EMPLOYMENT AGREEMENT BETWEEN ECHOMETRIX INC AND ERICA ZALBERT EchoMetrix, Inc. Syosset, NY 11791
EXHIBIT
99.1
EMPLOYMENT
AGREEMENT BETWEEN ECHOMETRIX INC AND ▇▇▇▇▇ ▇▇▇▇▇▇▇
EchoMetrix,
Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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This
Employment Agreement (“Agreement”) is entered into as of the 1st day
of June, 2009 (the “Agreement Date”), by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇
of Melville, NY (the “Executive”) and EchoMetrix, Inc. (the “Company” or “EchoMetrix”), or together the
Parties.
RECITALS:
Whereas,
the Company desires to employ the Executive to provide personal services to the
Company, and also wishes to provide the Executive with certain compensation and
benefits in return for such services; and
Whereas,
the Executive wishes to be employed by the Company and provide personal services
to the Company in return for certain compensation and benefits.
Now,
therefore, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed by and between the Parties hereto as
follows:
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1.
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Definitions.
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Unless
otherwise separately defined herein, as used in this Agreement, the following
terms shall have the meanings set forth below:
“Affiliate” shall have
the same meaning as that term is defined in Rule 405 promulgated under the
Securities Act of 1933, as amended.
“EchoMetrix
Affiliates” shall mean and include any subsidiary of EchoMetrix or any
division thereof now existing or formed at any time after the date of this
Agreement; any corporation which may merge into or with which EchoMetrix may be
merged or consolidated; any corporation or renaming of the Company which may
result from any reorganization of EchoMetrix.
“Change of Control”
shall mean the occurrence of any of the following:
(i) Any
“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the total voting power
represented by the Company’s then outstanding voting securities;
(ii) Any
merger or consolidation of the Company with any other entity that has been
approved by the stockholders of the Company, other than a merger or
consolidation that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation;
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(iii)
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Any
sale or disposition by the Company, in one transaction or a series of
related transactions, of all or substantially all the Company’s
assets;
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2. Employment.
2.1. Title;
Duties and Responsibilities; Reporting; Place of
Performance..
2.1.1. Subject
to the terms and conditions hereinafter set forth, as of the Effective Date and
thereafter throughout the “Term” (as hereinafter
defined) of this Agreement, the Executive shall be employed by as the Chief
Financial Officer ("CFO ") of EchoMetrix
and those EchoMetrix Affiliates as shall be designated from time to time by the
Board of Directors of EchoMetrix.
2.1.2 Executive
shall perform and be responsible for the entire operations of the corporation,
including all such services and duties (collectively, the “Duties” and “Services”) as are
customarily required of a Chief Financial Officer of a corporation in the
Company’s industry or lines of business or similar to the Company in revenues,
market capitalization and number of Executives (a “Comparable Company”).
In addition to her duties as Chief Financial Officer, Executive shall render, to
EchoMetrix and EchoMetrix Affiliates, such other services and duties consistent
with Executive’s position and status as Chief Financial Officer, as may be
designated from time to time by the Board, without any additional remuneration
under this Agreement. Executive hereby acknowledges that Executive may be asked
to perform duties outside her normal day to day role as may be required at a
Comparable Company.
2.1.3. Executive
shall report only to the Company's Chief Executive Officer.
2.1.4 Executive
shall perform such services and duties at the Company’s headquarters in Syosset,
New York except when required to travel in the normal course of performing
her duties.
2.2. Term /
Exclusivity.
2.2.1. The
Term of the Agreement shall commence on June 1 2009 and shall continue for 3
years through June 1, 2012 (the “Initial Term”) unless sooner terminated in
accordance with the provisions of this Agreement. Following the Initial Term,
this Agreement and the Executive’s employment may be continued either under this
Agreement or any other agreement, upon such terms and conditions as the
Executive and the Company may mutually agree. The Initial Term and
any subsequent term of employment of the Executive are herein collectively
referred to as the “Term”.
2.2.2. Executive
agrees to devote her business and professional time to the performance of the
Duties and Services, and shall undertake to perform such Duties and Services in
a competent and professional manner, consistent with the skills to be possessed
by the Chief Financial Officer, of a Comparable Company. The
Executive shall consider her employment by the Company her principal employment;
however, Executive shall be permitted to engage in other charitable, community,
professional or business activities from time to time, so long as such other
activities do not materially interfere with her performance hereunder. Executive
shall disclose all professional and business activities, outside of her
employment, to the Board of Director in writing prior to the Effective Date and
within fifteen (15) days of any subsequent changes to said
activities.
