Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of this 4th day of October, 1999, by
and between Xxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), whose
principal executive offices are located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, and Xxxxxx X. Park, an individual whose mailing address is 00 Xxxx Xxxxxx,
Xxxxxxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the "EXECUTIVE").
W I T N E S S E T H:
WHEREAS, the Company seeks to continue employment of the
Executive and the Executive seeks continued employment by the Company; and
WHEREAS, both parties desire that the terms and conditions of
the Executive's employment with the Company be governed by the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants herein contained, the parties hereto hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) GENERAL. The Company hereby employs the Executive,
effective as of the date first above written (the "EFFECTIVE DATE"), and the
Executive agrees upon the terms and conditions herein set forth to serve,
effective as of the Effective Date, as the Chief Executive Officer of the
Company. In such capacity, the Executive shall report directly and only to the
Board of Directors of the Company (the "BOARD"). The Executive's principal place
of business shall be at the Company's headquarters in New York, New York.
(b) SERVICES AND DUTIES. For so long as the Executive is
employed by the Company, the Executive shall devote his full business time to
the performance of his duties hereunder; shall faithfully serve the Company;
shall in all respects conform to and comply with the lawful and good faith
directions and instructions given to him by the Board as the same are consistent
with his status and the terms hereof; and shall use his best efforts to promote
and serve the interests of the Company. Specifically, the Executive shall be
responsible for the financial performance of the Company, developing strategic
alliances and partnerships and maximizing their commercial benefits,
communications to both internal and external audiences and external
relationships with business, industry and academic communities and strategic
leadership.
(c) NO OTHER EMPLOYMENT. Except as provided below, for so long
as the Executive is employed by the Company, he shall not, directly or
indirectly, render services to any other person or organization for which he
receives compensation without the prior written
approval of the Board. No such approval will be required if the Executive seeks
to perform inconsequential services without direct compensation therefor in
connection with the management of personal investments or in connection with the
performance of charitable and civic activities, provided that such activities do
not contravene the provisions of Section 6 hereof.
(d) BOARD MEMBERSHIP. The Executive shall be a member of the
Board. In addition, the Executive shall be entitled to attend the meetings of
all other committees of the Board, such as the Audit Committee and the
Compensation Committee, and shall be a member of any strategy committee of the
Board. After his initial term as director, the Company shall nominate the
Executive for reelection to the Board and shall use all reasonable efforts to
cause the Executive to be elected to such term.
2. TERM OF EMPLOYMENT. The term of the Executive's employment
under this Agreement (the "TERM") shall commence on the Effective Date and
continue until the second anniversary of the Effective Date, unless terminated
earlier as provided in Section 4 below. Unless written notice of either party's
desire to terminate the Agreement has been given to the other party at least six
months prior to the expiration of the Term (or any renewal thereof as
contemplated by this sentence), the Term shall automatically be renewed for
successive one year periods.
3. COMPENSATION AND OTHER BENEFITS. Subject to the provisions
of this Agreement, the Company shall pay and provide the following compensation
and other benefits to the Executive during the Term as compensation for all
services rendered hereunder:
(a) SALARY. As soon as practicable following the Effective
Date, the Company shall make an initial payment of salary earned since March
1,1999 but not yet paid to the Executive in the amount of $87,500. Hereforth,
the Company shall pay to the Executive an annual salary (the "SALARY") at the
initial rate of $150,000, payable to the Executive in accordance with the normal
payroll practices of the Company for its executive officers as are in effect
from time to time. The amount of the Executive's Salary shall be reviewed by the
Board in each year during the Term and may be increased, but not decreased below
such amount, on the basis of such review and then-current market practices.
(b) ANNUAL BONUS. During the Term, the Executive shall be
eligible for each calendar year within the Term to participate in any annual
incentive bonus program established by the Company in accordance with the
policies of the Company, its subsidiaries and affiliates (hereinafter,
collectively the "GROUP") and subject to such terms and conditions as may be
approved annually by the Board.
(c) PENSION AND LIFE INSURANCE. During the Term, the Executive
shall participate in such pension and life insurance plans as may be adopted by
the Company from time to time.
(d) OTHER SPECIFIC BENEFITS. The Company shall install and pay
the rental and unit charges attributable to a dedicated business telephone
and/or ISDN line at his home. During the Term, the Company shall also pay for
the Executive's purchase, line charges, rental and unit charges for his mobile
phones. The Company shall provide the Executive with a fax machine and computer
modem to be installed at the Executive's home and a suitable desktop and laptop
computer, as well as all ancillary equipment and maintenance therefor. In
addition, the Company will pay for the cost of the Executive's membership in or
subscriptions to the internet service provider of his choice, and such
professional memberships and journals as are appropriate to his duties under
this Agreement.
