EMPLOYMENT AGREEMENT
Exhibit
99.1
EMPLOYMENT
AGREEMENT dated as of December 1, 2005 by and between TRAFFIX, INC., a Delaware
corporation (the "Company"), and XXXXXXX X. XXXXXXXX ("Executive").
W
I T N E
S S E T H:
WHEREAS,
the Company desires to employ Executive on the terms and subject to the
conditions hereinafter set forth, and Executive desires so to be
employed;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth, the parties agree as follows:
1. Offices
and Duties.
The
Company hereby employs Executive as a full-time employee during the Term (as
hereinafter defined) to serve as the Company's Chief Executive Officer and
to
perform such executive and supervisory duties on behalf of the Company as the
Company's Board of Directors (or
the
appropriate Committee thereof)
may from
time to time reasonably direct. By its approval of this Agreement, the Company's
Board of Directors (or the appropriate Committee thereof) shall also agree
to
elect Executive to serve as the Company's Chairman. Executive hereby accepts
such employment and agrees that throughout the Term he shall faithfully,
diligently and to the best of his ability, in furtherance of the business of
the
Company, perform the duties assigned to him and shall devote substantially
all
of his business time and attention to the business and affairs of the Company.
Executive shall at all times be subject to the direction and control of the
Company's Board of Directors, and observe and comply with such rules,
regulations, policies and practices as the Company's Board of Directors may
from
time to time establish.
2. Term
of Full-Time Employment.
(a) The
employment of Executive as a full-time employee hereunder shall commence on
the
date hereof and continue for a term of two (2) years ending on November 30,
2007, unless there has been an Exercise of the Extension Option, whereupon
it
shall continue to November 30, 2008, subject in all respects to earlier
termination upon the terms and conditions provided elsewhere herein (the
"Term"). As used herein, “Termination Date" means the last day of the term of
full-time employment (whether by virtue of the scheduled expiration of this
Agreement or its accelerated termination in accordance with the provisions
hereof).
(b) An
“Exercise of the Extension Option” shall have occurred if (i) the Company’s
Pre-Tax Income (as defined and as calculated in accordance with Section 3(b)
hereof) for the 21 months ending August 31, 2007 was at least $4.2 million;
and
(ii) the Executive has notified the Company in writing no later than November
1,
2007 that he elects to extend the Term to November 30, 2008.
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3. Compensation.
(a) As
compensation for his services hereunder, the Company shall pay to Executive
during the Term:
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(i)
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a
base salary at the rate of $605,000 per annum (the "Base Salary"),
such
Base Salary to be paid in substantially equal installments no less
often
than twice monthly;
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(ii)
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a
bonus (the "2.5% Bonus") in respect of each Bonus Period (as hereinafter
defined), payable within ninety (90) days after the end of such Bonus
Period, in an amount equal to the lesser of (A) $125,000 (or such
lesser
pro rata amount if the Bonus Period is less than a full fiscal year)
or
(B) two and one-half percent (2.5%) of Pre-Tax Income (as hereinafter
defined); and
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(iii)
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an
additional bonus (the "Additional Bonus") in respect of each Bonus
Period,
payable within ninety (90) days after the end of such Bonus Period,
as
follows:
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(A)
$75,000.00
(or such lesser pro rata amount if the Bonus Period is less than a full fiscal
year), if Pre-Tax Income for the Bonus Period is between 150% and 200% of
the
greater of (x) Pre-Tax Income for the comparable period from the Company’s prior
fiscal year, or (y) $3.4 million (or such lesser pro rata amount if the Bonus
Period is less than a full fiscal year); or
(B)
$100,000.00 (or such lesser pro rata amount if the Bonus Period is less than
a
full fiscal year), if (x) Pre-Tax Income for the Bonus Period is between 200%
and 250% of the greater of (x) Pre-Tax Income for the comparable period from
the
Company’s prior fiscal year, or (y) $3.4 million (or such lesser pro rata amount
if the Bonus Period is less than a full fiscal year); or
(C)
$200,000.00 (or such lesser pro rata amount if the Bonus Period is less than
a
full fiscal year), if (x) Pre-Tax Income for the Bonus Period is two hundred
fifty (250%) percent or more than the greater of (x) Pre-Tax Income for the
comparable period from the Company’s prior fiscal year, or (y) $3.4 million (or
such lesser pro rata amount if the Bonus Period is less than a full fiscal
year);
but
in no
event shall the Additional Bonus payable to Executive with respect to any Bonus
Period exceed five (5%) percent of the EBITDA for such Bonus Period;
and
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(iv)
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such
additional incentive or bonus compensation as the Company's Board
of
Directors (or the appropriate Committee thereof) may from time
to time
determine.