2.2.3. The
Executive acknowledges that the Duties and Services shall be performed as an
“exempt’ Executive and that, as such, he shall not be entitled to overtime or
compensatory compensation other than periodic bonuses as may be awarded to the
Executive from time to time by the Board of Directors of the Company in the
exercise of their sole discretion.
2.2.4. Notwithstanding
anything to the contrary contained in Section 2.2, the Executive may acquire
and/or retain, solely as an investment, and may take customary actions to
maintain and preserve Executive’s ownership of:
(a) Securities
of any partnership, trust, corporation or other person which are registered
under Sections 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended
and which are publicly traded as long as Executive’s investment amounts to less
than ten (10%) percent of the equity in such entity; and
(b) Any
securities of a partnership, trust, corporation or other person not registered
as set forth in Section 2.3.4(a) above so long as such entity is not, directly
or indirectly, in competition with EchoMetrix.
2.3. Confidentiality.
Executive acknowledges that the Services will, throughout the Term, bring
Executive into close contact with many confidential affairs of EchoMetrix,
including information about costs, profits, markets, sales, products, key
personnel, pricing policies, operational methods, technical processes and other
business affairs and methods and other information not readily available to the
public, and plans for future development. EchoMetrix has invested substantial
time and resources in developing, and then protecting, its confidential and
proprietary procedures and methods and in safeguarding its property and
materials as well as the property and materials of its customers. These
procedures and methods include, without limitation, all written policies and
procedures and other materials of EchoMetrix and all property owned by customers
or entrusted by customers to the care of EchoMetrix that have been designated
either as Trade Secrets and/or Confidential Information, each as described
below. Trade Secrets and Confidential Information are for the exclusive benefit
of EchoMetrix, and by accepting employment with EchoMetrix, Executive
agrees not to use, either directly or indirectly, any Trade Secrets or
Confidential Information for any purpose other than to perform her duties as
required by this Agreement. Confidential Information may also be protected as a
Trade Secret. Executive covenants and agrees that Executive will keep secret all
Trade Secrets and/or Confidential Information of EchoMetrix which are not
otherwise in the public domain and will not disclose them to anyone outside of
EchoMetrix, except where such disclosure may be required by law.
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2.4.
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Non-Competition;
Non-Solicitation;
Non-Interference.
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(a) During
the Executive’s employment hereunder, Executive will be exposed to Confidential
Information of EchoMetrix and the EchoMetrix Affiliates, including, without
limitation, details about their software programs, algorithms, processes,
methods, and any intellectual property. Accordingly, the competitive
use and knowledge of any of such information would substantially and irreparably
injure the business, prospects and value of EchoMetrix and the EchoMetrix
Affiliates. Executive and EchoMetrix also agree that the business of
EchoMetrix and the EchoMetrix Affiliates is both national and international in
nature due to the utility and methods of distribution of their
products.
(b) Therefore,
Executive agrees that during the Term and for a period of three (3) years after
the end of the Term, Executive shall not, directly or indirectly, through any
other person, firm, corporation or other entity (whether as an officer,
director, Executive, partner, consultant, holder of equity or debt investment,
lender or in any other manner or capacity):
(1) develop,
sell, market, offer to sell products and/or services or participate in any
business anywhere in the United States, or any other country, or province that
have the functional purpose or utilize the same or similar technology, as the
products of EchoMetrix and the EchoMetrix Affiliates, whether during the Term
such products exist or are contemplated, or otherwise engage in direct
competition with EchoMetrix or the EchoMetrix Affiliates;
(2) solicit,
induce, encourage, recruit or attempt to induce, encourage or recruit any person
who is then employed or retained as a consultant by EchoMetrix or any EchoMetrix
Affiliate or who was employed or retained as a consultant by EchoMetrix or any
EchoMetrix Affiliate at any time during the twelve (12) month period preceding
the end of the Term for the purposes of being employed or retained by Executive,
by any entity or person on whose behalf Executive is acting as an agent,
representative or Executive or by any competitor of EchoMetrix or any EchoMetrix
Affiliate;
(3) solicit,
induce or encourage or attempt to induce or encourage any person who is then
employed or retained as a consultant by EchoMetrix or any EchoMetrix Affiliate
or who was employed or retained as a consultant by EchoMetrix or any EchoMetrix
Affiliate at any time during the twelve (12) month period preceding the end of
the Term to terminate her or her employment, engagement or consulting
relationship with EchoMetrix or any EchoMetrix Affiliate, or to breach any other
obligation to EchoMetrix or any EchoMetrix Affiliate; or
(4) solicit,
interfere with, disrupt, alter or attempt to disrupt or alter the relationship,
contractual or otherwise, between EchoMetrix or any EchoMetrix Affiliate
and any consultant, contractor, customer, potential customer, or supplier of
EchoMetrix or any EchoMetrix Affiliate.
