AGREEMENT, effective as of September 2, 2008 (the Effective Date), by
and between AboveNet, Inc. (the Company), a Delaware corporation having
its principal offices at 360 Hamilton Avenue, White Plains, New York 10601 and John
Jacquay, residing at 40118 North
Candlewyck Lane, Anthem, AZ 85086
W I T N
E S S E T H:
WHEREAS, the Employee
has been employed by the Company pursuant to an employment agreement;
WHEREAS, the Company
and the Employee now desire to provide for the continued employment of the
Employee by the Company after the Effective Date on the terms and conditions
hereinafter set forth herein and to replace and supersede the existing
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment; Term.
(a) The Company hereby agrees to employ the
Employee, and the Employee hereby agrees to serve, as Senior Vice President of
Sales and Marketing during the Term (defined below).
(b) The term (the Term) of the
Employees employment hereunder will commence on the Effective Date and, unless
sooner terminated as provided in Section 6 hereof, will terminate at the
end of the day on November 16, 2011. The Term shall be automatically
extended, unless sooner terminated as provided herein, for successive
additional one-year periods, unless at least 120 days prior to the end of the
Term, the Company or the Employee has notified the other that the Term will not
(a) The Employee will have such powers and
duties reasonably consistent with Employees position as Senior Vice President
of Sales and Marketing and will perform such duties as assigned to him by the
Chief Executive Officer, or alternatively at the discretion of the Chief
Executive Officer the President of the Company, (the Superior). The Employee agrees to perform his duties and
exercise his authority pursuant to the direction and control of his Superior
and will report to his Superior. The
Employee will perform his duties diligently, faithfully and to the best of his
ability and in accordance with sound business practices. The Employee will be
based in Phoenix, Arizona, but will be expected to travel extensively to meet
with Company customers and employees.
(b) The Employee will devote substantially
all his business time and attention to his duties and responsibilities
hereunder, subject to paid vacations and holidays as hereinafter set forth in Section 5
of this Agreement.
(c) The Employee will comply with all Company
policies including its Code of Conduct.
(a) Base Salary.
During the Term, for all the services rendered by the Employee in all
capacities hereunder, the Employee will receive an annual base salary of $300,000
(the Base Salary) subject to required deductions and withholdings or
as otherwise required by law, payable in accordance with the standard payroll
practices of the Company then in effect which is currently twice a month. Base Salary may be increased but not
decreased during the Term.
(b) Bonus Plan. In
addition to the Base Salary set forth in Section 3(a) hereof, the
Employee will have an annualized bonus targeted at $250,000 based on
performance against the Companys EBITDA plan and other bonus targets set by
the Compensation Committee of the Board of Directors (the Bonus Plan).
Company will reimburse the Employee for all reasonable out-of-pocket business
expenses paid or incurred by him in connection with the performance of his
duties and responsibilities hereunder, but payment will be made only against a
signed, itemized list of such expenses, utilizing general forms for that purpose
established by the Company and accompanied by proper documentation verifying
such expenses. Receipts will not be
required for any expenses that are less than Twenty-Five Dollars ($25) in
value. The Company may audit the
Employees expense reports at any time.
5. Additional Benefits; Vacations;
(a) During the Term, the Employee will be
entitled to participate in all group health and insurance programs and all
other fringe benefit or retirement plans or other plans provided to employees
of the Company in similarly-situated executive positions generally, subject to
the Employees satisfying all of the eligibility requirements thereof. Nothing herein will be deemed to require the
Company to establish or maintain any employee benefit plan whatsoever, and the
Company has the right, in its sole and absolute discretion, to alter, amend,
modify, discontinue or terminate any and all employee benefit plans at any
(b) During the Term, the Employee will be
entitled to the generally same paid holidays as are provided to employees in
similarly-situated executive positions generally and will be entitled to paid
time off (including vacation days and sick days) per calendar year of 25 days
or such greater amount provided by the then existing Company policy, consistent
with his duties and responsibilities hereunder and the Companys vacation
policy. Paid time off which remains
unused at the end of a calendar year will be subject to the then existing
policy regarding carryover of, or payments for, such unused time.
