EXHIBIT 10.12
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into in Concord, Massachusetts, between
XXXXXXXXXXXX.XXX, INC., a Delaware corporation with a usual place of business
situated at One Concord Farms, 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
(the "Company") and XXXXXXX XXXXXX of Concord, MA , (the "Executive"), effective
as of the 14/th/ day of October 1999.
W I T N E S S E T H:
WHEREAS, the operations of the Company require direction and leadership in
a variety of areas, including financial, strategic planning, research,
marketing, and others;
WHEREAS, the Executive possesses useful knowledge and skills and has
extensive management experience;
WHEREAS, certain covenants and obligations contained herein are designed
to protect and safeguard the Company's secret, confidential and proprietary
information as well as its good will with its customers, vendors, contractors
and affiliates; and
WHEREAS, the Executive desires to remain in the employ of the Company and
further desires that the terms and conditions of his employment be governed by
this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
terms, provisions and conditions set forth in this Agreement, the Company and
the Executive hereby mutually agree as follows:
1. Employment. The Company shall employ the Executive and the Executive
----------
shall serve the Company as Chief Executive Officer of the Company upon the terms
and conditions provided herein. In the discharge of the duties of the Executive
hereunder, the Executive at all
times shall report to, and his activities at all times shall be subject to the
discretion, direction and control of, the Board of Directors of the Company.
2. Term. Subject to earlier termination as provided in Section 5, the
----
employment of the Executive hereunder shall be for a term of two (2) years,
commencing on the effective date hereof, and shall thereafter renew
automatically for successive one (1) year terms, unless either party gives no
less than thirty (30) days written notice of intention not to renew the term of
this Agreement. The term of this Agreement, as from time to time extended or
renewed, is hereafter referred to as "the term of this Agreement" or "the term
hereof."
3. Capacity and Performance.
------------------------
a. During the term hereof, the Executive shall serve the Company as
its Chief Executive Officer. In addition, the Executive shall serve as a
Director of the Company if so elected or appointed from time to time. Upon the
expiration of his current term as a Director, and while the Executive continues
to be employed hereunder, the Directors shall propose to the shareholders of the
Company at the appropriate annual meeting the election or reelection of the
Executive as a member of the Board. Executive acknowledges that he shall
receive no additional compensation for his services as, or in his capacity of, a
Director of the Company.
b. During the term hereof, the Executive shall be employed by the
Company on a full-time basis and shall perform the duties of his office of Chief
Executive Officer and such other duties and responsibilities of an executive,
managerial or administrative nature on behalf of the Company and at such
locations as may be designated or required from time to time by the Board of
Directors of the Company. Executive shall exercise such powers and comply with
and
2
perform, faithfully and to the best of his ability, such directions and duties
in relation to the business and affairs of the Company as may from time to time
be vested in or required of him.
c. During the term hereof, the Executive shall devote substantially
all of his professional time and the best efforts, business judgment, skill and
knowledge to the advancement of the business and interests of the Company and to
the discharge of the duties of the office of the Chief Executive Officer. The
Executive may engage in charitable and academic positions or other related
activities which do not materially interfere with his obligations hereunder, and
which do not compete, directly or indirectly, with the products and services,
being marketed and/or sold by the Company. Subject to the first sentence
hereof, and upon prior written notice to the Board of Directors of the Company,
the Executive may take a board and/or advisory position with any professional or
corporate organization or any other business enterprise other than the Company,
so long as such professional or corporate organization or business enterprise
does not compete, directly or indirectly, with the products being marketed
and/or sold by the Company. Notwithstanding the foregoing, nothing in this
Section 3(c) shall prohibit Executive from investing in other businesses,
ventures or companies; provided, however, that such businesses, ventures or
companies are not in competition with the Company.
4. Compensation and Benefits. As compensation for all services performed
-------------------------
by the Executive during the term hereof, the compensation and benefits to be
earned by the Executive pursuant to this Agreement are as follows:
a. Base Salary. During the term hereof, the Company shall pay the
-----------
Executive a base salary at the rate of Two Hundred and Fifty Thousand ($250,000)
Dollars per annum (the "Base Salary"), payable in accordance with the Company's
payroll practices for executive
3
compensation, as such practices shall be established or modified from time to
time by the Company. The Executive's Base Salary may be adjusted from time to
time by the Company's Board of Directors in its sole discretion; provided,
however, that under no circumstances shall such Base Salary be reduced without
Executive's approval.
