Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of January 29, 1999 by and between XXXX XXXXX ("Executive"), and XXX.xxx
CORPORATION, a Delaware corporation (the "Company").
WHEREAS, Executive and the Company deem it to be in their respective
best interests to enter into an agreement providing for the employment of
Executive with the Company pursuant to the terms herein stated, which terms
include provisions for salary payments and death, disability, retirement and
severance and other benefits to be paid by the Company to Executive or his
designated beneficiaries; and
WHEREAS, Executive and the Company mutually desire that Executive's
employment with the Company will commence as of the date the Board of Directors
shall approve this Agreement (the "Effective Date"), except that for salary,
bonus and benefits purposes his employment will be effective as of February 15,
1999 (the "Salary Effective Date");
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, Executive and the Company have agreed
and do hereby agree as follows:
1. DUTIES.
(a) Commencing as of the Effective Date, the Company does hereby
employ, engage and hire Executive as President and Chief Executive Officer of
the Company, and Executive does hereby accept and agree to such hiring,
engagement and employment. Executive shall be responsible for the business and
operations of the Company and for worldwide marketing, sales and business
development efforts on behalf of Company and shall do and perform all services
and acts necessary or advisable to fulfill the duties and responsibilities of
his position and shall render such services on the terms set forth herein.
Executive shall report to and be subject to the supervision and control of the
Board of Directors of the Company. In addition, Executive shall have such other
executive and managerial powers and duties with respect to the Company and its
subsidiaries as may reasonably be assigned to him by the Board, to the extent
consistent with his position and status as President and Chief Executive Officer
of the Company. It is understood and agreed that Executive's initial duties
shall include, without limitation, the preparation of a business plan for the
Company relating to the location of corporate facilities and personnel
functions, functions of management, sales and marketing and business operations,
to be approved by the Board of Directors, and, subject to such approval, the
Company agrees to use all reasonable effort to obtain the reasonable and
necessary capital investment for such plan which is
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Exhibit 10.3
expected to be funded by outside investor capital from among existing
investors in the Company.
(b) Executive agrees that he may be appointed on or after the
Effective Date to serve on the Board of Directors of the Company. If
elected, Executive agrees to serve as a director of the Company upon such
appointment and to resign such directorship upon the termination of his
employment with the Company for any reason.
2. TERM OF AGREEMENT. The term ("Term") of this Agreement shall
commence on the Effective Date and shall continue indefinitely unless
Executive's employment hereunder is terminated in accordance with the terms of
this Agreement.
3. COMPENSATION.
(a) BASE SALARY. Effective from and after the Salary
Effective Date, the Company shall pay Executive an annual base salary at the
rate of $300,000 per year or such higher amount as the Company may from time
to time determine (the "Base Salary"), payable in equal biweekly installments
in accordance with the normal payroll procedures of the Company or at such
other time or times as Executive and the Company shall agree. Executive
shall receive an annual performance review no less frequently than on each
anniversary of the Effective Date during his employment hereunder and shall
be entitled to such merit increases in his Base Salary at the Board of
Directors in their discretion may determine. The Base Salary, once
increased, shall not subsequently be decreased, and the term "Base Salary,"
as used herein, shall include any such increases. Except as otherwise
provided herein, the Company's obligation to pay Executive's Base Salary
under this Agreement shall cease as of the date of termination of Executive's
employment.
(b) BONUS. Executive shall be eligible to receive an annual
bonus of up to 60% of Executive's Base Salary payable after the conclusion of
each fiscal year of the Company. Such bonus shall be determined by the Board
of Directors contingent on and subject to the achievement by Executive of
certain mutually agreed objectives relating to the Company as approved by the
Chairman of the Company's Compensation Committee, which objectives are to be
defined and agreed within thirty (30) days after the Effective Date and
yearly thereafter prior to the commencement of each fiscal year of the
Company. Executive may also receive a discretionary bonus in excess of 60%
of Base Salary to be determined and approved by the Board of Directors in
their discretion in the event that Executive substantially and materially
exceeds the mutually agreed objectives for the Company in the reasonable
judgment of the Board of Directors. Such bonus as determined and approved by
the Board of Directors will be paid annually within ninety (90) days of the
end of the fiscal year of the Company to which it relates. To be eligible
for such bonus, Executive must be on the Company's payroll when the bonus is
paid, and no payment of such bonus will be paid if Executive is not employed
by the Company; provided that, if Executive's employment is terminated during
the second half of a fiscal year of the Company, he shall be entitled to
receive a pro rata portion of such bonus for the period of service during
such year to the extent that the agreed objectives had been achieved prior to
the date of termination.