(e) EXPENSES. The Company shall pay or reimburse the Executive
for all reasonable out-of-pocket expenses incurred by the Executive in
connection with his employment hereunder and expressly agrees that it will
reimburse the Executive for his business class airfare on international flights
which are over five hours in duration taken in connection with Company business.
Such expenses shall be paid upon the periodic submission of invoices and shall
be paid reasonably promptly after the date of such invoice. The reimbursement of
expenses under this Section 3(e) shall be subject to the Executive's providing
the Company with such documentation of the expenses as the Company may from time
to time reasonably request.
(f) WELFARE AND FRINGE BENEFITS. During the Term, the
Executive shall be eligible to participate in the Company's medical and
disability plans applicable to senior officers of the Company in accordance with
the terms of such plans as in effect from time to time.
(g) LONG-TERM INCENTIVE PROGRAM; STOCK OPTION GRANT. During
the Term, the Executive shall participate in all long-term incentive plans and
programs of the Company that are applicable to its senior officers in accordance
with their terms and in a manner consistent with his position with the Company.
Without limiting the foregoing, effective as of the date hereof, the Company
hereby grants the Executive pursuant to the Company's 1999 Incentive Stock
Option Plan stock options to purchase 650,000 shares of the Company's common
stock at an exercise price of $1.80 per share. Such options are intended to
qualify as incentive stock options to the greatest extent possible.
(h) HOLIDAYS. In addition to the usual public and bank
holidays, the Executive shall be entitled to four weeks paid vacation annually,
which shall be taken at such times as are approved by the Board.
4. TERMINATION OF EMPLOYMENT. Subject to the notice and other
provisions of this Section 4, the Company shall have the right to terminate the
Executive's employment hereunder, and he shall have the right to resign, at any
time for any reason or for no stated reason.
(a) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON.
(i) If, prior to the expiration of the Term, the Executive's employment is
terminated by the Company for Cause or if the Executive resigns from his
employment hereunder other than for Good Reason,
he shall be entitled to payment of the pro rata portion of his Salary through
and including the date of termination or resignation as well as reimbursement
for any unreimbursed expenses. Except to the extent required by the terms of any
applicable compensation or benefit plan or program or as otherwise required by
applicable law, the Executive shall have no rights under this Agreement or
otherwise to receive any other compensation or to participate in any other plan,
program or arrangement after such termination or resignation of employment with
respect to the year of such termination or resignation and later years. In
addition, in the event of a termination or resignation described in this Section
4(a)(i), (A) all unvested stock options held by the Executive shall be forfeited
and (B) all shares of common stock of the Company held by the Executive shall be
subject to the repurchase rights set forth in Section 7 of the Stockholders'
Agreement, dated as of the date hereof, among the Company and the stockholders
identified therein.
(ii) Termination for "CAUSE" shall mean termination of the
Executive's employment with the Company because of (A) the Executive's willful,
repeated material failure or refusal to perform his duties to the Company or to
observe the material policies of the Company (other than by reason of the
incapacity of the Executive due to physical or mental illness) after notice by
the Board of such failure or refusal and the Executive's continued willful,
material failure or refusal to perform or observe after such notice, as the case
may be, (B) gross negligence by the Executive in the performance of his duties
and responsibilities, (C) any willful misconduct by the Executive that brings
the reputation of the Group into serious disrepute or causes the Executive to
cease to be able to perform his duties, (D) the commission by the Executive of
any material act of fraud, theft or financial dishonesty by the Executive with
respect to the Company, or any felony (including, without limitation violation
of the Foreign Corrupt Practices Act of 1977) or a criminal act involving
turpitude, (E) the continued use of drugs or alcohol by the Executive to an
extent that, in the good faith determination of the Board, such use materially
interferes with the performance by the Executive of his duties and
responsibilities, (F) the material breach by the Executive of this Agreement,
including, without limitation, any material breach by the Executive of the
provisions of Section 6, or any other agreement or contract with the Company, or
(G) the material breach of the Executive Non-Disclosure and Inventions
Assignment Agreement, or material breach of any confidentiality agreement
resulting in misappropriation of the Company's property. For purposes of this
Section 4(a)(ii), no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive (x) not in
good faith or (y) without belief by the Executive that his act or omission was
in the best interests of the Company.