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(b) For
the
purposes of paragraph 3(a):
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(i)
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A
"Bonus Period" is either a fiscal year of the Company ending
during the
Term, or, if the Term ends on a day other than the last day of
a fiscal
year of the Company (i.e. November 30), the portion of such fiscal
year
ending on the last day of the Company’s last completed fiscal quarter
(i.e. February 28/29, May 31 or August 31);
and
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(ii)
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"Pre-Tax
Income" is the Company's income before provision for income
taxes for the
applicable Bonus
Period.
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The
determination of Pre-Tax Income, EBITDA and the 2.5% Bonus and Additional Bonus
for any Bonus Period shall be made by the Company’s then Chief Financial Officer
in accordance with the financial information presented in the Company’s
applicable Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the
case may be (and the schedules and internal records supporting such filings);
provided that in making his determination, the Chief Financial Officer shall
exclude any and all non-cash charges incurred by the Company that were
attributable to grants of stock options. Any determination of the Chief
Financial Officer hereunder shall be conclusive and binding upon the Company
and
Executive, provided,
that if
(x) a
Bonus
Period ends prior to the end of a fiscal year of the Company, and any year-end
adjustment is subsequently made that affects the determination of Pre-Tax
Income, EBITDA, the 2.5% Bonus and/or the Additional Bonus for such Bonus
Period; or
(y) if
the
Company files with the Securities and Exchange Commission an amendment to any
of
its filings which includes a restatement of the financial information for any
Bonus Period that would have the affect of changing Pre-Tax Income, EBITDA,
the
2.5% Bonus and/or the Additional Bonus for such Bonus Period,
the
Company shall promptly give written notice to Executive of any such change,
setting forth in reasonable detail therein the amount of and basis for such
change, and (1) if such change involves an increase to any compensation paid
hereunder, the Company shall pay such increase to Executive concurrently with
the delivery of such notice; (2) if such change involves a decrease to any
compensation paid hereunder and was necessitated as a result of an inquiry
of
the Commission or was otherwise required by the Commission, Executive shall
repay the amount of such decrease to the Company promptly, and in any event
within 60 days, after receipt of such notice; or (3) if such change involves
a
decrease to any compensation paid hereunder and was not necessitated as a result
of an inquiry of the Commission and was not otherwise required by the Commission
Executive shall forego his right to receive any further remuneration from the
Company up to the amount of such decrease.
(c) The
Company shall procure major medical, hospitalization, dental and disability
insurance for the benefit of Executive and his wife and children, and the
Company shall pay all premiums and any other costs or expenses incurred to
maintain such policies in effect during the term of Executive's employment
hereunder.
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(d) In
addition to his Base Salary and other compensation provided herein, Executive
shall be entitled to participate, to the extent he is eligible under the terms
and conditions thereof, in any stock, stock option or other equity participation
plan and any profit-sharing, pension, retirement, insurance, medical service
or
other employee benefit plan generally available to the executive officers of
the
Company, and to receive any other benefits or perquisites generally available
to
the executive officers of the Company pursuant to any employment policy or
practice, which may be in effect from time to time during the Term. Except
as
otherwise expressly provided herein, the Company shall be under no obligation
hereunder to institute or to continue any such employee benefit plan or
employment policy or practice.