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Exhibit 10.3
(c) BENEFITS. From and after the Salary Effective Date,
Executive shall be entitled to participate in employee benefit programs
adopted from time to time by the Company for the benefit of its employees,
including, but not limited to, reimbursement of business expenses and medical
and health insurance in accordance with the Company's existing policies.
(d) STOCK OPTIONS. As of the Effective Date of this
Agreement, the Company shall grant Executive options (the "Options") to
purchase 750,000 shares of Common Stock of the Company, pursuant to and all
of the terms and conditions of the Company's existing Stock Option Plan, and
at an exercise price equal to the fair market value of the Common Stock on
the date of grant. The Options shall be incentive stock options except for
any portion thereof which shall not meet all of the requirements of incentive
stock options under applicable law.
(e) WARRANTS. The Company agrees to grant Executive Warrants
(the "Warrants") to purchase up to 250,000 shares of the Company's Common Stock
at an exercise price equal to the fair market value of the Company's Common
Stock on the date of issuance of the Warrants in two tranches of 125,000 shares
each. The issuance of the Warrants shall be contingent on and subject to the
achievement by Executive of certain mutually agreed objectives relating to an
increase in the share value of the Company as approved by the Chairman of the
Company's Compensation Committee, which objectives are to be mutually defined
and agreed within thirty (30) days after the Effective Date.
(f) LOAN. As of the Salary Effective Date, the Company shall
make a loan (the "Loan") to Executive in the amount of $100,000 bearing
interest at the rate of 7% and due and payable on February 15, 2000;
provided, however, that the Loan shall be forgiven and discharged by the
Company as additional compensation to Executive hereunder in the event that
Executive shall have been continuously employed by the Company from and after
the Effective Date to and including February 15, 2000. In the event that
Executive should leave the employ of the Company for any reason prior to
February 15, 2000, the Loan shall be due and payable by Executive in
accordance with its terms unless Executive is terminated by the Company
without Cause in which case the Loan shall be forgiven and discharged
effective on the date of termination. The Loan shall be evidenced by a
Promissory Note from Executive containing these terms and other usual and
customary terms.
4. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
(a) DEATH. In the event Executive's employment hereunder is
terminated by reason of Executive's death, the Executive's employment shall
terminate without further obligation of the Company.
(b) DISABILITY. If, as a result of Executive's incapacity
due to physical or mental illness ("Disability"), Executive shall have been
absent from the full-time performance of his duties with the Company for
ninety (90) days during any eighteen (18) month period, and, within thirty
(30) days after written notice is provided to his by the Company, he shall
not have returned to the full-time performance of his duties, Executive's
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Exhibit 10.3
employment under this Agreement may be terminated by the Company for
Disability. During any period prior to such termination during which
Executive is absent from the full-time performance of his duties with the
Company due to Disability, the Company shall continue to pay Executive his
Base Salary at the rate in effect at the commencement of such period of
Disability. Following termination for Disability, Executive's Base Salary
shall terminate and Executive's benefits shall be determined under the
Company's retirement insurance, and other compensation and benefit plans and
programs then in effect, in accordance with the terms of such programs.
(c) TERMINATION FOR CAUSE. The Company may terminate
Executive's employment under this Agreement for "Cause," at any time, but
only in the event of (i) Executive's conviction of a felony (provided,
however, that following indictment for a felony, and prior to conviction, the
Company may, without limiting or modifying in any other way its obligations
under this Agreement, suspend Executive from the performance of his duties
hereunder), or (ii) a determination by the Board, acting reasonably and in
good faith, that Executive has (A) failed to meet annual performance
standards established by the Board and agreed by Executive, (B) habitually
neglected his duties or performed his duties in a grossly incompetent manner
despite adequate warnings from the Board, (C) committed materially fraudulent
or dishonest actions with respect to the Company, or (D) deliberately injured
or attempted to injure the Company so as to cause or attempt to cause
material adverse consequences for the Company; provided, however, that
Executive shall not be deemed to have been terminated for Cause unless the
Board of Directors has delivered to the Executive a written warning with
indicating the matter(s) prompting the notice and required remedial action to
be taken by the Executive. If the matter(s) indicated in the notice are not
remedied by the Executive within thirty (30) days after delivery of the
notice, and then there shall have been delivered to him a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds
of the entire membership of the Board of Directors of the Company, finding
that, in the good faith opinion of such board, he failed to perform in a
manner, was guilty of, or had engaged in conduct constituting, Cause as set
forth herein and specifying the particulars thereof in detail. In the event
of termination of Executive's employment for Cause, this Agreement shall
terminate without further obligation of the Company.