b. Other Benefits. The Executive shall accrue three (3) weeks
--------------
annual paid vacation in accordance with the Company's vacation policy. The
Executive also will be eligible for paid holidays and sick time in accordance
with the policies of the Company as well as any fringe benefits and perquisites
that may from time to time be afforded generally to senior executive officers of
the Company. Without limiting the generality of the foregoing, the Executive
will be eligible to participate in and receive benefits under any 401(k),
pension, Executive stock ownership plan, retirement plan, life insurance, health
and accident plan, discretionary bonus plan or other arrangement generally made
available by the Company and approved by the Board of Directors, if any, now or
in the future, to the senior executive officers of the Company, subject to and
on a basis consistent with the terms, conditions and overall administration of
such plans and arrangements.
c. Expenses. The Executive will be entitled to receive
--------
reimbursement for all reasonable expenses incurred by the Executive in the
performance of the duties of the Executive hereunder, provided such expenses are
properly incurred, documented and accounted for in accordance with the policies
of the Company. The Company agrees to provide reimbursement to Executive for
such expenses within a reasonable time after receipt of such documentation.
d. Taxes. All payments in this Section 4 shall be subject to all
-----
applicable federal, state and local withholding, payroll and other taxes.
4
5. Termination of Employment and Severance Benefits. Notwithstanding the
------------------------------------------------
provisions of Section 2 above, the employment of the Executive hereunder shall
terminate prior to the expiration of the term of this Agreement under the
following circumstances:
a. Death. In the event of the death of the Executive during the
-----
term hereof, the employment of the Executive hereunder shall immediately and
automatically terminate. In such event, the Company shall pay to the estate of
the Executive any earned and unpaid Base Salary and vacation, and the Executive
shall be entitled to no severance or other termination benefits under this
Agreement.
b. Disability. The Company may terminate the employment of the
----------
Executive hereunder in the event the Executive becomes disabled during the term
hereof due to any illness, injury, accident or condition of either a physical or
psychological nature. For the purposes of this Agreement, the Executive shall
be deemed to have suffered a physical or mental disability if the Executive is
absent and/or is unable to perform the essential functions of his job with or
without reasonable accommodation for over ninety (90) consecutive days, or for
over ninety (90) cumulative days within any twelve (12) month period, or if in
the opinion of a duly licensed physician the same is likely to occur. The
provisions of this Section 5(b) shall survive the termination of this Agreement
by reason of the physical or mental disability of the Executive. In connection
with this Section 5(b), at the request of the Company the Executive shall submit
to a medical examination by a physician selected mutually by the Company and the
Executive, or the duly appointed guardian of the Executive. If they cannot
agree, a physician will be appointed by the Massachusetts Medical Society.
Executive agrees and acknowledges that the termination of
5
his employment under this Section 5(b) does not violate the Americans With
Disabilities Act, the Family and Medical Leave Act, or similar state statutes.
In the event that Executive's employment terminates due to the Executive's
physical or mental disability, the Company shall pay the Executive an amount
equal to: (i) twelve (12) months salary at the then current Base Salary payable
bi-weekly over twelve (12) months in accordance with the Company's payroll
practices, less (ii) any amounts recovered by the Executive under any health and
disability insurance programs available through the Company.
c. By the Company for Cause. The Company may, immediately and
------------------------
unilaterally, terminate the Executive's employment hereunder "for cause" at any
time during the term of this Agreement without prior written notice to the
Executive. Termination of the Executive's employment by the Company shall
constitute a termination "for cause" under this Section 5(c) if such
termination, as determined by the Board of Directors, is for one or more of the
following causes:
i. Willful failure of the Executive to perform (other than
by reason of disability), or gross negligence in the performance of,
the duties and responsibilities of the Executive to the Company which
continues or ceases to be cured for a period of thirty (30) days after
the Company delivers to the Executive written notice identifying the
manner in which the Company reasonably believes that the Executive has
willfully failed to perform or engaged in gross negligence in the
performance of his duties and responsibilities;
ii. The commission by the Executive of any act or acts of
dishonesty, a breach of fiduciary duty, a material breach of the terms
of this
6
Agreement or any other agreement between Executive and the Company or
a material violation of the written or established rules and policies
of the Company as such rules and policies may from time to time be
amended or modified by the Company;
iii. The commission by the Executive of an act of fraud or
embezzlement;
iv. A violation of the Company's Code of Conduct;
v. The conviction by the Executive of, or plea of no
contest for, any felony;
vi. The commission of an act which constitutes unfair
competition or conflict of interest with the Company or which induces
any customer, vendor, contractor, or affiliate or any prospective
customer, vendor, contractor or affiliate of the Company to breach a
contract with the Company or not to enter into a contract with the
Company; or
vii. The commission of an act by the Executive which
constitutes a willful violation of the federal or state securities
laws.
