EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (the “Agreement”), entered into on August 18, 2006, by and between
Ionatron, Inc., a Delaware corporation (the “Company”), and Xxxx X. Xxxxxxxx
(the “Executive”).
WITNESSETH:
WHEREAS,
the Company desires to employ the Executive as its President and Chief Executive
Officer upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS,
the Executive is willing to accept such employment upon such terms;
NOW,
THEREFORE, in consideration of the covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT
AND DUTIES
1.1. Term
of Employment.
The
Executive’s employment under this Agreement shall commence on August 18, 2006
(the “Start Date”) and shall continue until terminated pursuant to Section 5
hereof (such period being herein referred to as the “Term,” and the period from
the Start Date through December 31, 2006 and any year thereafter ending on
December 31 shall be referred to as an “Employment Year”).
1.2. General.
1.2.1. During
the Term, the Executive shall have the titles of President and Chief Executive
Officer of the Company and shall have such duties as may be from time to time
delegated to him by the Board of Directors of the Company (the “Board”). The
Executive shall faithfully and diligently discharge his duties hereunder and
use
his best efforts to implement the policies established by the Board. The
Executive's responsibilities shall include, among other things, to render
executive, policy, operations and other management services to the Company
of
the type customarily provided by persons situated in similar executive and
management capacities.
The
Executive shall devote all of his business time, attention, knowledge and skills
faithfully, diligently and to the best of his ability, in furtherance of the
business and activities of the Company; provided that the Executive shall be
entitled to continue to serve as an outsider director of Research-Electro
Optics, a privately held company.
1.3. Reimbursement
of Expenses.
The
Company shall pay to the Executive the reasonable expenses incurred by him
in
the performance of his duties hereunder, including, without limitation, those
incurred in connection with business related travel or entertainment, or, if
such expenses are paid directly by the Executive, the Company shall promptly
reimburse him for such payments (including for travel as contemplated by Section
3 hereof), provided that the Executive properly accounts for such expenses
in
accordance with the Company's policy.
1.4. Consideration.
In
consideration for the Executive’s execution of this Agreement, the Company
agrees that the Executive shall become employed by the Company as set forth
in
this Agreement, the Executive shall be permitted access to the Company’s
confidential information and shall be eligible to receive post-Term severance
payments (Sections 5.4.2 and 5.4.3) as set forth in this Agreement (subject
to
his compliance with Sections 7, 8 and 9 of this Agreement). The Executive
understands, acknowledges and agrees that the Executive would not receive the
consideration specified in this Section 1.4, except for the Executive’s
execution of this Agreement and the fulfillment of the promises contained
herein.
2. COMPENSATION
2.1. Base
Salary.
During
the Term, the Executive shall be entitled to receive a base salary (“Base
Salary”) at a rate of Two Hundred Fifty Thousand Dollars ($250,000) per annum
during the Term, which Base Salary shall be payable in arrears in equal
installments not less frequently than on a bi-monthly basis in accordance with
the payroll practices of the Company, with such increases as may be determined
by the Board from time to time.
2.2. Signing
Bonus.
In
addition to the Base Salary, the Company shall pay to the Executive a signing
bonus of $15,000, which bonus shall be paid on the Start Date.
2.3. Incentive
Bonus.
The
Executive shall be eligible to receive, for each Employment Year during the
Term, an annual incentive bonus in each calendar year commencing after December
31, 2006 of up to an amount equal to 50% of the Base Salary for the Employment
Year (the “Incentive Bonus”) if the Company achieves goals and objectives
established by the Compensation Committee of the Board of Directors within
120
days from the Start Date for the 2007 Employment Year and 30 days following
each
anniversary of the Start Date for the following Employment year for each
Employment Year after December 31, 2007 and the Executive shall be entitled
to
receive Incentive Bonus for the calendar ending December 31, 2006 as may be
determined by the Compensation Committee of the Board of Directors.
The
Incentive Bonus shall be paid in a single lump sum no later than 15 calendar
days following the date on which the Company files with the Securities and
Exchange Commission (the “SEC”) its Annual Report on Form 10-K (or Form 10-KSB)
which includes audited financial statements for such Employment Year audited
by
an independent registered public accounting firm.
2.4. Stock
Options.