(d) TERMINATION FOLLOWING CHANGE IN CONTROL. In the event
that fifty percent (50%) or more of the securities of the Company are
acquired by a party not holding fifty percent (50%) or more of the securities
of the Company as of the Effective Date (a "Change in Control") and Executive
is not retained by the Company in a comparable executive role for a period of
two (2) year thereafter or is terminated by the Company within such period,
the Company shall, for the two (2) year period commencing on the date of such
termination or diminished role, (i) continue to pay Executive his then Base
Salary and benefits (as set forth in Sections 3(a) and 3(c) respectively),
(ii) pay Executive in each year the average bonus paid to Executive in the
prior three or fewer years of service under Section 3(b) hereof, and (iii)
cause all of Executive's Options which have not yet vested to immediately
vest as of the date of termination and provide Executive ninety (90) days
from the date of termination to exercise all or any portion of his Options.
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Exhibit 10.3
(e) TERMINATION BY THE COMPANY OTHER THAN BY REASON OF DEATH,
DISABILITY OR CHANGE IN CONTROL. If Executive's employment is terminated by
the Company for any reason other than Executive's death, Disability, for
Cause or on a Change in Control, the Company shall continue to pay Executive
his then Base Salary and benefits (as set forth in Sections 3(a) and 3(c)
respectively) and the bonus under Section 3(b) hereof, which in the first
year hereunder shall be 60% of Base Salary pro rata for the number of days
served in such fiscal year and in any subsequent year shall be the average of
Executive's bonus for the last three or fewer years pro rata for the number
of says served in such fiscal year, until the expiration of the one (1) year
period commencing on the date of such termination, and all of Executive's
Options which have not yet vested shall immediately vest as of the date of
termination and Executive shall have ninety (90) days from the date of
termination to exercise all or any portion of his Options. This shall be the
entire obligation of the Company to Executive for termination hereunder.
5. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS.
(a) DEFINITION OF "INVENTIONS." As used herein, the term
"Inventions" shall mean all inventions, discoveries, improvements, trade
secrets, formulas, techniques, data, programs, systems, specifications,
documentation, algorithms, flow charts, logic diagrams, source codes,
processes and other information, including works-in-progress, whether or not
subject to patent, trademark, copyright, trade secret or mask work
protection, and whether or not reduced to practice, which are made, created,
authored, conceived or reduced to practice by Executive, either alone or
jointly with others, during the period of employment with the Company, which
(A) relate to the actual or anticipated business, activities, research or
investigations of the Company or (B) result from or is suggested by work
performed by Executive for the Company (whether or not made or conceived
during normal working hours or on the premises of the Company), or (C) which
result, to any extent, from use of the Company's premises or property.
(b) WORK FOR HIRE. Executive expressly acknowledges that all
copyrightable aspects of the Inventions (as defined below) are to be
considered "works made for hire" within the meaning the Copyright Act of
1976, as amended (the "Act"), and that the Company is to be "author" within
the meaning of such Act for all purposes. All such copyrightable works, as
well as all copies of such works in whatever medium fixed or embodied, shall
be owned exclusively by the Company as of its creation, and Executive hereby
expressly disclaims any and al interest in any of such copyrightable works
and waives any right of DROIT MORALE or similar rights.
(c) ASSIGNMENT. Executive acknowledges and agrees that all
Inventions constitute trade secrets of the Company and shall be the sole
property of the Company or any other entity designated by the Company. In
the event that title to any or all of the Inventions or any part or element
thereof, may not, by operation of law, vest in the Company or such Inventions
may be found as a matter of law not to be "works made for hire" within the
meaning of the Act, Executive hereby conveys and irrevocably assigns to the
Company, without further consideration, all his right, title and interest,
throughout the universe and in perpetuity, in all Inventions and all copies
of them, in whatever medium fixed
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Exhibit 10.3
or embodied, and in all written records, graphics, diagrams, notes or reports
relating thereto in Executive's possession or under his control, including,
with respect to any of the foregoing, all rights of copyright, patent,
trademark, trade secret, mask work and any and all other proprietary rights
therein, the right to modify and create derivative works, the right to invoke
the benefit of any priority under any international convention and all rights
to register and renew same.