(c) If the Employee qualifies for term life
insurance at non-smokers rates, the Company will provide the Employee during
the Term, at no cost (other than potential income tax) to the Employee, with a
life insurance policy providing for a death benefit of no less than
$1,000,000. If the Employee fails to
qualify for term life insurance at non-smokers rates, the Company will make
its best efforts to provide the Employee, at no cost (other than potential
income tax) to the Employee, with the maximum amount of term life insurance it
can obtain for the premiums the Company would have paid on a policy providing a
death benefit of $1,000,000 at non-smokers rates if the Employee were
qualified for such insurance.
6. Termination of Employment.
Agreement may be terminated prior to the end of the Term in accordance with the
(a) Death. In the
event of the Employees death prior to the end of the Term, this Agreement will
automatically terminate. In such event,
the Employees beneficiary or beneficiaries will be entitled to: (i) all accrued but unpaid Base Salary; (ii) all
earned but unpaid annual bonuses under the Bonus Plan for years prior to the
year of the termination of employment; (iii) a pro rated annual bonus
under the Bonus Plan for the year of the termination of employment (at the rate
he would be entitled to receive under the Bonus Plan if 100% of the annual
target were satisfied); and (iv) all accrued paid time off (collectively,
the Accrued Benefits).
(b) Disability. If the
Employee suffers a Disability (as hereinafter defined) prior to the end of the
Term, this Agreement may be terminated at the option of the Company by notice
from the Company to the Employee given at any time after the Employee has
suffered a Disability. The term Disability
shall have the meaning set forth in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended. In
such event, such termination will be effective as of the date on which the
Company gives notice to the Employee that it is terminating his employment
hereunder pursuant to this Section 6(b). In such event, the Employee will
be entitled to the Accrued Benefits.
(c) For Cause or Not For Good Reason.
(i) This Agreement may be terminated prior to
the end of the Term at the option of the Company for Cause (as hereinafter
defined) or by the Employee not for Good Reason (as defined in subsection (d) below),
effective as of the date on which the Company gives notice to the Employee that
it is terminating his employment pursuant to this Section 6(c) or the
date on which the Employee gives notice to the Company that he is terminating
his employment pursuant to this Section 6(c).
(ii) The term for Cause means any of the
(A) fraud, misappropriation or embezzlement
of funds or property by the Employee involving the Company or an Affiliated
Company (as hereinafter defined);
(B) the conviction of the Employee in any
jurisdiction for any crime which constitutes a felony, or which constitutes a
misdemeanor that involves fraud, moral turpitude
or material loss to the Company or an Affiliated Company, or their respective
businesses or reputations;
(C) the Employees material misconduct in, or
material neglect of, the performance of his material duties and
responsibilities hereunder, or the Employees violation of any reasonable
specific directions of the Superior which directions are consistent with the provisions
of this Agreement; or
(D) the Employees material breach of this
Agreement, including but not limited to the provisions set forth in Sections 7
(Confidential Information), 8 (Restricted Covenants), 9 (Bribery, Extortion or
Kickbacks) and 10 (Intellectual Property) hereof.
(iii) In the event of the termination of the
Employees employment hereunder for Cause or by the Employee not for Good
Reason, such termination will be effective as of the date of notice of such
termination and the Company will have no further obligations whatsoever
hereunder to compensate the Employee pursuant to the terms of this Agreement
other than with respect to the accrued but unpaid Base Salary, accrued paid
time off, and any accrued benefits under the Companys benefit plans through
the date of termination.