(5) solicit,
engage, contact, approach, induce or encourage or attempt to induce or encourage
any investor, money manager, fund, broker, partner, proposed partner,
corporation, Company, individual, consultant who EchoMetrix has had any contact,
conversations, meetings, presentations, approached, at any time during the (24)
twenty four month period preceding the end of the Term to terminate her or her
employment, engagement, consulting relationship with EchoMetrix or any
EchoMetrix Affiliate.
(c) Executive
acknowledges that the foregoing geographic, activity and time limitations
contained in this Section are reasonable and properly required for the adequate
protection of EchoMetrix’ business. In the event that any such
geographic, activity or time limitation is deemed to be unreasonable by a court,
Executive shall submit to the reduction of either said activity or time
limitation to such activity or period as the court shall deem
reasonable. In the event that Executive is in violation of the
aforementioned restrictive covenants, then the time limitation thereof shall be
extended for a period of time equal to the pendency of such proceedings,
including appeals.
2.5 Indemnification;
Insurance. EchoMetrix shall, at EchoMetrix’ sole expense,
defend and indemnify Executive to the fullest extent permitted by law in effect
as of the date hereof, or as hereafter amended, against all costs, expenses,
liabilities and losses (including, without limitation, reasonable attorneys'
fees, judgments, fines, penalties, ERISA excise taxes, penalties and amounts
paid in settlement) reasonably incurred by Executive in connection with a
Proceeding (as hereinafter defined). For the purposes of this
section, a “Proceeding” shall
mean any action, suit or proceeding, whether civil, criminal, administrative or
investigative, if Executive is made, or is threatened to be made, a party to, or
a witness in, such action, suit or proceeding by reason of the fact that he is
or was an officer, director or Executive of EchoMetrix or any EchoMetrix
Affiliate (or is or was serving as an officer, director, member, Executive,
trustee or agent of any other entity at the request of any EchoMetrix or any
EchoMetrix Affiliate). Executive may participate in her defense with Executive’s
own counsel. EchoMetrix shall maintain a Director’s and Officer’s insurance
policy, naming and covering Executive in all of her employment capacities.
EchoMetrix shall also provide coverage for Executive under liability and such
other insurance policies as may be reasonably warranted. The terms
and amount of such coverage and the company underwriting such policies shall be
subject to the reasonable approval of Executive.
2.6 Employment
Procedures. By accepting employment
with EchoMetrix, the Executive:
2.6.1.
agrees to follow all of EchoMetrix’ lawful policies and procedures which are
otherwise applicable to all Company Executives generally, as they are currently
constituted and as they may change from time to time after written notice of
such to Executive, in the handling and safeguarding of Trade Secrets and
Confidential Information, including, without limitation, all sensitive,
confidential, proprietary procedures and methods and all written materials
belonging to EchoMetrix and/or EchoMetrix Affiliates, as well as the handling
and safeguarding of any property belonging to customers of EchoMetrix and/or
EchoMetrix Affiliates and placed in its or their safeguarding and care;
and
2.6.2.
agrees to exercise due care and diligence to avoid any unauthorized publication,
disclosure or use of Trade Secrets and/or Confidential Information and any
documents or other materials or referring to them; and
2.6.3.
agrees to not knowingly disclose to any third person at any time or for any
reason (other than controlled disclosure of Confidential Information to
investors, customers or vendors for legitimate business purposes of EchoMetrix
or EchoMetrix Affiliates), any Trade Secret or Confidential Information,
including, without limitation, any sensitive, proprietary procedure or method of
EchoMetrix or EchoMetrix Affiliates or any materials and/or property referred to
in this Section; and
2.6.4.
agrees to not reproduce for the use of any third party, without consent, the
procedures or policies of EchoMetrix or EchoMetrix Affiliates, or any property
belonging to its customers or suppliers.