(d) PROPRIETARY NOTICES; NO FILINGS; WAIVER OF MORAL RIGHTS.
Executive acknowledges that all Inventions shall at the sole option of the
Company bear the Company's patent, copyright, trademark, trade secret and
mask work notices.
Executive agrees not to file any patent, copyright or
trademark applications relating to any Invention, except with prior written
consent of an authorized representative of the Company.
Executive hereby expressly disclaims any and all interest in
any Inventions and waives any right of DROIT MORALE or similar rights, such
as rights of integrity or the right to be attributed as the creator of the
Invention.
(e) FURTHER ASSURANCES. Executive agrees to assist the
Company, or any party designated by the Company, promptly on the Company's
request, whether before or after the termination of employment however such
termination may occur, in perfecting, registering, maintaining and enforcing,
in any jurisdiction, the Company's rights in the Inventions by performing all
acts and executing all documents and instruments deemed necessary or
convenient by the Company, including, by way of illustration and not
limitation:
i) Executing assignments, applications and other
documents and instruments in connection with (A) obtaining patents,
copyrights, trademarks, mask works or other proprietary protections for
the Inventions and (B) confirming the assignment to the Company of all
right, title and interest in the Inventions or otherwise establishing the
Company's exclusive ownership rights therein.
ii) Cooperating in the prosecution of patent, copyright,
trademark and mask work applications, as well as in the enforcement of the
Company's rights in the Inventions, including, but not limited to,
testifying in court or before any patent, copyright, trademark or mask
work registry office or any other administrative body.
Executive will be reimbursed for all out-of-pocket costs
incurred in connection with the foregoing, if such assistance is requested by
the Company after the termination of employment. In addition, to the extent
that, after the termination of employment for whatever reason, Executive's
technical expertise shall be required in connection with the fulfillment of
the aforementioned obligations, the Company will compensate Executive at a
reasonable rate for the time actually spent by Executive at the Company's
request rendering such assistance.
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Exhibit 10.3
(f) POWER OF ATTORNEY. Executive hereby irrevocably appoints
the Company to be his Attorney-in-Fact in his name and on his behalf to
execute any document and to take any action and to generally use his name for
the purpose of giving to the Company the full benefit of the assignment
provisions set forth in this Section 5.
(g) CONSENT TO USE OF NAME. The Company reserves the right
(but shall not have the obligation) to publicize Executive's name and
background in connection with the marketing of the Inventions or the
enforcement of the Company's rights therein. Executive is responsible for
supplying to the Company his resume or curriculum vitae for such purposes.
Executive agrees that the Company shall have the sole control over the type
style, type size or placement of his name on any materials, or over the final
content of any biography used in said material.
(h) DISCLOSURE OF INVENTIONS. Executive will make full and
prompt disclosure to the Company of all Inventions subject to assignment to
the Company, and all information relating thereto in Executive's possession
or under his control as to possible applications and use thereof, to an
authorized representative of the Company.
(i) NO VIOLATION OF THIRD PARTY RIGHTS. Executive represents,
warrants and covenants that he:
i) will not, in the course of employment, knowingly
infringe upon or violate any proprietary rights of any third party
(including, without limitation, any third party confidential
relationships, patents, copyrights, mask works, trade secrets or other
proprietary rights);
ii) is not a party to any conflicting agreements with
third parties which will prevent his from fulfilling the terms of
employment and the obligations of this Agreement;
iii) does not have in his possession any confidential or
proprietary information or documents belonging to any other person in
competition with the Company and will not disclose to the Company, use, or
induce the Company to use, any confidential or proprietary information or
documents of any other person; and
iv) agrees to respect any and all valid obligations which
he may now have to prior employers or to others relating to confidential
information, inventions or discoveries which are the property of those
prior employers or others, as the case may be.
Executive has supplied or shall promptly supply to the Company a
copy of each written agreement to which Executive is subject (other than any
agreement to which the Company is a party) which includes any obligation of
confidentiality, assignment of Inventions or non-competition.
