EXECUTIVE EMPLOYMENT AGREEMENT
10.93c
THIS
EMPLOYMENT AGREEMENT
(the
“Agreement”) is entered into by and between Gene Logic Inc., a Delaware
corporation (the “Company”), and Xxxxx Xxxxxxx (the “Executive”) as of February
1, 2007 (the “Effective Date”).
Executive
has been employed by the Company on an interim basis beginning in 2006. The
Company and the Executive now wish to establish new terms for Executive’s
continuing employment by the Company as described herein.
NOW,
THEREFORE, in consideration of the mutual promises made below, the parties
agree
as follows:
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Employment,
Duties and Acceptance.
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1.1
Employment.
(a) As
of the Effective Date, the Company shall employ the Executive as a Senior Vice
President and General Manager, Genomics, initially reporting to the Chief
Executive Officer (“CEO”) of the Company. In such capacity, the Executive shall
perform such executive and management duties and assume such other
responsibilities as may be assigned from time to time by the individual to
whom
the Executive reports, the CEO or anyone else designated by the CEO. The
Executive accepts such employment and shall perform his duties faithfully and
to
the best of his abilities.
(a)
The
Executive shall devote his full working time and creative energies to the
performance of his duties hereunder and will at all times devote such additional
time and efforts as are reasonably sufficient for fulfilling the significant
responsibilities entrusted to him. So long as such activities, in the aggregate,
do not interfere with the performance by the Executive of his duties hereunder:
(i) the Executive shall be permitted a reasonable amount of time to supervise
his personal, passive investments; and (ii) the Executive shall be permitted
a
reasonable amount of time to participate (as board member, officer or volunteer)
in civic, political and charitable activities.
1.2
Place
of Employment.
The
Executive's principal place of employment shall be at the Company’s headquarters
or other Company facility located in Xxxxxxxxxx, Xxxxxx and/or Xxxxxxxxx
counties within the state of Maryland specified by the individual to whom the
Executive reports, or as otherwise mutually agreed by the parties, subject
to
such travel as may be reasonably required by his employment pursuant to the
terms hereof. The Executive shall not be required to relocate outside of this
area during the Term unless the Executive so agrees and Company provides
relocation benefits reasonably acceptable to the Executive.
2.
Term
of Employment.
The
Executive’s term of employment with the Company (the “Term”) shall commence on
the Effective Date and continue thereafter on an at-will basis until terminated
by either party pursuant to Section 4, subject to certain rights upon
termination as provided in Section 4. If Executive’s employment hereunder with
the Company is terminated by the Executive or by the Company, Executive shall
thereby be removed from, and Executive agrees to resign immediately from, all
other positions with the Company and its affiliates and subsidiaries
(collectively the “GLGC Group”).
3.
Compensation.
3.1
Salary.
As
compensation for all services to be rendered pursuant to this Agreement, the
Company shall pay to the Executive during the Term a salary at the rate of
$300,000 per annum (the “Base Salary”) less such deductions as shall be required
to be withheld by applicable tax and other laws and regulations or as otherwise
authorized by the Executive. The Base Salary shall accrue from and after the
Effective Date, and shall be payable during the Term, to date in equal periodic
installments, not less frequently than semi-monthly. The Executive’s Base Salary
shall be reviewed annually and may be increased based upon various factors,
including the evaluation of the Executive’s performance and the compensation
policies of the Company in effect at the time of each such review. The Base
Salary shall be prorated for the first calendar year of employment and for
any
other year in which Executive is not employed by the Company for the entire
year
based on the portion of the year in which Executive is employed on a full-time
basis by the Company.
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3.2
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Incentive
compensation.
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3.2.1
Executive
will be eligible to participate in a special incentive compensation plan
established by the Compensation Committee of the Board (the “Compensation
Committee”). Payment of incentive compensation under this plan will be
contingent on achieving certain strategic goals as determined by Gene Logic’s
CEO. The incentive compensation target for Executive for the Company’s fiscal
year 2007 in this special incentive compensation plan will be 67% of the Base
Salary specified in Section 3.1 of this Agreement, for a full calendar year,
less applicable withholding. Such incentive compensation will be paid within
ten
(10) business days of the Executive completing the fulfillment of the strategic
goals.