2.6.5.
The restrictions set forth in this Section 2.6 will not restrict Executive from
disclosing (but only to the proper recipient to the extent expressly permitted
by this Agreement) any Trade Secret and/or Confidential Information which
Executive is required to disclose by law or an order of a court of competent
jurisdiction or any relevant governmental or regulatory agency; provided that
Executive shall, unless otherwise required by law or by rule of professional
conduct, have given prior written notice to EchoMetrix of the disclosure
requirement and of the information to be disclosed to allow EchoMetrix an
opportunity to seek a protective order.
2.6.6. In
consideration of this agreement and the covenants contained herein, the
Executive, on behalf of its attorneys, agents, representatives and associates,
agrees to hold EchoMetrix harmless against all claims and fully release, remise,
acquit and discharge EchoMetrix, and its predecessors, successors, assigns,
affiliates, heirs, family members, administrators, trustees, directors,
officers, Executives, partners, attorneys, agents, representatives and
associates from any and all claims, demands, liabilities, actions or causes of
action of any kind of character, at law or in equity, whether known or unknown,
accrued or not, present or future, in connection with, arising from but not
limited to, the Executive’s equity interest in EchoMetrix, including without
limitation, breach of fiduciary duty, breach of duty under applicable state
corporate law, and securities fraud under any state or federal law and in the
event of the following:
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a.
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The
Company ceases to function as a going concern or substantially ceases to
conduct its operations in the normal course of business as a software
services company;
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b.
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The
Company’s failure or inability to timely pay the Compensation and
Additional Benefits required to be paid to Executive hereunder, because
such payment would be detrimental to the financial condition of the
Company, as determined by the Company's Board of
Directors;
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b.
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Any
bankruptcy petition is filed by or against the Company or the Company
makes any assignment for the benefit of creditors or any receiver is
appointed for the assets or property of the Company or the Company
otherwise takes advantage of any insolvency
laws;
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c.
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The
Company attempts to assign this Agreement or any rights hereunder without
the Executive’s prior written consent, provided that such consent shall
not be unreasonably withheld or
delayed;
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d.
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There
is a change in the control or management of the Company without the prior
written consent of Executive, provided that such consent shall not be
unreasonably withheld or delayed;
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3. Compensation. As
compensation and consideration for all Duties and Services provided by the
Executive during the Term pursuant to this Agreement, EchoMetrix agrees to pay
to the Executive the compensation set forth below.
3.1. Base Salary;
Bonuses.
Executive shall receive a base salary at the rate of one hundred fifty thousand
dollars ($150,000) per annum, commencing on the Effective Date and payable in
equal installments on EchoMetrix’ regular pay dates, subject to the usual and
required payroll deductions and withholdings (“Base Salary”). The base
salary shall increase to $175,000 upon the raise of $3,000,000 in equity/debt or
combination within the initial twelve month period. The base salary
shall increase to $200,000 upon the total raise of $4,000,000 within
the initial 12 month period. If the Company fails to raise
$3,000,000 within the first twelve months, Executive shall be entitled to a
minimum of a 10% salary increase, subject to board discretion, at the one year
anniversary date.
3.2. Common Stock.
.. Executive shall receive 250,000 options of the Company’s
common stock upon signing the agreement. The options will be vested
immediately and exercisable on a cash-less basis as long as the executive is
employed. The exercise price will be the closing price on the
effective date of this agreement, June 1, 2009.
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3.3
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Stock
Options Grant. The Company acknowledges that it will grant the
Executive one million five hundred thousand (1,500,000) stock
options (the “Stock Options”) entitling the Executive to purchase shares
of common stock of the Company, on a cashless basis during the term of
employment and non cashless if executive is no longer employed with the
company (the “Stock Option Shares”). Subject to approval of the Board,
upon each anniversary of the Effective Date, for a period of three years
(3), if the Executive has been continuously employed by Company, for the
entire Term, one-third (1/3) of stated shares shall vest to the Executive
on month 12, 24, and 36. The specific terms and conditions of such Stock
Options shall be set forth in a separate written Stock Option
Agreement.
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3.4.
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Additional
Benefits.
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3.4.1.
