EMPLOYMENT AGREEMENT
AGREEMENT made this 18th day of November, 1997, by and between X. X.
MANTA, INC., a corporation duly organized and existing under the laws of the
State of Illinois, with a principal place of business at 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Employer") and Xxxxxxx X.
Xxxxxx, an individual residing at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000 (hereinafter referred to as "Employee").
RECITALS
This Employment Agreement has been executed and delivered pursuant to
the terms and conditions of a certain Stock Purchase Agreement, dated September
30, 1997, by and between, inter alia, EIF Holdings, Inc., an Hawaii corporation
(the "Buyer"), and such "Sellers" named therein (the "Stock Purchase Agreement")
whereby the Buyer has agreed to purchase all of the issued and outstanding
capital stock of the Employer. Capitalized terms used in this Agreement without
definition shall have the respective meanings set forth in the Stock Purchase
Agreement.
The Buyer and the Employer desire to ensure the Employee's continued
employment with the Employer, and the Employee wishes to accept such continued
employment, upon the terms and conditions set forth in this Agreement.
In consideration of the mutual covenants hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Employer and Employee hereby agree as follows:
Section 1. Employment.
1.1 Employment. Upon the terms and conditions set forth
herein, Employer hereby employs Employee and Employee accepts such employment.
1.2 Term. The term of the employment shall be for a period of
three (3) year(s) beginning on the date hereof and ending on November 18, 2000
(the "Initial Term of Employment"), and shall continue on an at-will basis
thereafter (collectively, the "Term of Employment"), subject to the provisions
of Section 5 hereinbelow.
1.3 Duties.
(a) Capacity. During the Term of Employment, Employee
shall hold the position of Chief Financial Officer and
Treasurer of the Employer. Employee shall have and perform all
of the duties and responsibilities customarily attributed to
such position and all other services incident thereto and
shall render such other services and discharge such other
responsibilities
Page 232
as may be assigned to him from time to time by the Board of
Directors of Employer or such other executive officer as may
be designated by the Board of Directors of Employer; provided,
however, that Employee shall not be required (and it shall not
be a basis for termination for cause hereunder for Employee to
refuse) to render duties of a nature substantially
inconsistent with those customarily performed by officers
holding positions similar to that held by Employee at
companies similar to Employer.
(b) Schedule. In carrying out his duties and
responsibilities hereunder, Employee shall strictly abide by
the policies of Employer and shall devote all of his time,
attention, energies, skills, and best efforts exclusively to
the performance of his duties and responsibilities for and on
behalf of Employer. Without limiting the generality of the
foregoing, Employee shall devote not less than five (5) days
per week (except for regular business holidays observed by
Employer and Employee's vacation days) to his employment and
shall be present on Employer's premises or actively engaged in
service to or on behalf of Employer during normal business
hours Monday through Friday.
(c) Exclusivity. Without limiting the generality of
the foregoing, during the Term of Employment, Employee shall
not, without the prior written approval of Employer, render
services of a business, professional or commercial nature for
compensation to any other entity or person; provided, however,
this clause shall not prohibit Employee from making
investments of a passive nature (other than investments of
more than three (3%) percent of the outstanding shares of
companies engaged in any business which is directly or
indirectly competitive with or similar to the business now or
hereafter conducted by the Employer) which do not detract from
the full-time nature of Employee's employment hereunder.
(d) Relocation. Employer shall not require Employee
to render his duties hereunder from a principal place of
business more than fifty (50) miles from the principal place
of business at which Employee is providing services to
Employer as of the date of the execution of the Stock Purchase
Agreement, unless such relocation of Employee is directed
pursuant to a business plan for Employer adopted in good faith
by Buyer and approved by the President and Chief Executive
Officer of Buyer.
1.4 Compensation and Benefits. During the Term of Employment,
as compensation for the services to be rendered during such period and the other
obligations undertaken by Employee hereunder, Employee shall be entitled to the
following compensation:
(a) Base Salary. Employer agrees to pay or cause to
be paid to Employee for his services a base salary at the rate
of One Hundred Fifty Thousand ($150,000.00) Dollars per year
(the "Initial Base Salary"), payable in accordance with
Employer's normal payroll periods and subject to the usual
payroll deductions. From time to time during the Term of
Employment, the Employer may review and, if appropriate, after
the Initial Period of Employment, adjust the Employee's base
salary in its sole discretion.
Page 233
(b) Benefits. During the Term of Employment, Employee
shall be eligible to receive and participate in all other
employment plans and benefits which the Employer customarily
provides its employees in the same or substantially equivalent
positions to that of Employee hereunder, including, without
limitation, paid vacation and holidays, health, life, and
disability insurances, cafeteria plans, medical reimbursement
plans and 401(k) plans, all such plans and benefits to be
substantially comparable to the plans and benefits as made
available to Employee as of the date of the execution of the
Stock Purchase Agreement; provided, however, that nothing
herein shall be construed to in any manner prohibit Employer
from changing the carrier or provider for any such plans or
benefits or from replacing any current plans and benefits with
substantially comparable plans and benefits. All such benefits
shall be governed solely by the terms and conditions of the
applicable employment policies or plans providing for such
benefits. Employer shall further provide to Employee an
automobile (or an equivalent automobile allowance) and
automobile insurance to the extent and in the manner the same
are provided by the Employer to the Employee as of the date of
the execution of the Stock Purchase Agreement.
