EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (“Agreement”), dated as
of December 8, 2008, by and between Wilshire Enterprises, Inc., a Delaware
corporation (the “Employer”), and
Xxxxx X. Swill, an individual[*****] (the “Executive”).
RECITAL
WHEREAS, the Employer and the
Executive desire to set forth the terms pursuant to which the Executive will be
employed by the Employer as the President and Chief Operating Officer of the
Employer;
NOW, THEREFORE, the Employer
and the Executive hereby agree as follows:
Section
1. Employment.
(a) The
Employer shall employ the Executive, and the Executive agrees to be employed by
the Employer, upon the terms and conditions hereinafter provided, for a term
(the “Initial
Term”) commencing on January 5, 2009 (the “Effective Date”) and
expiring on December 31, 2010 (the “Initial Expiration
Date”). The Initial Term shall be automatically extended for
an additional one (1) year period on the Initial Expiration Date and on each
anniversary date of the Initial Expiration Date, unless on or before the Initial
Expiration Date and each such anniversary date either party provides at least
ninety (90) days prior written notice to the other of its (or his) intent not to
extend the then current term. The Initial Term and any renewal period hereunder
are referred to herein as the “Term”.
(b) The
Executive hereby represents and warrants that he has the legal capacity to
execute and perform this Agreement, that this Agreement is a valid and binding
agreement enforceable against the Executive according to its terms, and that the
execution and performance of this Agreement by the Executive does not violate
the terms of any existing agreement or understanding to which the Executive is a
party.
Section
2. Duties. The
Executive shall report to the Chairman of the Board and Chief Executive Officer
of the Employer and have the title of President and Chief Operating Officer of
the Employer. The Executive shall have such duties as are consistent with the
Executive’s experience, expertise and position as President and Chief Operating
Officer, and as shall be assigned to the Executive from time to time by the
Chairman of the Board and Chief Executive Officer. During the Term,
except for vacation in accordance with the provisions of this Agreement and the
Employer’s policies or due to illness or incapacity, the Executive shall devote
all of the Executive’s business time, attention, skill and efforts exclusively
to the business and affairs of the Employer. Notwithstanding the
foregoing, to the extent that the following does not impair the Executive’s
ability to perform the Executive’s duties pursuant to this Agreement, the
Executive may make personal investments in such form or manner as will not
require the Executive’s services in the operation or affairs of the business in
which such investments are made; provided, however, that the Executive shall
advise the Employer’s Chairman of the Board and Chief Executive Officer of, and
grant the Employer a right of first refusal with respect to, any potential
business opportunity he becomes aware of that is similar to the types of
investments and transactions that the Executive (i) set forth in the business
plan he provided to the Chairman of the Board and Chief Executive Officer of the
Employer or (ii) described to the Employer’s Board of Directors, including,
without limitation, joint ventures, loan syndications, real estate investments
and related financings and acquisitions.
Section
3. Compensation. For
all services rendered by the Executive hereunder during the Term, the Executive
shall be compensated as follows:
(a) Salary. The
Employer shall pay the Executive an initial fixed salary (“Base Salary”) at a
rate of $250,000 per annum from the Effective Date. Such Base Salary
shall be subject to periodic review and may be increased by the Employer’s Board
of Directors (or its Compensation Committee) in its discretion. Such
Base Salary may only be reduced by the Board of Directors (or its Compensation
Committee) if and by the same percentage that the salaries of all other
executive officers of the Employer are also so reduced. The term
“Base Salary” as used in this
Agreement shall refer to the Base Salary as it may be changed from time to time
in accordance with the terms of this Agreement. The Base Salary shall
be payable in accordance with the customary payroll practices of the
Employer.