During the Initial Term, Executive shall be entitled to four (4) weeks of
vacation time per annum, without deduction of salary. Such vacations shall be
taken at such time or times during the applicable year as may be determined by
Executive. All periods of Executive's employment in excess of one (1) year but
less than any additional full year shall accumulate additional paid vacation on
a pro-rata basis. The Executive may not carry over more than one week of unused
vacation from one calendar year to the next calendar year. Exceptions can be
made to carry over more vacation if the Executive was unable take vacation
because of EchoMetrix' needs. The Company's Board of Directors must approve, in
writing, any vacation carryover in excess of one week. Any accrued vacation time
remaining, but unused by Executive, at the completion of Executive's employment
shall be paid out to Executive (Executive cannot receive more then 3 weeks
vacation pay upon departure unless the Board of Directors previously approved a
carry over of an additional week’s vacation from one year to the next), on the
next regular pay cycle, calculated at the pro-rated Base Salary rate in effect
at the time of the termination. In addition thereto, Executive shall be entitled
to a reasonable number of days off for illness, family emergency, religious
observance or other personal reason, in accordance with standard office policies
then in effect, and which, if known in advance, shall be prearranged with the
consent of the Company.
3.4.2.
EchoMetrix will reimburse Executive for all her reasonable approved business
expenses incurred in connection with the performance of Executive’s duties under
this Agreement, in accordance with EchoMetrix general policies regarding
business expenses. Notwithstanding anything to the contrary contained herein or
in EchoMetrix’ expense policies, any air travel required of Executive in the
performance of the Services shall be paid solely by EchoMetrix on an airline of
Executive’s choice. Business class and first class is not permitted without the
prior approval from the BOD.
3.4.3.
During the Term, EchoMetrix shall offer Executive participation in all Executive
benefits programs offered during the Term to other senior EchoMetrix executives.
EchoMetrix shall pay 100% of all premiums for coverage of Executive’s immediate
family under the Company’s health insurance plan, if any (it being understood
and agreed that EchoMetrix shall not be responsible for the payment of any
“deductible,” “co-insurance” or “patient’s portion” applicable under such health
insurance).
3.4.4. If
Executive is required to stay overnight away from her home in
connection with the performance of her duties hereunder, EchoMetrix shall pay,
or shall reimburse Executive, for all approved travel expenses incurred by
Executive (including air fare, hotel, meals and incidental expenses) as
specified in Section 3.3.2 above.
3.4.5. Executive
is required to submit an expense report with all receipts within 15 days of any
expense. Executive is also required to submit a written call report for any
meeting with a client or prospective client, company, organization, group,
individual, individuals, where a Supervising Executive is not in attendance.
Report must cover the name of the company, client, group, individual,
organization, name, title, and responsibility of all persons in attendance,
purpose of the meeting, what was discussed, outcome of the meeting, and if there
is any follow up or action that must be taken by either party. A hard copy must
be stored in the appropriate filing system in the main headquarters of the
Company.
3.5. Performance
Evaluation. The
CEO shall meet with the Executive every six (6) months to review the Executive’s
performance and compensation. Such review and evaluation will take into account
the standard of Executive’s work based upon Executive’s EchoMetrix plan and
milestones and Executive’s overall commitment to the Company.
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4.
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Termination.
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4.1. Termination
by the
Company.
4.1.1.
Good
Cause. EchoMetrix shall have the right, at its election, to
terminate this Agreement at any time during the Term for “Good Cause.” As used
in this Agreement, the term “Good Cause” shall mean and be limited
to:
(a) the
failure of the Executive to follow the reasonable directives of the CEO and or
the Board, unless such failure is fully cured by the Executive within thirty
(30) days of written notice thereof and is not thereafter repeated (in which
event no notice need be given);
(b) self-dealing
or a material breach by the Executive of her fiduciary duties to
EchoMetrix and the EchoMetrix Affiliates;
(c) the
Executive’s inability to perform the Services (whether as a result of her death,
Disability (as defined below) or any other reason, other than a Material Breach
(as defined below)) or the Executive’s incompetence in adequately performing the
Duties and Services, within reason, unless such failure to perform is not fully
cured by the Executive within thirty (30) days of written notice thereof and is
not thereafter repeated (in which event no notice need be given);
(d)
a single act of omission or commission by the Executive
so grievous as to constitute theft, conviction or the plea of nolo contendere of
a felony, or commission of an act of fraud, embezzlement or sexual harassment
(in which event no notice need be given); or
(e) other
than 4.1.1 (b) and (d) above, a material breach of any material covenant,
condition or agreement on the part of the Executive to be performed under this
Agreement; unless such breach or non-performance is fully cured (if curable) by
the Executive within thirty (30) days of written notice thereof and is not
thereafter repeated (in which event no notice need be given).
