EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 27th day of April, 2004 (the
"Effective Date") by and between Arc Communications Inc, a New Jersey
corporation with its principal place of business at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxx Xxxxxxxxx (the
"Employee").
WITNESSETH:
WHEREAS, the Company desires to secure the employment of the Employee
in accordance with the provisions of this Agreement; and
WHEREAS, the Employee desires and is willing to accept employment with the
Company in accordance with the terms herein.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Term. The Company hereby agrees to employ the Employee and the Employee
hereby agrees to serve the Company pursuant to the terms and conditions of this
Agreement as Chief Executive Officer of the Company, for an initial term
commencing on the Effective Date hereof and expiring on the second anniversary
thereof (the "initial term"), unless sooner terminated in accordance with the
terms hereof. On the expiration of the initial term and on each yearly
anniversary thereof, the Agreement shall automatically renew for an additional
two-year period (the "Renewal Term"), unless sooner terminated in accordance
with the provisions of Section 6 or unless either party notifies the other party
in writing of its intentions not to renew this Agreement not less than sixty
(60) days prior to such expiration date or anniversary, as the case may be.
2. Positions and Duties.
(a) Duties. The Employee's duties hereunder shall be those which shall be
prescribed from time to time by the Board of Directors of the Company (the
"Board of Directors") in accordance with the bylaws of the Company and which
customarily accompany the title of Chief Executive Officer of a Company of
similar size and purpose. The Employee will hold such other executive offices in
the Company and its subsidiaries to which he may be elected, appointed or
assigned by the Board of Directors from time to time and will discharge such
executive duties in connection therewith. The Employee shall devote his full
working time, energy and skill (reasonable absences for vacations and illness
excepted), to the business of the Company as is necessary in order to perform
such duties faithfully, competently and diligently; provided, however, that
notwithstanding any provision in this Agreement to the contrary, the Employee
shall not be precluded from devoting reasonable periods of time required for
serving as a member of boards of companies which have been approved by the Board
of Directors or participating in non-business organizations so long as such
memberships or activities do not interfere with the performance of the
Employee's duties hereunder. The Company acknowledges that the Employee may
conitnue to provide services to GoAmerica, Inc. so long as such services do not
substantially interfere with his satisfaction of the requirements set forth
herein.
(b) Board Nomination. So long as the Employee is the Chief Executive
Officer of the Company, the Company will use reasonable commercial efforts to
obtain the nomination and election of the Employee as a director of the Company.
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3. Compensation. During the term of this Agreement, the Employee shall
receive, for all services rendered to the Company hereunder, the following
(hereinafter referred to as "Compensation"):
(a) Base Salary. The Employee shall be paid an initial annual base salary
equal to $200,000 (the "Initial Salary"). The Initial Salary shall be
immediately increased to $250,000 annually upon the Company's reaching the
Milestone, as defined below. The Employee's annual base salary shall be payable
in equal installments in accordance with the Company's general salary payment
policies but no less frequently than monthly. Such base salary shall be
reviewed, and any increases in the amount thereof shall be determined, by the
Board of Directors or a compensation committee formed by the Board of Directors
(the "Compensation Committee") at the end of each 12-month period of employment
during the term hereof. Such base salary may be decreased only if done in
conjunction with similar pro rata decreases in base salary for other employees
within the Company. The term "Milestone" shall mean the Company's either: (i)
reaching profitability (in accordance with U.S. generally accepted accounting
principles) in any fiscal quarter; or (ii) raising capital to finance operations
in an aggregate amount of $2,000,000 or more, excluding for this purpose only
those capital raising transactions which have closed on or before the Effective
Date.
(b) Bonuses. The Employee shall receive a guaranteed annual bonus of no
less than 50% of his base salary (the "Annual Bonus"). The Annual Bonus may be
increased up to 100% of the Employee's salary upon the Company meeting
reasonable objectives, as such shall be determined by the Company's Board of
Directors or, if formed, the Compensation Committeee thereof, at or before the
commencement of the year in which such objectives are to be met. The Bonus shall
be paid within two (2) weeks after the Board of Directors has determined whether
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the objectives for the preceding year have been met, but in no event shall the
bonus be paid later than the end of the March of the year following the year for
which the Annual Bonus was earned. The Employee will further be permitted to
participate in other bonus plans made generally available to employees of the
Company.
