EXHIBIT 10.38
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July 14, 1998, by and between
Programmer's Paradise, Inc., a Delaware corporation with offices at 0000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 000000-0000 (the"Corporation"), and
Xxxxxxx X. Xxxxxxx, an individual residing at 000 Xxxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Executive").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. Employment. The Corporation hereby agrees to employ the Executive in an
executive capacity, and the Executive hereby accepts and agrees to such
employment, commencing as of the date hereof, upon the terms and conditions
hereinafter set forth.
2. Term. The term of the Executive's employment under this Agreement shall
commence as of the date hereof and shall continue until the close of business on
January 15, 2000, and shall automatically be renewed for twelve (12) months
thereafter unless either party gives the other at least three (3) months prior
written notice of termination, unless sooner terminated as provided elsewhere in
this Agreement (the "Term").
3. Duties and Services. The Executive agrees to serve the Corporation as
Chairman of the Board, President and Chief Executive Officer of the Corporation
and shall also serve such of its subsidiaries and affiliated companies as may be
designated by the Corporation, faithfully, diligently and to the best of his
ability, subject to and under the direction and control of the Board of
Directors of the Corporation, devoting his entire business time, energy and
skill to such employment, and to perform from time to time such executive
services, advisory or otherwise, as the Board of Directors shall request, and to
act in such capacities or other offices for the Corporation and for any of its
subsidiary or affiliated companies as the Board of Directors shall request
without further compensation other than that for which provision is made in this
Agreement.
4. Compensation. (a) The Corporation agrees to pay to the Executive, and
the Executive agrees to accept, a basic salary for all his services (the
"Salary") at the rate of $225,000 per annum, payable in accordance with the
Corporation's standard payroll policies from time to time.
(b) On the morning of July 24, 1998, the Executive shall be granted
options to purchase 200,000 shares of Common Stock of the Corporation under the
Corporation's 1995 Stock Plan, at an exercise price equal to the fair market
value on the date of grant ("FMV"), 100,000 of which shall vest (subject to
continued employment) in twelve (12) equal tranches on the first day of each
month beginning on the first day of the first month after the date hereof, and
an additional 100,000 of which shall vest (subject to continued employment) in
six (6) equal tranches
on the first day of each month beginning with the month after the expiration of
such twelve-month period, and shall be subject to acceleration in the event of a
Change of Control (as hereinafter defined), and shall also be subject to the
terms and conditions of the applicable option grant agreement and of the 1995
Stock Plan.
(c) If there shall be a Change or Control prior to the termination of
the employment period, the Corporation agrees to pay to the Executive a bonus
equal to the amount, if any, by which (x) the product of the value per share
received by shareholders of the Corporation in connection with such Change of
Control, times 50,000, exceeds (y) the FMV (as defined above) of 50,000 shares
of Common Stock of the Corporation as of July 24, 1998.
(d) For purposes hereof, a "Change of Control" shall be deemed to have
occurred in the event of any of the following (i) any person or entity makes a
tender or exchange offer for shares of the Corporation's Common Stock pursuant
to which such person or entity acquires a majority of the issued and outstanding
shares of the Corporation's Common Stock, (ii) the Corporation merges or
consolidates with or into another corporation or corporations, unless
immediately after such merger or consolidation those persons and entities who
immediately prior to such transaction were stockholders of the Corporation are
entitled to vote in the election of directors, or otherwise have the right to
elect, a majority of the directors of the surviving Corporation, (iii) the
Corporation sells, transfers or otherwise disposes of all of substantially all
of its assets, other than to a direct or indirect subsidiary, (iv) any person or
entity acquires a majority of the Corporation's issued and outstanding voting
securities and shall be entitled to vote in the election of directors, or
otherwise have the right to elect, a majority of the directors of the
Corporation, or (v) pursuant to paragraph 13(b) of the Corporation's 1995 Stock
Plan, the date of exercise of options granted thereunder shall be accelerated.
(e) If the Executive shall be employed by the Corporation on January
15, 2000, then, within thirty (30) days after such date, the Corporation agrees
to pay to the Executive a performance bonus equal to the amount, if any, of the
product of (x) 50,000 and (y) the amount, if any, by which (1) the FMV of a
share of Common of the Corporation on January 15, 2000 exceeds the FMV of a
share of Common Stock of the Corporation on July 24, 1998.
