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Exhibit 10
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 30th day of
April, 1997 by and between NORTON XXXXXXXXXX OF XXXXXX, INC., a New York
corporation (the "Company"), and XXXXX XXXXXXXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain
the services of the Employee as President and Chief Operating Officer of the
Company, and the Employee wishes to serve in such capacity in the employ of the
Company, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the
premises and the mutual agreements hereinafter set forth, the parties hereto
hereby agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the positions and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement (the
"Term") shall commence on the date hereof and shall terminate on November 4,
2000, unless sooner terminated in accordance with this Agreement.
2. Positions, Duties. The Employee shall serve in the positions of
President and Chief Operating Officer of the Company. The Employee shall
perform, faithfully and diligently, such duties, and shall have such
responsibilities, appropriate to said positions, as shall be assigned to him
from time to time by the Chief Executive Officer or the Board of Directors of
the Company. The Employee shall report to the Chief Executive Officer and the
Board of Directors of the Company. During the Term, the Employee also agrees to
serve, if elected, as an officer of any parent, subsidiary or affiliate of the
Company. The Employee shall devote his complete and undivided attention to the
performance of his duties and responsibilities hereunder during the normal
working hours of executive employees of the Company. During the Term, the
Company shall cause the Employee to be recommended for election to the Board of
Directors of Norton XxXxxxxxxx, Inc., a Delaware corporation (the "Parent").
Subject to the prior consent of the Board of Directors of the
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Parent, the Employee shall be permitted to sit on the boards of directors of
other corporations not involving any conflict of interest with the Company.
3. Compensation.
3.1 Salary. During the Term, in consideration of the performance by
the Employee of the services set forth in Section 2 and his observance of the
other covenants set forth herein, the Company shall pay the Employee, and the
Employee shall accept, a salary at a rate of $500,000 per annum, payable in
accordance with the standard payroll practices of the Company.
3.2 Signing Bonus. Upon commencement of the Employee's employment
with the Company, the Company shall pay the Employee a one-time signing bonus in
the amount of $250,000 (the "Signing Bonus"); provided, however, in the event
that the employment of the Employee with the Company shall terminate within one
year of the commencement of the Employee's employment under this Agreement,
other than by reason of a termination by the Company pursuant to Section 6.4 of
this Agreement, the Employee shall repay the Signing Bonus to the Company
immediately upon such termination.
3.3 Bonus. During the Term, in addition to the salary provided for
in Section 3.1, the Employee shall be eligible to participate in any bonus plan
for executives of the Company in effect during the Term.
3.4 Stock Options.
(a) GRANT. The Company shall cause to be granted to the Employee by
the Board of Directors of the Parent as promptly as practicable after the date
hereof, options to purchase an aggregate of 700,000 shares of the common stock,
par value $.01 per share (the "Common Stock"), of the Parent, at an exercise
price per share equal to the fair market value of the Common Stock on the date
of grant (the "Options").
(b) Exercise. Except as provided in Section 3.4(d), the number of
Options which shall be vested and exercisable at any time shall be the greater
of the number of Options determined under clause (i) or clause (ii) of this
subsection (b).
(i) Options as to 250,000 shares of Common Stock shall become vested
and exercisable if the closing price for the Common Stock as quoted on the
NASDAQ National Market System (or such other exchange on which the Common Stock
is listed) shall equal or exceed $10.00 on at least twenty (20) consecutive
trading days subsequent to the date of the grant; Options as to an additional
250,000 shares of Common Stock shall become vested and
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exercisable if the closing price for the Common Stock as quoted on the NASDAQ
National Market System (or such other exchange on which the Common Stock is
listed) shall equal or exceed $13.00 on at least twenty (20) consecutive trading
days subsequent to the date of the grant; and Options as to an additional
100,000 shares of Common Stock shall become vested and exercisable if the
closing price for the Common Stock as quoted on the NASDAQ National Market
System (or such other exchange on which the Common Stock is listed) shall equal
or exceed $20.00 on at least twenty (20) consecutive trading days subsequent to
the date of grant (the foregoing applicable closing prices of the Common Stock
set forth in this Section 3.4(b)(i), the "Target Prices").