(iv) The term Affiliated Companies
means all entities that directly or indirectly control, or are controlled by,
the Company, all entities that are under direct or indirect common control with
the Company, and all entities in which the Company has a significant joint
venture or other similar interest. (Any
entity which is a member of the Affiliated Companies is referred to herein as
an Affiliated Company.) Control
and controlled means possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a
corporation, partnership or other entity, whether through ownership of voting
securities, by contract or otherwise.
(d) For Good Reason or Without Cause.
(i) This Agreement may be terminated prior to
the end of the Term by the Employee for Good Reason (as hereinafter defined) or
at the option of the Company without Cause, effective as of the date on which
the Employee gives notice to the Company that he is terminating his employment
pursuant to this Section 6(d) or as of the date on which the Company
gives notice to the Employee that it is terminating his employment pursuant to
this Section 6(d).
(ii) The term Good Reason means either of
the following two events:
(a) the Companys material breach of any
provision of the Agreement which breach continues uncured for thirty-five (35)
days after written notice thereof is given to the Company by the Employee, or
(b) a material relocation of the Employees
principal place of employment on the Effective Date of this Agreement, provided
that the Company chooses not to rescind such relocation within thirty-five (35)
days after written notice requesting that it be rescinded is given to the
Company by the Employee.
both cases (a) and (b), the notice of alleged breach or relocation must be
provided to the Company within ninety (90) days of the initial existence of
such condition and the Employee shall only have the right to terminate the
Agreement for Good Reason within six (6) months of the initial existence
of such condition and only if such condition is not cured or rescinded, as the
case may be, prior to such termination.
(iii) Upon termination of the Employees
employment with the Company by the Company without Cause or by the Employee for
Good Reason, the Employee will be entitled to receive from the Company (A) the
Accrued Benefits, (B) the payment of twelve months Base Salary, and (C) the
continuation of health and welfare benefits for twelve months (subject to the
Companys provider continuing to provide such benefits at similar rates and such
continuing health and welfare benefits being terminated in the event coverage
is provided to the Employee by a subsequent Employer).
(e) Release. A
condition precedent to the Companys obligations under Section 6(d) will
be the Employees execution and delivery of the release of all claims (other
than claims under Section 6(d) of this Agreement and for directors
and officers indemnification) he may have against the Company, its affiliates
and their directors, officers, employees, agents and shareholders which relate
to his employment with the Company and termination of such employment (the Release).
Such release must be executed by the Employee within 45 days after receipt of
the release from the Company.
(f) Payment Date.
The Employee will receive all required payments under Sections 6(a) through
6(c) no later than 30 days following the Employees termination of employment,
provided however, that the Employee will receive the Accrued Benefits and the
twelve months Base Salary no later then ten (10) business days following
the execution and delivery of the Release by the Employee.
(g) No Mitigation; No Set-Off. In the event of the termination of Employees
employment by the Company without Cause or by the Employee for Good Reason, the
Employee shall be under no obligation to seek other employment and there shall
be no offset against amounts due to him on account of any remuneration or
benefits provided to him by any subsequent employment he may obtain. Notwithstanding the preceding, if the
Employees employment is terminated by the Company without Cause or by the
Employee for Good Reason, the obligation of the Company to continue to provide
the Employee with heath insurance under Section 6(d) (iii) (C) shall
cease upon coverage by a subsequent employer.
(h) Excise Tax. In the event that any payment or benefit made
or provided to or for the benefit of the Employee in connection with this
Agreement or his employment with the Company or the termination thereof (a Change
determined to be subject to any excise tax (Excise Tax) imposed by Section 4999
of the United States Internal Revenue Code of 1986, as amended, (or any
successor to such section), if it is determined that, on an afterExcise Tax
basis, the Employees economic benefit would be increased if the Company
reduced the Change of Control Payments to be provided to the Employee to the
extent necessary to avoid the imposition of the Excise Tax, the Company will
reduce such Change in Control Payments to the Employee. The determination
regarding the Excise Tax will be made by an expert on the issues related to the
Excise Tax selected by the Company and approved by the Employee. The same
expert will be used for the determination of any other Excise Taxes due
relating to a Change of Control for any other employee.