(e) Executive
acknowledges hereunder that any and all compensation, bonuses and other benefits
due him from the Company (and its subsidiaries) to the date hereof (including,
without limitation, those arising under his December 1, 2001 Employment
Agreement with the Company, as amended on September 30, 2004) have been paid
or
otherwise satisfied in full.
4. Stock
Options.
By its
approval of this Agreement, the Company's Board of Directors (or the appropriate
Committee thereof) has approved the issuance to Executive of, and upon the
execution of this Agreement, the Company shall issue to the Executive, a
non-statutory option to acquire 60,000 shares of the Company's Common Stock,
under and pursuant to the provisions of the Traffix, Inc. Sixth Amended and
Restated 1996 Employee Incentive Plan (the “Plan”), which option shall be for a
term of ten (10) years, unless otherwise terminated pursuant to the terms of
such option, the Plan or this Agreement. The Executive’s right to exercise 50%
of such option (30,000 shares) shall immediately vest and the Executive’s right
to exercise the remaining 50% of such option (30,000 shares) shall vest on
December 1, 2006.
5. Expense
Allowance.
(a)
The
Company shall pay directly, or advance funds to Executive or reimburse Executive
for, all expenses reasonably incurred by him in connection with the performance
of his duties hereunder and the business of the Company, upon the submission
to
the Company of itemized expense reports, receipts or vouchers in accordance
with
its then customary policies and practices.
(b)
The
Company shall provide to Executive a suitable automobile or other vehicle for
his exclusive use and the Company shall pay up to $25,000 of the per annum
cost
thereof, including, without limitation, lease payments, insurance premiums,
repair charges, and maintenance and operating expenses, or if, in lieu thereof,
Executive uses his own automobile or other vehicle, the Company shall grant
him
a monthly allowance in an amount sufficient to pay up to $25,000 per annum
for
all such costs therefor.
6. Location;
Office.
Except
for routine travel and temporary accommodation reasonably required to perform
his services hereunder, Executive shall not be required to perform his services
hereunder at any location other than the principal executive office of the
Company, which office shall be located throughout the Term at its location
on
the date hereof, or, if relocated, at a location within a distance of 30 miles
from its location on the date hereof, or at such other office or site to which
Executive may, in his sole discretion, consent; nor shall he be required to
relocate his principal residence to, or otherwise to reside at, any location
specified by the Company. The Company shall provide Executive with suitable
office space, furnishings and equipment, secretarial and clerical services
and
such other facilities and office support as Executive may reasonably
request.
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7. Vacation.
Executive shall be entitled to six (6) weeks paid vacation during each year
of
his employment hereunder, such vacation to be taken at such time or times as
shall be agreed upon by Executive and the Company. Vacation time shall be
cumulative from year to year, except that Executive shall not be entitled to
take more than eight weeks vacation during any consecutive 12-month period
during the Term.
8. Key-Man
Insurance.
The
Company shall continue to maintain in full force and effect the Policy (as
defined in Section 16(c) hereof). The Company shall further have the right
from
time to time to purchase, increase, modify or terminate additional insurance
policies on the life of Executive for the benefit of the Company in such amounts
as the Company may determine in its sole discretion. In connection therewith,
Executive shall, at such time or times and at such place or places as the
Company may reasonably direct, submit himself to such physical examinations
and
execute and deliver such documents as the Company may deem necessary or
appropriate.
9. Trade
Secrets.
Executive shall hold in a fiduciary capacity for the benefit of the Company
all
confidential information relating to or concerned with its operations, business
and affairs, and he shall not, at any time hereafter, use or disclose any such
information to any person other than to the Company or its designees or except
as may otherwise be required in connection with the business and affairs of
the
Company. The following shall not be deemed “confidential information” for
purposes of this paragraph: (i) information that is generally available to
the
public; (ii) information that was not acquired, directly or indirectly and/or
in
any manner, from the Company or in his capacity as an employee of the Company;
or (iii) information that, hereafter, through no act or omission on Executive’s
part, becomes information generally available to the public. In the event that
Executive becomes legally compelled (by deposition, interrogatory, request
of
documents, subpoena, civil investigative demand or similar process) to disclose
any confidential information, the Executive shall provide the Company, with
prompt prior written notice of such requirement so that the Company may seek
a
protective order or other appropriate remedy and/or waive compliance with the
terms of this paragraph. In the event that such protective order or other remedy
is not obtained, or the Company waives compliance with the provisions hereof,
the Executive shall furnish only such portion of the confidential information
which is legally required to be furnished.