4.1.2. Effect of Termination for
Good Cause. Should this Agreement be terminated by the Company for Good
Cause except as a result of her death or disability as defined below,
the Executive shall have no right to any further Base Salary, shall forfeit all
non-vested Options, warrants, stock and shall not receive any severance or other
benefits or bonuses, or compensation from and after termination other than those
which would normally survive, such as Executive’s entitlement to accrued, but
unused, vacation pay or continuation of health care benefits under COBRA or
other applicable law. If Company for Good Cause terminates Executive within
180-days (“Clawback Period”) of any warrant, option, and or cash bonus or grant,
Executive shall forfeit said warrant, option, and or cash bonus or grant
received within that 180-day period.
4.1.3 Effect of Termination by
Company. In the event of a termination of the Executive’s
employment under this Agreement by the Company during the Initial
Term, Executive shall be entitled to a severance payment equal to one (1)
month’s salary during year one, two (2) months’ salary during year two, and
three (3) months’ salary during year.
4.2. Termination
by Executive.
4.2.1. EchoMetrix Material
Breach. Executive shall have the right, at her election to terminate
this Agreement in the event of a “Material Breach" by the Company, which breach
is not fully cured by the Company within thirty (30) days of written notice
thereof and is not thereafter repeated (in which event no notice need be
given). A “Material Breach” shall consist of
(a) EchoMetrix’
failure or inability to obtain adequate directors and officers liability
insurance,
(b) EchoMetrix’
failure or refusal to comply with a material term of this
Agreement,
(c) a
change in the nature of Executive’s Duties and Services constituting a
constructive discharge; or
(d) the
termination of Executive’s employment hereunder for reasons other than “Good
Cause.”
By
definition, EchoMetrix’ failure or inability to timely pay the compensation and
other benefits required to be paid to Executive hereunder, because such payment
would be detrimental to the financial condition of the Company, as determined by
the Company's Board of Directors, shall not constitute a
“Material Breach” of this Agreement and Executive shall not be entitled the
provisions of Section 4.2.2 below. Any unpaid compensation and other benefits
shall accrue to the benefit of the Executive, provided that the Executive
remains employed on a full-time basis with the Company and is rendering Duties
and Services to the Company and/or the Company’s Affiliates, divisions, and be
paid when financial conditions improve as determined by the Company's Board of
Directors. At no time does this provision alter the Executive’s responsibilities
and duties as set forth in Sections 2.2 and 2.6 herein and “at will” employment
with the Company.
4.2.2. Effect of Termination by
Executive. Except if such termination shall be by
reason of the provisions of Section 4.2.1 above (in which event the Executive
shall be entitled to no Base Salary, Options or other compensation hereunder),
in the event that the Executive terminates this Agreement due to a Company
Material Breach, the Company shall, for a period of three (3) months, pay to
Executive or provide Executive with Executive's Base Salary, existing health,
and all other benefits specified in this Agreement. If Executive terminates her
employment for Not Good Cause within 180-days (“Clawback Period”) of any
warrant, option, and or cash bonus or grant, Executive shall forfeit said
warrant, option, and or cash bonus or grant received within that 180-day
period.
4.3 Change in
Control.
4.3.1 Unless
the Company has in effect a change of control severance plan or similar
arrangement applicable to Executive (and in which Executive has consented to
participate) at the time of a Change of Control, the following provisions of
this Section 4.3 shall apply.
4.3.2 Effect of Change of Control
Termination. If Executive (i) is terminated by the
Company other than for Good Cause within ninety (90) days prior to a Change
of Control or as a result of or in connection with a Change of Control or (ii)
is terminated by the Company (or its successor entity) other than for Good Cause
within twelve (12) months following a Change of Control or (iii) resigns upon a
material breach within twelve (12) months following a Change of Control, the
Company (or its successor) shall, for twelve (12) months following the date of
such termination (subject to a six-month delay under Code Section 409A if
Executive is a “specified Executive” within the meaning of Code Section
409A(a)(2)(B)(i)), pay to Executive or provide Executive with Executive’s Base
Salary in accordance with the Company’s payroll practices, existing health and
disability insurance (to the extent permitted by the Company’s plans and
applicable law), and all other compensation and benefits specified in this
Agreement (to the extent permitted by the Company’s plans and applicable law),
and all unvested Options shall vest immediately and be exercisable as though
such termination had not occurred.