(ii) The Options shall become vested and exercisable in accordance
with the following schedule:
Cumulative Number of Options
Vesting Period Vested and Exercisable
-------------- ----------------------
After April 30, 1997 100,000
After December 10, 1998 350,000
After December 10, 1999 600,000
After November 4, 2000 700,000,
less the number of Options theretofore exercised.
(c) CHANGE IN CONTROL. In connection with any merger or
consolidation involving the Parent which results in the holders of the
outstanding voting securities of the Parent (determined immediately prior to
such merger or consolidation) owning less than a majority of the outstanding
voting securities of the surviving corporation (determined immediately following
such merger or consolidation), or any sale or transfer by the Parent of all or
substantially all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of all or a majority
of the then outstanding voting securities of the Parent, in each case occurring
during the Term, all outstanding Options shall become vested and exercisable in
full, notwithstanding any other provision hereof, on and after (I) fifteen (15)
days prior to the effective date of such merger, consolidation, sale, transfer
or acquisition or (ii) the date of commencement of such tender offer or exchange
offer, as the case may be; provided, however, that in the case of any merger,
consolidation, transfer or acquisition, or any tender offer or exchange offer
where the effective date or date of commencement, as the case may be, occurs, or
where the Parent
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shall enter into any agreement or letter of intent with respect to any such
transaction, in any case, within six months of the date of commencement of the
Employee's employment hereunder, no additional Options shall become vested and
exercisable.
(d) TERM OF OPTIONS. Except as provided below, the term of the
Options shall be ten years.
(i) In the event of termination of the employment of the Employee
pursuant to Section 6.1 of this Agreement, the Employee's estate shall be
entitled to exercise for a period of two years from the date of the Employee's
death, only that number of Options as were vested and exercisable on the date of
the Employee's death.
(ii) In the event of termination of the employment of the Employee
pursuant to Section 6.2 of this Agreement, the Employee shall be entitled to
exercise, for the Disability Exercise Term (as hereinafter defined), only that
number of Options as were vested and exercisable on the date of termination of
the employment of the Employee. For purposes hereof, "Disability Exercise Term"
shall mean the Disability Salary Continuation Period (as defined in Section 6.2
of this Agreement) plus two years.
(iii) In the event of termination of the employment of the Employee
by the Company for Due Cause pursuant to Section 6.3 of this Agreement, no
Options shall be exercisable.
(iv) In the event of termination of the employment of the Employee
by the Company pursuant to Section 6.4 of this Agreement, the Employee shall be
entitled to exercise, for the Exercise Term (as hereinafter defined), only that
number of Options as were vested and exercisable on the date of termination of
the employment of the Employee. For purposes hereof, "Exercise Term" shall mean
the Salary Continuation Period (as defined in Section 6.4 of this Agreement)
plus two years.
(v) In the event of termination of the employment of the Employee
with the Company by the Employee during the Term for any reason other than
pursuant to Sections 6.1, 6.2, 6.3 or 6.4 of this Agreement, no Options shall be
exercisable.
(e) ADJUSTMENTS. In the event of any dividend or other distribution
(whether in the form of cash, Common Stock, other securities or other property),
recapitalization, stock split,
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reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Common Stock or other securities of the
Parent, issuance of warrants or other rights to purchase Common Stock, the Board
of Directors shall, in such manner as it may deem equitable, adjust the number
of shares of Common Stock (or other securities or property) subject to the
Options, the exercise price with respect to any Options, the Target Prices with
respect to any Options, or all of the foregoing.
(f) LIMITATION ON SALES OF COMMON STOCK. The Employee agrees, for
the benefit of the Company and the Parent, that during the period of his
employment with the Company and at all times thereafter for so long as he shall
beneficially own in the aggregate more than 100,000 shares of Common Stock or
Options and whether or not he is at the time deemed to be an "affiliate" (as
such term is used in Rule 144 under the Securities Act of 1933, as amended) of
the Company, he shall not sell shares of Common Stock in excess of the volume
limitation which from time to time would be applicable to him under Rule
144(e)(1) determined as if he were an affiliate.