10.
Intellectual
Property.
Any
idea, invention, design, process, system, procedure, improvement, development
or
discovery conceived, developed, created or made by Executive, alone or with
others, during the Term and applicable to the business of the Company, whether
or not patentable or registrable, shall become the sole and exclusive property
of the Company. Executive shall disclose the same promptly and completely to
the
Company and shall, during the Term or thereafter, (i) execute all documents
requested by the Company for vesting in the Company the entire right, title
and
interest in and to the same, (ii) execute all documents requested by the Company
for filing and procuring such applications for patents, trademarks, service
marks or copyrights as the Company, in its sole discretion, may desire to
prosecute, and (iii) give the Company all assistance it may reasonably require,
including the giving of testimony in any Proceeding (as hereinafter defined
in
Section 32), in order to obtain, maintain and protect the Company's right
therein and thereto.
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11.
Non
Competition.
(a)
During
the Term, and, if his employment terminates for any reason other than by him
pursuant to Section 14 or by the Company other than as a result of a "For Cause
Event" pursuant to Section 13, for a further period of one year thereafter,
Executive shall not, directly or indirectly:
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(i)
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own,
control, manage, operate, participate or invest in, or otherwise
be
connected with, in any manner, any business activity, venture
or
enterprise which is engaged in any business in the United States
and/or
Canada in which the Company (or any subsidiary thereof) is
currently
engaged or is engaged at the time of termination of Executive's
employment
hereunder, or
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(ii)
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for
himself or on behalf of any other person, induce any employee
of the
Company (or any subsidiary thereof) to leave the employ of
the Company (or
such subsidiary) or induce any supplier or customer of the
Company (or any
subsidiary thereof) to either cease doing business or reduce
the level of
business then being done with the Company (or such
subsidiary).
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(b) The
provisions of Section 11(a) notwithstanding, Executive may invest his funds
in
securities of an issuer if the securities of such issuer are listed for trading
on a registered securities exchange or actively traded in an over-the-counter
market and Executive's holdings therein represent less than 1% of the total
number of shares or principal amount of the securities of such issuer
outstanding.
(c) Executive
acknowledges that the provisions of this Section, and the period of time,
geographic area and scope and type of restrictions on his activities set forth
herein, are reasonable and necessary for the protection of the
Company.
12. Termination
Upon Disability.
In the
event that the Board of Directors determines that the Executive is unable to
perform his duties hereunder by reason of any disability or incapacity (due
to
any physical or mental injury, illness or defect) for an aggregate of 180 days
in any consecutive 12-month period, the Company shall have the right to
terminate Executive's employment hereunder within 60 days after the
180th
day of
his disability or incapacity by giving Executive notice to such effect at least
30 days prior to the date of termination set forth in such notice, and on such
date such employment shall terminate. The Board of Directors’ determination
shall be made after due inquiry, on the basis of convincing evidence presented
in at least two medical opinions rendered by reputable physicians with
experience in diagnosing and treating the condition described in the
opinion.
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13. Termination
for Cause.