(b) Restricted
Shares. Upon joining the Employer on the Effective Date, the
Executive shall be granted 125,000 restricted shares (the “Restricted Shares”)
of the Employer’s common stock pursuant to the Employer’s 2004 Stock Option and
Incentive Plan (the “Plan”). A
total of one half of such Restricted Shares shall vest on the one year
anniversary of the Effective Date, and the remaining one half of such Restricted
Shares shall vest on the Initial Expiration Date, provided that the Executive is
an employee of the Employer on the respective vesting dates. The
Executive acknowledges that (x) the Plan currently provides that all shares
subject to restricted share grants made under the Plan shall immediately vest
upon a change in control as defined in such Plan, (y) clause (i) of the
definition of change in control in Article 12 of such Plan (the “Clause”)
currently provides that if a person or group acquires more than 15% of the
Employer’s stock a change in control under the Plan would occur, and (z) the
Employer has adopted a shareholder protection rights plan pursuant to which a
“Beneficial Owner” (as defined in such rights plan) may surpass the
above-mentioned 15% threshold without becoming an “Acquiring Person” (as defined
in such rights plan). The Executive hereby agrees that with respect
to his Restricted Shares, the Clause shall be inapplicable, and he hereby waives
any and all benefits to which he would be entitled by virtue of the Clause with
respect to such Restricted Shares, intending that such waiver be binding upon
him and his successors and assigns. Except as set forth in Section 5,
any Restricted Shares that have not vested as of the date of the Executive’s
termination of employment shall be forfeited effective on such date of
termination. Complete terms of the Restricted Shares shall be set
forth in a restricted stock agreement prepared by the Employer.
(c) Benefit
Plans. Except as expressly modified by this Agreement, the
Executive shall be entitled to participate in all employee benefit plans or
programs, including without limitation health and medical benefit plans,
generally made available by the Employer to executive officers of the Employer,
to the extent permissible under the general terms and provisions of such plans
or programs and in accordance with the provisions
thereof. Notwithstanding the foregoing, nothing in this Agreement
shall require any particular plan or program to be continued nor preclude the
amendment or termination of any such plan or program, provided that such
amendment or termination is applicable generally to the executive officers of
the Employer.
-2-
(d) Automobile
Allowance. The Employer shall provide the Executive with a car
allowance of $1,000 per month. All expenses relating to such
automobile, including without limitation gasoline, maintenance, repairs and
insurance, shall be the responsibility of the Executive.
(e) Vacation. The
Executive shall be entitled to five (5) weeks vacation per calendar year during
the Term, provided that not more than two (2) of such weeks shall be consecutive
without the prior approval of the Employer’s Chairman of the Board.
(f) Bonus. The
Executive shall be eligible to receive such bonuses, if any, as the Employer’s
Board of Directors (or its Compensation Committee) may award from time to time
in its discretion.
Section
4. Business
Expenses. The Employer shall pay or reimburse the Executive
for all necessary and customary expenses reasonably incurred by the Executive in
connection with the performance of the Executive’s duties and obligations under
this Agreement, including without limitation reasonable and customary business
expenses incurred to entertain the Employer’s clients, provided, however, that
the Employer shall not pay or reimburse the Executive for country club
membership fees. Such reimbursement shall be subject to the
Executive’s presentation of appropriate vouchers in accordance with such expense
account policies and approval procedures as the Employer may from time to time
reasonably establish for employees (including but not limited to prior approval
of extraordinary expenses); provided, however, that in no event shall
reimbursement be made later than December 31 of the year following the year in
which the expense was incurred.
Section
5. Effect of
Termination of Employment.
(a) Termination
Generally. Notwithstanding anything herein to the contrary,
this Agreement may be terminated at any time by either the Employer without
“Cause” or the Executive for “Good Reason” (each as defined below); provided, however, that the
party desirous of terminating this Agreement shall give the other party at least
thirty (30) days’ prior written notice of such termination. The
Employer may, in lieu of the notice period, pay the Executive’s Base Salary for
the notice period. The date specified in any notice of termination as
the Executive’s final day of employment and, in all other cases, the Executive’s
actual final day of employment, shall be referred to herein as the “Termination
Date.” In addition, the parties acknowledge that the Executive
has been appointed to the Employer’s Board of Directors. The
Executive agrees that in the event of the Executive’s termination of employment
by the Employer with or without Cause, or by the Executive for Good Reason, the
Executive shall resign on the Termination Date as a director of the Employer and
any and all subsidiaries of the Employer which he may be serving as a
director. If the Executive’s employment terminates due to notice of
non-renewal of the Term by either the Employer or the Executive, the Executive
shall, upon the request of the Employer, resign as a director of the Employer
and any and all subsidiaries of the Employer which he may be serving as a
director.