(g) REGISTRATION OF SHARES. The Parent shall, as promptly as
practicable following the commencement of the Employee's employment hereunder,
file a registration statement on Form S-8, or any successor to such Form, with
respect to the shares of Common Stock covered by the Options.
4. Expense Reimbursement. During the Term, (i) the Company shall
reimburse the Employee for all reasonable and necessary out-of-pocket expenses
incurred by him in connection with the performance of his duties hereunder, upon
the presentation of proper accounts therefor in accordance with the Company's
policies and (ii) the Company shall pay for the benefit of the Employee all
reasonable and necessary expenses incurred by him in the ordinary and usual
course of business and in accordance with the Company's policies (in any case,
as such policies are adopted from time to time by the Compensation Committee of
the Board of Directors).
5. Benefits.
5.1 Benefit Plans. During the Term, the Employee will be entitled to
participate in all employee benefit plans and programs offered by the Company
(and, to the extent required by applicable law or this Agreement, approved by
the Compensation Committee of the Board of Directors) from time to time to its
employees of comparable seniority, subject to the provisions of such plans and
programs as in effect from time to time.
5.2 Vacation. During the Term, the Employee shall be
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entitled to paid vacation in accordance with Company policy for its executive
employees.
5.3 Life Insurance. During the Term, the Company will provide the
Employee with $2 million term life insurance coverage. The beneficiary of such
policy shall be the Employee's estate or other beneficiary so designated by the
Employee.
5.4 Disability. During the Term, the Company shall provide the
Employee with disability insurance providing the same monthly disability benefit
as provided to the Chief Executive Officer of the Company; provided, however
that the annual expenditure by the Company for disability insurance premiums for
the Employee shall not exceed the annual expenditure by the Company for
disability insurance premiums for the Chief Executive Officer of the Company.
The Company's obligations under Section 6.2 of this Agreement shall be subject
to appropriate reduction for amounts paid to the Employee under disability
insurance during the Disability Salary Continuation Period (as hereinafter
defined), taking into account the tax treatment of such disability insurance
payments.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
Term, the Company shall pay to the estate or other legal representative of the
Employee the salary provided for in Section 3.1 accrued to the date of the
Employee's death and not theretofore paid to the Employee. Rights and benefits
of the estate or other legal representative of the Employee under the benefit
plans and programs of the Company shall be determined in accordance with the
provisions of such plans and programs. Neither the estate or other legal
representative of the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Section 3.4(d).
6.2 Disability. If during the Term the Employee shall become
incapacitated by reason of physical or mental disability and shall be unable to
perform his normal duties hereunder for a cumulative period of six (6) months in
any period of twelve (12) consecutive months, the employment of the Employee
hereunder may be terminated by the Company or the Employee upon notice to the
other. In the event of such termination, subject to Section 5.4 of this
Agreement, the Company shall continue to pay to the Employee the salary provided
for in Section 3.1 (i) if such termination shall occur within one year of the
commencement of the Employee's employment under this Agreement, for one year
from the date of termination of the Employee's employment; or (ii) if such
termination shall occur after the first anniversary of the commencement of the
Employee's employment under this Agreement, for the remainder of the Term (the
applicable period of time during which the Company shall be required to continue
to pay such salary, the "Disability Salary Continuation Period"). Rights and
benefits of the Employee under the benefit plans and
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programs of the Company shall be determined in accordance with the provisions of
such plans and programs. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 3.4(d), 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time during the Term for Due Cause (as
hereinafter defined). In the event of such termination, the Company shall pay to
the Employee the salary provided for in Section 3.1 accrued to the date of such
termination and not theretofore paid to the Employee. Rights and benefits of the
Employee under the benefit plans and programs of the Company shall be determined
in accordance with the provisions of such plans and programs. After the
satisfaction of any claim of the Company against the Employee incidental to such
Due Cause, neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 3.4(d), 7, 8, 9
and 10. For purposes hereof, "Due Cause" shall mean (a) the Employee's gross
negligence or willful misconduct in bad faith in the discharge of his duties and