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5
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Death
and Disability.
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5.1. Death
The Term shall immediately terminate upon Executive’s death as certified in
accordance with the provisions of New York law (“Death”).
5.2. Disability As
used herein, the term “Disability” shall mean Executive becoming unable to
perform the Services as a result of her /her permanent or temporary, total or
partial, physical or mental disability. In such event, the
Company shall not have the right (absent of Good Cause) to terminate this
Agreement due to Disability prior to the expiration of the Disability Period.
As used herein, the term “Disability Period” shall mean the period commencing on
the first day upon which such Disability occurs and ending on the first to occur
of the following: (i) the expiration of the Term; (ii) if the Disability is
continuous through the sixty (60) consecutive days following the day on which
the Disability occurs, then the last day of such sixty (60) consecutive days;
and (iii) if the Disability is intermittent and shall exist throughout the Term
following the day on which the Disability occurs, then the cumulative sixtieth
(60th) day of
such Disability Period.
5.3. Effect
of Death
or Disability Should the Term be
terminated in accordance with the provisions of Sections 5.1 or 5.2 by reason of
Executive’s Death or Disability, Executive or her estate (as the case
may be) shall have no right to any further Base Salary (other than Options
vested at the time of such Death or Disability); provided, however, that the
Base Salary otherwise payable during the Disability Period shall nevertheless be
payable on the terms set forth herein to Executive as a disability benefit
(“Disability Benefit”). Any disability insurance proceeds actually received by
Executive from EchoMetrix’ disability insurance carrier during the Disability
Period with respect to such Disability shall reduce on a dollar-for-dollar basis
the Disability Benefit otherwise payable by EchoMetrix during the Disability
Period pursuant to this Section 5.3). Executive or her estate (as the case may
be) shall be entitled to severance payments in accordance to Sections 4.1.2 and
4.1.3 as applicable.
6. General.
6.1. Applicable
Law Controls. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law and wherever there is any
conflict between any provisions of this Agreement and any material statute, law,
ordinance or regulation contrary to which the parties have no legal right to
contract, then the latter shall prevail; provided, however, that in any such
event the provisions of the Agreement so affected shall be curtailed and limited
only to the extent necessary to bring them within applicable legal requirements,
and provided further that if any obligation to pay the Base Salary or any other
amount due Executive hereunder is so curtailed, then such compensation or amount
shall be paid as soon thereafter, either during or subsequent to the Term, as
permissible.
6.2. Waiver/Estoppel. Any
party hereto may waive the benefit of any term, condition or covenant in this
Agreement or any right or remedy at law or in equity to which any party may be
entitled but only by an instrument in writing signed by the parties to be
charged. No estoppel may be raised against any party except to the
extent the other parties rely on an instrument in writing, signed by the party
to be charged, specifically reciting that the other parties may rely thereon.
The parties’ rights and remedies under and pursuant to this Agreement or at law
or in equity shall be cumulative and the exercise of any rights or remedies
under one provision hereof or rights or remedies at law or in equity shall not
be deemed an election of remedies; and any waiver or forbearance of any breach
of this Agreement or remedy granted hereunder or at law or in equity shall not
be deemed a waiver or any other provision hereof or of the opportunity to
exercise such right or remedy or any other right or remedy, whether or not
similar, at any preceding or subsequent time.
6.3. Notices.
Any notice, which EchoMetrix is required or may desire to give to Executive
hereunder, shall be in writing and may be served by delivering it to the
Executive, or by sending it to the Executive by mail, telex or telegraph, at
Executive’s address first written above or such substitute address as Executive
may from time to time designate to EchoMetrix. Any notice which Executive is
required or may desire to serve upon EchoMetrix hereunder shall be in writing
and may be served by delivering it personally or sending it by mail, email or
facsimile transmission to the address set forth on Page 1 hereof, Attn: Chief
Financial Officer, or such other substitute addresses as EchoMetrix may from
time to time designate by notice to Executive.