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Exhibit 10.3
Executive agrees to indemnify and save harmless the Company
from any loss, claim, damage, costs or expenses of any kind (including
without limitation, reasonable attorney's fees) to which the Company may be
subjected by virtue of an actual breach by Executive of the foregoing
representations, warranties and covenants.
(j) OBLIGATIONS UPON TERMINATION. In the event of any
termination of his employment, for whatever reason, Executive will promptly
(A) deliver to the Company all physical property, discs, documents, notes,
printouts and all copies thereof and other materials in Executive's
possession or under Executive's control pertaining to the business of the
Company, including, but not limited to, those embodying or relating to the
Inventions and the Confidential Information (as defined herein), (B) deliver
to the Company's patent department or legal department or other person
designated by the Company all notebooks and other data relating to research
or experiments or other work conducted by Executive in the scope of
employment or any Inventions made, created, authored, conceived or reduced to
practice by Executive, either alone or jointly with others, and (C) make full
disclosure relating to any Inventions.
If Executive would like to keep certain property, such as
material relating to professional societies or other non-confidential
material, upon the termination of employment with the Company, he agrees to
discuss such issues with the Company. Where such a request does not put
Confidential Information of the Company at risk, the Company will customarily
grant the request.
Upon termination of employment with the Company, Executive
shall, if requested by the Company, reaffirm Executive's recognition of the
importance of maintaining the confidentiality of the Company's Confidential
Information and reaffirm all of the Executive's obligations set forth in this
Section 5.
6. CONFIDENTIAL INFORMATION AND NON-COMPETITION.
(a) CONFIDENTIALITY. Executive acknowledges that in his
employment hereunder he will occupy a position of trust and confidence.
Executive shall not, except as may be required to perform his duties
hereunder or as required by applicable law, without limitation in time or
until such information shall have become public other than by Executive's
unauthorized disclosure, disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company.
"Confidential Information" shall mean information about the Company, its
subsidiaries and affiliates, and their respective clients and customers that
is not disclosed by the Company for financial reporting purposes and that was
learned by Executive in the course of his employment by the Company,
including (without limitation) any proprietary knowledge, trade secrets,
data, formulae, information and client and customer lists and all papers,
resumes and records (including computer records) of the documents containing
such Confidential Information. Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the
Company, and that such information gives the Company a competitive advantage.
Executive agrees to deliver or return to the Company, at the Company's
request at any time or upon termination or
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Exhibit 10.3
expiration of his employment or as soon as possible thereafter, all
documents, computer tapes and disks, records, lists, data, drawings, prints,
notes and written information (and all copies thereof) furnished by the
Company or prepared by the Executive during the term of his employment by the
Company.
(b) NON-COMPETITION. During the period of Executive's
employment hereunder, Executive shall not, directly or indirectly, without
the prior written consent of the Company, provide consultative services or
otherwise provide services to (whether as an employee or a consultant, with
or without pay), own, manage, operate, join, control, participate in or be
connected with (as a stockholder, partner or otherwise), any business,
individual, partner, firm corporation or other entity that is then a
competitor of the Company, including any entity engaged in the design,
manufacture and/or distribution of network service systems or software that
have substantially the same features or functionality to or otherwise
competes with the systems that are designed, manufactured or distributed by
the Company or any direct or indirect subsidiary of Company (each such
competitor a "Competitor of the Company"); provided, however, that the
"beneficial ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of not more than five percent (5%) of the voting stock of
any publicly held corporation shall not alone constitute a violation of this
Agreement. It is further expressly agreed that the Company will or would
suffer irreparable injury if Executive were to compete with the Company or
any subsidiary or affiliate of the Company in violation of this Agreement and
that the Company would by reason of such competition be entitled to
injunctive relief in a court of appropriate jurisdiction, and, the provisions
of Section 11 notwithstanding, Executive further consents and stipulates to
the entry of such injunctive relief in such a court prohibiting Executive
from competing with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement. Notwithstanding the foregoing and providing
that such service does not interfere in any material way with the performance
of Executive's duties under this Agreement and the operations of the Company,
Executive shall be permitted to perform consulting services for his prior
employer Xxxxxxx up to one day per month through July 1999 and to serve as a
director of PurePulse and Dynabil.
(c) NON-SOLICITATION OF CUSTOMERS AND SUPPLIERS. During the
period of Executive's employment hereunder, Executive shall not, directly or
indirectly, influence or attempt to influence customers or suppliers of the
Company or any of its subsidiaries or affiliates, to divert their business to
any Competitor of the Company.