(c) Incentive Compensation. The Employee shall be eligible for awards from
the Company's incentive compensation plans, including without limitation any
stock option plans, applicable to high level executive officers of the Company
or to key employees of the Company or its subsidiaries, in the discretion of the
Board of Directors or the Compensation Committee.
(d) Automobile Allowance. Commencing on September 1, 2004, the Company
shall provide to the Employee a fixed automobile allowance of $600.00 per month
to be used by Employee for automobile lease payments, insurance and related
taxes during the term of this Agreement. In addition, automobile expenses
incurred in connection with the performance of the Employee's duties hereunder
with respect to tolls, gasoline and automobile maintenance are the
responsibility of the Company and shall be paid by the Company.
(e) Benefits. The Employee and his "dependents," as that term may be
defined under the applicable benefit plan(s) of the Company, shall be included,
to the extent eligible thereunder, in any and all plans, programs and policies
which provide benefits for employees and their dependents. Such plans, programs
and policies will include health care insurance, long-term disability plans,
life insurance, supplemental disability insurance, supplemental life insurance,
holidays and other similar or comparable benefits made available to the
Company's employees.
(f) Expenses. Subject to and in accordance with the Company's policies and
procedures, the Employee hereby is authorized to incur, and, upon presentation
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of itemized accounts, shall be reimbursed by the Company for, any and all
reasonable business-related expenses, which expenses are incurred by the
Employee on behalf of the Company or any of its subsidiaries.
(g) Life Insurance. During the term of this Agreement, in addition to the
life insurance benefits provided to the Employee in paragraph 3(e) above, the
Company will maintain, at the Company's expense, term insurance upon the
Employee's life in the face amount of up to one million dollars ($1,000,000.00).
Such insurance will be payable to the beneficiary that the Employee shall
designate in writing to the Company, or in the absence of such designation, to
the Employee's estate.
4. Stock Options.
(a) Current Grant. the Company hereby grants to the Employee a stock option
(the "Option") which will be under the RoomLinX, Inc. Long-Term Incentive Plan
(the "Plan") following approval of such Plan by Company stockholders for the
purchase of an aggregate of 4,000,000 shares of common stock of the Company at
an option price equal to one cent ($.01) per share. The Option shall be
exercisable ("vest") pursuant to the following schedule: (i) 1,400,000 shall
vest immediately upon the Effective Date; (ii) 600,000 shall vest on the date
which is 5 months and 29 days after the Effective Date (October 26, 2004); (iii)
1,000,000 shall vest on the first anniversary of the Effective Date; and (iv)
1,000,000 shall vest on the second anniversary of the Effective Date. The
Company agrees to take all necessary actions to ensure that all shares issued
upon the Employee's exercise of this Option, or any portion thereof, shall be
registered pursuant to the securities laws of the United States and tradeable in
accordance with such laws. The Employee shall have a period of seveen (7) years
from the Effective Date within which to exercise the Option.
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(b) Effect of Change in Control on Vesting. Upon a Change of Control, the
unvested portion of any equities granted to the Employee by the Company shall
immediately vest and become exercisable by the Employee. For purposes of this
Agreement, a "Change in Control" shall mean the occurrence of any of the
following:
(i) The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 30% or more of either (x) the
then-outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (y) the combined voting power of the then-outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this subsection (i), the following acquisitions shall not
constitute a Change in Control Event: (A) any acquisition directly from the
Company (excluding an acquisition pursuant to the exercise, conversion or
exchange of any security exercisable for, convertible into or exchangeable for
common stock or voting securities of the Company, unless the Person exercising,
converting or exchanging such security acquired such security directly from the
Company or an underwriter or agent of the Company), (B) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (C) any acquisition by any
corporation pursuant to a Business Combination (as defined below) which complies
with clauses (x) and (y) of subsection (iii) of this definition; or
(ii) Such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board of Directors (or, if applicable, the board of
directors of a successor
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corporation to the Company), where the term "Continuing Director" means at any
date a member of the Board of Directors (x) who was a member of the Board of
Directors on the date of the initial adoption of this Agreement by the Board of
Directors or (y) who was nominated or elected subsequent to such date by at
least a majority of the directors who were Continuing Directors at the time of
such nomination or election or whose election to the Board of Directors was
recommended or endorsed by at least a majority of the directors who were
Continuing Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (y) any individual whose
initial assumption of office occurred as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents, by or on behalf of a
person other than the Board of Directors; or
(iii) The consummation of a merger, consolidation, reorganization,
recapitalization or share exchange involving the Company or a sale or other
disposition of all or substantially all of the assets of the Company (a
"Business Combination"), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the beneficial owners
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation or other form of entity in such Business Combination
(which shall include, without limitation, a corporation which as a result of
such transaction owns the Company or substantially all of the Company's assets
either directly or through one or more
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subsidiaries) (such resulting or acquiring corporation or entity is referred to
herein as the "Acquiring Corporation") in substantially the same proportions as
their ownership of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, respectively, immediately prior to such Business Combination
and (y) no Person (excluding the Acquiring Corporation or any employee benefit
plan (or related trust) maintained or sponsored by the Company or by the
Acquiring Corporation) beneficially owns, directly or indirectly, 30% or more of
the then-outstanding shares of common stock of the Acquiring Corporation, or of
the combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors (except to the extent
that such ownership existed prior to the Business Combination).