6.4. Governing
Law. This Agreement shall be governed by, construed and enforced and the
legality and validity of each term and condition shall be determined in
accordance with the internal, substantive laws of the State of New York (without
regard to its choice of law principles and without regard to any requirement
that any provisions of this Agreement be interpreted against the party who
drafted it) applicable to agreements fully executed and performed entirely in
New York.
6.5 Dispute
Resolution and Arbitration. In the event that any dispute
arises between Company and Executive regarding or relating to this Agreement
and/or any aspect of the Executive's employment relationship with the Employer,
AND IN LIEU OF LITIGATION AND A TRIAL BY JURY, the parties consent to resolve
such dispute through mandatory arbitration administered by the American
Arbitration Association (“AAA”) in accordance with its Commercial Arbitration
Rules then in effect, and judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Any arbitration
shall be held in New York, New York before a single arbitrator who shall be
selected by the mutual agreement of Company and Executive, unless the parties
are unable to agree to an arbitrator, in which case, the arbitrator will be
selected under the procedures of the AAA. The arbitrator shall have
the authority to award any remedy or relief that a court of competent
jurisdiction could order or grant, including, without limitation, the issuance
of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to
enforce this arbitration provision or an award rendered hereunder, or to obtain
interim relief, neither a party nor an arbitrator may disclose the existence,
content or results of any arbitration hereunder without the prior written
consent of Company and Executive. The parties hereby consent to the exclusive
jurisdiction in the state and Federal courts located in the City of New York,
County of New York and State of New York for purposes of seeking such injunctive
or equitable relief as set forth above. Notwithstanding any choice of
law provision included in this Agreement, the United States Federal Arbitration
Act shall govern the interpretation and enforcement of this arbitration
provision. Company shall pay the costs of any arbitrator appointed
hereunder and the costs of such arbitration.
6.6 No Joint
Venture. Nothing herein contained
shall constitute a partnership between or joint venture by the parties hereto or
appoint any party the agent of the other party. No party shall hold itself out
contrary to the terms of this Paragraph and, except as otherwise specifically
provided herein, no party shall become liable for the representation, act of
omission of any third party who is not referred to herein and shall not be
deemed to give any right or remedy to any such third party.
6.7.
Modification/Entire
Agreement. This Agreement may not
be altered, modified or amended except by an instrument in writing signed by all
of the parties hereto. No person, whether or not an officer, agent, Executive or
representative of any party, has made or has any authority to make for or on
behalf of that party any agreement, representation, warranty, statement.
promise, arrangement or understanding not expressly set forth in any other
document executed by the parties concurrently herewith (“Parol Agreements”).
This Agreement, together with EchoMetrix’ Executive Handbook, and all
other documents executed by the parties concurrently herewith constitute the
entire agreement between the parties and supersede all express or implied, prior
or concurrent, Parol Agreements and prior written agreements with respect to the
subject matter hereof. The parties acknowledge that in entering into this
Agreement, they have not relied and will not in any way rely upon any Parol
Agreements.
6.8.
Headings;
Language. The headings in this Agreement have been inserted for
convenience only and shall have no substantive effect. The language of all parts
of this Agreement shall in all cases be considered as a whole, according to its
fair meaning, and not strictly for or against any of the parties. The parties
hereby acknowledge and agree that the language of this Agreement shall be
considered jointly drafted.
6.9. Counterparts. This
Agreement may be executed in two or more counterparts, by original signature or
via facsimile signature, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.10. Separate
and Severable. Each term, clause and
provision of this Agreement is separate and independent, arid should any term,
cause or provision of this Agreement be found to be invalid or unenforceable,
the validity of-the remaining terms, clauses, and provisions shall not be
affected. As to those terms, clauses or provisions found to be invalid or
unenforceable, they shall be replaced with valid and enforceable provisions that
achieve, to the extent possible, the economic, business and other purposes of
the invalid or, unenforceable provisions.
6.11. Survival. To
the extent required to give them effect, any provisions of this Agreement that
would reasonably be expected to survive the termination of this Agreement shall
survive such termination for any reason. Without limiting the generality of the
foregoing, the provisions of 2.4 and 2.5 shall so survive.
If the
foregoing accurately reflects the substance of our mutual agreement and
understanding, please confirm your agreement to the foregoing by signing below
where indicated.
Very
truly yours,
EchoMetrix,
Inc.
By: /s/
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By: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: CEO
ACCEPTED
AND AGREED TO BY THE EXECUTIVE:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