(d) NON-SOLICITATION OF EMPLOYEES. Executive recognizes that
he possesses and will possess confidential information about other employees
of the Company relating to their education, experience, skills, abilities,
compensation and benefits and interpersonal relationships with customers of
the Company. Executive recognizes that the information he possesses and will
possess about these other employees is not generally known, is of substantial
value to the Company in developing its business and in securing and retaining
customers, and has been and will be acquired by him because of his business
position with the Company. Executive agrees that, during the period of
Executive's employment hereunder and for a period of one (1) year thereafter,
he will not, directly or indirectly, solicit or recruit any
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Exhibit 10.3
employee of the Company for the purpose of being employed by him or by any
Competitor of the Company on whose behalf he is acting as an agent,
representative or employee and that he will not convey any such confidential
information or trade secrets about other employees of the Company to any
other person.
(e) SURVIVAL OF PROVISIONS. The obligations contained in
this Section 6 shall survive the termination or expiration of Executive's
employment with the Company and shall be fully enforceable thereafter in
accordance with their terms. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws of
that state, it is the intention of the parties that such restriction may be
modified or amended by the court to render it enforceable to the maximum
extent permitted by the law of that state.
7. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by facsimile, e-mail or
first-class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given three (3) days after mailing or
twenty-four (24) hours after transmission of an e-mail facsimile to the
respective persons named below:
If to Company: XXX.xxx CORPORATION
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chairman
Facsimile: (000) 000-0000
If to Executive: XXXX XXXXX
00000 Xxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
E-mail: xxxxxxxx@xxxxxxxxxx.xxx
Either party may change such party's address for notices by notice duly given
pursuant hereto.
8. TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates
and supersedes any and all prior agreements and understandings between the
parties with respect to Executive's employment and compensation by the
Company.
9. ASSIGNMENT; SUCCESSORS. This Agreement is personal in its
nature and neither of the parties hereto shall, without the consent of the
other, assign or transfer this Agreement or any rights or obligations
hereunder; provided that, in the event of the merger, consolidation, transfer
or sale of all or substantially all of the assets of the Company with or to
any other individual or entity, this Agreement shall, subject to the
provisions thereof, be binding upon and inure to the benefit of such
successor and such successor shall discharge and perform all the promises,
covenants, duties and obligations of the Company hereunder.
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Exhibit 10.3
10. DISPUTE RESOLUTION; GOVERNING LAW. In the event of any
dispute regarding the terms of employment of Executive, including, but not
limited to, any dispute regarding the negotiation and entering into of the
terms of employment, any termination or employment or the interpretation or
performance of the terms and conditions hereof, Executive and Company hereby
agree that such dispute shall be subject to and shall be determined
exclusively by binding arbitration in accordance with the rules of the
American Arbitration Association. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under
and in accordance with the laws of the State of California, without giving
effect to provisions thereof regarding conflict of laws.
11. WITHHOLDING. The Company shall make such deductions and
withhold such amounts from each payment made to the Executive hereunder as
may be required from time to time by law, governmental regulation or order.
12. INDEMNIFICATION. The Company will defend and indemnify
Executive from any action or claim brought against Executive or the Company
which arises out of the performance of Executive's duties as an officer or
director of the Company to the fullest extent permitted under Section 145 of
the Delaware General Corporation Law.
13. ENTIRE AGREEMENT; HEADINGS. This Agreement embodies the
entire agreement of the parties respecting the matters within its scope and
may be modified only in writing. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
14. WAIVER; MODIFICATION. Failure to insist upon strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such term, covenant or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times to be deemed a waiver or
relinquishment of such right or power at any other time or times. This
Agreement shall not be modified in any respect except by a writing executed
by each party hereto.
15. SEVERABILITY. In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any statute or public policy, only the portion of this Agreement that
violates such statute or public policy shall be stricken. All portions of
this Agreement that do not violate any statute or public policy shall
continue in full force and effect. Further, any court order striking any
portion of this Agreement shall modify the stricken terms as narrowly as
possible to give as much effect as possible to the intentions of the parties
under this Agreement.
16. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
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Exhibit 10.3
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has hereunto
signed this Agreement, effective as of the date first above written.
XXX.xxx CORPORATION
By: /s/Marcel van Heesewijk
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Its: Chairman of the Board of Directors
-----------------------------------
/s/Xxxx Xxxxx
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XXXX XXXXX