7. Confidential Information.
The Employee covenants and agrees that:
(a) During the Term and thereafter, he will
keep secret and retain in the strictest confidence all information about
business and financial matters (including, without limitation, information
relating to costs, profits, budgets and plans for future development, strategy,
methods of operation and marketing concepts) of the Company and the Affiliated
Companies, their respective employment policies and plans, and any other trade
secrets and proprietary information relating to the Company, the Affiliated
Companies or their respective operations, business and financial affairs, other
than information which is otherwise generally available to the public other
than as a result of a disclosure by the Employee (collectively, the Confidential
Information), and, for such time as the Company or any Affiliated Company
is operating, not disclose any Confidential Information to anyone outside of
the Company or an Affiliated Company, either during or after the term of his
employment by the Company or an Affiliated Company, except: (i) in the course of performing his
duties hereunder; (ii) with the Companys express prior written consent;
or (iii) as required by law.
(b) The Employee will surrender to the
Company immediately after the termination of his employment hereunder, or at
any time the Company may so request, all memoranda, notes, records, reports,
lists and other documents in whatever form or medium containing, describing or
relating to Confidential Information, together with all copies thereof,
obtained by him or entrusted to him during the course of his employment by the
Company or an Affiliated Company or otherwise in his possession at the time of
such termination or request.
8. Restrictive Covenants.
(a) Employee covenants and agrees that:
(i) except with respect to a Permitted
Investment (as such term is defined below), while employed by the Company and,
if the Employees employment with the Company is terminated for any reason
during the Term, for six (6) months after the termination of his
employment with the Company, he will not compete, directly or indirectly, with
the Company or any Affiliated Company, by participating in the direct or
indirect ownership, management, operation or control, whether as an officer,
director, partner, employee, advisor, stockholder, investor, consultant, agent,
independent contractor, lender or otherwise, of any corporation, partnership or
other entity which owns, acquires or seeks to acquire or obtain any franchise,
lease or license, relating to, or is otherwise engaged in, the acquisition of
or planning, design, construction and deployment of fiber optic
telecommunications services or the provision of
high performance internet connectivity solutions for electronic commerce and
other business critical internet operations or similar business purpose
(collectively Telecommunications Services). As used in this Section 8(a), Permitted
Investment means the ownership by the Employee (as the result of open
market purchase(s)) of one (1%) percent or less of any class of capital stock
of a corporation which is regularly traded on a national securities exchange or
over the counter on the NASDAQ system.
(ii) for twelve months following termination of
his employment with the Company for any reason whatsoever;
(A) he will not solicit, in competition with
the Company or any Affiliated Company, any person who is a customer of the
Company or any Affiliated Company; and
(B) he will not employ or induce or attempt
to persuade any employee of the Company or any Affiliated Company to terminate
his employment relationship in order to enter into competitive employment, or
in any way cause, influence or participate in the employment of any such individual
by anyone else in any business that is competitive with any business then
engaged in by the Company or any Affiliated Company.
(b) If any of the restrictions contained or
referenced in this Section 8 is for any reason held by court to be
excessively broad as to duration, activity, geographical scope, or subject,
then such restriction shall be construed or judicially modified so as to
thereafter be limited or reduced to the extent required to be enforceable in
accordance with applicable law; provided, however, that such
courts determination will not affect the enforceability of Section 8
hereof in any other jurisdiction.
(c) If Employee breaches, or threatens to
commit a breach of, any of the provisions of this Section 8 (collectively,
the Restrictive Covenants), the Company will have the following rights
and remedies, each of which rights and remedies will be independent of the
other and severally enforceable, and all of which rights and remedies will be
in addition to, and not in lieu of, any other rights and remedies available to
the Company under law or in equity:
(i) Specific Performance.
