EXECUTION COPY
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of November
1, 1998, by ROOM PLUS, INC., a New York corporation (the "Employer"), and XXXXXX
X. XXXXXX, an individual residing at 000 Xxxx 00xx Xxxxxx, Xxx. 0000, Xxx Xxxx,
Xxx Xxxx 00000 (the "Executive").
RECITAL
The Employer desires to employ the Executive and the Executive
wishes to accept employment, upon the terms and conditions set forth in this
Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"Agreement"--this Employment Agreement, as amended from time to
time.
"Basic Compensation"--Salary and Benefits.
"Benefits"--as defined in Section 3.1(b).
"Board of Directors"--the board of directors of the Employer.
"Change of Control"--as defined in Section 6.5.
"Confidential Information"--any and all:
(a) trade secrets concerning the business and affairs of the
Employer, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer or
supplier lists, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs (including object
code and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information) and any other information, however documented,
that is a trade secret under applicable law; and
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(b) information concerning the business and affairs of the Employer,
including, without limitation, historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, information
concerning product manufacturing, costs and sales, and personnel training
materials, however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based, in whole or in
part, on any information included in the foregoing.
"disability"--as defined in Section 6.2.
"Effective Date"--the date stated in the first paragraph of the
Agreement.
"Employee Invention"--any idea, invention, technique, modification,
process, or improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, and any such item created
by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"Employment Period"--the term of the Executive's employment
under this Agreement.
"Fiscal Year"--the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"for Cause"--as defined in Section 6.3.
"for Good Reason"--as defined in Section 6.4.
"Incentive Compensation"--as defined in Section 3.
"Initial Term"--as defined in Section 2.2.
"person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"Post-Employment Period"--as defined in Section 8.2.
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"Proprietary Items"--as defined in Section 7.2(a)(iv).
"Salary"--as defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Executive, and the Executive hereby
accepts employment by the Employer, upon the terms and conditions set forth in
this Agreement.
2.2 TERM
Subject to the provisions of Section 6, the term of the Executive's
employment under this Agreement will be one year, beginning on the Effective
Date and ending on the first anniversary of the Effective Date (the "Initial
Term"), which term shall be automatically extended for an additional period of
two years beginning on the first anniversary of the Effective Date and ending on
the third anniversary of the Effective Date unless either party gives written
notice to the other party of its intention not to so extend the term of
employment at least sixty (60) days prior to the end of the Initial Term.
2.3 DUTIES
The Executive will have such duties as are assigned or delegated to
the Executive by the Board of Directors or Chairman of the Board, and will
initially serve as Chief Executive Officer of the Employer and report directly
to the Chairman of the Board. The Executive will devote his entire business
time, attention, skill, and energy exclusively to the business of the Employer,
will use his best efforts to promote the success of the Employer's business, and
will cooperate fully with the Board of Directors in the advancement of the best
interests of the Employer. Nothing in this Section 2.3, however, will prevent
the Executive from engaging in additional activities in connection with personal
investments, community affairs or serving as a director of other corporations to
the extent that such activities are not inconsistent with the Executive's duties
under this Agreement. The Employer shall cause the Executive to be elected as a
member of its Board of Directors and shall continue to nominate Executive to
serve as a director so long as he is Chief Executive Officer of the Employer. If
the Executive is elected as a director of the Employer or as a director or
officer of any of its affiliates, the Executive will fulfill his duties as such
director or officer without additional compensation.
3. COMPENSATION
3.1 BASIC COMPENSATION
(A) Salary. Subject to the last sentence of this subsection, the
Executive will be paid an annual salary of $160,000, subject to adjustment as
provided below (the "Salary"), which will be payable in equal periodic
installments according to the Employer's customary payroll practices, but no
less frequently than monthly. The Salary will be increased on each anniversary
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date of this Agreement by a percentage equal to the greater of (i) the
percentage increase in the New York - Northeastern New Jersey Consumer Price
Index published by the Bureau of Labor Statistics for the most recently
completed twelve month period (or other comparable index if such index is not
published) or (ii) five percent (5%). Notwithstanding the foregoing, the
Executive's Salary shall be $5,000 per month through March 1999 and $10,000 per
month thereafter through September, 1999.