In the event of a termination "for cause" pursuant to any of the provisions
of clauses (i) through (vii) above, inclusive, the Executive shall be entitled
to no severance or other termination benefits under this Agreement.
d. By the Company Other Than for Cause.
-----------------------------------
i. The Company may terminate Executive's employment under
this Agreement at any time without cause upon thirty (30) days written
notice to
7
the Executive or payment in lieu thereof if the Company elects to
accelerate Executive's departure date. Subject to the provisions of
Section 5(i), if the Executive is terminated by the Company other than
for cause, the Company shall pay the Executive severance compensation
as described in Section 5(d)(ii).
ii. In the event the Company exercises its right to
terminate the Executive under this Section 5(d), the Company agrees
to: (i) pay the Executive a severance payment of twelve (12) months'
salary at the Executive's then current Base Salary payable bi-weekly
over twelve (12) months in accordance with the Company's payroll
practices; (ii) accelerate by twelve (12) months the vesting of all
existing stock options, i.e., those stock options granted before
September 1, 1999,to which he is entitled under this Agreement or any
other agreement between the Executive and the Company, and accelerate
by six (6) months the vesting of all future stock options which may be
granted to Executive; and (iii) if the Executive is eligible for, and
chooses to elect health insurance continuation in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), pay
the premium payments of the Executive under COBRA for a period of
twelve (12) months, subject to any Executive contribution applicable
to the Executive on the date of termination.
e. By the Executive for Good Reason. The Executive may terminate his
employment hereunder for Good Reason. The following shall constitute Good Reason
for termination by the Executive:
8
i. Failure of the Company to continue the Executive in the
position of Chief Executive Officer;
ii. Material diminution in the nature or scope of the
Executive's responsibilities, duties or authority; provided, however,
that the transfer of certain job responsibilities, including but not
limited to supervisory responsibilities, from the Executive to the
future Chief Operating Officer or to other senior executives who the
Company expects to hire over the term of this Agreement, or the
assignment to others of the duties and responsibilities of the
Executive while the Executive is out of work due to a disability or on
a leave of absence for any reason, shall not constitute a material
diminution in the nature or scope of the Executive's responsibilities,
duties or authority as set forth in this Section; or
iii. Material breach by the Company of its obligation to
provide the Executive the compensation and benefits in accordance with
the terms of Section 4 hereof.
Any event described in provisions (i) through (iii) above shall not
constitute Good Reason unless the Executive provides the Company with written
notice of such event within thirty (30) days of the date the Executive knew of
such event, and it is not corrected by the Company within thirty (30) days of
the date the Executive provides such written notice to the Company.
In the event of a termination by the Executive for Good Reason, and subject
to the provisions of Section 5(i) herein, the Company agrees to: (i) pay the
Executive a severance payment of twelve (12) months' salary at the Executive's
then current Base Salary payable
9
bi-weekly over twelve (12) months in accordance with the Company's payroll
practices; (ii) accelerate by twelve (12) months the vesting of all existing
stock options, i.e., those stock options granted before September 1, 1999, to
which Executive is entitled under this Agreement or any other agreement between
the Executive and the Company, and accelerate by six (6) months the vesting of
all future stock options which may be granted to the Executive; and (iii) if the
Executive is eligible for, and chooses to elect health insurance continuation in
accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"), pay the premium payments of the Executive under COBRA for a period of
twelve (12) months, subject to any Executive contribution applicable to the
Executive on the date of termination.
f. By The Executive Other Than For Good Reason. The Executive may
-------------------------------------------
terminate his employment hereunder at any time upon thirty (30) days written
notice to the Company. In the event of termination by the Executive Other Than
For Good Reason, the Company may accelerate the Executive's departure date and
will pay Executive through his notice date. In the event of termination by the
Executive Other Than For Good Reason, the Company shall pay to the Executive any
unearned and unpaid Base Salary and vacation and the Executive shall be entitled
to no severance or other termination benefits.
g. By the Executive Upon A Change of the Company's Place of
--------------------------------------------------------
Business. The Executive may terminate his employment hereunder at any time upon
--------
sixty (60) days written notice to the Company if the Company moves its principal
place of business more than fifty (50) miles from Concord, Massachusetts.