The right and remedy to seek from any court of competent jurisdiction
specific performance of the Restrictive Covenants or injunctive relief against
any act which would violate any of the Restrictive Covenants, it being
acknowledged and agreed that any breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
(ii) Accounting. The right
and remedy to require Employee to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits derived
or received by the Employee as the result of any transactions constituting a
breach of any of the Restrictive Covenants.
9. Bribery, Extortion and Kickbacks.
Employee will not at
any time make or promise to make or accept any payments or transfers of value
which has the purpose or effect of public or commercial bribery, acceptance of
or acquiescence in extortion, kickbacks or other unlawful or improper means of
obtaining or conducting business for the Company. Employee will not at any time agree that he
will, in connection with his employment or in connection with any other
business transactions involving the Company, make or promise to make any
payment or transfer anything of value, directly or indirectly: (i) to any
governmental official or employee (including employees of government
corporations); (ii) to any political party, official of a political party
or candidate (or to an intermediary for payment to any of the foregoing); (iii) to
any officer, director, employee, or representative of any actual or potential
customer of the Company; or (iv) to any other person or entity. The foregoing will not prohibit normal and
customary business entertainment or the giving of business mementos of nominal
10. Ownership of Intellectual Property.
(a) All Inventions (as hereinafter defined),
or patents, trademarks, copyrights, trade secrets or any other rights relating
to any of the foregoing, which have or may have a material importance to the
business of the Company and which are conceived or made by Employee in
connection with his employment with the Company, either alone or with others,
are the sole and exclusive property of the Company whether or not they are
conceived or made during work time for the Company, except to the extent
generally known by persons generally knowledgeable in the fiber optics
(b) Employee will immediately disclose to the
Company any and all Inventions (whether or not patentable) made or conceived by
the Employee during the Term, either alone or in conjunction with others,
whether or not made or conceived at the request or upon the suggestion of the
Company, whether or not resulting from any work done in the course of
employment, whether or not reduced to practice during the term of employment,
and whether or not made or conceived during or outside of the usual hours of
employment or upon or not upon any premises of the Company.
(c) Employee assigns and will hereafter
assign to the Company all present or future right, title and interest in and to
all Inventions referred to above.
Employee will not disclose any such Inventions to any third party
without the written consent of the Company.
(d) At any time and from time to time during
and after the Term, on the request of the Company, without further
consideration Employee will: (i) execute
specific documents of assignment in favor of the Company, or its nominee, of
any of the Inventions covered hereunder, (ii) execute all papers and
perform all acts the Company considers necessary or advisable for the
preparation, application procurement, maintenance, enforcement and defense of
patent applications and patents of the United States or other jurisdictions of
such Inventions, if applicable, for the perfection or enforcement of any
trademarks, copyrights or trade secrets relating to such Invention, and for the
transfer of any interest the Employee may have in such Inventions, and (iii) execute
any and all papers and comments which the Company considers to necessary to
vest sole right, title and interest in the Company or its nominee in and to
the above Inventions,
patent applications, patents, or any trademarks or copyright or applications
therefore relating thereto.
Notwithstanding the foregoing, after termination of employment, Employee
will be entitled to reasonable compensation for more than incidental time and
effort required to be expended by Employee to fulfill his responsibilities
under clause (ii). Employee will execute
all documents (including those referred to above) and do all other acts which the
Company considers to be necessary to assist in the preservation of all the
Companys interests in such Inventions.
(e) Upon execution of this Agreement,
Employee will provide to the Company, if Employee has not already done so, a
complete written list of all Inventions which have been made or conceived
before his employment with the Company commenced or first reduced to practice
by Employee alone or in conjunction with others prior to employment with the
(f) For purposes of this Section 10, Invention
means: (i) any and all machines,
apparatuses, compositions of matter, methods, know-how, processes, computer
programs, designs, configurations, uses thereof, or writings (in any form or
any media) of any kind, discovered, conceived, developed, made or produced, or
any improvement to the same, and will not be limited to the definition of any
invention contained in the United States Patent law; (ii) all matters
subject to copyright protection under United States law; (iii) all matters
subject to trademark protection under the laws of the United States or those of
any state of the United States or under common law of any jurisdiction within
the United States; and (iv) all matters subject to protection as trade
secrets under the laws or common law of any state of the United States or of
the United States.