5. Employee Benefits. (a) The Corporation shall reimburse the Executive for
the reasonable business expenses incurred by him for or on behalf of the
Corporation in furtherance of the performance of his duties hereunder. Such
reimbursement shall be subject to receipt by the Corporation from the Executive
of such an expense statements and such vouchers and other reasonable
verifications as the Corporation shall require to satisfactorily evidence such
expenses, and shall also be subject to such policies as the Corporation shall
establish from time to time.
(b) The Executive shall be entitled to participate, in accordance with
the terms thereof, in employee benefit plans and programs maintained for the
executives of the Corporation, including, without limitation, any health,
hospitalization and medical insurance programs and in any pension or retirement
or other similar plans or programs. The foregoing shall not be construed to
require the Corporation to establish any such plans or programs, or to prevent
the Corporation from modifying or terminating any such plans or programs once
established.
-2-
(c) The Executive shall be entitled to six (6) weeks of vacation each
employment year during the term of this Agreement, taken consecutively or in
segments, subject to the effective discharge of the duties of the Executive
hereunder.
(d) During the term of the Executive's employment hereunder, the
Corporation shall afford the Executive the use of a [full-size] automobile,
chosen by the Executive and reasonably satisfactory to the Corporation, and a
cellular telephone. The Corporation shall bear the cost of maintaining the
automobile in good and efficient working order and repair, shall be responsible
for normal upkeep thereof and shall bear the cost of incidental operating
expenditures such as gasoline, oil and tires. The Corporation further agrees to
secure and pay for insurance of such type and in such amounts as the Corporation
may deem appropriate, such insurance coverage to include liability coverage for
the benefit of the Executive. The Corporation shall also bear the cost of a
service contract for the cellular telephone, as well as all monthly charges and
charges in respect of calls incident to the performance of the duties of the
Executive and tax and related charges.
(e) The Executive shall be entitled to use the Corporation's New
Jersey apartment as his residence, unless and until the Executive moves to a
location within a reasonable commuting distance from the offices of the
Corporation; provided that the Executive shall not be required to so relocate.
6. Termination of Benefits. (a) Notwithstanding anything to the contrary
contained herein, the Executive's employment with the Corporation, as well as
the Executive's right to any compensation which thereafter otherwise would
accrue to him hereunder or in connection therewith, shall terminate upon the
earliest to occur of the following events:
(i) the death or disability (as defined below) of the Executive,
(ii) the expiration of the Term of this Agreement,
(iii) the Executive's termination of such employment, or
(iv) upon delivery of written notice, with or without "cause" (as
defined below), to the Executive from the Corporation of such termination.
(b) For the purpose of this Section 6, (i) the term "cause" is defined
as (A) the commission by the Executive of a felony or an offense involving moral
turpitude, the Executive's engaging in theft, embezzlement, fraud, obtaining
funds or property under false pretenses, or similar acts of misconduct with
respect to the property of the Corporation or its employees, stockholders,
affiliates, customers, licensees, licensors or suppliers, (B) the repeated
failure by the Executive to perform his duties hereunder or comply with
reasonable policies or directives of the Board of Directors of the Corporation,
or (C) the breach of this Agreement or the Conditions of Employment by the
Executive in any material respect, and (ii) the Executive shall be deemed
"disabled" if, at the Corporation's option, it gives notice to the Executive or
his representative that due to a disabling mental or physical condition, he has
been prevented, for a continuous period of 90 days during the
-3-
Term or for an aggregate of 120 days during any six month period during the
Term, from substantially performing those duties which he was required to
perform pursuant to the provisions of this Agreement prior to incurring such
disability.