In the event of a termination by the Executive for a Change in the
Company's Place of Business, and subject to the provisions of Section 5(i)
herein, the Company agrees to:
10
(i) pay the Executive a severance payment of six (6) months' salary at the
Executive's then current Base Salary payable bi-weekly over six months in
accordance with the Company's payroll practices; (ii) accelerate by twelve (12)
months the vesting of all existing stock options, i.e., those stock options
granted before September 1, 1999, to which Executive is entitled under this
Agreement or any other agreement between the Executive and the Company, and
accelerate by six (6) months the vesting of all future stock options which may
be granted to the Executive; and (iii) if the Executive is eligible for, and
chooses to elect health insurance continuation in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), pay the
premium payments of the Executive under COBRA for a period of six (6) months,
subject to any Executive contribution applicable to the Executive on the date of
termination.
h. Upon a Change of Control.
------------------------
i. If a Change of Control occurs and, within one (1) year
following such Change of Control, the Company terminates the
Executive's employment Other Than for Cause or the Executive
terminates his employment for Good Reason, then and subject to the
provisions of Section 5(i), the Company shall pay the Executive,
within ten (10) business days of such termination, a lump sum payment
equal to the sum of his annual Base Salary and if the Executive is
eligible for, and chooses to elect health insurance continuation in
accordance with the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA"), pay the premium payments of the Executive under COBRA
for a period of twelve (12) months, subject to any Executive
contribution applicable to the Executive on the date of termination.
11
ii. Notwithstanding the foregoing, the payments and
benefits to which the Executive would be entitled pursuant to Section
5(h)(i) as a result of a Change of Control shall be reduced to the
maximum amount for which the Company will not be limited in its
deduction pursuant to Section 280G of the Internal Revenue Code of
1986, as amended, or any successor provision. Any such reduction
shall be applied to the amounts due under Section 5(h)(i) as the
Executive may determine.
iii. A Change of Control shall be deemed to take place if
at any time during the term hereof: (A) any Person or "group" (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934), other than the Company or any of its Affiliates, becomes
a beneficial owner (within the meaning of Rule 13d-3 as promulgated
under the Securities Exchange Act of 1934), directly or indirectly, of
securities representing fifty percent (50%) or more of the total
number of votes that may be cast for the election of directors of the
Company and two-thirds of the Board has not consented to such event
prior to its occurrence or within sixty (60) days thereafter, provided
that if the consent occurs after the event it shall only be valid for
purposes of this Section 5(h) if a majority of the consenting Board is
comprised of directors of the Company who were such immediately prior
to the event; (B) any merger or consolidation involving the Company or
any sale or other transfer of all or substantially all of the assets
of the Company, or any combination of the foregoing, and two-thirds of
the Board has not consented to such event prior to its occurrence or
within sixty days thereafter,
12
provided that if the consent occurs after the event it shall only be
valid for purposes of this Section 5(h) if a majority of the
consenting Board is comprised of directors of the Company who were
such immediately prior to the event; or (C) within twelve (12) months
after a tender offer or exchange offer for voting securities of the
Company (other than by the Company) the individuals who were directors
of the Company immediately prior thereto shall cease to constitute a
majority of the Board.
i. The Company's Obligation to Provide Severance Compensation. The
----------------------------------------------------------
severance payments and compensation set forth in Sections 5(d), (e), (g) and (h)
shall be payable in conformity with the Company's payroll practices for
executive compensation as such practices may be modified from time to time and
shall be subject to all applicable federal, state and local withholding, payroll
and other taxes; provided, however, if Executive breaches his noncompetition or
nonsolicitation obligations under Section 7 hereof or if Executive breaches his
obligations under the XxxxxxXxxxxx.xxx, Inc. Nondisclosure and Developments
Agreement between Executive and the Company, the Company may immediately cease
payment of all severance and/or benefits described in this Agreement. This
cessation of severance and/or benefits shall be in addition to, and not as an
alternative to, any other remedies in law or in equity available to the Company,
including the right to seek specific performance or an injunction. Indeed, the
Executive acknowledges that the Company would suffer irreparable harm if he
violates the noncompetition or nonsolicitation obligations under Section 7
hereof or if he breaches his obligations under the XxxxxxXxxxxx.xxx, Inc.