(g) For purposes of this Section 10, the
term Work Product refers to all work product and work-in-progress
generated, created, or developed by Employee in the course of employment,
regardless of the form or medium in which such Work Product is embodied,
including without limitation electronic form and new media. All Work Product will be deemed work made for
hire as defined by the Copyright Act of 1976.
As such, all right, title and interest in and to all Work Product will
vest in and remain with the Company from its inception, and Employee will
execute all documents and all acts which the Company considers necessary to
assist in the preservation of the Companys interest in such Work Product.
(h) If a court of competent jurisdiction
determines that the Work Product does not constitute work made for hire,
Employee agrees that this Agreement constitutes a written continuing assignment
by the Employee to the Company of all right, title and interest in and to the
It is agreed by the
Employee that any breach or threatened breach by the Employee of any provision
of Sections 7, 8, 9 or 10 hereof cannot be remedied solely by damages. In the event of a breach or threatened breach
by the Employee of any of the provisions of Sections 7, 8, 9 or 10 hereof, the
Company or any Affiliated Company will be entitled to injunctive relief
restraining the Employee and any business, firm, partnership, individual,
corporation or other entity participating in such breach or threatened
breach. Nothing contained herein will be
construed to prohibit the Company or any Affiliated Company from pursuing any
other remedies available at law or in equity
such breach or threatened breach, including, without limitation, the recovery
12. Representations and Warranties.
(a) The Employee represents and warrants to
the Company that:
(i) The Employee has full power and authority
to enter into this Agreement, and this Agreement has been duly and validly
executed and delivered by the Employee and constitutes the legal, valid and
binding obligation of the Employee, enforceable against the Employee in
accordance with its terms;
(ii) The execution and delivery of this
Agreement by the Employee and his performance hereunder will not violate any
provision of law and will not conflict with or result in a breach of any
judgment, decree, order, writ, injunction, regulation, ordinance or other similar
document or instrument of any court or governmental authority, and will not
(with or without the giving of notice or lapse of time, or both) violate or
breach any term or condition of, or constitute a default under, any agreement,
document or instrument to which the Employee is a party or by which he is
(iii) The execution and delivery of this
Agreement by the Employee and his performance hereunder do not require the
consent or approval of any other person or entity.
(b) The Company represents and warrants to
the Employee that it has full power and authority to execute and deliver this
Agreement and perform its obligations hereunder and this Agreement has been
duly executed and delivered, will be valid and binding as of the Effective Date
and enforceable in accordance with its terms.
All notices and other
communications hereunder will be in writing and will be deemed to have been
duly given if delivered by hand, registered or certified mail (first class
postage and fees prepaid, return receipt requested), facsimile or overnight
courier guaranteeing next-day delivery, as follows:
(a) If to the Company, one copy to:
360 Hamilton Avenue
White Plains, New York
Attention: Chief Executive Officer
Fax No.: (914) 421-7550
(b) If to the Employee, one copy to:
Anthem, AZ 85086
to such other address as the Company may have on file for the Employee.
14. Prior Agreement; Entire Agreement.
The Employee and the
Company hereby acknowledge and agree that the terms and provisions of this
Agreement shall replace and supersede the Employment Agreement between the
employee and the Company dated as of June 1, 2004 as amended.
may not be amended, changed, modified or discharged except by an instrument in
writing executed by or on behalf of the party or parties against whom any
amendment, change, modification or discharge is sought to be enforced.