3.2.2
If
the
Company changes its plans in such a way that the strategic goals set for
Executive are no longer feasible,, the CEO and the Executive will make a
reasonable effort to agree on a substitute incentive compensation program based
on the Company’s revised plans, with new target incentive compensation and new
goals, but no such substitute incentive compensation program shall be effective
unless approved in writing by Company and Executive.
3.2.3
If
Executive is entitled to an incentive compensation payment as described herein,
such payment shall be in lieu of, and Executive shall not be entitled to, the
payments and other benefits described in Section 4.7(a) (i) upon Termination
Without Cause, however the incentive compensation payment cannot be made in
lieu
of payments and benefits under Section 4.7(a) (i) should Executive not meet
the
strategic goals described above. .
3.3
Intentionally
left blank
3.4
Participation
in Benefit Plans.
The
Executive shall be permitted during the Term, to the extent eligible, to
participate in any group life, medical, dental, vision, or disability insurance
plans, accidental death and dismemberment plan, flex-benefit plan, 401(k) plan,
or similar benefit plans of the Company which may be available generally to
other senior executives of the Company, but nothing herein shall prevent the
Company from changing such benefits from time to time.
3.5
Paid
Time Off.
From and
after the Effective Date, the Executive shall accrue and may use paid time
off
(“PTO”) in accordance with the Company’s current policies. PTO accruing in any
year in which Executive is not employed by the Company for the entire year
shall
be prorated based on the portion of the year in which Executive is employed
by
the Company.
3.6
Holidays.
The
Executive shall be eligible for holidays in accordance with the Company’s policy
and schedule.
3.7
Expenses.
In
accordance with the Company’s policies, the Executive will be reimbursed for all
ordinary, necessary and reasonable business expenses (including, without
limitation, travel, meetings, dues, subscriptions, fees, educational expenses,
and expenses incurred for operation of mobile telephones,) actually incurred
or
paid by the Executive during the Term in the proper performance of the
Executive's services under this Agreement, upon presentation of expense
statements or vouchers or such other supporting information as the Company
may
reasonably require.
3.8
Tax/Financial
Planning.
The
Executive shall be reimbursed in an amount not in excess of $5,000 in the
aggregate per year for tax return preparation and certain financial planning
advice in accordance with the Company’s policies.
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3.9.
Exclusion
from Change of Control.
In
consideration of the specific terms herein, Company and Executive have agreed
that Executive shall be excluded from the Company’s Executive Severance Plan,
notwithstanding the language of such plan, and shall not be entitled to any
payments benefits or other rights thereunder.
3.10
Withholding.
The
Company is authorized to withhold from the amount of any Base Salary and
incentive compensation and any other payments or benefits paid or provided
to or
for the benefit of the Executive, all sums authorized by the Executive or
required to be withheld by law, court decree, or executive order, including
(but
not limited to) such things as income taxes, employment taxes, and employee
contributions to fringe benefit plans sponsored by the Company.
4.Termination.
4.1
General.
The
employment of the Executive hereunder may be terminated as provided in this
Section 4.
4.2
Termination
upon Mutual Agreement.
The
Company and the Executive may, by mutual written agreement, terminate this
Agreement and/or the employment of the Executive at any time.
4.3
Death
or Disability of Executive.
(a)
The
employment of the Executive hereunder shall terminate upon (i) the death of
the Executive, and (ii) at the option of the Company upon not less than
thirty (30) days prior written notice to the Executive or his personal
representative or guardian, if the Executive suffers a Total Disability (as
defined in Section 4.3(b)
below).
(b)
For
purposes of this Agreement, “Total Disability” shall mean (i) if the
Executive is subject to a legal decree of incompetency (the date of such decree
being deemed the date on which such disability occurred), or (ii) the
written determination by a physician selected by the Company that, because
of a
medically determinable disease, injury or other physical or mental disability,
the Executive is substantially unable to perform his essential duties, without
reasonable accommodation, and that such disability has lasted for the
immediately preceding ninety (90) days and is, as of the date of determination,
reasonably expected to last an additional ninety (90) days or longer after
the
date of determination. If requested by the Company, Executive agrees to appear
at a medical examination by a physician selected by the Company and to furnish
to such physician such medical information as is needed for a determination
under this Section
4.3(b).