5. Absences. The Employee shall be entitled to no less than four (4) weeks
of paid vacation per calendar year. Absences because of illness or other
incapacity, and such other absences, whether for holiday, personal time, or for
any other purpose, shall be governed by the Company's procedures and policies,
as same may be amended from time-to-time.
6. Termination. In addition to the events of termination and expiration of
this Agreement provided for in Section 1 hereof, the Employee's employment
hereunder may be terminated only as follows:
(a) Without Cause. The Company may terminate the Employee's employment
hereunder without Cause only upon action by the Board of Directors, and upon no
less than sixty (60) days prior written notice to the Employee. The Employee may
terminate employment hereunder without Cause upon no less than sixty (60) days
prior written notice to the Company.
(b) For Cause, by the Company. The Company may terminate the Employee's
employment hereunder for Cause immediately and with prompt notice to the
Employee. Cause
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shall be determined by the Board of Directors only after having given the
Employee a sufficient opportunity to be heard. "Cause" for termination shall
include only the following conduct of the Employee:
(i) Material breach of any provision of this Agreement by the Employee,
which breach shall not have been cured by the Employee within sixty (60) days of
receipt of written notice of said breach;
(ii) Gross Misconduct as an employee of the Company, including but not
limited to: misappropriating any funds or property of the Company; and
attempting to willfully obtain any personal profit from any transaction in which
the Employee has an interest which is adverse to the interests of the Company;
(iii) Continuing unreasonable refusal to perform the material duties
assigned to the Employee under or pursuant to this Agreement;
(iv) Conviction of a felony (including pleading guilty or no contest to
a felony); or
(v) Any other act or omission which subjects the Company or any of its
subsidiaries to substantial public disrespect, scandal or ridicule.
(c) For Good Reason by Employee. The Employee may terminate employment
hereunder for Good Reason immediately and with prompt notice to the Company.
"Good Reason" for termination by the Employee shall include the following
conduct of the Company:
(i) Material breach of any provision of this Agreement by the Company,
which breach shall not have been cured by the Company within sixty (60) days of
receipt of written notice of said breach (changes in base salary pursuant to
section 3(a) hereof shall not constitute Good Reason);
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(ii) Failure to maintain the Employee in a position commensurate with
that referred to in Section 1 of this Agreement;
(iii) Failure to nominate the Employee as a director of the Company;
(iv) Requirement, without the Employee's written consent, that the Employee
relocate his office outside of the State of New Jersey.
(d) Death. The period of active employment of the Employee hereunder shall
terminate automatically in the event of his death.
(e) Disability. In the event that the Employee shall be unable to perform
duties hereunder for a period of one hundred eighty (180) consecutive calendar
days or one hundred eighty (180) work days within any 360 consecutive calendar
days, by reason of disability as a result of illness, accident or other physical
or mental incapacity or disability, the Company may, in its discretion, by
giving written notice to the Employee, terminate the Employee's employment
hereunder as long as the Employee is still disabled on the effective date of
such termination.
(f) Mutual Agreement. This Agreement may be terminated at any time by
mutual agreement of the Employee and the Company.