responsibilities to any member of the Company Group (as defined in Section 9
below), as determined by the Board of Directors of the Company (other than the
Employee if he is a member of such at the time), (b) the Employee's material and
repeated failure to obey appropriate directions from the Chief Executive Officer
of the Company and the Board of Directors of the Company, (C) any willful or
purposeful act or omission of the Employee taken or omitted in bad faith and
intended to materially injure, and which had the effect of materially injuring,
the business or business relationships of any member of the Company Group or (d)
the Employee's conviction or other adjudication of (1) a felony or (2) any crime
or offense involving fraud; provided, however, that the Employee shall be given
written notice by a majority of the Board of Directors of the Company that it
intends to terminate the Employee's employment for Due Cause under this Section,
which written notice shall specify the act or acts upon the basis of which the
majority of the Board of Directors of the Company intends so to terminate the
Employee's employment, and the Employee shall then be given the opportunity,
within fifteen (15) days of his receipt of such notice, to have a meeting with
the Board of Directors of the Company to discuss such act or acts.
6.4 Other Termination by the Company. The Company may terminate the
Employee's employment at any time during the Term for whatever reason it deems
appropriate or without reason; provided, however, that in the event that such
termination is not pursuant to Section 6.1, 6.2 or 6.3, the Company shall
continue to pay to the Employee the salary provided for in Section 3.1 (i) if
such termination shall occur within one year of the commencement of the
Employee's
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employment under this Agreement, for one year from the date of termination of
the Employee's employment; or (ii) if such termination shall occur after the
first anniversary of the commencement of the Employee's employment under this
Agreement, for the remainder of the Term (the applicable period of time during
which the Company shall be required to continue to pay such salary, the "Salary
Continuation Period"). In either case, the Employee shall be required to seek
subsequent employment in good faith and upon obtaining subsequent employment
shall inform the Company that he obtained such employment and to offset any
amounts earned from such subsequent employment (whether as an employee, a
consultant or otherwise) against such salary continuation by the Company. Rights
and benefits of the Employee under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 3.4(d), 7, 8, 9
and 10.
7. Confidential Information.
7.1 The Employee shall, during the Term and at all times thereafter,
treat as confidential and, except as required in the performance of his duties
and responsibilities under this Agreement, not disclose, publish or otherwise
make available to the public or to any individual, firm or corporation any
confidential material (as hereinafter defined). The Employee agrees that all
confidential material, together with all notes and records of the Employee
relating thereto, and all copies or facsimiles thereof in the possession of the
Employee, are the exclusive property of the Company and the Employee agrees to
return such material to the Company promptly upon the termination of the
Employee's employment with the Company.
7.2 For the purposes hereof, the term "confidential material" shall
mean all information acquired by the Employee in the course of the Employee's
employment with the Company in any way concerning the products, projects,
activities, business or affairs of the Company or any member of the Company
Group or the customers of the Company or any member of the Company Group,
including, without limitation, all information concerning trade secrets and the
preparation of raw material for, manufacture of, and/or finishing processes
utilized in the production of, the products or projects of the Company or any
member of the Company Group and/or any improvements therein, all sales and
financial information concerning the Company or any member of the Company Group,
all customer and supplier lists, all information concerning projects in research
and development or marketing plans for any such products or projects, and all
information in any way concerning the products, projects, activities, business
or affairs of customers of the Company or any member of the Company Group which
is furnished to the Employee by the Company or any of its employees (current or
former), agents or customers, as such; provided, however, that the term
"confidential material" shall not include information which (a) becomes
generally available to the public other than as a result of a disclosure by the
Employee, (b) was available to the Employee on a non-confidential basis prior to
his employment with the Company
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or (C) becomes available to the Employee on a non-confidential basis from a
source other than the Company or any of its agents, franchisees, creditors,
suppliers, lessors, lessees or customers provided that such source is not bound
by a confidentiality agreement with the Company or any of such agents or
customers.