In
addition to the Base Salary and Incentive Bonuses, if any, the Executive shall
receive, as incentive compensation, non-plan options (“Options”) to purchase up
to an aggregate of 800,000 shares (the “Shares”) of common stock of the Company,
pursuant to and upon the terms and conditions set forth in the form of Option
Agreement (the “Option Agreement”) attached as Exhibit A hereto. The Options
shall vest and be exercisable as to 200,000 of the Shares on each of the first
four anniversaries of the Start Date, subject to earlier vesting as set forth
in
Section 5.4.4, at any time during the five-year period commencing upon the
date
of grant, subject to earlier termination as provided in the Option Agreement,
at
an exercise price per share of $6.30. The Company agrees to file a registration
statement on Form S-8 with the Securities and Exchange Commission prior to
August 18, 2007 covering the Shares.
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2.5. Additional
Compensation.
In
addition to the Base Salary, Additional Salary and the Incentive Bonuses, if
any, and the Options, the Executive shall be entitled to receive such other
cash
bonuses and such other compensation in the form of stock, stock options or
other
property or rights as may from time to time be awarded him by the Board during
or in respect of his employment hereunder.
2.6. Relocation
Allowance.
Prior
to your relocation to the Tucson, Arizona area, for a period of two years
commencing on the Start Date, the Executive shall be entitled to receive a
temporary housing allowance in an amount equal to the Executive’s actual rental
expense (plus an amount equal to any additional tax consequences to the
Executive for such payment, if any) up to $2,500 per month, provided however,
that such payments shall terminate earlier upon the Executive establishing
a
permanent residence in the Tucson, Arizona area.
3. PLACE
OF PERFORMANCE. In connection with his employment by the Company, the
Executive shall initially be based in St. Louis, Missouri for not more than
two
(2) years following the Start Date and will travel to the Company’s principal
executive offices in Tucson, Arizona as necessary to perform his duties under
this Agreement, and, thereafter, the Executive shall be based at the Company’s
principal executive offices in Tucson, Arizona, subject to the mutual agreement
of the Executive and the Company to relocate him to another office of the
Company.
4. EMPLOYEE
BENEFITS
4.1. Benefit
Plans.
The
Executive shall, during the Term, be included to the extent eligible thereunder
in all employee benefit plans, programs or arrangements of general application
(including, without limitation, any plans, programs or arrangements providing
for retirement benefits, options and other equity-based incentive compensation,
profit sharing, bonuses, disability benefits, health and life insurance, or
vacation and paid holidays) which shall be established by the Company or any
affiliate of the Company, for, or made available to, their respective senior
executives (“Benefits”). During the Term, the Benefits described in this
paragraph 4 may only be reduced as a result of a general reduction for senior
executives.
4.2. Vacation.
The
Executive shall be entitled to up to four (4) weeks vacation at full pay for
each year during the Term. Such vacation may be taken in the Executive’s
discretion, upon reasonable notice to the Board of Directors and at such time
or
times as are not inconsistent with the reasonable business needs of the Company.
5. TERMINATION
OF EMPLOYMENT
5.1. General.
The
Executive’s employment under this Agreement may be terminated by either the
Company or the Executive without any breach of this Agreement as
follows:
5.1.1. Termination
without Cause.
The
Company may terminate this Agreement without Cause (as defined in Section 5.1.2
hereof upon thirty (30) days written notice to the Executive. The Executive
may
terminate this Agreement for any reason upon thirty (30) days written notice
to
the Company for any reason.
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5.1.2. Cause.
The
Company may terminate the Executive’s employment under this Agreement for Cause.
Termination for “Cause” shall mean termination of the Executive’s employment
because of the occurrence of any of the following as determined by the
Board:
(i) the
failure or refusal by the Executive to substantially perform his obligations
under this Agreement (other than any such failure resulting from the Executive’s
incapacity due to physical or mental incapacity, illness or disease);
provided,
however,
that
the Company shall have provided the Executive with written notice that such
actions are occurring and the Executive has been afforded a reasonable
opportunity of at least fifteen (15) days to cure same, or
(ii) the
indictment of the Executive for a felony or other crime involving moral
turpitude or dishonesty; or
(iii) a
breach
of Section 7, Section 8 or Section 9 hereof or a breach of any representation
contained in this Agreement by the Executive; or
(iv) a
breach
of fiduciary duty involving personal profit; or
(v) a
material act of dishonesty in connection with his employment with the Company;
or
(vi) the
Executive’s possession or use of illicit drugs, a prohibited substance or
alcohol, to such extent that it impairs his ability to perform his duties and
responsibilities or failure to comply with the Company’s Drug Testing Policy (as
defined in Section 9 hereof); or
(vii) the
Executive having committed acts or omissions constituting gross negligence
or
willful misconduct (including theft, fraud, embezzlement, and securities law
violations) which is injurious to the Company, monetarily, or otherwise. For
purposes of this Section 5.1.2(vii), no act, or failure to act, on the part
of
the Executive shall be considered “gross negligence” or “willful” unless done,
“or” omitted to be done, by him in bad faith and without reasonable belief that
his action or omission was in the best interest of the Company; or.