(a) In
addition to any other rights or remedies provided by law or in this Agreement,
the Company may terminate Executive's employment under this Agreement if (each,
a “For Cause Event”):
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(i)
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Executive
is convicted of, or enters a plea of guilty or nolo contendere
(which plea
is not withdrawn prior to its approval by the court) to,
a felony offense
and either Executive fails to perfect an appeal of such conviction
prior
to the expiration of the maximum period of time within which,
under
applicable law or rules of court, such appeal may be perfected
or, if
Executive does perfect such an appeal, his conviction of
a felony offense
is sustained on appeal;
or
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(ii)
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the
Company's Board of Directors determines, after due inquiry,
based on
convincing evidence, that Executive
has:
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(A)
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committed
fraud against, or embezzled or misappropriated funds or
other assets of,
the Company (or any subsidiary
thereof);
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(B)
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violated,
or knowingly caused the Company (or any subsidiary thereof)
or any
officer, employee or other agent thereof, to violate, any
material law,
regulation or ordinance or any material rule, regulation,
policy or
practice established by the Company's Board of
Directors;
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(C)
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willfully,
or because of gross or persistent negligence, (A) failed
properly to
perform his duties hereunder or (B) acted in a manner detrimental
to, or
adverse to the interests of, the Company;
or
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(D)
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violated,
or failed to perform or satisfy any material covenant,
condition or
obligation required to be performed or satisfied by Executive
hereunder;
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and
that,
in the case of any violation or failure referred to in clause (B), (C) or (D)
of
this paragraph (ii) of Section 13(a), such violation or failure has caused,
or
is reasonably likely to cause, the Company to suffer or incur a substantial
casualty, loss, penalty, expense or other liability or cost.
(b) The
Company may effect such termination for cause by giving Executive notice to
such
effect, setting forth in reasonable detail the factual basis for such
termination, at least fourteen (14) days prior to the date of termination set
forth therein; provided however that Executive may avoid such termination if
Executive, prior to the date of termination set forth in such notice, cures
or
explains to the reasonable satisfaction of the Company's Board of Directors
the
factual basis for termination set forth therein.
14. Termination
by Executive for Good Reason.
In
addition to any other rights or remedies provided by law or in this Agreement,
Executive may terminate his employment hereunder if (i) the Company violates,
or
fails to perform or satisfy any material covenant, condition or obligation
required to be performed or satisfied by it hereunder, or (ii) as a result
of
any action or failure to act by the Company, there is a material change in
the
nature or scope of the duties, obligations, rights or powers of Executive's
employment, by giving the Company notice to such effect, setting forth in
reasonable detail the factual basis for such termination, at least ten (10)
days
prior to the date of termination set forth therein; provided
however
that the
Company may avoid such termination if it, prior to the date of termination
set
forth in such notice, cures or explains to the reasonable satisfaction of
Executive the factual basis for termination set forth therein.
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15. Voluntary
Termination by Executive.
In
addition to any other rights or remedies provided by law or in this Agreement,
at any time after September 2, 2006, Executive may terminate his employment
hereunder by giving the Company written notice to such effect, which termination
shall not take effect until the earlier to occur of (i) ninety (90) days after
the date of such written notice, or (ii) either November 30, 2008 (if there
has
occurred an Exercise of the Extension Option) or November 30, 2007 (if there
has
not occurred an Exercise of the Extension Option). The termination by Executive
of his employment for Good Reason pursuant to Section 14 of this Agreement
shall
not constitute or be deemed to constitute for any purpose a "voluntary
termination" of his employment.
16. Compensation
and Benefits upon Termination.
(a) Upon
termination of Executive's employment hereunder, he shall be entitled to
receive, in any case, any Base Salary due to him pursuant to Section 3 in
respect of his employment prior to the Termination Date.
(b) If
Executive is discharged as a result of a "For Cause Event" pursuant to Section
13, except for the payment of any amount required to be made by Section 16(a),
from and after the Termination Date, the Company shall have no further
obligation to Executive hereunder, including without limitation, any obligation
pursuant to Section 18.