8. Inventions. Any and all inventions, innovations or improvements
("inventions") made, developed or created by the Employee (whether at the
request or suggestion of the Company or otherwise, whether alone or in
conjunction with others, and whether during regular hours of work or otherwise)
during the period of his employment with the Company which may be directly or
indirectly useful in, or relate to, the business of the Company, shall be
promptly and fully disclosed by the Employee to the Board of Directors of the
Company and shall be the Company's exclusive property as against the Employee,
and the Employee shall promptly deliver to an appropriate representative of the
Company as designated by the Board of Directors all papers, drawings, models,
data and other material relating to any inventions made, developed or created by
him as aforesaid. The Employee shall, at the request of the Company and without
any payment therefor, execute any documents necessary or advisable in the
opinion of the Company's counsel to direct issuance of patents or copyrights to
the Company with respect to such inventions as are to be the Company's exclusive
property as against the Employee or to vest in the Company title to such
inventions as against the Employee. The expense of securing any such patent or
copyright shall be borne by the Company.
9. Non-Competition. The Employee acknowledges that the services to
be rendered by him to the Company are of a special and unique character. In
consideration of his employment hereunder, the Employee agrees, for the benefit
of the Company, that he will not, during the period of his employment with the
Company and thereafter for the Applicable Period (as hereinafter defined)
commencing on the date of termination of his employment with the Company, (a)
engage, directly or indirectly, whether as principal, agent, distributor,
representative, consultant, employee, partner, stockholder, limited partner or
other investor (other than an investment of not more than (i) one percent (1%)
of the stock or equity of any corporation the capital stock of which is publicly
traded or (ii) five percent (5%) of the ownership interest of any limited
partnership or other entity) or otherwise, anywhere in the United States, in any
activity or business venture which is in competition with the business then
conducted by the Company (presently, the manufacture, merchandising,
distribution and sale of women's clothing), any of its subsidiaries or any of
its corporate parents or affiliates (including, without limitation, Norty's,
Inc. and Norton XxXxxxxxxx, Inc., each a Delaware corporation) (collectively,
the "Company Group"), (b) solicit or entice or endeavor to solicit or entice
away from any member of the Company Group any person who was an officer,
employee or consultant of any member of the Company Group, either for his own
account or for any individual,
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firm or corporation, whether or not such person would commit any breach of his
contract of employment by reason of leaving the service of a member of the
Company Group, and the Employee agrees not to employ, directly or indirectly,
any person who was an officer or employee of any member of the Company Group or
who by reason of such position at any time is or may be likely to be in
possession of any confidential information or trade secrets relating to the
businesses or products of any member of the Company Group, or (C) solicit or
entice or endeavor to solicit or entice away from any member of the Company
Group any customer or prospective customer of any member of the Company Group,
either for his own account or for any individual, firm or corporation. As used
herein, the term "Applicable Period" shall mean, (i) in the case of termination
of employment pursuant to Section 6.4 of the Agreement, the period during which
the Company is obligated to continue to pay salary to the Employee (determined
without regard to the Employee's duty to offset as specified in such Section
6.4), and (ii) in the case of any other termination, three (3) years.
10. Equitable Relief, Etc.
10.1 In the event of a breach or threatened breach by the Employee
of any of the provisions of Sections 7, 8 or 9 of this Agreement, the Employee
hereby consents and agrees that the Company shall be entitled to an injunction
or similar equitable relief from any court of competent jurisdiction restraining
the Employee from committing or continuing any such breach or threatened breach
or granting specific performance of any act required to be performed by the
Employee under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedies
at law or in equity which it may have with respect to any such breach or
threatened breach.