(iii) Termination of the Executive's employment for Cause
shall be communicated by delivery to the Executive of a written notice from the
Company stating that the Executive has been terminated for Cause, specifying the
particulars thereof and the effective date of such termination. The date of a
resignation by the Executive without Good Reason shall be the date specified in
a written notice of resignation from the Executive to the Company. The Executive
shall provide at least 90 days' advance written notice of resignation without
Good Reason.
(b) INVOLUNTARY TERMINATION. (i) If, prior to the expiration
of the Term, (w) the Company terminates the Executive's employment without
Cause, (x) the Executive's employment is terminated as a result of disability
(as defined in the Company's long-term disability plan), (y) the Executive dies
or (z) the Executive resigns from his employment hereunder for Good Reason
(collectively hereinafter referred to as an "INVOLUNTARY TERMINATION"), the
Company shall pay to the Executive his Salary accrued up to and including the
date of such Involuntary Termination, a pro rata bonus for the year of
termination based on the target bonus established for such year or, if no such
target bonus was established, the highest bonus paid to the Executive by the
Company for any prior year, and reimbursement of any unreimbursed expenses. In
addition, the Company shall pay to the Executive (or his estate, as the case may
be) as severance within 30 days after the date of termination a lump sum payment
in an amount equal to his Salary, at the rate in effect immediately prior to
such Involuntary Termination. Further, all unvested stock options held by the
Executive shall (A) become fully vested in the event of a termination without
Cause and (B) be forfeited in all other circumstances described in this Section
4(b).
(ii) In the event of the Executive's Involuntary Termination
(other than by reason of death), the Executive and his eligible dependants shall
continue to participate on the same terms and conditions as are in effect
immediately prior to such termination or resignation in the Company's health and
medical plans provided to the Executive pursuant to Section 3(f) above at the
time of such Involuntary Termination for a period equal to one year following
the Involuntary Termination (the "CONTINUATION PERIOD"). Anything herein to the
contrary notwithstanding, the Company shall have no obligation to continue to
maintain during the Continuation Period any plan or program solely as a result
of the provisions of this Agreement but this obligation shall apply in respect
of any substitute or replacement plan.
(iii) Resignation for "GOOD REASON" shall mean resignation by
the Executive following (A) an adverse and material change in the Executive's
duties, titles or reporting responsibilities, (B) a material breach by the
Company of any term of the Agreement, (C) a material reduction in the
Executive's Salary or the failure of the Company to pay the Executive any
material amount of compensation when due, (D) failure by the Company to nominate
the Executive for reelection to the Board during the Term unless the Executive
declines to stand for election, (E) the failure of the Executive to be reelected
to the Board during the Term, (F) a relocation of the Executive's principal
place of business by more than 40 miles without his prior written consent, (G)
any delivery by the Company to the Executive of a notice of non-renewal of the
Term pursuant to Section 2, or (H) a Change in Control. For purposes of the
foregoing, a "CHANGE IN CONTROL" shall be deemed to have occurred when:
(A) Any Person is or becomes the "beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act, whether or not the Company
is then subject to the terms of the Exchange Act), directly or
indirectly, of securities of the Company representing fifty (50%)
percent or more of the combined voting power of the Company's
then-outstanding securities; or
(B) The individuals who were directors on the Effective Date,
or any director whose appointment or election by the Board or
nomination for election by the Company's shareholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors
then in office, who either were directors as of the Effective Date or
whose appointment, election or nomination for election was previously
so approved or recommended (other than a director whose initial
assumption of office is in connection with an actual or threatened
election contest, including, but not limited to, a consent
solicitation, relating to the election of directors of the Company)
cease for any reason to constitute a majority of the directors then
serving on the Company's board of directors; or
(C) There is consummated a merger or consolidation of the
Company, other than (x) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of
the surviving entity or any parent thereof), in combination with the
ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary, at least sixty
percent (60%) of the combined voting power of the securities of the
Company or such surviving entity, or any parent thereof, outstanding
immediately after such merger or consolidation, or (y) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the
beneficial owner, directly or indirectly, of the Company's securities
(excluding any securities acquired directly from the Company or its
affiliates other than in connection with the acquisition by the Company
or its affiliates of a business) representing twenty percent (20%) or
more of the combined voting power of the Company's then outstanding
securities; or
(D) The shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, other than a sale or
disposition by the Company of all or substantially all of the Company's
assets to an entity, at least sixty percent (60%) of the combined
voting power of the voting securities of which are owned by
shareholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale.