(c) In the event of and upon the termination by the Corporation of the
employment of the Executive under this Agreement without "cause" or the giving
by the Corporation of notice of non-renewal of this Agreement pursuant to
Section 2, in addition to the Salary and other compensation (including cash and
stock bonuses, incentive and performance compensation) earned hereunder and
unpaid or not delivered through the date of termination and any benefits
referred to in Section 5(b) hereof in which the Executive has a vested right
under the terms and conditions of the plan or program pursuant to which such
benefits were granted (without regard to such termination), (i) the Corporation
shall pay the Executive a cash payment (the "Severance Payment") equal to
$112,500, (ii) all stock options and stock awards shall vest and become
exercisable immediately prior to termination and remain exercisable through
their original terms with all rights, (iii) the Corporation shall pay the
Executive, within thirty (30) days after the date of termination of such
employment, the performance bonus contemplated by Section 4(e) above, based on
the difference between the FMV of shares of Common Stock of the Corporation as
of the date of such termination and as of July 24, 1998 and (iv) the Executive
shall be entitled to purchase the automobile used by him, as contemplated by
Section 5(d) hereof, at the "buy-out" price of any lease of the Corporation with
respect to such automobile, or if such automobile shall be owned by the
Corporation, at the fair market value of such automobile as of the date of
payment. In the event of termination of this Agreement by the Corporation by
reason of the death or disability of the Executive, the Corporation shall not be
obligated to make the Severance Payment to the Executive if the Corporation
provided the Executive with life insurance or disability insurance, as the case
may be, payable to one or more beneficiaries designated by the Executive at the
time of his death or disability in an amount providing to the Executive a
benefit at least equal thereto. After termination of employment for any reason
other than death of the Executive, the Corporation shall continue to provide all
benefits subject to COBRA at its expense for the maximum required COBRA period.
The Severance Payment shall be paid to the Executive or his estate in [six (6 )
consecutive, equal monthly installments, on the fifteenth day of each calendar
month commencing during the month next following the month in which the
Executive is no longer employed by the Corporation], and shall be in lieu of any
other claim to severance or similar payments or benefits which the Executive may
otherwise have or make. Without limiting any other rights or remedies which the
Corporation may have, it is understood that the Corporation shall be under no
further obligation to make any such severance payments and shall be entitled to
be reimbursed therefor by the Executive or his estate if the Executive violates
any of the covenants set forth in the Conditions of Employment attached as
Exhibit A hereto. In the event that the Severance Payment shall become payable
to the Executive, the Executive shall not be required, either in mitigation of
damages or by the terms of any provisions of this Agreement or otherwise, to
seek or accept other employment, and if the Executive does accept other
employment, any benefits or payments under this Agreement shall not be reduced
by any compensation earned or other benefits received as a result of such
employment.
7. Deductions and Withholding. The Executive agrees that the Corporation
shall withhold from any and all payments required to be made to the Executive
pursuant to this Agreement
-4-
(including the travel allowance) all federal, state, local and/or other taxes
which are required to be withheld in accordance with applicable statutes and/or
regulations from time to time in effect.
8. Non-Solicitation, Restrictive Covenants, Confidentiality and Injunctive
Relief. (a) The Executive shall execute and deliver to and for the benefit of
the Corporation, the Conditions of Employment attached as Exhibit A hereto,
pertaining, among other matters, to proprietary information, confidentiality
obligations, and non-competition obligations, the provisions of which shall be
deemed incorporated herein by reference as if set forth herein (the "Conditions
of Employment").
(b) The provisions of this Section 8 shall survive the termination or
expiration of this Agreement, irrespective of the reason therefor, including
under circumstances in which the Executive continues thereafter in the employ of
the Corporation.
9. Warranty. The Executive warrants and represents that he is not a party
to any agreement, contract or understanding, whether of employment or otherwise,
which would in any way restrict or prohibit him from undertaking his position as
an executive of the Corporation and complying with his obligations in accordance
with the terms and conditions of this Agreement and the Conditions of
Employment.
10. Insurance. The Executive agrees that the Corporation may from time to
time and for the Corporation's own benefit apply for and take out life insurance
covering the Executive, either independently or together with others, in any
amount and form which the Corporation may deem to be in its best interests. The
Corporation shall own all rights in such insurance and in the cash values and
proceeds thereof and the Executive shall not have any right, title or interest
therein. The Executive agrees to assist the Corporation, at the Corporation's
expense, in obtaining any such insurance by, among things, submitting to
customary examinations and correctly preparing, signing and delivering such
applications and other documents as reasonably may be required. Nothing
contained in this Section 10 shall be construed as a limitation on the
Executive's right to procure any life insurance for his own personal needs.
11. Notices. All notices shall be in writing and shall be deemed to have
been duly given to a party hereto on the date of such delivery, if delivered
personally, or on the third day after being deposited in the mail if mailed via
registered or certified mail, return receipt requested, postage prepaid, or on
the next business day after being sent by recognized national overnight courier
service, in the case of the Executive at his current address as set forth in the
Corporation's records, and in the case of the Corporation, at it address set
forth above.