-3-
(b) Accrued
Obligations. Except as set forth in this Section
5, in the event that Executive’s employment hereunder is terminated for
any reason, then Executive shall be entitled to no compensation or other
benefits of any kind whatsoever, other than (i) payment of Executive’s unpaid
Base Salary under Section
3(a) through the Termination Date, (ii) payment of any unpaid accrued
vacation or business expenses, (iii) payment of any other unpaid amounts due and
owing under any employee benefit plans and (iv) the opportunity to continue
health coverage under the Employer’s group health plan in accordance with
“COBRA” (“COBRA
Coverage”) (the foregoing payments and benefits are collectively referred
to herein as “Accrued
Obligations”).
(c) Termination Without Cause,
Resignation for Good Reason; Termination Following a Change in
Control.
(1) In
the event that the Employer terminates the Executive’s employment hereunder
during the Term without Cause or the Executive resigns during the Term for Good
Reason, then the Executive shall be entitled to no compensation or other
benefits of any kind whatsoever, other than: (i) the Accrued
Obligations and (ii) an amount (the “Severance Amount”)
calculated as follows:
(A) the
Executive’s Base Salary in effect on the Termination Date shall be divided by
twelve (12) (such amount, the “Monthly Base Salary
Amount”); and
(B) the
Monthly Base Salary Amount shall be multiplied by eleven (11).
The
Severance Amount shall be payable in accordance with the Employer’s payroll
practices as in effect on the Termination Date.
(2) Except
as set forth below, all of the Executive’s Restricted Shares that have not
vested as of the Termination Date shall be forfeited and any stock options
previously granted to the Executive shall be exercisable, to the extent
exercisable on the Termination Date, for the period specified in the Plan as in
effect on the Termination Date.
(3) Notwithstanding
the foregoing, if, within twelve months following a “Change in Control” (defined
below), the Executive’s employment is terminated by the Employer without Cause
or the Executive resigns for Good Reason, then the Executive shall receive (i)
the Accrued Obligations, (ii) the Change in Control Amount (defined below)
payable within thirty (30) days following the Executive’s Termination Date,
subject to Section 20 hereof, and (iii) all of the Executive’s Restricted
Shares and stock options (to the extent not already vested) shall become fully
vested on the Termination Date, and the Executive shall be permitted to exercise
any such options for the period specified in the Plan as in effect on the
Termination Date. If a Change in Control occurs during the first
twelve (12) months of the Initial Term, the “Change in Control Amount” shall
equal the Monthly Base Salary Amount multiplied by the number of full calendar
months remaining in the Initial Term, beginning with the first full calendar
month after the Termination Date. If a Change in Control occurs at
any time after the one year anniversary of the Effective Date, the “Change in
Control Amount” shall equal the Monthly Base Salary Amount multiplied by twelve
(12).
-4-
(d) Death or
Disability. The Executive’s employment with the Employer shall
terminate upon Executive’s death or “Disability” (defined below), in which case
the Executive (or his estate and heirs) shall be entitled to no compensation or
other benefits of any kind whatsoever under this Agreement other than the
Accrued Obligations. In addition, the Executive (or his estate and
heirs) shall be permitted to exercise any stock options (to the extent
exercisable on the Termination Date) for the period specified in the Plan as in
effect on such Termination Date. All unvested Restricted Shares held
by the Executive as of the Termination Date shall be forfeited.
(e) Termination Due to
Non-Renewal. If the Executive’s employment with the Employer
terminates due to notice of non-renewal of the Term by the Executive or the
Employer in accordance with Section 1(a), then the Executive shall be entitled
to the Accrued Obligations, plus the Monthly Base Salary Amount multiplied by
three (3), provided that if this Agreement has been in effect for at least five
(5) years and the Executive’s employment terminates due to notice of non-renewal
of the Term by the Employer in accordance with Section 1(a), then the Executive
shall be entitled to the Accrued Obligations, plus the Monthly Base Salary
Amount multiplied by six (6). In addition, in the case of nonrenewal
(regardless of whether the notice was provided by the Executive or the
Employer), the Employer shall waive the Executive’s COBRA premium for the first
three (3) months following the Termination Date in the event that the Executive
elects COBRA coverage, provided that if this Agreement has been in effect for at
least five (5) years and the Executive’s employment terminates due to notice of
non-renewal of the Term by the Employer in accordance with Section 1(a), the
Employer shall waive the Executive’s COBRA premium for the first six (6) months
following the Termination Date in the event that the Executive elects COBRA
coverage. Any options held by the Executive at such time (to the
extent vested as of the Termination Date) shall be exercisable for the period
specified in the Plan as in effect at such time. All unvested
Restricted Shares held by the Executive as of the Termination Date shall be
forfeited.