For purposes of the above, "PERSON" shall mean any person,
entity or "group" within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, except that such term shall not include
(i) the Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any of its subsidiaries, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv)
a corporation owned, directly or indirectly, by the shareholders of the
Company in substantially the same proportions as their ownership of
stock of the Company.
(iv) The date of termination of employment without Cause shall
be the date specified in a written notice of termination to the Executive. The
date of resignation for Good Reason shall be the date specified in a written
notice of resignation from the Executive to the Company.
5. SECTION 280G LIMITATION
Notwithstanding anything in this Agreement to the contrary, in
the event that the provisions of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), relating to "excess parachute payments" shall be
applicable to any payment to be made under this Agreement (including the vesting
of any options pursuant to the provisions of any option agreement), which
determination shall be made by taking into account all payments to the Executive
which are parachute payments under Section 280G of the Code, then the total
amount of payments which would otherwise be made shall be reduced to the largest
amount such that Section 280G of the Code relating to "excess parachute
payments" shall no longer be applicable (or shall be applicable to the reduced
amount of "excess parachute payments" still remaining after the reduction
provided for in this sentence); PROVIDED, HOWEVER, that if (i) the Company is
eligible to exempt such payments from treatment as "parachute payments" by
securing shareholder approval under Section 280G (b)(5)(A)(ii) of the Code, and
(ii) such shareholder approval is obtained, then there shall be no reduction in
such payments. In the event of a disagreement between the Company and the
Executive as to whether Section 280G of the Code is applicable or whether any
other payment or benefit constitutes a "parachute payment," such determination
shall be made by an accounting or law firm mutually acceptable to the Company
and the Executive. All costs relating to such determination shall be borne
equally by the Company and the Executive. Pending such determination, the
payments that are not in dispute shall be paid in the manner otherwise provided
for without reduction under this Section 5.
6. PROTECTION OF THE COMPANY'S INTERESTS.
(a) NO COMPETING EMPLOYMENT. For so long as the Executive is
employed by the Company, and for an additional one year following a termination
of employment without Cause or a resignation for Good Reason, or two years
following a termination of employment for Cause or resignation without Good
Reason, (such applicable period being referred to hereinafter as the "RESTRICTED
PERIOD"), the Executive shall not, whether alone or as a partner, officer,
director, consultant, agent, employee, stockholder or otherwise, directly or
indirectly, own an interest in, manage, operate, join, control, lend money or
render financial or other assistance to or participate in or be connected with,
as an officer, employee, partner, stockholder, consultant or otherwise, any
individual, partnership, firm, corporation or other business organization or
entity or otherwise engage in any business activity that competes with any
business (i) presently conducted by the Group or (ii) planned by the Group
(whether by providing any goods or services provided or under development by the
Group or otherwise); PROVIDED, HOWEVER, that this Section 6(a) shall not
proscribe the Executive's ownership, either directly or indirectly, of either
less than one percent of any class of securities which are listed on a national
securities exchange or quoted on the automated quotation system of the National
Association of Securities Dealers, Inc. or any limited partnership investment
over which the Executive has no control.
(b) NO INTERFERENCE. During the Restricted Period, the
Executive shall not, directly or indirectly, whether for his own account or for
the account of any other individual, partnership, firm, corporation or other
business organization (other than the Group) that is in competition with the
Group, (A) solicit, recruit, hire, engage in any activity that would cause any
employee to violate any agreement with the Group, endeavor to entice away from
the Group, or otherwise interfere with the relationship of the Group with, any
person or team who is employed by or otherwise engaged to perform services for
the Group or (B) during the Restricted Period, solicit, entice or induce any
person or team or entity who is, or was a Customer, client or Supplier of the
Group to (i) become a Customer or Supplier of any other person or entity engaged
in any business activity that competes with any business conducted by the Group,
or any business planned by the Group, (ii) cease doing business with the Group
or (iii) otherwise interfere with the relationship of the Group with any such
person, team, Customer or Supplier. For purposes of this paragraph, a "Customer"
of the Group means any person, corporation, partnership, trust division,
business unit, department or agency which, during the Restricted Period shall be
or shall have been a customer, distributor or agent of the Group or shall be or
shall have been contacted by the Group for the purpose of soliciting it to
become a customer, distributor or agent of the Group; and a "Supplier" of the
Group means any person, corporation, partnership, trust, division, business
unit, department or agency which, during the Restricted shall be or shall have
been a supplier, vendor, manufacturer or developer for any product or service or
significant component used in any product or service of the Group.