12. Assignability and Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the heirs, executors, administrators,
successors and legal representatives of the Executive, and shall inure to the
benefit of and be binding upon the Corporation and its successors and assigns.
The Executive may not assign, transfer, pledge, encumber, hypothecate or
otherwise dispose of this Agreement, or any of his rights or obligations
hereunder, and any such attempted delegation or disposition shall be null and
void and without effect.
-5-
13. Severability. In the event that any provisions of this Agreement would
be held to be invalid, prohibited or unenforceable in any jurisdiction for any
reason (including, but not limited to, any provisions which would be held to be
unenforceable because of the scope, duration or area of its applicability),
unless narrowed by construction, this Agreement shall, as to such jurisdiction
only, be construed as if such invalid, prohibited or unenforceable provision had
been more narrowly drawn so as not to be invalid, prohibited or unenforceable
(or if such language cannot be drawn narrowly enough, the court making any such
determination shall have the power to modify such scope, duration or area or all
of them, but only to the extent necessary to make such provision or provisions
enforceable in such jurisdiction, and such provision shall then be applicable in
such modified form). If, notwithstanding the foregoing, any provision of this
Agreement would be held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective to the extent of such
invalidity, prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey, without regard to
principles of conflict of laws and regardless of where actually executed,
delivered or performed.
15. Complete Understanding; Counterparts. This Agreement constitutes the
complete understanding and supersedes any and all prior agreements and
understandings between the parties with respect to its subject matter, and no
statement, representation, warranty or covenant has been made by either party
with respect thereto except as expressly set forth herein. This Agreement shall
not be altered, modified, amended or terminated except by written instrument
signed by each of the parties hereto. The Section and paragraph headings
contained herein are for convenience only, and are not part of and are not
intended to define or limit the contents of said Sections and paragraphs. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, when taken together, shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PROGRAMMER'S PARADISE, INC.
By:
--------------------------
-----------------------------
Xxxxxxx X. Xxxxxxx
-6-
Exhibit A
---------
PROGRAMMER'S PARADISE, INC.
CONDITIONS OF EMPLOYMENT
------------------------
As an inducement to Programmer's Paradise, Inc. (the "Corporation") to
employ (the "Employee"), and in consideration of the employment and continued
employment of the Employee by the Corporation and the compensation and other
benefits paid or to be paid to the Employee and the stock options to be issued
to the Employee, it is understood and agreed as follows:
1. The Employee acknowledges and agrees that Employee's employment
with the Corporation will necessarily involve the Employee's understanding of
and access to trade secrets and confidential or other proprietary information of
or pertaining to the organization, business and affairs of, or developed or
acquired for or by, the Corporation and/or its Affiliates (as hereinafter
defined) or their clients, licensees and distributors, including without
limitation, information relating to computer software and programs, policies,
operational methods, research, data, marketing plans and opportunities,
procedures, strategies, mailing lists, data bases, client lists, notations of
clients (in or as part of a rolodex, mailing list or in any other form) and
forecasts of the Corporation and/or its Affiliates or any client of the
Corporation and/or its Affiliates ("Proprietary Information"), and understands
that the Employee will enjoy a special position of trust and confidence with the
Corporation. Accordingly, the Employee agrees that the Employee will keep secret
all Proprietary Information and will not, directly or indirectly, either during
the term of the Employee's employment by the Corporation or at any time
thereafter, disclose or disseminate to any person or entity not expressly
approved by the President of the Corporation as an authorized recipient thereof,
or make use of, for any purpose whatsoever, any Proprietary Information of the
Corporation and/or its Affiliates or any client of the Corporation and/or its
Affiliates. AS IT IS SOMETIMES DIFFICULT TO SEPARATE PROPRIETARY INFORMATION
FROM THAT WHICH IS NOT, THE EMPLOYEE WILL REGARD ALL INFORMATION GAINED AS A
RESULT OF THE EMPLOYEE'S ASSOCIATION WITH THE CORPORATION AS PROPRIETARY
INFORMATION.
The preceding paragraph, however, shall not apply to disclosure of
information (i) which at the time of disclosure to the Employee was in the
public domain, or (ii) which at the time of disclosure to the Employee the
Employee proves was already known to the Employee from other sources and capable
of being used or disclosed by the Employee, as the case may be, free of any
other agreements or restrictions. For purposes hereof, the term "Affiliates"
shall include all entities or persons controlling, controlled by, or under
common control with, the Corporation.