7. Compensation in the Event of Termination. In the event that the
Employee's employment pursuant to this Agreement terminates prior to the end of
the term of this Agreement, the Company shall pay the Employee compensation as
set forth below:
(a) By Employee for Good Reason; By Company Without Cause. The provisions
of this section shall only take effect after the Employee has been employed with
the Company for a period of six (6) months following the Effective Date. In the
event that the Employee's employment hereunder is terminated by the Employee for
Good Reason pursuant to Section 6(c)
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hereof, by the Company without Cause pursuant to Section 6(a) hereof, or if the
Company chooses not to renew the Agreement at the end of the Initial Term or any
Renewal Term, then:
(i) The Company shall continue to pay to the Employee his annual base
salary and all other compensation and benefits provided for in Section 3 hereof
(except those benefits which the Company may not properly provide, pursuant to
applicable Company benefit plan, policy or law) in the same manner as before
termination, for a period of one (1) year from the date of termination or
through the end of the applicable term of this Agreement, whichever is shorter
(the "Severance Period"). The payments during the Severance Period shall not be
offset by any income or payments the Employee receives from sources other than
the Company. To the extent the Employee receives any medical or health benefits
pursuant to this section, such benefits shall be provided as a reimbursement (or
direct payment at the sole election of the Company) to the Employee of payments
made pursuant to an election to continue benefits under COBRA.
(ii) The unvested portion of any equities previously granted to the
Employee shall immediately vest and become exercisable by the Employee, in
accordance with their terms.
(iii) The payments, rights and entitlements described in Section
7(a)(i) hereof, if any, shall only be made if the Employee shall first have
executed and delivered to the Company a release with respect to his employment
hereunder and the termination of such employment.
(b) By Company Upon Termination of Agreement Due to Employee's Death or
Disability. In the event of the Employee's death or if the Company shall
terminate the Employee's employment hereunder for disability pursuant to Section
6(e) hereof then:
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(i) The Company shall continue to pay the base salary payable hereunder
at the then current rate for one (1) year after the termination of employment to
the Employee or his personal representative, as applicable;
(ii) In the event of a termination pursuant to Section 6(e) hereof, if
eligible, Employee shall be entitled to benefits under any salaried long-term
disability plan of the Company covering the Employee then in effect; and
(iii) All other compensation and benefits provided for in Section 3 of
this Agreement shall cease upon such termination.
(c) By Company For Cause or By Employee Without Good Reason. In the event
that: (i) the Company shall terminate the Employee's employment hereunder for
Cause pursuant to Section 6(b) hereof; or (ii) the Employee shall terminate
employment hereunder without "Good Reason" as defined in Section 6(c) hereof,
then the Employee's rights hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base Salary
and all other compensation or benefits provided for in this Agreement, except
that the Company shall pay the Employee salary and other Compensation which may
have been earned and is due and payable but which has not been paid as of the
date of termination.
8. Effect of Termination. In the event of expiration or early termination
of this Agreement as provided herein, neither the Company nor the Employee shall
have any remaining duties or obligations hereunder except that:
(a) The Company shall:
(i) Pay the Employee's accrued salary and any other accrued benefits
under Section 3 hereof;
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(ii) Reimburse the Employee for expenses already incurred in accordance
with Section 3(e) hereof;
(iii) To the extent required by law, pay or otherwise provide for any
benefits, payments or continuation or conversion rights in accordance with the
provisions of any benefit plan of which the Employee or any of his dependents is
or was a participant; and
(iv) Pay the Employee or his beneficiaries any compensation due
pursuant to Section 6 hereof; and
(b) The Employee shall remain bound by the terms of Sections 9, 10 and 11
hereof.
9. Restrictive Covenant.
(a) The Employee acknowledges and agrees that he has access to secret and
confidential information of the Company and its subsidiaries and that the
following restrictive covenant is necessary to protect the interests and
continued success of the Company. Except as otherwise expressly consented to in
writing by the Company, until the termination of this Agreement and thereafter
for twelve (12) months (the "Restricted Period"), the Employee shall not,
directly or indirectly, acting as an employee, owner, shareholder, partner,
joint venturer, officer, director, agent, salesperson, consultant, advisor,
investor or principal of any corporation or other business entity:
(i) engage, in any state or territory of the United States of America
or other country where the Company is actively doing business (determined as of
the date this Agreement terminates), in direct or indirect competition with the
business conducted by the Company;
(ii) solicit, on behalf of any entity which may be competitive with the
Company, any present customer or supplier, or prospective customers or
suppliers, of the Company, or request or otherwise attempt to induce or
influence, directly or indirectly, any
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present customer or supplier, or prospective customer or supplier, of the
Company, or other persons sharing a business relationship with the Company, to
cancel, limit or postpone their business with the Company; or
(iii) solicit for employment, directly or indirectly, or induce or
actively attempt to influence, any Employee of the Company, to terminate his or
her employment with the Company.