(viii) the
Executive having committed any violation of, or noncompliance with, any
securities law, rule or regulation or stock exchange or Nasdaq Stock Market
regulation rule relating to or affecting the Company, including without
limitation (A) the Executive’s failure or refusal to honestly provide the
chief executive officer and/or principal executive officer certification
required under the Xxxxxxxx-Xxxxx Act of 2002, including the rules and
regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx
Act”)
or
failure to take reasonable and appropriate steps to determine whether or not
any
such certificate was accurate or otherwise in compliance with the requirements
of the Xxxxxxxx-Xxxxx Act, or (B) the Executive’s failure to establish and
administer effective systems and controls necessary for the Company to timely
file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act
of
1934.
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(ix) The
Executive’s failure to obtain or, once obtained, failure to maintain all
security clearances required by the Company for the operation of its
business.
5.2. Notice
of Termination.
Any
termination of the Executive’s employment by the Company or by the Executive
(other than termination by reason of the Executive’s death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a “Notice of Termination” shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated.
5.3. Date
of Termination.
The
“Date of Termination” shall mean (a) if the Executive’s employment is
terminated by his death, the date of his death, (b) if the Executive’s
employment is terminated pursuant to subsection 5.1.1 above, the date set forth
in the Notice of Termination, and (c) if the Executive’s employment is
terminated pursuant to subsection 5.1.2 above, the date specified in the Notice
of Termination after the expiration of any applicable cure periods, if
any.
5.4. Compensation
Upon Termination.
5.4.1. Termination
for Cause.
If the
Executive’s employment shall be terminated for Cause or by the Executive for any
reason, the Company shall pay the Executive his Base Salary through the Date
of
Termination, at the rate in effect at the time Notice of Termination is given,
and all expenses and accrued Benefits arising prior to such termination which
are payable to the Executive pursuant to this Agreement through the Date of
Termination and the Company shall have no further obligation with respect to
this Agreement.
5.4.2. Termination
without Cause.
Subject
to the provisions of subsection 5.4.3 hereof, if, prior to the expiration of
the
Term, the Executive’s employment hereunder is terminated by the Company without
Cause, the Company shall pay to the Executive all expenses and accrued Benefits
arising prior to such termination which are payable to the Executive pursuant
to
this Agreement through the Date of Termination and the Company shall continue
to
pay the Executive his Base Salary as then in effect for a period of six (6)
months from the Date of Termination (such period being referred to hereinafter
as the “Severance Period”), payable in monthly installments. In addition, during
the Severance Period, the Executive shall be entitled to continue to participate
in all employee benefit plans that the Company provides (and continues to
provide) generally to its senior executives.
5.4.3. Death
During Severance Period.
In the
event of the Executive’s death during the Severance Period, payments of Base
Salary under this Section 5.4 and payments under the Company’s employee benefit
plan(s) shall continue to be made in accordance with their terms during the
remainder of the Severance Period to the beneficiary designated in writing
for
such purpose by the Executive or, if no such beneficiary is specifically
designated, to the Executive’s estate.
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5.4.4. Termination
Following Change in Control.
Anything
contained herein to the contrary notwithstanding, in the event [the Executive’s
employment hereunder is terminated within three (3) months following a Change
in
Control (as defined below) by the Company without Cause] [of a Change of
Control], notwithstanding the vesting and exercisability schedule in any stock
option agreement between the Company and the Executive, all unvested stock
options granted by the Company to the Executive pursuant to this Agreement
shall
immediately vest and become exercisable and shall remain exercisable for the
full term of the Option.