Nothing
in this provision is intended to restrict rights or obligations under the
Americans with Disabilities Act or other applicable law.
(c)
Any
leave
on account of illness or temporary disability which is short of Total Disability
shall not constitute a breach of this Agreement by the Executive and in no
event
shall any party be entitled to terminate this Agreement for Cause (as defined
below) due to any such leave. All physicians selected hereunder shall be Board
certified in the specialty most closely related to the nature of the disability
alleged to exist.
4.4
Termination
For Cause.
The
Company may, upon action of the Board, and upon written notice to the Executive
specifying in reasonable detail the reason therefore, terminate the employment
of the Executive at any time for Cause (as defined in Attachment A); provided,
however, that if the reason for termination for Cause is susceptible of cure
as
determined by the Company, the Executive shall have a period of fifteen (15)
business days after such written notice to effect a cure satisfactory to the
Company.
4.5
Termination
Without Cause.
The
Company may also terminate the employment of the Executive without Cause upon
30
days advance written notice to the Executive, which termination shall constitute
a “Termination Without Cause”. Termination without Cause shall not include a
termination due to death or Total Disability.
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4.6
Termination
by Executive.
The
Executive may resign (and thereby terminate his employment under this Agreement)
at any time, by giving the Company not less than thirty (30) days’ prior written
notice to the Company, but the Company after receipt of such notice, may waive
all or part of such notice period.
4.7
Payments
Upon Termination.
(a)
(i)If
Executive’s employment is terminated by the Company without Cause, unless
Executive has achieved the strategic goals and is entitled to the incentive
compensation as described in Section 3.2, the Company shall pay the Executive:
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Twelve
(12) months’ Base Salary, payable in a single lump sum within fifteen (15)
days after receipt of the signed release described in subsection
(b) below
and expiration of any period allowed for revocation of that release.
This
amount is in addition to and not in lieu of Base Salary for the period
prior to termination of employment made to fulfill any requirement
under
the Agreement for prior notice of termination of up to 31 days or
pay in
lieu thereof.
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Direct
payment by the Company of that portion of group health insurance
premium
for post-employment coverage (including without limitation medical,
dental
and vision coverage) for which Executive is eligible, and which the
Executive timely elects under COBRA because of his prior employment
by
Company, equal to the percentage of the premium that Company was
paying as
of the last day of Executive’s employment by Company, for a period equal
to the lesser of (x) twelve (12) months or (y) until Executive becomes
eligible for coverage under a new employer’s group health plan. Such
direct payment will also include coverage for any dependents of Executive
who are eligible for, and timely elect, coverage under COBRA for
the same
period as Executive equal to the percentage of the premium for dependent
coverage that Company was paying as of the last day of Executive’s
employment by Company. Such direct payment is for a period that is
part
of, and not in addition to, the total period of eligibility for
continuation of health insurance benefits to which Executive, and/or
the
covered dependents, are entitled under COBRA.
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To
maintain Executive’s right to continue the group health insurance as
described above, the Executive (and, if applicable, covered dependents)
must pay to the Company the Executive’s (and, if applicable, covered
dependents) portion of the COBRA premium (i.e. that portion that
the
Company is not required to pay) no later than the first of each month
for
which COBRA coverage is continued, so that Company may forward such
portion with the portion paid by Company. In the alternative, Company
may
require Executive to forward the Executive’s share of the COBRA premium
directly to the party to whom the insurance premium is due no later
than
the first of each month for which COBRA coverage is continued.
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Outplacement
services paid for and through a program and vendor selected by Company
and
at a level appropriate for an executive for a period not to exceed
six (6)
months, and in no event costing more than twenty thousand dollars
($20,000.00), to be used and completed within twelve (12) months
after
termination of employment, unless otherwise agreed in writing by
Company,
but in no event later than the end of the second calendar year following
the year of termination. Executive may not elect any payment in lieu
of
such outplacement services and such services will only become available
after any release required under subsection (b) below is signed and
the
revocation period specified therein has been completed without revocation.