(f) Release. Payment
of any amounts under this Section 5 (other than the Accrued Obligations) shall
be contingent upon Executive executing a general release of claims in favor of
the Employer, its subsidiaries and affiliates, and their respective officers,
directors, shareholders, partners, members, managers, agents or employees, which
release shall be provided to the Executive within five (5) business days
following the Termination Date, and which must be executed by the Executive and
become effective within thirty (30) days thereafter. Severance
payments under this Section 5 that are contingent upon such release shall
commence within ten (10) days after such release becomes effective.
(g) Termination With
Cause. The Employer may terminate this Agreement immediately
for “Cause” by giving written notice to the Executive. In the event that this
Agreement is terminated pursuant to this Section 5(g), the Executive shall be
entitled to no compensation or other benefits of any kind whatsoever for any
period after the Termination Date set forth in the notice given by the Employer
to the Executive, and shall be entitled to receive only the Accrued
Obligations. All unexercised stock options and unvested Restricted
Shares held by the Executive as of the Termination Date shall be
forfeited.
-5-
(h) Definitions.
(i)
“Cause” shall
mean: (1) the Executive’s conviction of, or plea of nolo contendre to, a felony
involving dishonesty, disloyalty, fraud or moral turpitude; (2) the Executive’s
material breach of any material obligation of the Executive under this
Agreement; or (3) the Executive’s engaging in conduct constituting a material
breach of any fiduciary duty owed by the Executive to the Employer.
(ii)
“Good Reason”
shall mean (1) a material diminution in any of the Executive’s base
compensation, duties or responsibilities (provided that assignment to Executive
of duties and responsibilities consistent with that of an executive officer
shall be conclusively deemed not to be a material diminution of duties or
responsibilities) without his agreement; (2) the Executive being required to
relocate his office to a location outside of a fifty (50) mile radius of the
Employer’s existing executive offices in Newark, New Jersey; (3) there being a
material reduction in the overall value of the employee benefits being provided
to the Executive, unless the reduction is effective for all senior executive
employees of the Employer; or (4) a material breach by the Employer of any of
its obligations to the Executive under this Agreement. No
circumstances described in clauses (1) through (4) above shall constitute “Good
Reason” unless the Executive provides the Chairman of the Board with written
notice of the Executive’s objection to such circumstances within sixty (60) days
after such circumstances first occur, and the Employer fails to remedy those
circumstances within thirty (30) days of receipt of such notice.
(iii)
“Change in Control Event” shall be deemed to have occurred if any of the
following events occur:
|
|
(a)
|
the
approval by the stockholders of the Employer of (i) any consolidation or
merger of the Employer, in which the holders of voting stock of the
Employer immediately before the consolidation or merger will not own 50%
or more of the voting shares of the continuing or surviving corporation
immediately after such consolidation or merger, or (ii) any sale, lease,
exchange or other transfer (in one transaction or series or related
transactions) of all or substantially all of the assets of the Employer;
or
|
|
|
(b)
|
a
change of 25% (rounded to the next whole percent) in the membership of the
Board of Directors within a 12-month period, unless the election, or
nomination for election by stockholders, of each new director within such
period was approved by the vote of 80% (rounded to the next whole person)
of the directors then still in office who were in office at the beginning
of such 12-month period.
|
(iv)
“Disability”
shall mean that Executive is incapable of performing his principal duties due to
physical or mental incapacity or impairment for 180 consecutive days, or for 240
non-consecutive days, during any 12 month period.
-6-
Section
6. Confidentiality and Covenants
Against Competition, Solicitation, Disparagement.