6. INSURABILITY;
RIGHT TO INSURE
During
the continuance of the Executive's employment hereunder, the Company shall
have
the right to maintain key man life insurance in its own name covering the
Executive's life in such amount as shall be determined by the Company, for
a
term ending on the termination or expiration of this Agreement. The Executive
shall aid in the procuring of such insurance by submitting to the required
medical examinations, if any, and by filling out, executing and delivering
such
applications and other instrument in writing as may be reasonably required
by an
insurance company or companies to which application or applications for
insurance may be made by or for the Company.
7. CONFIDENTIALITY;
NONCOMPETITION; NONSOLICITATION; NONDISPARAGEMENT
7.1. The
Company and the Executive acknowledge that the services to be performed by
the
Executive under this Agreement are unique and extraordinary and, as a result
of
such employment, the Executive shall be in possession of confidential
information relating to the business practices of the Company. The term
“confidential information” shall mean any and all information (oral and written)
relating to the Company or any of its affiliates, or any of their respective
activities, as well as any distributors, vendors, suppliers, customers or other
third party of which the Executive shall possess in connection with his
employment with the Company, other than such information which (i) can be shown
by the Executive to be in the public domain (such information not being deemed
to be in the public domain merely because it is embraced by more general
information which is in the public domain) other than as the result of breach
of
the provisions of this paragraph 7 or (ii) the Executive is required to disclose
under any applicable laws, regulations or directives of any government agency,
tribunal or authority having jurisdiction in the matter or under subpoena or
other process of law. The Executive shall not, during the Term and for a period
of five (5) years thereafter, except as may be required in the course of the
performance of his duties hereunder, directly or indirectly, use, communicate,
disclose or disseminate to any person, firm or corporation any confidential
information regarding the clients, customers or business practices of the
Company acquired by the Executive, without the prior written consent of the
Company; provided,
however,
that
the Executive understands that Executive shall be prohibited from
misappropriating any trade secret at any time during or after the Term.
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7.2. Upon
the
termination of the Executive’s employment for any reason whatsoever, all
documents, records, notebooks, equipment, price lists, specifications, programs,
customer and prospective customer lists and other materials which refer or
relate to any aspect of the business of the Company which are in the possession
of the Executive, including all copies thereof, shall be promptly returned
to
the Company.
7.3. The
Executive hereby agrees that he shall not, during the Term and for a period
of
two years after the Date of Termination, directly or indirectly, within any
county (or adjacent county) in any State within the United States or territory
outside of the United States in which the Company is engaged in business during
the Term, engage, have an interest in or render any services to any business
(whether as owner, manager, operator, licensor, licensee, lender, partner,
stockholder, joint venturer, employee, consultant, advisor or otherwise)
competitive with the business activities conducted by the Company, its
subsidiaries, or affiliates during the Term. Notwithstanding the foregoing,
nothing herein shall prevent the Executive from owning stock in a publicly
traded corporation whose activities compete with those of the Company’s,
provided that such stock holdings are not greater than two percent (2%) of
such
corporation.
7.4. The
Executive shall not, during the Term and for a period of two years after the
Date of Termination, directly or indirectly, take any action which constitutes
an interference with or a disruption of any of the Company’s business activities
including, without limitation, the solicitations of the Company’s customers,
distributors or vendors or persons listed on the personnel lists of the Company.
7.5. For
purposes of clarification, but not of limitation, the Executive hereby
acknowledges and agrees that the provisions of Sections 7.3 and 7.4 above shall
serve as a prohibition against him from, during the period referred to therein,
directly or indirectly, hiring, offering to hire, enticing, soliciting or in
any
other manner persuading or attempting to persuade any officer, employee, agent,
lessor, lessee, licensor, licensee or customer of the Company (but only those
suppliers existing during the time of the Executive’s employment by the Company,
or at the termination of his employment), to discontinue or alter his, her
or
its relationship with the Company.