(B) Benefits. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing, bonus, life insurance,
hospitalization, major medical, disability and other employee benefit plans of
the Employer that may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans (collectively, the
"Benefits").
3.2 STOCK OPTIONS
The Executive has heretofore been granted an option to purchase up
to 300,000 shares of the Employer's Common Stock at an exercise price of $2.00
per share. The terms and conditions of such option are hereby amended and
restated in their entirety as fully set forth in a separate Amended and Restated
Stock Option Agreement between the Employer and the Executive dated the date
hereof.
3.3 INCENTIVE COMPENSATION
The Executive shall be entitled to such incentive compensation or
performance bonuses, if any, during the Employment Period as the Board of
Directors, or duly authorized committee thereof, may award from time to time
based upon criteria to be established by the Board of Directors or such
committee from time to time.
4. FACILITIES AND EXPENSES
4.1 GENERAL
The Employer will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Employer will reimburse the Executive for reasonable
expenses incurred by the Executive at the request of, or on behalf of, the
Employer in the performance of the Executive's duties pursuant to this
Agreement, and in accordance with the Employer's employment policies. The
Executive must file expense reports with respect to such expenses in accordance
with the Employer's policies.
4.2 AUTOMOBILE
The Executive will receive an automobile allowance of $500 per month
during the Employment Period. The Executive will own his own automobile, and
maintain and insure it at his own expense, for his business use in connection
with his employment under this Agreement, except that the Employer shall pay for
gasoline utilized by the Employee in connection with his
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employment under this Agreement and shall supply the Employee with a gasoline
credit card for charging such expenses.
4.3 MOVING EXPENSES
In the event that Employer relocates its principal offices to a
location outside the greater New York-New Jersey metropolitan area, as a result
of which it becomes necessary for the Executive to move his residence, the
Employer shall reimburse the Executive for his reasonable moving expenses
related thereto.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to four weeks' paid vacation each
Fiscal Year in accordance with the vacation policies of the Employer in effect
for its executive officers from time to time (which entitlement to vacation
shall be pro-rated for any partial Fiscal Year). Vacation must be taken by the
Executive at such time or times as approved by the Chief Executive Officer. The
Executive will also be entitled to the paid holidays set forth in the Employer's
policies. Vacation days and holidays during any Fiscal Year that are not used by
the Executive during such Fiscal Year may not be used in any subsequent Fiscal
Year.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period, the Executive's Basic Compensation and
Incentive Compensation, and any and all other rights of the Executive under this
Agreement or otherwise as an employee of the Employer will terminate (except as
otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section 6.2)
immediately upon notice from either party to the other;
(c) for Cause (as defined in Section 6.3), upon such notice from the
Employer to the Executive,as is specified in Section 6.3;
(d) for Good Reason (as defined in Section 6.4) upon such notice
from Executive to Employer as is specified in Section 6.4; or
(e) following a Change of Control (as defined in Section 6.5), upon
such notice from Executive to Employer as is specified in Section 6.5.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1, the Executive will be deemed to have a
"disability" if, for physical or mental reasons, the Executive is unable to
perform the essential functions of
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the Executive's duties under this Agreement for 120 consecutive days, or 180
days during any twelve month period, as determined in accordance with this
Section 6.2. The disability of the Executive will be determined by a medical
doctor selected by written agreement of the Employer and the Executive upon the
request of either party by notice to the other. If the Employer and the
Executive cannot agree on the selection of a medical doctor, each of them will
select a medical doctor and the two medical doctors will select a third medical
doctor who will determine whether the Executive has a disability. The
determination of the medical doctor selected under this Section 6.2 will be
binding on both parties. The Executive must submit to a reasonable number of
examinations by the medical doctor making the determination of disability under
this Section 6.2, and the Executive hereby authorizes the disclosure and release
to the Employer of such determination and all supporting medical records. If the
Executive is not legally competent, the Executive's legal guardian or duly
authorized attorney-in-fact will act in the Executive's stead, under this
Section 6.2, for the purposes of submitting the Executive to the examinations,
and providing the authorization of disclosure, required under this Section 6.2.