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Any
payments to be made and any benefits to be provided under this Section
4.7 will
be conditioned upon execution by Executive of a comprehensive and
full
release of all claims arising from or connected with his employment
by the
Company in substantially the form as attached hereto in Exhibit
B,
with any changes required by subsequent changes in the law or Company
practice or otherwise mutually agreed (excluding from any such release
any
rights Executive may have to (x) indemnification or to insurance
coverage
with respect to his actions while employed by the Company, whether
by
contract, under Directors and officers or other insurance maintained
by
the Company or under the Company’s indemnification policies and applicable
law concerning indemnification and (y) coverage at the Executive's
expense
under applicable heath care policies to the extent Executive is entitled
to continued coverage under COBRA). Such release shall be presented
to
Executive as soon as is practicable and in any event no later than
ten
(10) days following Executive's termination of employment. The release
must be signed and returned to Company by Executive no later than
twenty-one (21) days after Executive's receipt of the release, or
such
longer time limit stated in the release, and must not be revoked
within
the period allowed for revocation as stated in the release in order
for
Executive to become entitled to the severance and other benefits
hereunder
and, except as otherwise specifically required by law and notwithstanding
any thing herein to the contrary, no payments or benefits available
under
this Section 4.7(a) shall be paid or provided to Executive until
the
expiration, without revocation, of such revocation
period.
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Notwithstanding
the above, the severance and benefits provided hereunder shall be
paid or
provided to Executive no earlier than the earliest date upon which
such
severance and benefits can be paid without subjecting the Executive
to the
additional tax imposed by Code Section 409A(a)(1), if applicable.
The
parties agree that this Agreement shall be amended to the extent
necessary
such that, under final regulations to be issued under Code Section
409A,
none of the payments or benefits to be provided hereunder are subject
to
the additional tax imposed by Code Section 409A(a)(1).
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ii)
The
Company shall have no further liability to the Executive pursuant to this
Agreement, including, without limitation, any obligation or liability to pay
the
Executive any severance, incentive compensation or any other compensation,
in
the event of termination by the Company in a Termination Without Cause except
as
set forth in this Section
4.7 (a).
(b)If
the
Executive’s employment is terminated (i) by the Company for Cause, or (ii) by
the Executive, then the Company shall have no duty to make any payments or
provide any benefits to the Executive pursuant to this Agreement other than
payment of the amount of the Executive’s Base Salary and benefits accrued
through the date of termination of his employment.
(c)Upon
termination of Executive's employment for death or Total Disability, the Company
shall pay to the Executive, or to his guardian or personal representative,
as
the case may be, in addition to any insurance or disability benefits to which
he
may be entitled under applicable insurance and benefit programs contemplated
by
Section 3.4 and then in effect, all amounts accrued or vested prior to such
termination;. Except for the amounts described in the preceding sentence, the
Company shall have no further liability to the Executive, guardian or personal
representative pursuant to this Agreement, including, without limitation, any
liability to pay the Executive, guardian or personal representative any
severance, incentive compensation or any other compensation.
5.Certain
Covenants of the Executive.
5.1
Necessity
for Covenants.
The
Executive acknowledges that (i) the GLGC Group (as defined below) is
engaged and will in the future be engaged in the Business as described in this
Agreement; (ii) his employment pursuant to this Agreement will give him
access to customers and suppliers of the GLGC Group; (iii) his employment will
give him access to confidential information and other trade secrets concerning
the GLGC Group’s products, services and the Business and (iv) the
agreements and covenants contained in this Section 5
are
essential to protect the business and goodwill of the GLGC Group. To induce
the
Company to enter into this Agreement and pay the compensation and other benefits
at the levels requested by the Executive, the Executive enters into the
following covenants:
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5.2
Definitions.
(a)“Business”
for purposes of this Article 5 shall mean the provision or licensing by the
GLGC
Group of genomic information and bioinformatics products and services to the
pharmaceutical and biotechnology industry and the provision of drug
repositioning services to pharmaceutical companies and other third parties.
The
Business includes biosample collection, handling and processing, genomic data
production, and data management and software systems development, to create
a
broad range of gene expression-based information solutions that facilitate
the
drug discovery and development process, and any other products and services
offered from time to time after the Effective Date and prior to the Termination
Date by the GLGC Group as described in its annual and quarterly reports filed
with the Securities and Exchange Commission. [
(b)
“GLGC
Group”
for
purposes of this Article
5
shall
include the Company, and all of its wholly or majority owned subsidiaries and
affiliates and successors and assigns of any of the foregoing.