Nondisclosure Agreement, and he agrees that the Company shall be entitled to
preliminary and permanent injunctive relief.
13
Executive acknowledges that the Company shall not have any further obligations
to the Executive in the event of Executive's termination under Sections 5(d),
(e), (g) or (h), except such further obligations as may be imposed by law.
Executive further acknowledges and agrees that the obligation of the
Company to pay severance compensation to the Executive under Sections 5(d), (e),
(g) or (h) is contingent upon the Executive executing and delivering, all in
form and substance satisfactory to the Company: (i) if the Executive is then a
member of the Board of Directors of the Company, a resignation from the Board of
Directors of the Company; (ii) a comprehensive general release of the Company by
the Executive; (iii) a resignation as Chief Executive Officer of the Company and
any other office he may hold with the Company; and (iv) satisfactory evidence to
the Company that the Executive has returned all property, Confidential
Information and Documents of the Company to the Company. Executive acknowledges
and agrees that the post-termination obligations set forth in Sections 7(a),
7(b) and 7(c) shall survive the termination of this Agreement whether or not
Executive signs the release or provides the resignations described in this
Section.
6. No Mitigation Obligation. The parties hereto expressly agree that the
------------------------
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise, nor shall any
profits, income, earnings or other benefits from any source whatsoever create
any mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise.
14
7. Non-Competition; Non-Solicitation.
---------------------------------
a. Non-Competition. During the period of Executive's employment by
---------------
the Company and for one year after Executive's employment terminates pursuant to
Sections 5(b), (c), (d), (e), (f), (h), or for six months after Executive's
employment terminates pursuant to Section (g), Executive shall not, alone or as
a partner, joint venturer, officer, director, employee, agent, consultant,
stockholder or investor of any company or business organization, engage in any
business activity and/or accept employment with any person or entity, which is
directly or indirectly in competition with the products or services being
developed, drafted, manufactured, marketed, distributed, planned, sold or
otherwise provided by the Company, specifically the sales, marketing and
provision of information for vitamins, supplements, minerals and other natural
and healthy living products. Notwithstanding the foregoing, the record or
beneficial ownership by Executive of 1% or less of the outstanding publicly
traded capital stock of any such company shall not be deemed, in and of itself,
to be in violation of this Paragraph 7; provided, however, that Executive is not
a partner, joint venturer, officer, director, employee, agent, independent
contractor or consultant of such company.
b. Customer Solicitation. Executive shall not, directly or
---------------------
indirectly, for himself or on behalf of others, during Executive's employment by
the Company and for a period of one year after Executive's employment terminates
pursuant to Sections 5(b), (c), (d), (e), (f), (h), or for six months after
Executive's employment terminates pursuant to Section (g), solicit, divert,
attempt to divert, accept the business of or enter into any business
relationship, involving activities competitive with XxxxxxXxxxxx.xxx, with any
former or current clients, customers, suppliers, contractors or affiliates of
the Company made known to him during his employment,
15
or in any way interfere with or disrupt any existing relationship between the
Company and any of its clients, customers, suppliers, vendors, contractors or
affiliates or others with whom the Company deals.
c. Employee Solicitation. Executive shall not, directly or
---------------------
indirectly, for himself or on behalf of others, during Executive's employment by
the Company and for a period of one year after Executive's employment terminates
pursuant to Sections 5(b), (c), (d), (e), (f), (h), or for six months after
Executive's employment terminates pursuant to Section (g), hire, attempt to
hire, or knowingly permit any company or business organization by which
Executive is employed or which is directly or indirectly controlled by
Executive, to employ any employee of the Company or any employee who has left
the employment of the Company within six months of such employee's termination,
or in any manner seek to solicit or induce any employee to leave his or her
employment with the Company or otherwise assist in the recruitment of any such
person.
d. Payment For Noncompetition/Nonsolicitation At The Expiration of
---------------------------------------------------------------
the Term of This Agreement. In the event that Executive's employment terminates
--------------------------
because the term of this Agreement expires or is otherwise not renewed pursuant
to Section 2, it is agreed and understood that Executive will be bound by the
noncompetition and nonsolicitation obligations pursuant to Section 7 hereof, if
the Company provides written notice to Executive of its intention to invoke
Section 7 for a period of six months and pays Executive six (6) months salary at
the then current Base Salary payable bi-weekly over six (6) months in accordance
with the Company's payroll practices. At the end of the initial six month
period, the Company may renew the noncompetition/nonsolicitation obligations
under Section 7 for an additional six (6)
16
months and pay the Executive an additional six (6) months salary payable bi-
weekly over six (6) months (for a maximum total of twelve (12) months) in
accordance with the Company's payroll practices. Executive acknowledges and
agrees that the Company is only obligated to pay severance under this Section
7(d) in the event that the Executive's employment terminates because the term of
this Agreement expires or is otherwise not renewed pursuant to Section 2.
