EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS IS AN EMPLOYMENT AGREEMENT, dated as of August 19, 2004
(this "Employment Agreement"), by and between XX Xxxx'x Corporation, a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxxx ("Xxxxxxx").
Background
X. Xxxxxxx currently serves as a member of the Board of
Directors of the Company (the "Board").
B. The Company desires to retain Xxxxxxx to perform certain
services for the Company and Xxxxxxx is willing to perform such services, on
terms more fully set forth below.
Terms
In consideration of the covenants set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
1. Employment. The Company hereby employs Xxxxxxx, and Xxxxxxx
hereby accepts employment with the Company (the "Employment"), upon the terms
and subject to the conditions set forth in this Employment Agreement.
2. Employment Period. The term of Xxxxxxx'x employment under
this Employment Agreement shall commence on the date first written above and
shall terminate one year after such date (the "Employment Period"); provided,
that Xxxxxxx may resign at any time prior to the expiration of the Employment
Period upon prior written notice to the Company. Upon Xxxxxxx'x resignation, all
obligations of the Company under this Employment Agreement (other than any
obligations with respect to the payment of accrued and unpaid Salary and expense
reimbursement through the date of Xxxxxxx'x resignation of employment hereunder)
shall terminate.
3. Duties. Xxxxxxx shall provide operational business advice
and related assistance to the senior management of the Company as Xxxxxxx and
the Board shall agree from time to time ("Operational Advice"). Operational
Advice shall include without limitation a review of the Company's operating
plans, annual budgets and forecasts and advice regarding the Company's
development of a business agenda.
4. Extent of Services. During the Employment Period, Xxxxxxx
shall make himself reasonably available for consultation with the Company's
senior management for up to a maximum of 25 days per calendar quarter at
locations that are mutually agreeable to Xxxxxxx and the Company.
5. Compensation and Benefits.
(a) Salary. The Company shall pay Xxxxxxx an annual salary
of $180,000 (the "Salary") during the Employment Period, payable in equal
monthly installments at such times as the Company pays its executive officers.
(b) Other Expense Reimbursements. The Company shall pay or
reimburse Xxxxxxx for all documented reasonable out-of-pocket expenses
(including expenses of travel and accommodations) incurred or paid by Xxxxxxx in
connection with the performance of Xxxxxxx'x duties hereunder.
(c) Xxxxxxx shall be entitled to participate in benefits
plans available to the Company's executive officers.
6. Confidentiality.
(a) Except as necessary for the proper performance of
Xxxxxxx'x duties and responsibilities hereunder or as authorized in writing by
the Company, Xxxxxxx agrees that during such time as Xxxxxxx provides services
to the Company and at all times thereafter, Xxxxxxx will not, directly or
indirectly, disclose, furnish, make available or use, sell or exploit any
Proprietary Information or aid, encourage or allow any other person or entity to
gain possession of or access to, or to use, sell or exploit any Proprietary
Information.
(b) As used herein, "Proprietary Information" means all
information of a business or technical nature that relates to the Company,
including work product, trade secrets, know-how, copyrights, trademarks, service
marks, patents (and applications therefor) and other intellectual property and
plans, forecasts, financial information and customer or supplier names or data,
and also includes business information of another person or entity which
discloses the same to the Company. The term "Proprietary Information" does not
include information that (i) becomes available to Xxxxxxx from a source other
than the Company or its agents (so long as Xxxxxxx does not know such
information is subject to a non-disclosure agreement), (ii) becomes publicly
disseminated (other than by Xxxxxxx) or (iii) is ordered by a court of competent
jurisdiction to be disclosed.
(c) Xxxxxxx understands that the Company from time to time
receives confidential information from other persons or entities and, in
connection therewith, the Company may enter into agreements with such parties
restricting or prohibiting use, transfer or disclosure of such information.
After receiving a written notice from the Company that the Company has entered
into such an agreement, together with copy of such agreement, Xxxxxxx agrees not
to use, transfer or disclose such information; provided, however, that Xxxxxxx
may use, transfer or disclose such information if such information (i) becomes
available to Xxxxxxx from a source other than the Company or its agents (so long
as Xxxxxxx does not know such information is subject to a non-disclosure
agreement), (ii) becomes publicly disseminated or (iii) is ordered by a court of
competent jurisdiction to be disclosed.
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(d) Xxxxxxx agrees not to disclose to the Company or use in
the performance of Xxxxxxx'x responsibilities to the Company any confidential
information or intellectual property which has been marked as proprietary to
another person or entity (including any former or other employer) unless the
Company has received the requisite authorization, and Xxxxxxx is instructed by
the Company to do so. Xxxxxxx also agrees not to use in the creation or
development of any work product any intellectual property not owned by the
Company unless specifically instructed to do so by the Company.
7. Documents. Any and all documents, notebooks, papers, plans,
designs, computer storage media and other material containing any work product
or Proprietary Information shall belong to the Company, and Xxxxxxx agrees to
deliver to the Company any or all of the foregoing in Xxxxxxx'x possession or
control upon the Company's request.