(c)
“Business
Contact”
shall
mean any (i) customer which has purchased goods or services provided by the
GLGC Group during the Term, (ii) prospective customer whom the Executive or
persons working for or directly with the Executive has contacted during the
Term
for the purpose of endeavoring to sell the goods or services of the GLGC Group
to the prospective customer, or (iii) provider of material amounts of goods
or services to the GLGC Group.
(d)
“Service
Area”
means
the entire world.
(e)
“Term”
means
the term of employment as specified in Section 2 hereof
5.3
Restrictive
Covenants.
5.3.1
Restrictions.
During
the Term and for a period of six (6) months, or in the case of subsection (b)
below twelve (12) months, after the date (the “Termination Date”) the
Executive's employment hereunder is terminated (the “Restricted Period”)
regardless of whether such termination is voluntary or involuntary, with or
without Cause or by resignation, the Executive shall not, without the Company’s
prior written consent, directly or indirectly, for him or on behalf of any
other
person, firm, corporation or other entity, whether as a principal, agent,
employee, stockholder, partner, officer, member, adviser, consultant, director,
sole proprietor, or otherwise:
(a)
call
upon
or solicit any Business Contact for the purpose of persuading the Business
Contact to engage the Executive or any other person, firm, corporation or other
entity to provide goods or services which are the same as or similar to those
the GLGC Group provided or proposed to provide to the Business Contact or to
engage the Business Contact to provide goods or services which are the same
as
or similar to those the Business Contact provided to the GLGC Group to any
other
person, firm, corporation or other entity;
(b)
unless
otherwise consented to in writing by Company as to solicitation of any named
individual employee, solicit, participate in or promote the solicitation of
any
person who is employed by the GLGC Group at any time during the Term to leave
the employ of the GLGC Group, or hire or engage or assist anyone to hire or
engage any of those persons, provided that after the Termination Date, this
shall only apply to individuals who were employees of GLGC during the 30 day
period immediately preceding the Termination Date;
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(c)
interfere
in any way with the GLGC Group's business, prospects or personnel;
or
(d)
render
services (other than services unrelated to the Business) to, or become
affiliated with, any person, company or other entity engaged in any business
that competes with the Business within the Service Area, directly or indirectly,
in any capacity; provided, however, that the Executive may own, directly or
indirectly, solely as an investment, securities which are publicly traded if
the
Executive (a) is not a controlling person of, or a member of a group which
controls, the issuer and (b) does not, directly or indirectly, own 5% or
more of any class of securities of the issuer.
5.3.2
Exclusions
from Restrictions.
The
restrictions of Section 5.3(a) and (c) shall not apply to Executive when he
is
acting on behalf of any successor to any part of the Company’s genomics business
that Company voluntarily transfers to such successor.
5.3.3
Severability
of Covenants.
The
Executive acknowledges and agrees that the Restrictive Covenants are reasonable
and valid in geographical and temporal scope and in all respects. If any court
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall
not
thereby be affected and shall be given full effect, without regard to the
invalid portions.
5.3.3
Blue-Penciling.
If any
court determines that any of the Restrictive Covenants, or any part thereof,
is
unenforceable because of the duration or geographic scope of such provision,
such court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable and shall be enforced. If any such court declines to so
revise such covenant, the parties agree to negotiate in good faith a
modification that will make such duration or scope enforceable.
5.4
Rights
and Remedies Upon Breach.
If the
Executive breaches, or threatens to commit a breach of, any of the provisions
of
Section
5.3
(the
“Restrictive Covenants”), the Company shall, in addition to its right
immediately to terminate this Agreement for Cause, have the right and remedy
(which right and remedy shall be independent of others and severally
enforceable, and which shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company under law or in equity) to have
the
Restrictive Covenants specifically enforced by any court having jurisdiction,
it
being acknowledged and agreed that any such breach or threatened breach could
cause irreparable injury to the Company and that money damages may not provide
an adequate remedy to the Company.
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Representations
of Executive.