(b) If the Employee violates any of the restrictions contained in Section
9(a) above, the Restrictive Period shall be increased by the period of time from
the commencement of any such violation until the time such violation shall be
cured by the Employee to the satisfaction of the Company, and the Company may
withhold any and all payments, except salary, otherwise due and owing to the
Employee under this Agreement.
(c) In the event that either the geographical area or the Restrictive
Period set forth in Section 9(a) of this Agreement is deemed to be unreasonably
restrictive in any court proceeding, the court may reduce such geographical area
and Restrictive Period to the extent which it deems reasonable under the
circumstances.
(d) Nothing in this Section 9, whether express or implied, shall prevent
the Employee from being a holder of securities of a company whose securities are
registered under Section 12 of the Securities Exchange Act of 1934, as amended,
or any privately held company; provided, however, that during the term of this
agreement, and with respect to any company which may be deemed to directly or
indirectly compete with the business conducted by the Company or with the
activities which the Company plans to conduct, the Employee holds of record and
beneficially less than one percent (1%) of the votes eligible to be cast
generally by holders of securities of such company for the election of
directors.
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(e) The Employee acknowledges and agrees that in the event of a breach or
threatened breach of the provisions of this Section 9 by Employee the Company
may suffer irreparable harm and therefore, the Company shall be entitled, to the
extent permissible by law to obtain immediate injunctive relief restraining the
Employee from conduct in breach or threatened breach of the covenants contained
in this Section 9. Nothing herein shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages from the Employee.
10. Proprietary Information.
(a) The Employee agrees that all information, whether or not in writing, of
a confidential nature concerning the Company's business or financial affairs
(collectively, "Proprietary Information") is and shall be the exclusive property
of the Company. By way of illustration, but not limitation, Proprietary
Information may include inventions, products, processes, methods, techniques,
formulas, compositions, compounds, projects, developments, plans, research data,
clinical data, financial data, personnel data, computer programs, and customer
and supplier lists. The Employee will not disclose any Proprietary Information
to others outside the Company or use the same for any unauthorized purposes
without written approval by an officer of the Company, either during or after
his employment, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.
(b) The Employee agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, laboratory notebooks, program listings, or
other written, photographic, or other tangible material containing Proprietary
Information, whether created by the Employee or others, which shall come into
his custody or possession, shall be and are the exclusive property
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of the Company to be used by the Employee only in the performance of his duties
for the Company.
(c) The Employee agrees that his obligation not to disclose or use
information, know-how and records of the types set forth in paragraphs (a) and
(b) above, also extends to such types of information, know-how, records and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Employee in the course of the Company's business.
11. Developments.
(a) The Employee will make full and prompt disclosure to the Company of all
inventions, improvements, discoveries, methods, developments, software, and
works of authorship, whether patentable or not, which are created, made,
conceived or reduced to practice by the Employee or under his direction or
jointly with others during his employment by the Company, which are related to
the business of the Company, whether or not during normal working hours or on
the premises of the Company (all of which are collectively referred to in this
Agreement as "Developments").
(b) The Employee agrees to assign and does hereby assign to the Company (or
any person or entity designated by the Company) all his right, title and
interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this Section 10(b)
shall not apply to Developments which meet each of the following criteria: (i)
they do not relate to the present or planned business or research and
development of the Company; and (ii) they are made and conceived by the Employee
not during normal working hours, not on the Company's premises and not using the
Company's Proprietary Information.
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(c) The Employee agrees to cooperate fully with the Company, both during
and after his employment with the Company, with respect to the procurement,
maintenance and enforcement of copyrights and patents (both in the United States
and foreign countries) relating to Developments. Employee shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignment of priority rights, and
powers of attorney, which the Company may deem necessary or desirable in order
to protect its rights and interests in any Development.