8. Enforcement of Covenants. The Executive acknowledges that the
------------------------
Executive has carefully read and considered all the terms and conditions of this
Agreement, including the restraints imposed upon the Executive by Section 7
hereof. The Executive agrees that said restraints are necessary for the
reasonable and proper protection of the Company and that such restraints are
reasonable in respect to subject matter, length of time, and geographic area.
The Executive further acknowledges that, were the Executive to breach any of the
covenants contained in Section 7 hereof, the damage to the Company would be
irreparable. The Executive therefore agrees that the Company, in addition to
any other remedies available to the Company, shall be entitled to preliminary
and permanent injunctive relief against any breach or threatened breach by the
Executive of any of said covenants without posting bond. The Executive and the
Company further agree that, if one or more of the clauses contained in this
Section 7 shall for any reason be held to be excessively broad as to scope,
activity, subject or otherwise so as to be unenforceable at law, such provision
or provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them, so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear.
9. Conflicting Agreements. The Executive hereby represents and warrants
----------------------
that the execution of this Agreement and the performance of the obligations of
the Executive hereunder
17
will not breach or be in conflict with any other agreement to which the
Executive is a party or is bound and that the Executive is not now subject to
any covenants against competition or similar covenants that would affect the
performance of the Executive hereunder. The Executive will not disclose to or
use on behalf of the Company any proprietary information of a third party
without the consent of such third party.
10. Assignment. Executive acknowledges that the services to be rendered
----------
by him hereunder are unique and personal in nature. Accordingly, Executive may
not assign any of his rights or delegate any of his duties or obligations under
this Agreement. The rights and obligations of the Company under this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and
assigns of the Company.
11. Severability. If any portion or provision of this Agreement shall to
------------
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
12. Waiver. No waiver of any provision hereof shall be effective unless
------
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
18
13. Notices. Any and all notices, requests, demands and other
-------
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at the
last known address of the Executive on the books of the Company with a copy to
Xxxx X. Xxxxxxx, Esq., Xxxxx, Xxxx and X'Xxxxxxxx, P.C., Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 or, in the case of the Company, at its principal
place of business, attention of the Chairman of the Board of Directors, or to
such other address as either party may specify by notice to the other, with a
copy to Xxxxxx X. Xxxxxxxxx, Esq., Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
14. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment, including Executive's salary, bonus, or other
compensation of any description, equity participation, pension, post-retirement
benefits, severance or other remuneration, except for the XxxxxxXxxxxx.xxx, Inc.
Nondisclosure and Developments Agreement and the Incentive Stock Option
Agreements signed by Executive, which shall remain in full force and effect.
15. Amendment. This Agreement may be amended or modified only by a
---------
written instrument signed by the Executive and by an expressly authorized
representative of the Company who is authorized by a vote of the Board of
Directors of the Company to execute such amendment or modification on behalf of
the Company.
16. Headings. The headings and captions in this Agreement are for
--------
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
19
17. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
18. Governing Law. This is a Massachusetts contract and shall be
-------------
construed and enforced under and be governed in all respects by the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principals
thereof, and this Agreement shall be deemed to be performable in Massachusetts.
Any claims or legal actions by one party against the other arising out of the
relationship between the parties contemplated herein (whether or not arising
under this Agreement) shall be commenced or maintained in any state or federal
court located in Massachusetts, and Executive hereby submits to the jurisdiction
and venue of any such court. Executive hereby further agrees that the language
of all parts of this Agreement shall in all cases be construed as a whole
according to its fair meaning and not strictly for or against either of the
parties.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company, by its duly authorized representative, and by the Executive, as
of the date first above written.
COMPANY: XXXXXXXXXXXX.XXX, INC.
/s/ Xxxxx X. Xxxxxx
By: ___________________________________
On Behalf of the Board of Directors
/s/ Xxxxxxx Xxxxxx
EXECUTIVE: _______________________________________
Xxxxxxx Xxxxxx
20