7.6. (a) The
Executive agrees that all processes, technologies and inventions (“Inventions”),
including new contributions, improvements, ideas and discoveries, whether
patentable or not, conceived, developed, invented or made by him during the
Term
shall belong to the Company, provided that such Inventions grew out of the
Executive’s work with the Company, are related in any manner to the business
(commercial or experimental) of the Company or are conceived or made on the
Company’s time or with the use of the Company’s facilities or materials. The
Executive shall further: (a) promptly disclose such Inventions to the Company;
(b) assign to the Company, without additional compensation, all patent and
other
rights to such Inventions for the United States and foreign countries; (c)
sign
all papers necessary to carry out the foregoing; and (d) give testimony in
support of his inventorship;
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(b) If
any
Invention is described in a patent application or is disclosed to third parties,
directly or indirectly, by the Executive within two (2) years after the
termination of his employment by the Company, it is to be presumed that the
Invention was conceived or made during the Term by the Company; and
(c) The
Executive agrees that he will not assert any rights to any Invention as having
been made or acquired by him prior to the date of this Agreement, except for
Inventions, if any, disclosed to the Company in writing prior to the date
hereof.
7.7. The
Company shall be the sole owner of all products and proceeds of the Executive’s
services hereunder, including, but not limited to, all materials, ideas,
concepts, formats, suggestions, developments, arrangements, packages, programs
and other intellectual properties that the Executive may acquire, obtain,
develop or create in connection with and during the term of the Executive’s
employment hereunder, free and clear of any claims by the Executive (or anyone
claiming under the Executive) of any kind or character whatsoever (other than
the Executive’s right to receive payments hereunder). The Executive shall, at
the request of the Company, executive such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable
to
evidence, establish, maintain, perfect, protect, enforce or defend its right,
or
title and interest in or to any such properties.
7.8. At
no
time during or after the Term shall the Executive, directly or indirectly,
disparage the commercial, business, professional or financial, as the case
may
be, reputation of the Company or its officers or directors.
7.9. Without
intending to limit the remedies available to the Company, the Executive
acknowledges that a breach of any of the covenants contained in this Section
7
may result in material and irreparable injury to the Company, or its affiliates
or subsidiaries, for which there is no adequate remedy at law, that it will
not
be possible to measure damages for such injuries precisely and that, in the
event of such a breach or threat the Company shall be entitled to seek a
temporary restraining order and/or a preliminary or permanent injunction
restraining the Executive from engaging in activities prohibited by this Section
7 or such other relief as may be required specifically to enforce any of the
covenants in this Section 7. The Executive hereby acknowledges and agrees that
the type and periods of restrictions imposed in this Section 7 are fair and
reasonable and are reasonably required for the protection of the Company’s
confidential information and the goodwill associated with the business of the
Company. Further, the Executive acknowledges and agrees that the restrictions
imposed in this Section 7 will not prevent her from obtaining suitable
employment after her employment with the Executive ceases or from earning a
livelihood. If for any reason it is held that the restrictions under this
Section 7 are not reasonable or that consideration therefor is inadequate,
such
restrictions shall be interpreted or modified to include as much of the duration
and scope identified in this Section as will render such restrictions valid
and
enforceable.
8. EXECUTIVE’S
COOPERATION
During
the Term and thereafter, the Executive shall cooperate with the Company in
any
internal investigation or administrative, regulatory or judicial proceeding
as
reasonably requested by the Company (including, without limitation, the
Executive being available to the Company upon reasonable notice for interviews
and factual investigations, appearing at the Company’s request to give testimony
without requiring service of a subpoena or other legal process, volunteering
to
the Company all pertinent information and turning over to the Company all
relevant documents which are or may come into the Executive’s possession, all at
times and on schedules that are reasonably consistent with the Executive’s other
permitted activities and commitments). In the event the Company requires the
Executive’s cooperation in accordance with this section after the termination of
the Term, the Company shall reimburse the Executive for all of his reasonable
costs and expenses incurred, in connection therewith, plus pay the Executive
a
reasonable amount per day for his time spent.
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9. COMPANY
DRUG POLICY
The
Executive agrees to submit to drug testing under the Company’s drug testing
policy as in effect from time to time (the “Drug Testing Policy”).
10. SERVICE
AS A DIRECTOR
If
at any
time the Executive is serving as a member of the Board of Directors and the
Executive’s employment with the Company is terminated by the Company or the
Executive for any reason, upon the written request of the Chairman of the Board
for the Executive to resign as a director of the Company, the Executive shall
be
deemed to have resigned as a director effective upon acceptance of such
resignation by the Board of Directors.
11. REPRESENTATIONS
OF THE EXECUTIVE
The
Executive represents and warrants to the Company as follows:
11.1. No
Conflicting Agreements.