(a) The
Executive agrees that his services hereunder are of a special, unique,
extraordinary and intellectual character, and his position with the Employer
places him in a position of confidence and trust with employees, customers, and
suppliers of the Employer. The Executive further agrees and
acknowledges that in the course of the Executive’s employment with the Employer,
the Executive has been and will be privy to confidential information of the
Employer. The Executive consequently agrees that it is reasonable and
necessary for the protection of the trade secrets, goodwill and business of the
Employer that the Executive make the covenants contained
herein. Accordingly, the Executive agrees that while employed by the
Employer and during the “Restrictive Period” (defined below), the Executive
shall not (without the express prior written consent of the Employer), directly
or indirectly,
(i)
become Associated With any Competing Business in the Territory; or
(ii)
solicit, sell, call upon or induce others to solicit, sell or call upon,
directly or indirectly, any customer or prospective customer of the Employer for
the purpose of inducing any such customer or prospective customer to purchase,
license or lease a product or service of a Competing Business in the Territory;
or
(iii)
employ, solicit for employment, or advise or recommend to any other person that
they employ or solicit for employment or retention as a consultant, any person
who is, or was at any time within twelve (12) months prior to the Executive’s
Termination Date, an employee of, or exclusive consultant to, the
Employer.
(b) For
purposes of this Section 6, the term:
(i)
“Employer”
shall include the Employer, and any of its subsidiaries or
affiliates.
(ii)
“Competing
Business” means any business opportunity, investment or transaction that
the Employer was actively considering, reviewing or working on at the
Executive’s Termination Date, regardless of whether or not the Executive brought
such business opportunity, investment or transaction to the
Employer.
(iii)
“Associated
With” means serving as an owner, officer, employee, independent
contractor, agent or a holder of 5% or more of any class of equity securities
of, director, trustee, member, consultant or partner of any person, corporation
or other entity engaged in a Competing Business.
(iv)
“Restrictive
Period” means the twelve (12) month period commencing on the Executive’s
Termination Date.
(v)
“Territory”
means the states of New Jersey, New York and Connecticut.
-7-
(c) If
the Executive commits a breach or is about to commit a breach, of any of the
provisions of this Section 6, the Employer shall have the right to have the
provisions of this Agreement specifically enforced by any court having equity
jurisdiction without being required to post bond or other security and without
having to prove the inadequacy of the available remedies at law, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Employer and that money damages will not provide an
adequate remedy to the Employer. In addition, the Employer may take
all such other actions and remedies available to it under law or in equity and
shall be entitled to such damages as it can show it has sustained by reason of
such breach.
(d) Executive
shall not make any negative or disparaging comments regarding the Employer or
its subsidiaries or affiliates, or any of their respective officers, directors,
shareholders, partners, members, managers, agents or employees (collectively,
the “Representatives”),
including regarding the performance of the Employer or such subsidiaries or
affiliates, or otherwise take any action that could reasonably be expected to
adversely affect the Employer or its subsidiaries or affiliates or the personal
or professional reputation of any of their respective Representatives; and the
Employer and its Representatives shall not make any negative or disparaging
comments regarding Executive, or otherwise take any action that could reasonably
be expected to adversely affect the personal or professional reputation of
Executive. Disclosure of information required to be disclosed by
either party pursuant to any applicable law, court order, subpoena, compulsory
process of law, or governmental decree shall not constitute a violation or
breach of this Section 6(a); provided, that the
disclosing party delivers written notice of such required disclosure to the
other parties promptly before making such disclosure if such notice is not
prohibited by applicable law, court order, subpoena, compulsory process of law,
or governmental decree.
(e) The
Executive further agrees that all documents, reports, plans, proposals,
marketing and sales plans, customer lists, or materials principally relating to
the businesses of the Employer or any of its subsidiaries or affiliates and made
by the Executive or that came or come into the Executive’s possession by reason
of the Executive’s employment by the Employer are the property of such entities
and shall not be used by the Executive in any way adverse to the interests of
the Employer or any of its subsidiaries or affiliates. The Executive
will not, during the Term and thereafter, deliver, reproduce or in any way allow
such documents or things to be delivered or used by any third party without
specific direction or consent of a duly authorized representative of the
Employer. During or after termination of the Executive’s employment
with the Employer, the Executive will not publish, release or otherwise make
available to any third party any information describing any trade secret or
other confidential information of the Employer without prior specific written
authorization of the Employer.