(c) If
the
Executive's employment is terminated by him pursuant to Section 14 or by the
Company other than as a result of a "For Cause Event" pursuant to Section 13
(other than termination for disability pursuant to Section 12), he shall be
entitled to (i) receive an amount equal to the sum of (A) any unpaid Base Salary
due the Executive through either November 30, 2008 (if there has occurred an
Exercise of the Extension Option) or November 30, 2007 (if there has not
occurred an Exercise of the Extension Option); plus (B) a one-time, lump-sum
payment of $575,000; plus (C) his 2.5% Bonus and his Additional Bonus for the
last Bonus Period ending before the Termination Date; and (ii) cause the Company
to transfer the ownership of the Policy (as defined below) to Executive or
to
his designee (with all premiums thereon and other costs thereof paid to the
Termination Date), whereupon Executive shall have the right to change the
beneficiary of the Policy and shall become obligated to then pay all premiums
thereon and other costs thereof. For purposes of this Section 16, the “Policy”
shall mean that certain $1 million key-man life insurance policy maintained
by
the Company as of the date hereof on the life of the Executive.
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(d) If
the
Executive's employment is terminated by the Company for disability pursuant
to
Section 12, in addition to any rights granted the Executive under any disability
policy maintained by the Company for the Executive’s benefit, Executive shall be
entitled to (i) receive a one-time, lump-sum payment of $575,000, plus his
2.5%
Bonus and his Additional Bonus for the last Bonus Period ending before the
Termination Date; and (ii) cause the Company to transfer the ownership of the
Policy to the Executive or to his designee (with all premiums thereon and other
costs thereof paid to the Termination Date), whereupon Executive shall have
the
right to change the beneficiary of the Policy and shall become obligated to
then
pay all premiums thereon and other costs thereof.
(e) [Intentionally
Omitted]
(f) If
the
Executive’s employment terminates due to the scheduled expiration of the Term
(i.e. either November 30, 2008 (if there has occurred an Exercise of the
Extension Option) or November 30, 2007 (if there has not occurred an Exercise
of
the Extension Option)), or if the Executive voluntarily terminates his
employment pursuant to Section 15 and if at the time Executive gives the Company
the notice of termination referred to therein the Company has not given to
Executive a notice of termination upon his disability pursuant to Section 12
or
as a result of a "For Cause Event" pursuant to Section 13, the Executive shall
(i) in partial consideration for agreeing to assume consulting obligations
for
the Company (as set forth in clause (iii), below), be entitled to receive a
one-time, lump-sum payment of $250,000; and (ii) be entitled to receive his
2.5%
Bonus and his Additional Bonus for the last Bonus Period ending before the
Termination Date; and (iii) become a consultant to the Company for a period
of
three (3) years pursuant to which he shall make himself reasonably available
to
assist the then Chief Executive Officer of the Company by
telephone or in person up to 1 day per week (subject to the Executive’s
availability, as may be limited by his other business and personal interests),
and for which he shall be paid a consulting fee of $108,334 per annum (to be
paid in substantially equal installments no less often than once per month);
(iv) for the term of his consultancy, be entitled to maintain an office either
at the Company's offices and receive secretarial and clerical services, all
at
the Company's expense, or, at Executive's option, if the Company is not
maintaining such offices at its place of business at which Executive performed
his services at the Termination Date, then the Company shall reimburse the
Executive up to $25,000 per annum for the cost of his maintaining a comparable
office, secretarial and clerical services at such other location selected by
Executive; (v) for the term of his consultancy, be entitled to receive from
the
Company major medical, hospitalization, dental and disability insurance for
the
benefit of Executive and his wife and children, and the Company shall pay all
premiums and any other costs or expenses incurred to maintain such policies
in
effect for such period of consultancy; and (vi) shall have the right to cause
the Company to transfer the ownership of the Policy to the Executive (with
all
premiums thereon and other costs thereof paid to the Termination Date),
whereupon Executive shall have the right to change the beneficiary of the Policy
and shall become obligated to then pay all premiums thereon and other costs
thereof .
(g) If
the
Executive dies during the Term, and if at the time of death the Company has
not
given to Executive a notice of termination upon his disability pursuant to
Section 12 or as a result of a "For Cause Event" pursuant to Section 13, the
Company shall deliver to the Executive’s estate a one-time, lump sum payment of
$500,000, payable from the proceeds of the Policy. The Company hereby undertakes
that upon the Executive’s death it shall make an immediate and diligent effort
to collect any proceeds payable under the Policy.