6.3 TERMINATION FOR CAUSE
The Employer may terminate the employment of the Executive at any
time for Cause (as hereinafter defined) by giving the Executive prior notice of
such termination, with reasonable specificity of the details thereof. As used
herein, the term "Cause" shall be limited to and mean (a) an action or actions
by the Executive involving willful malfeasance having a material adverse effect
on the Employer, (b) one or more failures to act by Executive involving material
nonfeasance having a material adverse effect on the Employer, or (c) the
Executive being convicted of a felony, or of any economic or business crime
involving moral turiptude; provided, however, that any action or failure to act
by Executive shall not be constitute "Cause" if, in good faith, the Executive
reasonably believed such action or failure to act to be in or not opposed to the
best interests of the Employer or was pursuant to the instructions, directions
or with the consent of either the Chief Executive Officer or the Board of
Directors, or the Executive believed in good faith that the action or failure to
act would be inconsistent with law, professional ethics, accepted or accredited
standards or business behavior. A termination pursuant to Clause (a), or (b),
(other than as a result of a conviction), shall take effect 15 days after the
giving of the notice contemplated hereby unless the Executive shall, during such
15 day period, remedy to the reasonable satisfaction of the Chief Executive
Officer and/or the Board of Directors of the Employer the breach specified in
such notice; provided, however, that such termination shall take effect
immediately upon the giving of such prior notice if the Chief Executive Officer
and/or Board of Directors of the Employer shall, in its reasonable discretion,
have determined that such breach is not remediable (which determination shall be
stated in such notice). A termination pursuant to (c) (as a result of a
conviction of a crime) shall take effect immediately upon the giving of the
notice contemplated hereby. For purposes of this Agreement, a "Notice of
Termination" shall mean delivery of notice specifying particulars thereof in
reasonable detail. For purposes of this Agreement, no such purported termination
of Executive's employment shall be effective without such Notice of Termination.
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6.4 TERMINATION FOR GOOD REASON
The Executive may terminate his employment hereunder for Good Reason
at any time during the Employment Term, in which event the Executive shall
resign from all of his positions with the Employer. For purposes of this
Agreement, "Good Reason" shall mean any of the following (without the
Executive's express prior consent):
(a) The assignment to the Executive by the Employer of duties
inconsistent with the Executive's position as Chief Executive Officer of the
Employer, or any significant reduction or change in either the position, stature
or job function, except in connection with the termination of the Executive's
employment for Cause;
(b) A reduction by the Employer in the Basic Compensation
and/or benefits as defined in Section 3;
(c) A failure by the Employer to discharge its obligations
under any incentive arrangement described in Section 3.3 hereof; or
(d) A fundamental change in the nature of the business
conducted by the Employer.
A termination pursuant to this Section 6.4 shall take effect 15 days
after the giving of the notice contemplated hereby unless the Employer shall,
during such 15 day period, remedy to the reasonable satisfaction of the
Executive the breach specified in such notice; provided, however, that such
termination shall take effect immediately upon the giving of such notice if the
Executive, in his reasonable discretion, shall have determined that such breach
is not remediable (which determination shall be stated in such notice).
6.5 CHANGE OF CONTROL
If a Change of Control (as hereinafter defined) occurs, the
Executive shall have the right to terminate this Agreement upon 60 days prior
notice to the Employer; provided, however, the Employer shall have the option to
shorten such period. At least ten (10) days prior to any such proposed Change of
Control (or if the Change of Control is not proposed by the Employer, promptly
following such Change of Control), the Employer shall notify the Executive of
its intention to effect such Change of Control (or that a Change of Control has
occurred), and the Executive shall thereupon have thirty (30) days from the
actual receipt of such notice to give notice of his intention to terminate this
Agreement. As used herein, the term "Change of Control: shall mean: when any
"person" as defined in Section 3(a)(9) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act"), and as used in Section 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d) of the Exchange Act
(but excluding (a) the Employer or any subsidiary; (b) any affiliate of the
Employer; (c) any employee benefit plan sponsored or maintained by the Employer
or any subsidiary of the Employer; or (d) Xxxxx Xxxxxxx or any entity with which
he is affiliated (a "Xxxxxxx Entity")), becomes "beneficial owner" (as defined
in Rule 13(d)(3) under the Exchange Act) of securities of the Employer
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representing 30% or more of the combined voting power of the Employer's then
outstanding securities; or the occurrence of a transaction requiring stockholder
approval for the acquisition of the Employer by an entity (other than (a) the
Employer or a subsidiary, (b) an affiliate (as defined in Rule 12b-2 under the
Exchange Act of the Employer or (c) a Xxxxxxx Entity) through the purchase of
assets, or by merger, or otherwise.