(f) During
the Term and thereafter, the Executive will regard and preserve as confidential
all trade secrets and other confidential information pertaining to the business
of the Employer that have been or may be obtained by the Executive by reason of
the Executive’s employment by the Employer. The Executive will not,
without written authority from the Employer to do so, use for the Executive’s
own benefit or purposes, nor disclose to others, either during the Executive’s
employment by the Employer or thereafter, any trade secret or other confidential
information relating to the business of the Employer, except as required in the
course of the Executive’s employment with the Employer, or as required by law,
or as (and only to the extent) required pursuant to legal process or by an order
of a court having competent jurisdiction or under subpoena from an appropriate
government agency (and then only after providing the Employer with the
opportunity to prevent such disclosure or to receive confidential treatment for
the confidential information required to be disclosed); and the Executive will
not take or retain or copy any of the information, customer lists or other
documents of the Employer. This Section 6(f) shall not apply with
respect to information which has been voluntarily disclosed to the public by or
with the consent of the Employer, independently developed and disclosed by
others, or otherwise enters the public domain through lawful means.
-8-
(g) For
purposes of this Agreement, the term “trade secret” shall include, but not be
limited to, information encompassed in all plans, proposals, marketing and sales
plans, customer lists, mailing lists, financial information, costs, pricing
information, and all concepts or ideas in or reasonably related to the
businesses of the Employer (whether or not divulged by the Executive or other
employees or agents of the Employer) that have not previously been publicly
released by duly authorized representatives of the Employer.
(h) Executive
acknowledges that the type and periods of restriction imposed in the provisions
of this Section 6 are fair and reasonable and are reasonably required for the
protection of the Employer and the goodwill associated with the business of the
Employer; and that the time, scope, geographic area and other provisions of this
Section 6 have been specifically negotiated by sophisticated parties and are
given as an integral part of this Agreement. The Executive
specifically acknowledges that the restrictions contemplated by this Agreement
will not prevent him from being employed or earning a livelihood. If
any of the covenants in this Section 6, or any part thereof, is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenants, which shall be given full effect, without regard to
the invalid portions. If any of the covenants contained in this
Section 6, or any part thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or areas of such provision and, in its reduced form, such provision shall
then be enforceable. The parties hereto intend to and hereby confer
jurisdiction to enforce the covenants contained in this Section 6 upon the
courts of any state or other jurisdiction within the geographical scope of such
covenants. In the event that the courts of any one or more of such
states or other jurisdictions shall hold such covenants wholly unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect the right of
the Employer to the relief provided above in the courts of any other states or
other jurisdictions within the geographical scope of such covenants, as to
breaches of such covenants in such other respective states or other
jurisdictions, the above covenants as they relate to each state or other
jurisdiction being, for this purpose, severable into diverse and independent
covenants. The existence of any claim or cause of action by the
Executive against the Employer shall not constitute a defense to the enforcement
by the Employer of the foregoing restrictive covenants, but such claim or cause
of action shall be determined separately.
(i) The
Executive further agrees that a copy of a summons and complaint seeking the
entry of such order may be served upon the Executive by certified mail, return
receipt requested, at the address set forth above or at any other address which
the Executive shall designate in a writing addressed to the Employer in the
manner that notices are to be addressed pursuant to Section
9 of this Agreement.
-9-
Section
7. Assignment of
Developments; Works for Hire. If at any time or times during
Executive’s employment with the Employer, the Executive shall (either alone or
with others) make, conceive, discover or reduce to practice any invention,
modification, discovery, design, development, improvement, process, software
program, work-of-authorship, documentation, formula, data, technique, know-how,
secret or intellectual property right whatsoever or any interest therein
(whether or not patentable or registrable under copyright or similar statutes or
subject to analogous protection) (herein called “Developments”) that
(a) relates to the business of the Employer (or any subsidiary or affiliate
of the Employer) or any customer of or supplier to the Employer (or any of its
subsidiaries or affiliates) or any of the products or services being developed,
manufactured, sold or provided by the Employer or which may be used in relation
therewith or (b) results from tasks assigned to the Executive by the Employer,
such Developments and the benefits thereof shall immediately become the sole and
absolute property of the Employer and its assigns, and the Executive shall
promptly disclose to the Employer (or any persons designated by it) each such
Development and hereby assigns any rights the Executive may have or acquire in
the Developments and benefits and/or rights resulting therefrom to the Employer
and its assigns without further compensation and shall communicate, without cost
or delay, and without publishing the same, all available information relating
thereto (with all necessary documentation, plans and models) to the
Employer.