The
Executive is not bound by or subject to any non-competition, non-disclosure
or
other agreement which would prohibit the Executive from entering into this
Agreement or serving as Chief Executive Officer of the Company or otherwise
interfere with the Executive’s performance of his duties hereunder.
11.2. Security
Clearance. The
Executive is aware of and understands the types and nature security clearances
required for him to obtain and maintain in order to serve as Chief Executive
Officer of the Company and is not aware of any reason why such clearance would
be denied.
11.3. United
States Citizenship.
The
Executive is a United States citizen.
12. RIGHTS
OF INDEMNIFICATION
The
Company shall indemnify the Executive to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
for all amounts (including without limitation, judgments, fines, settlement
payments, expenses and attorney’s fees) incurred or paid by the Executive in
connection with any action, suit, investigation or proceeding arising out of
or
relating to the performance by the Executive of services for, or the acting
by
the Executive as a director, officer or employee of the Company, or any other
person or enterprise at the Company’s request. The Company shall have the
Executive named as a covered person under its director and officer liability
insurance policies as may be in effect from time to time.
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13. MISCELLANEOUS
13.1. Notices.
All
notices or communications hereunder shall be in writing, addressed as
follows:
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To
the Company:
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0000
Xxxx Xxxxxxxx
Xxxxxx,
XX 00000
Attn:
Chairman of the Board
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with
a copy to:
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Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
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To
the Executive:
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Xxxx
X. Xxxxxxxx
00
Xxxx Xxxxxx Xxxxx
Xx.
Xxxxx, Xxxxxxxx 00000
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All
such
notices shall be conclusively deemed to be received and shall be effective
(i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission, (iii) if sent by overnight courier, one business day after
being sent by overnight courier, or (iv) if sent by registered or certified
mail, postage prepaid, return receipt requested, on the fifth day after the
day
on which such notice is mailed.
13.2. Severability.
Each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be prohibited by or invalid under applicable law, such provision
will
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Agreement.
13.3. Binding
Effect; Benefits.
Executive may not delegate his duties or assign his rights hereunder. This
Agree-ment shall inure to the benefit of, and be binding upon, the parties
hereto and their respective heirs, legal representatives, successors and
permitted assigns.
13.4. Entire
Agreement.
This
Agreement represents the entire agreement of the parties and shall supersede
any
and all previous contracts, arrangements or understandings between the Company
and the Executive. This Agreement may be amended at any time by mutual written
agreement of the parties hereto. In the case of any conflict between any express
term of this Agreement and any statement contained in any employment manual,
memo or rule of general applicability of the Company, this Agreement shall
control.
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13.5. Warranty.
The
Executive hereby represents and warrants as follows: (i) that the execution
of this Agreement and the discharge of the Executive’s obligations hereunder
will not breach or conflict with any other contract, agreement, or understanding
between the Executive and any other party or parties; and (ii) the
Executive’s resume which was provided to the Company by the Executive and other
statements made about the Executive’s employment history to the Company by the
Executive are true, accurate and complete in all material respects.
13.6. Withholding.
The
payment of any amount pursuant to this Agreement shall be subject to applicable
withholding and payroll taxes, and such other deductions as may be required
under the Company’s employee benefit plans, if any.
13.7. Governing
Law.
This
Agreement and the performance of the parties hereunder shall be governed by
the
internal laws (and not the law of conflicts) of the State of Delaware. Any
claim
or controversy arising out of or in connection with this Agreement, or the
breach thereof, shall be adjudicated exclusively by the state courts for the
State of Arizona, or by a federal court sitting in Arizona. The parties hereto
agree to the personal jurisdiction of such courts and agree to accept process
by
regular mail in connection with any such dispute.
13.8. Execution
in Counterparts.
This
Agreement may be executed by the parties in one or more counterparts, each
of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement, and shall become effective when one
or
more counterparts has been signed by each of the parties hereto and delivered
to
each of the other parties hereto. A photocopy or electronic facsimile of this
Agreement or of any signature hereon shall be deemed an original for all
purposes.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and
the Executive has hereunto set his hand, as of the day and year first above
written,
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THE
COMPANY:
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
|
|
|
Title:
Chairman
|
|
|
EXECUTIVE
|
|
|
/s/
Xxxx X. Xxxxxxxx
|
|
|
Name:
Xxxx X. Xxxxxxxx
|
|
11