The
Executive represents and warrants that: (a) his employment by the Company will
not (i) violate any non-disclosure agreements, covenants against competition,
or
other restrictive covenants or agreements made by the Executive with, to or
for
the benefit of any previous employer or partner, or (ii) violate or constitute
a
breach or default under, any statute, law, judgment, order, decree, writ,
injunction, deed, instrument, contract, lease, license or permit to which the
Executive is a party or by which the Executive is bound; (a) there is no
litigation, proceeding or investigation of any nature (either civil or criminal)
which is pending or, to the best of the Executive's knowledge, threatened
against or affecting the Executive or which would adversely affect his ability
to substantially perform the duties herein; and (b) he has received or been
given the opportunity to review the provisions of this Agreement, and the
meaning and effect of each provision, with independent legal counsel of the
Executive's choosing.
7.Proprietary
Information and Inventions Agreement.
As a
condition to his employment by the Company, the Executive agrees to be bound
by
the provisions set forth in the Company’s Proprietary Information and Inventions
Agreement, which he signed on 21 June 2006, and which is expressly incorporated
by reference hereto.
8.Dispute
Resolution.
8.1Arbitration
Policy.
Subject
to the Company’s right to seek injunctive or other equitable relief as specified
in Section 5.4 of this Agreement or in the Proprietary Information and
Inventions Agreement, the Parties agree that arbitration is the required and
exclusive forum for the resolution of any and all disputes between them,
including claims arising under statute, common law, or this Agreement. This
mandatory arbitration provision includes without limitation any claims or
actions under Title VII of the Civil Rights Act of 1964, the Civil Rights Act
of
1866 (“Section 1981”), the Americans with Disabilities Act, the Family and
Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor
Standards Act, the Equal Pay Act, the Employee Retirement Income Security Act,
and any other federal, state or local statute, law or regulation regarding
employment, employment discrimination, terms and conditions of employment,
compensation or termination of employment. This mandatory arbitration provision
includes any dispute between the Executive and the Company or its parents,
subsidiaries and affiliates, and its and their current and former officers,
directors, employees and agents.
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Any
covered dispute must be submitted to arbitration in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association. Any such arbitration will be conducted in Xxxxxxxxxx County,
Maryland, and will be decided in accordance with and determined by the laws
of
the State of Maryland and/or applicable federal law. The Executive specifically
agrees that the Company may seek specific performance of this provision, as
well
as other injunctive relief, from the state or federal courts in Maryland. The
arbitrator shall not have the authority to award punitive damages, costs or
attorneys’ fees to either Party except where expressly provided for by the
applicable law.
Except
as
otherwise provided by applicable law, the administrative costs of the
arbitration (filing fees, cost for the arbitration site, other AAA fees,
arbitrator’s fee) shall be divided equally between the parties. The fees and
expenses of any witness shall be paid by the Party requiring the presence of
such witness. Each Party shall bear its own costs and expenses in all other
respects. The resolution of any dispute achieved through such arbitration shall
be final and binding and enforceable by a court of competent
jurisdiction.
8.2
No
Jury Trial.
NEITHER
PARTY SHALL ELECT A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT.
8.3
Personal
Jurisdiction.
Both
parties agree to submit to the jurisdiction and venue of the state courts in
Xxxxxxxxxx County, Maryland as to matters involving enforcement of this
Agreement, including any award under an arbitration proceeding.
9.Other
Provisions.
9.1
Notices.
Any
notice or other communication required or which may be given hereunder shall
be
in writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission, sent by nationally recognized overnight courier service
such as FedEx or UPS or sent by certified, registered or express mail, postage
paid, and shall be deemed given when so delivered personally, telegraphed,
telexed or sent by facsimile transmission or, if sent by courier on the second
business after delivery by the courier service or, if mailed, four days after
the date of mailing, as follows:
(a)if
to the
Company, to:
Gene
Logic, Inc.
00
Xxxx
Xxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Chief Executive Officer
with
copies to:
Xxxxx
Xxxxxxx, Esquire
Venable,
Baetjer, Xxxxxx and Xxxxxxxxx, LLP
000
0xx
Xxxxxx, XX
Xxxxxxxxxx,
XX 00000
(b)if
to the
Executive, to:
18605
Shadow Ridge Terrace
Olney,
MD.
20832
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Any
party
may by notice given in accordance with this Section to the other party designate
another address or person for receipt of notices hereunder.