(c) SECRECY. The Executive recognizes that the services to be
performed by him hereunder are special, unique and extraordinary in that, by
reason of his employment hereunder, he may acquire confidential information and
trade secrets concerning the operation of the Group, the use or disclosure of
which could cause the Group substantial losses and damages which could not be
readily calculated and for which no remedy at law would be adequate.
Accordingly, the Executive covenants and agrees with the Company that he will
not at any time, whether during or after the termination of the Executive's
employment, reveal to any person or entity any of the trade secrets or
proprietary or confidential information of the Group or any third party which
the Group is under an obligation to keep confidential (including, but not
limited to, Intellectual Property Rights (as hereinafter defined), ideas
(whether or not protectable under trade secret laws), trade secrets or
proprietary or confidential information respecting inventions, products, product
plans, designs, drawings, sketches, marketing and other plans, methods,
know-how, techniques, technology, systems, characters, processes, strategies,
software programs, works of authorship, customer lists, user lists, vendor
lists, content provider lists, supplier lists, pricing information, projects,
notes, memoranda, reports, lists, records, specifications, data, documentation,
budgets, plans, projections, forecasts, financial information (including
revenues, costs or profits associated with any of the Group's products),
opportunities and proposals in whatever form, tangible or intangible or other
materials of any nature relating to any matter within the scope of the business
of the Group or concerning any of the dealings or affairs of the Group
(collectively,
"Proprietary Information")), except as may be required in the ordinary course of
performing his duties hereunder as an Executive of the Group or with the prior
written consent of the Board and he shall keep secret all matters entrusted to
him and shall not use or attempt to use any such information in any manner. For
purposes of this paragraph, the term "Intellectual Property Rights" shall mean
all industrial and intellectual property rights, including, without limitation,
patents, patent applications, patent rights, trademarks, trademark applications,
trade names, service marks, service xxxx applications, copyrights, copyright
applications or registrations, databases, algorithms, computer programs and
other software, know-how, trade secrets, proprietary processes and formulae,
inventions, trade dress, logos, design and all documentation and media
constituting, describing or relating to the above.
(d) EXCLUSIVE PROPERTY. The Executive confirms that all
confidential information is and shall remain the exclusive property of the
Group. All business records, papers and documents kept or made by the Executive
relating to the business of the Group shall be and remain the property of the
Group. Upon the termination of his employment with the Company or upon the
request of the Company at any time, the Executive shall promptly (but no later
than five (5) days after the earlier of the Executive's termination of
employment with the Group or the Company's request) destroy or deliver to the
Company, at the Company's option, (a) all materials furnished to the Executive
by the Group, (b) all tangible media of expression which are in the Executive's
possession and which incorporate any Proprietary Information or otherwise relate
to the business of the Group (including, without limitation, the material
described in the Executive Non-Disclosure), and (c) written certification of the
Executive's compliance with his obligations under this sentence, and shall not
without the consent of the Board retain copies of, any written materials not
previously made available to the public, or records and documents made by the
Executive or coming into his possession concerning the business or affairs of
the Group; PROVIDED, HOWEVER, that subsequent to any such termination, the
Company shall provide the Executive with copies (the cost of which shall be
borne by the Executive) of any documents which are requested by the Executive
and which the Executive has determined in good faith are (i) required to
establish a defense to a claim that the Executive has not complied with his
duties hereunder or (ii) necessary to the Executive in order to comply with
applicable law.
(e) NON-DISCLOSURE, NON-COMPETITION AND ASSIGNMENT OF
INVENTIONS. The Executive will execute an Executive Non-Disclosure and
Inventions Assignment Agreement substantially in the form set forth as Exhibit A
hereto (the "Executive Non-Disclosure and Inventions Assignment Agreement").
(f) INJUNCTIVE RELIEF. Without intending to limit the remedies
available to the Company, the Executive acknowledges that a breach of any of the
covenants contained in this Section 6 may result in material irreparable injury
to the Group for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled to obtain a
temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
6 or such other relief as may be required to specifically enforce any of the
covenants in this Section 6.
Without intending to limit the remedies available to the Executive, the
Executive shall be entitled to seek specific performance of the Company's
obligations under this Agreement.