The Employee agrees that the Corporation may from time to time adopt rules
and regulations regarding the manner in which Proprietary Information is
treated. In such event, the Employee will comply with all such rules and
regulations in addition to, but not in limitation of, the Employee's obligations
hereunder.
2. Title to all documentation containing any Proprietary Information,
whether or not developed or produced by the Employee (including the ideas and
concepts contained therein), is and
shall remain vested in the Corporation and its Affiliates. Without limiting the
generality of the foregoing, the Employee shall not make any copies of and/or
remove from the premises of the Corporation any such documentation without
specific authorization. The Employee will not leave any such documentation
accessible to unauthorized persons at any time, and shall take all reasonable
steps to prevent documentation (including the ideas and concepts contained
therein) from being used by or disclosed to anyone who is not authorized to use
or receive same. The Employee will deliver promptly to the Corporation on
termination of the Employee's employment by the Corporation, or at any sooner
time it may request, all such documentation and all other assets and materials
which belong to the Corporation or its Affiliates, which the Employee then
possesses or has under the Employee's control.
3. The Employee will promptly and fully disclose to the President of
the Corporation all opportunities and/or information which is or may be useful
or relate to the Corporation and/or its Affiliates or any aspect of their
business that the Employee (individually or jointly with others) may discover,
conceive of, make, invent, develop, suggest, assemble, reduce to practice or
acquire during the period of or in connection with the Employee's employment by
the Corporation (collectively "Information"), all of which shall be the sole,
exclusive and absolute property of the Corporation. The Employee agrees and
acknowledges that all Information shall constitute Proprietary Information.
4. The Employee shall have no authority to make any representation,
warranty, guarantee, agreement or promise concerning the Corporation or its
Affiliates, or the business of the Corporation or its Affiliates, unless
specifically approved by the President of the Corporation, and any such
unapproved representation, warranty, guarantee, agreement or promise shall not
be valid or binding on the Corporation or its Affiliates. The Employee shall at
all times comply with all relevant laws, including, without limitation, all
foreign, federal and state laws, and all policies and procedures of the
Corporation.
5. During any period that the Employee is employed by the Corporation
and thereafter, (i) for a period of [two (2) years] in the event that Executive
shall terminate his employment or the Executive's employment shall be terminated
by the Corporation for "cause" (as defined in the Executive's employment
agreement), or (ii) for a period of [one (1) year] in the event that the
Corporation shall terminate the Executive's employment without "cause", the
Employee will not directly or indirectly under any circumstance whatsoever:
(a) solicit, raid, entice or induce any person or entity which
presently is, or at any time during the period of the Employee's employment has
been or shall be, or has been or shall be solicited or contacted by the
Corporation and/or its Affiliates to become, a client, customer, distributor or
licensee of the Corporation and/or its Affiliates, to become a client, customer,
distributor or licensee of any person or entity (other than the Corporation and
its Affiliates) with respect to any business, product or services of the type,
or competitive with those, provided, sold, licensed or offered by the
Corporation and/or its Affiliates at any time during the period of the
Employee's employment with the Corporation, or attempt in any manner to persuade
any such person
-2-
or entity to cease to do business or to reduce the amount of business which such
person or entity has customarily done or contemplates doing with the Corporation
and/or its Affiliates;
(b) compete, engage or participate in, or become employed by, or
render any services in connection with, any business that competes, in any
manner with the business of the Corporation, in any of the geographical markets
served by the Corporation, operated or managed or then proposed to be acquired,
operated or managed by the Corporation or any of its Affiliates during the term
of the Employee's employment with the Corporation or directly or indirectly have
any interest in, as owner, stockholder, partner, director, officer, member,
employee, consultant or otherwise, any business which is competitive with, or
sells, provides or licenses products or services of the type competitive with
those sold, provided and licensed by the Corporation during the term of
Employee's employment with the Corporation; provided, however, that the Employee
may hold not more than 5% of the outstanding securities of any such corporation
listed on a national securities exchange;
(c) make any disparaging statement concerning the Corporation or
its Affiliates, or the management, the Board of Directors, management decisions,
operating policies or Board decisions or actions of the Corporation or its
Affiliates, whether or not libelous or defamatory;
(d) wilfully interfere with or otherwise jeopardize any
relationship of the Corporation and/or its Affiliates with any client,
distributor, licensee or licensor; or
(e) employ, attempt to employ or arrange to have any other person
or entity employ, any person, who is or was, during the two-year period ending
on the date of termination of the Employee's employment, in the employ of the
Corporation or its Affiliates, or induce any such person to leave the employ of
the Corporation or its Affiliates.