No failure by any
party to insist upon the strict performance of any covenant, duty, agreement or
condition of this Agreement or to exercise any right or remedy consequent upon
a breach thereof will constitute a waiver of any such breach or of any other
covenant, duty, agreement or condition of this Agreement, any such waiver being
made only by a written instrument executed and delivered by the waiving
party. Such written waiver by the
Company must be approved by the CEO or the Board.
This Agreement will
not be assignable by the Employee and any purported assignment hereof by the
Employee will be null and void. This
Agreement will be binding upon, and inure to the benefit of, the Employee and
his heirs, executors, administrators and legal representatives, and the Company
and its successors and assigns.
If any of the
covenants contained in this Agreement, including, without limitation, those
contained in Sections 7, 8 or 10 hereof, are hereafter construed to be invalid
or unenforceable in any jurisdiction, the same will not affect the remainder of
the covenant or covenants or their enforceability in any other jurisdiction,
which will be given full force and effect, without regard to the invalid
portions or the enforceability in such other jurisdiction.
19. Governing Law.
This Agreement will be
governed by, and construed and interpreted in accordance with, the laws of the
State of New York without reference to conflict of laws principles.
20. Indemnification and Liability Insurance.
The Company agrees to
indemnify the Employee and hold him harmless, both during the Term and
thereafter, to the fullest extent permitted by law and under the articles,
by-laws, or other agreements of the Company against and in respect to any and
all actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including reasonable attorneys fees), losses, and damages resulting from the
Employees good faith performance of his duties as an officer or director of
the Company, on or after the Effective Date.
21. Consent to Jurisdiction and Service of
The parties hereto
irrevocably (a) submit to the exclusive jurisdiction of the courts of the
State of New York or the courts of the United States located in the State of
New York, for the purpose of any suit, action or other proceeding arising out
of this Agreement, and (b) waive to the extent not prohibited by law, and
agree not to assert, by way of motion, as a defense or otherwise, in any such
suit, action or proceeding, any claim that they are not subject to the personal
jurisdiction of the above-named courts, that their property is exempt or immune
from attachment or execution, that any such suit, action or proceeding brought
in one of the above-named courts is brought in an inconvenient forum, that the
venue of any such suit, action or proceeding is improper, or that this
Agreement or the subject matter hereof may not be enforced in or by such court,
and (c) waive the right to a trial by jury in any such suit, action or
The Employee hereby
consents to service of process in any such suit, action or proceeding in any
manner permitted by civil practice laws and rules of the State of New
York, and agrees that service of process by registered or certified mail,
return receipt requested, at his address specified in or pursuant to Section 13
hereof is reasonably calculated to give actual notice.
Each party to this
Agreement will pay his costs (including legal fees) in connection with
enforcement of this Agreement. However, if the Employee prevails on such
issues, the Company will reimburse the Employee for all reasonable costs,
including legal fees that the Employee incurs.
Notwithstanding the preceding, the Employee will not be reimbursed if
the Employee challenges the validity of Section 8, regardless of whether
the Employee is successful in such challenge.
The headings contained
in this Agreement are for convenience of reference only and in no way define,
limit or describe the scope or intent of this Agreement or in any way affect
(a) For purposes of this Agreement, whenever
the context requires; the singular number will include the plural, and vice
versa; and the masculine gender will include the feminine and neuter genders.
(b) As used in this Agreement, the words include
and including and variations thereof, will not be deemed to be terms of limitation,
but rather will be deemed to be followed by the words without limitation.
This Agreement may be
executed in counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
Provisions of this
Agreement which by their terms must survive the termination of this Agreement
in order to effectuate the intent of the parties will survive any such
termination, whether by expiration of the Term, termination of Employees
employment, or otherwise, for such period as may be appropriate under the
circumstances. Such provisions include,
without limitation, Section 7, 8, 10 and 11
of this Agreement.
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first above
/s/ William G. LaPerch