10.2 The Company and the Employee understand and agree that in any
lawsuit or other proceeding between any of them with respect to Sections 7, 8 or
9 hereof, the prevailing party in such lawsuit or proceeding shall be entitled
to recover from the other party in such lawsuit or proceeding, and such other
party hereby agrees to pay such prevailing party, for all costs and expenses,
including attorneys' fees, incurred by such prevailing party in the defense,
prosecution or investigation of the matters which are the subject of such
lawsuit or proceeding.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent
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that the Company would be required to perform if no such succession had taken
place. As used in this Section, the "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law and this Agreement shall be binding upon, and
inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign this
Agreement or any part thereof without the prior written consent of a majority of
the Board of Directors of the Company (other than the Employee if he is a member
of such Board at the time); provided, however, that nothing herein shall
preclude one or more beneficiaries of the Employee from receiving any amount
that may be payable following the occurrence of his legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to contracts to be performed entirely within
such State.
13. Entire Agreement. This Agreement contains all the understandings
and representations between the parties hereto pertaining to the subject matter
hereof. This Agreement supersedes all understandings and agreements, whether
oral or in writing, if any, previously entered into by the Company with the
Employee in any way relating to the employment of the Employee by the Company,
all of which agreements and understandings are hereby terminated and all rights
and entitlements thereunder are hereby waived and released.
14. Amendment, Modification, Waiver. No provision of this Agreement
may be amended or modified unless such amendment or modification is agreed to in
writing and signed by the Employee and by representatives of the Company (other
than the Employee) who have been duly authorized by the Board of Directors of
the Company to do so (other than the Employee if he is a member of such Board at
the time). Except as otherwise specifically provided in this Agreement, no
waiver by either party hereto of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar provision or condition at
the same or any prior or subsequent time, nor shall the failure of or delay by
either party hereto in exercising any
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right, power or privilege hereunder operate as a waiver thereof to preclude any
other or further exercise thereof or the exercise of any other such right, power
or privilege.
15. Notices. Any notice to be given hereunder shall be in writing
and delivered personally or sent by certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at the address indicated
below or at such other address as such party may subsequently designate by like
notice:
If to the Company:
x/x Xxxxxx XxXxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Compensation Committee and
the Chief Executive Officer
If to the Employee:
Xxxxx Xxxxxxxxx
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxxxx, P.C.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
16. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or any breach thereof, shall, except as provided in Section
10, be settled by binding arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in New York, New York. The arbitration
award shall include an award of attorneys' fees and costs to the prevailing
party as determined by the arbitrator.
17. Severability. Should any provision of this Agreement be held by
a court or arbitration panel of competent jurisdiction to be enforceable only if
modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by
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rewriting the offending provision, deleting any or all of the offending
provision, adding additional language to this Agreement, or by making such other
modifications as it deems warranted to carry out the intent and agreement of the
parties as embodied herein to the maximum extent permitted by law. The parties
expressly agree that this Agreement as so modified by the court or arbitration
panel shall be binding upon and enforceable against each of them. In any event,
should one or more of the provisions of this Agreement be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and if such
provision or provisions are not modified as provided above, this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been set forth herein.
18. Authority. The Company represents and warrants to the Employee
that the execution and delivery of this Agreement by the Company and the
performance by the Company of its covenants and agreements hereunder have been
duly authorized by all necessary corporate action and that this Agreement has
been duly executed and delivered on behalf of the Company.
19. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
20. Subsidiaries, etc. The Employee shall be deemed to resign as an
officer and director of any parent, subsidiary or affiliate of the Company upon
termination of his employment under this Agreement.
21. Survivorship. The respective rights and obligations of the
Employee and the Company hereunder shall survive any termination of this
Agreement to the extent necessary to the intended preservation of such rights
and obligations.
22. Titles. Titles of the sections of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
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23. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed to be an original and all of
which taken together shall be deemed one document.
* * *
15
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above written.
NORTON XXXXXXXXXX OF XXXXXX, INC.
By /s/ Xxxxxxx Xxxxxxxxx
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Title: Chief Executive Officer
EMPLOYEE:
/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx