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(h) Any
amount payable to Executive (or his estate) upon termination of his employment
hereunder shall be paid promptly, and in any event within thirty (30) days,
after the Termination Date, or, if indeterminable at such time, within thirty
(30) days after the amount of same is able to be determined; provided, however,
that any amounts due under clause (g) of this Section 16 shall be paid to the
Executive’s estate no later than thirty (30) days after the date the Company has
received the proceeds payable under the Policy.
(i) Executive
shall have no obligation hereunder to seek or to accept any other employment
after the Termination Date or otherwise to mitigate the damages sustained by
reason of his wrongful termination. No compensation or other amount received
or
receivable by Executive on account of any employment or engagement after the
Termination Date shall be offset against or deducted from any payment required
to be made by this Section 16 .
(j) Executive
shall be entitled to receive from the Company as a result of the termination
of
his employment hereunder only those payments and other consideration set forth
herein. If the Executive’s employment is deemed to have been wrongfully
terminated hereunder, the Executive’s sole remedy shall be to receive the
payments and other consideration provided for in this Agreement as liquidated
damages, it being agreed that the Executive’s damages in case of the Company’s
default hereunder might be impossible to ascertain and that such payments and
other consideration constitute a fair and reasonable amount of damages under
the
circumstances and are not a penalty.
17. [Intentionally
Omitted]
18. Other
Termination Provisions.
(a) Following
the Termination Date, the Company shall continue to indemnify Executive, and
hold him harmless from, any loss, damages, liability, obligation or expense
(including, without limitation, legal fees) that he may suffer or incur in
connection with any judgment, claim made or Proceeding relating to his service
as a director, officer, employee or agent of the Company (or any subsidiary
thereof) to the same extent and in same manner as the Company shall be obligated
so to indemnify Executive immediately prior to the Termination
Date.
(b) The
Company shall continue to maintain for the benefit of Executive directors'
and
officers' liability insurance providing coverage at least as favorable to
Executive (including with respect to limits of liability, exclusions, and
deductible and retention amounts) as that in effect on the Termination
Date.
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19. Notices.
Any
notice or demand required or permitted to be given or made hereunder to or
upon
either party hereto shall be deemed to have been duly given or made for all
purposes if (a) in writing and sent by (i) messenger or an overnight courier
service against receipt, or (ii) certified or registered mail, postage paid,
return receipt requested, or (b) sent by telegram, telecopy, telex or similar
electronic means, provided that a written copy thereof is sent on the same
day
by postage-paid first-class mail, to such party at the following
address:
to
the
Company at:
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Xxx
Xxxx Xxxx
Xxxxx
|
|
Xxxxx
Xxxxx, Xxx Xxxx
00000
|
|
|
Attn:
President
|
|
Fax:
(000)
000-0000
|
with
a copy
to:
|
|
Feder,
Kaszovitz, Isaacson,
Weber,
|
|
Xxxxx,
Bass & Rhine
LLP
|
|
|
23rd
Floor
|
|
000
Xxxxxxxxx
Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx
00000-0000
|
|
Attn:
Xxxx Xxxxxxxxx,
Esq.
|
|
|
Fax:
(000)
000-0000
|
to
Executive
at:
|
|
0
Xxxx Xxxxxx
Xxxxx
|
|
Xxxxx
Xxxxx, Xxx Xxxx
00000
|
|
|
Fax:
__________________
|
or
such
other address as either party hereto may at any time, or from time to time,
direct by notice given to the other party in accordance with this Section.
The
date of giving or making of any such notice or demand shall be, in the case
of
clause (a)(i), the date of the receipt; in the case of clause (a)(ii), five
business days after such notice or demand is sent; and, in the case of clause
(b), the business day next following the date such notice or demand is
sent.
20. Amendment.
Except
as otherwise provided herein, no amendment of this Agreement shall be valid
or
effective, unless in writing and signed by or on behalf of the parties
hereto.