9.2
Entire
Agreement.
This
Agreement and the Company’s Proprietary Information and Inventions Agreement
incorporated by Section 7 contain the entire agreement between the parties
with
respect to the subject matter and for the Term hereof and supersedes all prior
agreements and understandings, written or oral, with respect thereto. Prior
agreements between the Executive and the Company for services for periods prior
to the Term are not affected by this Agreement.
9.3
Waivers
and Amendments.
This
Agreement may be amended, modified, superseded, canceled, renewed or extended,
and the terms and conditions hereof may be waived, only by a written instrument
signed by the Executive and a duly authorized officer of the Company (each,
in
such capacity, a party) or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power
or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on
the part of any party of any right, power or privilege hereunder, nor any single
or partial exercise of any right, power or privilege hereunder, preclude any
other or further exercise thereof or the exercise of any other right, power
or
privilege hereunder.
9.4
Governing
Law.
This
Agreement has been negotiated and is to be performed in the State of Maryland,
and shall be governed and construed in accordance with the laws of the State
of
Maryland applicable to agreements made and to be performed entirely within
such
State.
9.5
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
9.6
Intentionally
Omitted
9.7
Word
Forms.
Whenever
used herein, the singular shall include the plural and the plural shall include
the singular. The use of any gender or tense shall include all genders and
tenses.
9.8
Headings.
The
Section headings have been included for convenience only, are not part of this
Agreement, and are not to be used to interpret any provision
hereof.
9.9
Binding
Effect and Benefit.
This
Agreement shall be binding upon and inure to the benefit of the parties, their
successors, heirs, personal representatives and other legal representatives.
This Agreement may be assigned by the Company to any entity that buys
substantially all of the Company's assets or to any affiliate of the Company
with the consent of the Executive that shall not be unreasonably withheld.
However, the Executive may not assign this Agreement without the prior written
consent of the Company.
9
9.10
Separability.
The
covenants contained in this Agreement are separable, and if any court of
competent jurisdiction declares any of them to be invalid or unenforceable,
that
declaration of invalidity or unenforceability shall not affect the validity
or
enforceability of any of the other covenants, each of which shall remain in
full
force and effect.
IN
WITNESS
WHEREOF, the parties, intending to be legally bound, have executed this
Agreement as of the last date of signature below.
|
By:
/s/
Xxxx Xxxxxxx
Xxxx Xxxxxxx, Chief Executive Officer
Date:
February
26, 2007
|
EXECUTIVE:
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
Date:
February
23, 2007
|
10
Attachment
A
Definition
of "Cause"
"Cause"
shall mean
|
(i)
|
commission
of an act or omission which the Company determines would constitute
a
felony, or that would constitute a misdemeanor that, in the Company’s
reasonable opinion, could have a material adverse effect on the Company's
business, financial condition, prospects or reputation or the Executive's
performance of his duties, under the laws of the United States or
of any
state or a crime involving moral turpitude, including, but not limited
to,
fraud, theft, embezzlement or any crime that results in or is intended
to
result in personal enrichment at the expense of the
Company;
|
|
(ii)
|
material
breach by the Executive of any written agreement entered into between
the
Executive and the Company;
|
|
(iii)
|
willful
misconduct by the Executive or gross negligence of the Executive
which
could have a material adverse impact on the Company;
|
|
(iv)
|
a
material failure of the Executive in the performance of the Executive’s
duties provided that, if susceptible of cure as determined by the
Company,
notice is provided and Executive does not cure such failure within
fifteen
(15) business days after the date of such notice in a manner reasonably
satisfactory to the Company;
|
|
(v)
|
the
violation by the Executive of the restrictive covenants in Section
5.3
hereof or the provisions of the Proprietary Information and Inventions
Agreement; or
|
|
(vi)
|
engagement
in any activity that constitutes a material conflict of interest
with the
Company, unless such activity is disclosed to senior management of
the
Company and agreed to by the
Company.
|
With
respect to any criminal act falling under (i) above, the Company may base such
a
determination on facts available to it or on an arrest or charges by an
appropriate government authority and may, at its option, suspend the Executive
without pay in lieu of immediate termination in the event of any criminal
charges, pending additional information, criminal conviction or other
action.
11