6.6 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will
be obligated to pay the Executive (or, in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.6. For purposes of this Section 6.6, the Executive's designated
beneficiary will be such individual beneficiary or trust, located at such
address, as the Executive may designate by notice to the Employer from time to
time or, if the Executive fails to give notice to the Employer of such a
beneficiary, the Executive's estate. Notwithstanding the preceding sentence, the
Employer will have no duty, in any circumstances, to attempt to open an estate
on behalf of the Executive, to determine whether any beneficiary designated by
the Executive is alive or to ascertain the address of any such beneficiary, to
determine the existence of any trust, to determine whether any person or entity
purporting to act as the Executive's personal representative (or the trustee of
a trust established by the Executive) is duly authorized to act in that
capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
(A) Termination by the Employer for Cause. If the Employer
terminates this Agreement for Cause, the Executive will be entitled to receive
his Salary only through the date such termination is effective, but will not be
entitled to any Incentive Compensation for the Fiscal Year during which such
termination occurs or any subsequent Fiscal Year.
(B) Termination upon Disability or Death. If this Agreement is
terminated (i) by either party as a result of the Executive's disability, as
determined under Section 6.2, or (ii) by reason of the Executive's Death, the
Executive will be entitled to receive his Salary through the later of the end of
the Initial Term or the end of the calendar month during which such termination
is effective and that part of the Executive's Incentive Compensation, if any,
for the Fiscal Year during which such termination occurs, prorated through the
effective date of such termination.
(C) Termination by the Executive for Good Reason or Following a
Change of Control. If the Executive terminates this Agreement for Good Reason or
following a Change of Control, the Executive shall be entitled to receive his
Salary only through the date such termination is effective and that part of the
Executive's Incentive Compensation, if any, for the Fiscal Year in which such
termination occurs, prorated through the date of termination.
(D) Benefits. The Executive's accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of this Agreement, and the Executive will be entitled to accrued Benefits
pursuant to such plans only as provided in such plans. The Executive will not
receive, as part of his termination pay pursuant to this Section 6,
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any payment or other compensation for any vacation, holiday, sick leave, or
other leave unused on the date the notice of termination is given under this
Agreement.
(E) Termination by the Employer Without Cause. Without limiting any
other remedy available to Executive, if the Employer terminates the Executive's
employment for any reason other than Cause, Disability or Death (or upon
expiration of the then-current term), the Executive shall be entitled to receive
his salary for the remaining portion of the then current term and that part of
the Executive's Incentive Compensation, if any, for the Fiscal Year in which
such termination occurs, prorated through the date of termination. In addition,
the Executive shall be entitled to all Benefits through the remaining portion of
the then current term.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the Employment Period and
as a part of his employment, the Executive will be afforded access to
Confidential Information; (b) public disclosure of such Confidential Information
could have an adverse effect on the Employer and its business; (c) because the
Executive possesses substantial expertise and skill with respect to the
Employer's business, the Employer desires to obtain exclusive ownership of any
Employee Invention; and (d) the provisions of this Section 7 are reasonable and
necessary to prevent the improper use or disclosure of Confidential Information
and to provide the Employer with exclusive ownership of all Employee Inventions.
7.2 AGREEMENTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or
provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
(A) Confidentiality.
(i) During and following the Employment Period, the Executive will
hold in confidence the Confidential Information and will not disclose it to any
person except with the specific prior written consent of the Employer or except
as otherwise expressly permitted by the terms of this Agreement.
(ii) Any trade secrets of the Employer will be entitled to all of
the protections and benefits under applicable state trade secret laws and any
other applicable law. If any information that the Employer deems to be a trade
secret is found by a court of competent jurisdiction not to be a trade secret
for purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement. The
Executive hereby waives any requirement that the Employer submit proof of the
economic value of any trade secret or post a bond or other security.