21. Waiver.
No
course of dealing or omission or delay on the part of either party hereto in
asserting or exercising any right hereunder shall constitute or operate as
a
waiver of any such right. No waiver of any provision hereof shall be effective,
unless in writing and signed by or on behalf of the party to be charged
therewith. No waiver shall be deemed a continuing waiver or waiver in respect
of
any other or subsequent breach or default, unless expressly so stated in
writing.
22. Governing
Law.
This
Agreement shall be governed by, and interpreted and enforced in accordance
with,
the laws of the State of New York without regard to principles of choice of
law
or conflict of laws.
17
23. Dispute
Resolution.
Any and
all disputes which arise out of this Agreement, including, but not limited
to,
disputes concerning the performance, enforcement, and/or interpretation of
this
Agreement, shall be resolved in New York City pursuant to arbitration conducted
in accordance with the rules of the Arbitration Association of America.
24. Remedies.
In the
event of any actual or prospective breach or default by either party hereto,
the
other party shall be entitled to equitable relief, including remedies in the
nature of rescission, injunction and specific performance. All remedies
hereunder are cumulative and not exclusive, and nothing herein shall be deemed
to prohibit or limit either party from pursuing any other remedy or relief
available at law or in equity for such actual or prospective breach or default,
including the recovery of damages.
25. Severability.
The
provisions hereof are severable and in the event that any provision of this
Agreement shall be determined to be invalid or unenforceable in any respect,
the
remaining provisions hereof shall not be affected, but shall remain in full
force and effect, and any invalid or unenforceable provision shall be deemed,
without further action on the part of the parties hereto, amended and limited
to
the extent necessary to render the same valid and enforceable.
26. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and which together shall constitute one and the same
agreement.
27. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This Agreement is not
intended, and shall not be deemed, to create or confer any right or interest
for
the benefit of any person not a party hereto.
28. Titles
and Captions.
The
titles and captions of the Articles and Sections of this Agreement are for
convenience of reference only and do not in any way define or interpret the
intent of the parties or modify or otherwise affect any of the provisions
hereof.
29. Grammatical
Conventions.
Whenever the context so requires, each pronoun or verb used herein shall be
construed in the singular or the plural sense and each capitalized term defined
herein and each pronoun used herein shall be construed in the masculine,
feminine or neuter sense.
30. References.
The
terms "herein," "hereto," "hereof," "hereby," and "hereunder," and other terms
of similar import, refer to this Agreement as a whole, and not to any Article,
Section or other part hereof.
31. No
Presumptions.
Each
party hereto acknowledges that it has had an opportunity to consult with counsel
and has participated in the preparation of this Agreement. No party hereto
is
entitled to any presumption with respect to the interpretation of any provision
hereof or the resolution of any alleged ambiguity herein based on any claim
that
the other party hereto drafted or controlled the drafting of this
Agreement.
18
32. Certain
Definitions.
As used
herein:
(a) "Person"
includes without limitation a natural person, corporation, joint stock company,
limited liability company, partnership, joint venture, association, trust,
government or governmental authority, agency or instrumentality, or any group
of
the foregoing acting in concert.
(b) A
"Proceeding" is any suit, action, arbitration, audit, investigation or other
proceeding before or by any court, magistrate, arbitration panel or other
tribunal, or any governmental agency, authority or instrumentality of competent
jurisdiction.
33. Entire
Agreement.
This
Agreement embodies the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersedes any prior agreement, commitment or
arrangement relating thereto, written or oral, if any, which shall terminate
immediately upon the commencement of the Term.
IN
WITNESS
WHEREOF, the undersigned have duly executed this Agreement as of the day and
year first above written.
| TRAFFIX, INC. | ||
| |
|
|
| By: | /s/ | |
|
Name:
Xxxxxx Xxxxxxxx
|
||
| Title: President | ||
| /s/ | ||
|
XXXXXXX X. XXXXXXXX |
||
19