Upon
disclosure of each Development to the Employer, the Executive will, during the
Term and at any time thereafter, at the request and cost of the Employer, sign,
execute, make and do all such deeds, documents, acts and things as the Employer
and its duly authorized agents may reasonably require:
(a) to
apply for, obtain and vest in the name of the Employer alone (unless the
Employer otherwise directs) letters patent, copyrights, trademarks, service
marks or other analogous protection in any country throughout the world and when
so obtained or vested to renew and restore the same; and
(b) to
defend any opposition proceedings in respect of such applications and any
opposition proceedings or petitions or applications for revocation of such
letters patent, copyrights, trademarks, service marks or other analogous
protection.
In the
event the Employer is unable, after reasonable effort, to secure the Executive’s
signature on any letters patent, copyrights, trademarks, service marks or other
analogous protection relating to a Development, whether because of the
Executive’s physical or mental incapacity or for any other reason whatsoever,
the Executive hereby irrevocably designates and appoints the Employer and its
duly authorized officers and agents as the Executive’s agent and
attorney-in-fact, to act for and on his behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of any such letters patent, copyrights,
trademarks, service marks and other analogous protection thereon with the same
legal force and effect as if executed by the Executive.
-10-
Section
8. Withholding
Taxes. The Employer may directly or indirectly withhold from
any payments to be made under this Agreement all Federal, state, city or other
taxes and all other deductions as shall be required pursuant to any law or
governmental regulation or ruling or pursuant to any contributory benefit plan
maintained by the Employer.
Section
9. Notices. All
notices, requests, demands and other communications required or permitted
hereunder shall be given in writing, and shall be deemed effective upon (a)
personal delivery, if delivered by hand, (b) three (3) business days after the
date of deposit in the mails, postage prepaid, if mailed by certified or
registered United States mail, or (c) the next business day, if sent by a
prepaid overnight courier service, and in each case addressed as
follows:
(a) To
the Employer:
Wilshire
Enterprises, Inc.
1 Xxxxxxx
Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Attention: Chairman
of the Board
with a
copy (which shall not be deemed notice) to:
Xxxxx X.
Xxxxxxxxx, Esq.
Xxxxxxxxxx
Xxxxxxx PC
65
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
(b) To
the Executive:
to the
Executive at the Executive’s
address
listed above,
or to
such other address as either party shall have previously specified in writing to
the other.
Section
10. No
Attachment. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect; provided, however, that
nothing in this Section 10 shall preclude the assumption of such rights by
executors, administrators or other legal representatives of the Executive or the
Executive’s estate and their assigning any rights hereunder to the person or
persons entitled thereto.
Section
11. Binding
Agreement; No Assignment. This Agreement shall be binding
upon, and shall inure to the benefit of, the Executive, the Employer and their
respective permitted successors, assigns, heirs, beneficiaries and
representatives. This Agreement is personal to the Executive and may
not be assigned by the Executive without the prior written consent of the
Employer’s Board of Directors, as evidenced by a resolution of the
Board. Any attempted assignment in violation of this Section 11 shall
be null and void.
-11-
Section
12. Governing Law;
Consent to Jurisdiction; Arbitration. This Agreement, and all
matters arising directly or indirectly from this Agreement, shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New Jersey, without giving effect to the choice of law provisions
thereof. Any unresolved controversy or claim arising out of or
relating to this Agreement, except (i) as otherwise provided in this Agreement
or (ii) with respect to which a party seeks injunctive or other equitable
relief, shall be submitted to arbitration by one arbitrator pursuant to the
Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). Judgment
upon any award rendered in such arbitration will be binding and may be entered
in any court having jurisdiction thereof. The parties agree that the
arbitrator in any such matter shall be directed to award reasonable attorneys’
fees to the prevailing party. The arbitrator shall also be directed
to award the arbitrator’s compensation charges and the administrative fees of
the AAA to the prevailing party. The parties knowingly and
voluntarily agree to this arbitration provision and acknowledge that arbitration
shall be instead of any civil litigation, meaning that the parties each are
waiving any rights to
a jury trial. Each of the parties to this Agreement consents
to personal jurisdiction and venue for any equitable action sought in the United
States District Court for the District of New Jersey and any state court of
competent jurisdiction in the State of New Jersey that is located in Essex
County (and in the appropriate appellate courts from any of the
foregoing). Notwithstanding the foregoing, the Executive and the
Employer agree that, prior to submitting a dispute under this Agreement to
arbitration, the parties shall submit, for a period of sixty (60) days, to
voluntary mediation before a jointly selected neutral third party mediator under
the auspices of JAMS, New York City, New York, Resolution Center (or any
successor location), pursuant to the procedures of JAMS International Mediation
Rules conducted in the State of New York (however, such mediation or obligation
to mediate shall not suspend or otherwise delay any termination or other action
of the Employer or affect any other right of the Employer).