12. Gross-Up for Excise Tax. If it shall be determined that any payment or
distribution by the Company to or for the benefit of Employee (whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise) (a "Payment") would be subject to an excise tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Excise Tax"), the
Company shall pay to the Employee (a "Gross-Up Payment") an amount such that
after payment by the Employee of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any taxes
imposed upon the Gross-Up Payment, the Employee retains an amount of the
Gross-Up Payment equal to the amount of the Excise Tax imposed upon the
Payments. The Employee undertakes and agrees that he will notify the Board of
Directors immediately if he is contacted or notified by any taxing authority
that it will be doing any of the following: (i) reviewing the Agreement; (ii)
reviewing whether any Excise Tax is to be imposed upon the Employee in relation
to this Agreement; or (iii) imposing an Excise Tax on the Employee in relation
to this Agreement.
13. Indemnification and Directors and Officers Liability Insurance.
(a) The Company will use its commercially reasonable best efforts to obain,
within 120 days of the date of this Agreement, and to maintain during the term
of this Agreement,
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commercially reasonable directors and officers liability insurance in a face
amount of no less than $3,000,000 or such other amount as may be determined by
the Board of Directors of the Company, upon which the Employee shall be a named
insured.
(b) Both during and after the conclusion of the Employee's employment with
the Company, the Company agrees to indemnify the Employee to the fullest extent
permitted by applicable law, including but not limited to, whenever permitted by
law, the advancement and reimbursement of expenses and costs incurred by the
Employee, for all actions related to the Employee's employment with the Company
or his role(s) as an officer, director or agent of the Company or any of its
affiliates.
14. No Conflicts. The Employee has represented and hereby represents to the
Company that the execution, delivery and performance by the Employee of this
Agreement do not conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under any
contract, agreement or understanding, whether oral or written, to which the
Employee is a party or of which the Employee is or should be aware and that
there are no restrictions, covenants, agreements or limitations on his right or
ability to enter into and perform the terms of this Agreement, and agrees to
save the Company harmless from any liability, cost or expense, including
attorney's fees, based upon or arising out of any such restrictions, covenants,
agreements, or limitations that may be found to exist.
15. Waiver. The waiver by a party hereto of any breach by the other party
hereto of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by a party hereto.
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16. Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company, and the Company shall be
obligated to require any successor to expressly assume its obligations
hereunder. This Agreement shall inure to the benefit of and be enforceable by
the Employee or his legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. The Employee may not
assign any of his duties, responsibilities, obligations or positions hereunder
to any person and any such purported assignment by him shall be void and of no
force and effect.
17. Notices. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing, and if personally delivered or when
sent by first class certified or registered mail, postage prepaid, return
receipt requested--in the case of the Employee, to his residence address as set
forth below, and in the case of the Company, to the address of its principal
place of business as set forth below, in care of the Board of Directors--or to
such other person or at such other address with respect to each party as such
party shall notify the other in writing.
18. Construction of Agreement.
(a) Governing Law. This Agreement shall be governed by and its provisions
construed and enforced in accordance with the internal laws of the State of New
Jersey without reference to its principles regarding conflicts of law.
(b) Severability. In the event that any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(c) Headings. The descriptive headings of the several paragraphs of this
Agreement are inserted for convenience of reference only and shall not
constitute a part of this Agreement.
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19. Entire Agreement. This Agreement contains the entire agreement of the
parties concerning the Employee's employment and all promises, representations,
understandings, arrangements and prior agreements on such subject are merged
herein and superseded hereby. The provisions of this Agreement may not be
amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification, repeal, waiver, extension or discharge is sought. No
person acting other than pursuant to a resolution of the Board of Directors
shall have authority on behalf of the Company to agree to amend, modify, repeal,
waive, extend or discharge any provision of this Agreement or anything in
reference thereto or to exercise any of the Company's rights to terminate or to
fail to extend this Agreement.
20. Authority. Each party has all requisite power and authority to enter
into this Agreement. The execution and delivery of this Agreement and the
employment of the Employee contemplated hereby have been duly authorized by all
necessary action on the part of such party. This Agreement has been duly and
validly executed and delivered by such party and, assuming the due
authorization, execution and delivery hereof by the other signatory hereto,
constitutes the valid and binding obligation of such party, enforceable against
such party in accordance with its terms.
21. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, but which together shall constitute one
and the same instrument.
[Intentionally Blank]
-20-
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and attested by its duly authorized officers, and the Employee has set his hand,
all as of the day and year first above written.
ATTEST: COMPANY
ARC COMMUNICATIONS INC.
------------------------------------
By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------
Xxxxx X. Xxxxxx, Xx.
Chief Executive Officer
WITNESS:
EMPLOYEE
------------------------------------ /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