7. GENERAL PROVISIONS.
(a) SOURCE OF PAYMENTS. All payments provided under this
Agreement, other than payments made pursuant to a plan which provides otherwise,
shall be paid in cash from the general funds of the Company, and no special or
separate fund shall be established, and no other segregation of assets made, to
assure payment. The Executive shall have no right, title or interest whatever in
or to any investments which the Company may make to aid the Company in meeting
its obligations hereunder. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right shall be no greater than
the right of an unsecured creditor of the Company; PROVIDED, HOWEVER, that this
provision shall not be
deemed to waive or abrogate any preferential or other rights to payment accruing
to the Executive under applicable bankruptcy laws by virtue of the Executive's
status as an employee of the Company.
(b) NO OTHER SEVERANCE BENEFITS. Except as specifically set
forth in this Agreement, the Executive covenants and agrees that he shall not be
entitled to any other form of severance benefits from the Company, including,
without limitation, benefits otherwise payable under any of the Company's
regular severance policies, in the event his employment hereunder ends for any
reason and, except with respect to obligations of the Company expressly provided
for herein, the Executive unconditionally releases the Company and its
subsidiaries and affiliates, and their respective directors, officers, employees
and stockholders, or any of them, from any and all claims, liabilities or
obligations under this Agreement or under any severance or termination
arrangements of the Company or any of its subsidiaries or affiliates for
compensation or benefits in connection with his employment or the termination
thereof.
(c) TAX WITHHOLDING. Payments to the Executive of all
compensation contemplated under this Agreement shall be subject to all
applicable tax withholding.
(d) NOTICES. Any notice hereunder by either party to the other
shall be given in writing by personal delivery, or certified mail, return
receipt requested, or (if to the Company) by telex or facsimile, in any case
delivered to the applicable address set forth below:
(i) To the Company: Xxxxx.xxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Secretary
With copies to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention.: Xxxx X. Xxxxxx III, Esq.
(ii) To the Executive: Xxxxxx X. Park
00 Xxxx Xxxxxx, Xxxxxxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
or to such other persons or other addresses as either party may specify to the
other in writing.
(e) REPRESENTATION BY THE EXECUTIVE. The Executive represents
and warrants that his entering into this Agreement does not, and that his
performance under this Agreement and consummation of the transactions
contemplated hereby will not, violate the provisions of any agreement or
instrument to which the Executive is a party, or any decree, judgment or order
to which the Executive is subject, and that this Agreement constitutes a valid
and binding obligation of the Executive in accordance with its terms. Breach of
this representation will render all of the Company's obligations under this
Agreement void AB INITIO.
(f) LIMITED WAIVER. The waiver by the Company or the Executive
of a violation of any of the provisions of this Agreement, whether express or
implied, shall not operate or be construed as a waiver of any subsequent
violation of any such provision.
(g) ASSIGNMENT; ASSUMPTION OF AGREEMENT. No right, benefit or
interest hereunder shall be subject to assignment, encumbrance, charge, pledge,
hypothecation or setoff by the Executive in respect of any claim, debt,
obligation or similar process. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to assume expressly
and to agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place.
(h) AMENDMENT; ACTIONS BY THE COMPANY. This Agreement may not
be amended, modified or canceled except by written agreement of the Executive
and the Company. Any and all determinations, judgments, reviews, verifications,
adjustments, approvals, consents, waivers or other actions of the Company
required or permitted under this Agreement shall be effective only if undertaken
by the Company pursuant to authority granted by a resolution duly adopted by the
Board; PROVIDED, HOWEVER, that by resolution duly adopted in accordance with
this Section 7(h), the Board may delegate its responsibilities hereunder to one
or more of its members other than the Executive.
(i) SEVERABILITY. If any term or provision hereof is
determined to be invalid or unenforceable in a final court or arbitration
proceeding, (i) the remaining terms and provisions hereof shall be unimpaired
and (ii) the invalid or unenforceable term or provision shall 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.
(j) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (determined
without regard to the choice of law provisions thereof).
(k) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties hereto with respect to the matters
covered hereby and supersedes all prior agreements and understandings of the
parties with respect to the subject matter hereof.
(l) HEADINGS. The headings and captions of the sections of
this Agreement are included solely for convenience of reference and shall not
control the meaning or interpretation of any provisions of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed an original, but
both such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first written above.
XXXXX.XXX, INC
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Secretary
EXECUTIVE
/s/ Xxxxxx X. Park
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Xxxxxx X. Park