Section
13. Entire
Agreement. This Agreement shall constitute the entire
agreement between the parties with respect to the matters covered hereby and
supersedes all previous written, oral or implied understandings between them
with respect to such matters.
Section
14. Amendments. This
Agreement may only be amended or otherwise modified by a writing executed by
each of the parties hereto.
Section
15. Survivorship. The
provisions of Sections 5 through 13 hereof and this Section 15 shall survive the
termination of this Agreement.
Section
16. Key Man Life
Insurance. If requested by the Employer, the Executive agrees
to cooperate with the Employer in obtaining any key man life insurance coverage
insuring the Executive’s life and to submit to such physical examinations as may
be needed to secure such coverage, it being understood that the Employer shall
pay any and all premiums related to any such key man life
insurance.
-12-
Section
17. Counterparts. This
Agreement may be executed in any number of counterparts or facsimile copies,
each of which when executed shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
Section
18. Legal
Counsel. The Executive represents that he is knowledgeable and
sophisticated as to business matters, including the subject matter of this
Agreement, that he has read this Agreement and that he understands its
terms. The Executive acknowledges that, prior to assenting to the
terms of this Agreement, he has been given a reasonable period of time to review
it, to consult with counsel of his choice, and to negotiate at arm’s-length with
the Employer as to its contents. The Executive and the Employer agree
that the language used in this Agreement is the language chosen by the parties
to express their mutual intent, and that they have entered into this Agreement
freely and voluntarily and without pressure or coercion from
anyone.
Section
19. Expenses. The Employer
shall reimburse the Executive for his legal fees incurred in connection with
negotiating this Agreement, up to a maximum of $7,500, upon the Executive’s
presentation of applicable invoices.
Section
20. Section
409A. This Agreement shall be interpreted to avoid any
penalty sanctions under Section 409A (“Section 409A”) of the
Internal Revenue Code of 1986, as amended (the “Code”) and
regulations promulgated thereunder. Notwithstanding anything
contained herein to the contrary, the Executive shall not be considered to have
terminated employment with the Employer for purposes of the payments and
benefits of Section 5 hereof unless he would be considered to have incurred a
“termination of employment” from the Employer within the meaning of Treasury
Regulation §1.409A-1(h)(1)(ii). For purposes of Section 409A, each
payment made under this Agreement shall be treated as a separate
payment. In no event may the Executive, directly or indirectly,
designate the calendar year of payment. Notwithstanding
the foregoing, if necessary to comply with the restriction in Section
409A(a)(2)(B) of the Code concerning payments to “specified employees”, any
payment as a result of the termination of the Executive’s employment that would
otherwise be due hereunder within six months after such termination of
employment shall nonetheless be delayed until the first business day of the
seventh month following the Executive’s date of termination and the first such
payment shall include the cumulative amount of any payments that would have been
paid prior to such date if not for such restriction.
[Signatures
on following page.]
-13-
IN WITNESS WHEREOF, the
Employer has caused this Agreement to be executed and delivered by its duly
authorized officer and the Executive has signed this Agreement, all as of the
first date written above.
|
WILSHIRE
ENTERPRISES, INC.
|
||||
|
By:
|
/s/ Xxxxxx Xxxxxx Xxxx
|
|||
|
Xxxxxx
Xxxxxx Xxxx
|
||||
|
Chairman
of the Board
|
||||
|
EXECUTIVE:
|
||||
|
/s/ Xxxxx X. Swill
|
||||
|
Xxxxx
X. Swill
|
||||
-14-