8. Remedies. Xxxxxxx expressly acknowledges that the remedy at
law for any breach of Sections 6 and 7 will be inadequate and that upon any such
breach or threatened breach, the Company shall be entitled as a matter of right
(without the need for posting any bond or other security) to injunctive relief
in any court of competent jurisdiction, in equity or otherwise, and to enforce
the specific performance of Xxxxxxx'x obligations under these provisions without
the necessity of proving the actual damage to the Company or the inadequacy of a
legal remedy. The rights conferred upon the Company by the preceding sentence
shall not be exclusive of, but shall be in addition to, any other rights or
remedies which the Company may have at law, in equity or otherwise.
9. Indemnification. The Company hereby agrees that it shall
indemnify and hold harmless Xxxxxxx to the fullest extent permitted by law from
and against any and all liabilities, costs, claims and expenses, including all
costs and expenses incurred in defense of litigation (including attorneys'
fees), arising out of the employment of Xxxxxxx hereunder (but excluding
disputes arising under this Employment Agreement), except to the extent arising
out of or based upon the gross negligence or willful misconduct of Xxxxxxx or a
breach of any of Xxxxxxx'x agreements, covenants or warranties hereunder. Costs
and expenses incurred by Xxxxxxx in defense of such litigation (including
attorneys' fees) shall be paid by the Company in advance of the final
disposition of such litigation upon receipt by the Company of (a) a written
request for payment, (b) appropriate documentation evidencing the incurrence,
amount and nature of the costs and expenses for which payment is being sought,
and (c) an undertaking adequate under applicable law made by or on behalf of
Xxxxxxx to repay the amounts so paid if it shall ultimately be determined that
Xxxxxxx is not entitled to be indemnified by the Company under this Agreement,
including but not limited to as a result of such exception. The Company and
Xxxxxxx will consult in good faith with respect to the conduct of any such
litigation, and Xxxxxxx'x counsel shall be selected with the consent of the
Company. This Section 9 shall survive the expiration or termination of this
Agreement.
10. Taxes. The Company shall withhold all employment related
taxes, including income and social security taxes, which are required to be
withheld by law, and shall duly and timely remit such taxes on Xxxxxxx'x behalf
to the applicable tax authorities.
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11. Governing Law. This Employment Agreement shall be governed
by and interpreted under the laws of the Commonwealth of Pennsylvania, without
reference to principles of conflict of laws thereunder.
12. Assignment. Neither this Employment Agreement nor any
rights or liabilities hereunder may be assigned or transferred by Xxxxxxx or the
Company.
13. Notices. All notices and other communications required or
permitted hereunder shall be made in writing by hand-delivery, facsimile, or air
courier guaranteeing overnight delivery to the other party at the following
addresses:
If to Xxxxxxx, to:
Xx. Xxxxx X. Xxxxxxx
000 Xxxxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Fax No.: (000) 000-0000
If to the Company, to:
XX Xxxx'x Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: President
or to such other address as any such party may designate in a written notice
served upon the other party in the manner provided herein. All notices and other
communications required or permitted hereunder shall be deemed duly given and
received when delivered by hand, if personally delivered; when delivered if
delivered via facsimile transmission; on the day next succeeding the date of
mailing if timely delivered to an express air courier guaranteeing overnight
delivery.
14. Entire Agreement. This Employment Agreement constitutes
the entire agreement with respect to the subject matter hereof among the parties
hereto and replaces and supersedes as of the date hereof, any and all prior oral
and written agreements and understandings between the parties hereto. This
Employment Agreement may only be modified by an agreement in writing executed by
Xxxxxxx and the Company.
15. Severability. If any term or provision of this Employment
Agreement or the application thereof to any person or circumstance shall, to any
extent, be held invalid or unenforceable by a court of competent jurisdiction,
the remainder of this Employment Agreement or the application of any such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be effected thereby, and each term and
provision of this Employment Agreement shall be valid and enforceable to the
fullest extent permitted by law.
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16. Waiver of Breach. Failure by either party to enforce any
provision of this Employment Agreement shall not constitute a waiver by that
party of its right to enforce that provision or any other provision of this
Employment Agreement. No delay or omission by the Company or Xxxxxxx in
exercising any right, remedy or power hereunder or existing at law or in equity
shall be construed as a waiver thereof, and any such right, remedy or power may
be exercised by the Company or Xxxxxxx from time to time and as often as may be
deemed expedient or necessary by the Company or Xxxxxxx in its sole discretion.
17. Counterparts. This Employment Agreement may be executed in
two counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
18. Headings. The headings preceding the text of the sections
and subsections hereof are inserted solely for convenience of reference, and
shall not constitute a part of this Employment Agreement, nor shall they affect
its meaning, construction or effect.
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the day and year first written above.
XX XXXX'X CORPORATION
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President & CEO
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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