6. The Employee represents and warrants that the Employee is not a
party to any agreement, contract or understanding, whether of employment,
consultancy or otherwise, in conflict with these Conditions of Employment or
which would in any way restrict or prohibit the Employee from undertaking or
performing services for the Corporation. The Employee hereby acknowledges that
he has not foregone any other opportunity, financial or otherwise, in connection
with commencing or rendering his services to the Corporation. The Employee
hereby authorizes the Corporation and/or its Affiliates to make known the terms
of these Conditions of Employment and the fact of the Employee's responsibility
under these Conditions of Employment to any person or entity, including, without
limitation, clients of the Corporation and/or its Affiliates and the Employee's
future employers.
7. (a) By reason of the fact that irreparable harm would be sustained
by the Corporation and/or its Affiliates in the event that there is a breach by
the Employee of any of the terms, covenants and agreements set forth herein, in
addition to any other rights that the Corporation and/or its Affiliates may
otherwise have, the Corporation and/or its Affiliates shall be entitled to apply
to any court of competent jurisdiction and obtain specific performance and/or
injunctive relief against the Employee, without making a showing that monetary
damages would be inadequate and
-3-
without the requirement of posting any bond or other security whatsoever, in
order to enforce or prevent any breach or threatened breach of any of the terms,
covenants and agreements set forth herein, and the Employee will not object
thereto.
(b) Nothing contained in these Conditions of Employment shall be
construed as a contract of employment or engagement by or with the Corporation
or any Affiliate nor shall anything contained in these Conditions of Employment
impose any obligation upon the Corporation or any Affiliate to continue the
Employee's employment or engagement to pay the Employee any compensation. Each
of the obligations of the Employee under this agreement shall survive the
termination of the Employee's employment by the Corporation for any reason
whatsoever.
(c) The Employee acknowledges that: (i) the enforcement of any of
the restrictions on the Employee or any other provisions contained in these
Conditions of Employment (the "Restrictive Covenants") against the Employee
would not impose any undue burden upon the Employee; and (ii) none of the
Restrictive Covenants is unreasonable as to duration or scope. If
notwithstanding the foregoing, any provision herein would be held to be invalid,
prohibited or unenforceable in any jurisdiction for any reason (including, but
not limited to, any provision which may be held unenforceable because of the
scope, duration or area of its applicability), unless narrowed by construction,
such Restrictive Covenant shall, as to such jurisdiction, be construed as if
such invalid, prohibited or unenforceable provision had been more narrowly drawn
so as not to be invalid, prohibited or unenforceable (and the court making any
such determination as to any provision shall have the power to modify such
scope, duration or area or all of them, and such provision shall then be
applicable in such modified form in such jurisdiction only). If, notwithstanding
the foregoing, any provision herein would be held to be invalid, prohibited or
unenforceable in any jurisdiction for any reason, such provision, as to such
jurisdiction, shall be ineffective to the extent of such invalidity, prohibition
or unenforceability, without invalidating the remaining provisions of this
agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
(d) These Conditions of Employment shall inure to the benefit of
the Corporation and its Affiliates, and their respective successors and assigns
and shall be binding upon the Employee and the Employee's heirs, executors,
administrators and other legal representatives and successors. These Conditions
of Employment shall be governed by and construed in accordance with the internal
laws of the State of New Jersey applicable to contracts made and to be entirely
performed in New Jersey (without giving effect to contrary rules as to conflict
of laws). These Conditions of Employment (and any written employment agreement
executed and delivered by the Corporation) sets forth the parties' entire
agreement with respect to its subject matter. No provisions of this agreement
may be changed, terminated, or waived, or addenda or other provisions added
except by a writing signed by each of the parties hereto. No waiver of any
provision in one instance shall be a waiver of such provision in other instances
or a waiver of any other provision. Wherever the context so requires, the
masculine includes the feminine and the neuter genders, and the singular
includes the plural, and vice versa.
Accepted and Agreed:
-4-
Date: ____________________________, 1998
------------------------------
Name:
-5-