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(iii) None of the foregoing obligations and restrictions applies to
any part of the Confidential Information that the Executive demonstrates was or
became generally available to the public other than as a result of a disclosure
by the Executive.
(iv) The Executive will not remove from the Employer's premises
(except to the extent such removal is for purposes of the performance of the
Executive's duties at home or while traveling, or except as otherwise
specifically authorized by the Employer) any document, record, notebook, plan,
model, component, device, or computer software or code, whether embodied in a
disk or in any other form (collectively, the "Proprietary Items"). The Executive
recognizes that, as between the Employer and the Executive, all of the
Proprietary Items, whether or not developed by the Executive, are the exclusive
property of the Employer. Upon termination of this Agreement by either party, or
upon the request of the Employer during the Employment Period, the Executive
will return to the Employer all of the Proprietary Items in the Executive's
possession or subject to the Executive's control, and the Executive shall not
retain any copies, abstracts, sketches, or other physical embodiment of any of
the Proprietary Items.
(B) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Executive covenants that he will promptly:
(i) disclose to the Employer in writing any Employee Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional compensation, all of
the Executive's right to the Employee Invention for the United States and all
foreign jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order to apply
for and obtain patents or other registrations with respect to any Employee
Invention in the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance but without
expense to the Executive in support of the Employer's rights to any Employee
Invention.
7.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy
arising from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel, or other third party, the preservation of the secrecy
of Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by the Employer, the Executive, and
their respective attorneys and experts, who will agree, in advance and in
writing, to receive and maintain all such information in secrecy, except as may
be limited by them in writing.
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8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be performed by
him under this Agreement are of a special, unique, unusual, extraordinary and
intellectual character; and the provisions of this Section 8 are reasonable and
necessary to protect the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by the Executive, and in
consideration of the compensation and benefits to be paid or provided to the
Executive by the Employer, the Executive covenants that he will not, directly or
indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management, operation, financing, or
control of, be employed by, associated with, or in any manner connected with,
lend the Executive's name or any similar name to, lend Executive's credit to or
render services or advice to, any business whose products or activities are
similar to, or compete in whole or in part with, the products or activities of
the Employer; provided, however, that the Executive may purchase or otherwise
acquire up to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Securities Exchange
Act of 1934;
(b) whether for the Executive's own account or the account of any
other person at any time during the Employment Period and the Post-Employment
Period, (i) solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any person who is or was an employee of the Employer
at any time during the Employment Period or in any manner induce or attempt to
induce any employee of the Employer to terminate his employment with the
Employer; or (ii) interfere with the Employer's relationship with any person,
including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
(c) at any time during or after the Employment Period, disparage the
Employer or any of its shareholders, directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the 18-month period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
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The period of time applicable to any covenant in this Section 8.2
will be extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's employer. The Buyer or the
Employer may notify such employer that the Executive is bound by this Agreement
and, at the Employer's election, furnish such employer with a copy of the
relevant portions of this Agreement.
9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be suffered by
the Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 7 and 8) would be irreparable and that an
award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The covenants by the Executive in Sections 7 and 8 are essential elements
of this Agreement, and without the Executive's agreement to comply with such
covenants, the Employer would not have entered into this Agreement or employed
or continued the employment of the Executive. The Employer and the Executive
have independently consulted their respective counsel and have been advised in
all respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by the Employer.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 7 and 8.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the execution
and delivery by the Executive of this Agreement do not, and the performance by
the Executive of the Executive's obligations hereunder will not, with or without
the giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which the Executive is or may
be bound.
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9.4 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
9.5 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding upon,
the parties hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
9.6 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nation-ally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer:
Room Plus, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
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If to the Executive:
Xxxxxx X. Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 0000
Xxx Xxxx, Xxx Xxxx 00000
9.7 ENTIRE AGREEMENT; AMENDMENTS
This Agreement, contains the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.8 GOVERNING LAW
This Agreement will be governed by the laws of the State of New York
without regard to conflicts of laws principles.
9.9 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
9.10 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.11 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same agreement.
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9.12 WAIVER OF JURY TRIAL
THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
ROOM PLUS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------
Xxxx Xxxxxx
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
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