date received or
delivery was attempted, as evidenced by the return receipt with respect to a
letter or the official notation of time and date of delivery of a facsimile.
If to Xxxxxx: Xxxxxx X. Xxxxxx
0 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
If to The Company: Digital Solutions, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
with a copy to: Xxxxxxxxx & XxXxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxx, Esq.
13. This Agreement shall be binding, governed by, and construed and
enforced under the Federal Arbitration Act and the laws of New Jersey, excluding
those laws of New Jersey related to conflict of laws.
14. All disputes arising between the Company and Xxxxxx, or their
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respective agents, employees, directors, officers, shareholders, heirs,
executors, administrators, legal representatives, successors and assigns, shall
be settled exclusively through arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules and under the
Federal Arbitration Act. Judgment on the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof The arbitrator(s) shall be
bound by applicable federal law and the substantive law of the State of New
Jersey, other than conflicts of law rules which shall not apply. Any claim or
demand exceeding twenty five thousand dollars ($25,000.00) shall be heard by a
panel of three arbitrators. The demand for arbitration must be filed with the
American Arbitration Association within the applicable statute of limitations.
This agreement to arbitrate shall survive the expiration, breach or
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termination of this Agreement.
Digital Solutions, Inc.
By:
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Xxxx Xxxxxxxxx
Chairman of the Board
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Xxxxxx X. Xxxxxx