(c) Expenses. During the Term of Employment, Employer
shall reimburse Employee promptly for reasonable and necessary
travel, lodging, entertainment and other out-of-pocket
expenses in connection with his employment hereunder in
accordance with the policies of Employer in effect from time
to time and upon Employee timely submitting such expenses for
reimbursement and providing the Employer with such
documentation substantiating such expenses as Employer may
reasonably require.
Section 2. Development of Inventions, Improvements or Know-How.
2.1 Information. During the Term of Employment, Employee shall
keep Employer informed of any and all promotional and advertising materials,
catalogs, brochures, plans, customer lists, supplier lists, manuals, handbooks,
inventions, discoveries, improvements, trade secrets, secret processes and any
technology, know-how or intellectual property made or developed by him, in whole
or in part, or conceived of by him, alone or with others, which results from any
work he may do for, or at the request of Employer, or which relates in any way
to the business and/or operations of Employer, or which relates to the
Employer's actual or demonstrably anticipated research or development
(collectively the "Information").
2.2 Assignment of Rights. Employee, and his heirs, assigns and
representatives shall assign, transfer and set over, and do hereby assign,
transfer and set over, to Employer, and its successors and assigns, all of his
and their right, title and interest in and to any and all Information, and any
patents, patent applications, copyrights, trademarks, tradenames or other
intellectual property rights relating thereto, provided or conceived by Employee
during the Term of Employment.
2.3 Further Assurances. To the extent Employer deems
reasonably necessary or desirable to affect the intent of the assignments,
transfers and set-overs provided for in Sections 2.1 and 2.2 hereinabove,
Employee, and his heirs, assigns or representatives, shall, at the expense of
Employer, assist Employer or its nominees to obtain patents, copyrights,
trademarks and tradename or similar rights of protection (including any renewals
or continuations thereof) for any and all Information in any country or
countries throughout the world. Employee, and his heirs, assigns and
representatives shall at Employer's sole cost and expense execute and deliver
any and all applications, assignments or other instruments reasonably necessary
or desirable to secure United States or foreign patents, copyrights, trademarks
and tradenames or similar rights of protection (including any renewals or
continuations thereof), and to transfer to Employer, upon request, any and all
right, title or interest of Employee in and to any and all such Information.
Employee, and his heirs, assigns and representatives shall give Employer, upon
request, any and all facts known to him or them reflecting such Information with
respect to any of the foregoing, including, without limitation, any and all
formulae, processes, sketches, drawings, models and figures.
Page 234
Section 3. Non-Disclosure.
Employee hereby acknowledges that Employer possesses certain
confidential and proprietary information, including, but not limited to client
and customer lists, supplier lists, data, figures, sales figures, projections,
estimates, tax records, personnel history, accounting procedures, bids, and
other information relating to the Employer's employees, clients, customers,
client and customer requirements, methods of client development, suppliers,
bidding techniques, pricing, research and development and other activities,
services and business of the Employer (the foregoing being hereinafter referred
to collectively as "Confidential Information") and that maintaining the
confidential and proprietary nature of said Confidential Information is
essential to the continued commercial success of the Employer's business and
that said Confidential Information constitutes valuable and unique assets which
provide the Employer with a distinct competitive advantage over competing
businesses. Confidential Information shall not include any such information
which (a) is or becomes publicly known through no wrongful act of Employee (b)
is approved in advance of such use or disclosure in writing by Employer, or (c)
is required to be disclosed by court order or lawful order of a governmental
agency or regulatory body or by applicable law; provided, however, that in the
event the Employee is requested or required (by oral question or request for
information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar process) to disclose any Confidential
Information, Employee shall notify Employer promptly of such request or
requirement so that Employer may seek an appropriate protective order or waive
compliance with the provisions of this Section 3. If, in the absence of
protective order or the receipt of a waiver hereunder, Employee is, on the
advice of counsel, compelled or required by applicable law to disclose any
Confidential Information to any tribunal, Employee may disclose the Confidential
Information, provided that Employee shall use his reasonable best efforts to
obtain, at the request and sole expense of Employer, an order or other assurance
that confidential treatment will be accorded to such portion of the Confidential
Information required to be disclosed as the Employer shall designate. Therefore,
Employee hereby agrees that Employee shall not disclose, divulge, or use in any
manner any such Confidential Information except as is specifically required
Page 235
in the performance of Employee's duties pursuant to this Employment Agreement,
and that Employee will not, under any circumstances, communicate any such
Confidential Information to any one not employed by the Employer and/or
specifically authorized in writing by the Employer to receive such Confidential
Information. It is expressly agreed that the foregoing restrictions upon use,
disclosure or communication of the aforementioned Confidential Information shall
be in full force and effect forever and shall survive any termination of this
Agreement, whether voluntary or involuntary, and regardless of the reason for or
manner of termination. Upon the termination of this Agreement and Employee's
employment hereunder, regardless of the reason for or manner of termination,
Employee agrees that Employee will deliver to the Employer all originals and all
copies in the Employee's possession of any and all documents of any nature
containing, evidencing, or in any manner relating to any Confidential
Information as defined herein and shall not take any such documentation with
Employee upon said termination. Employer acknowledges and agrees that
notwithstanding the foregoing, Employee shall not be prohibited from utilizing
and disclosing Confidential Information in connection with any action, suit, or
other proceeding arising out of or in connection with the terms and provisions
of the Stock Purchase Agreement and/or the other Buyer's Transaction Documents;
provided, however, that Employee agrees that in connection with any action,
suit, or other proceeding, no such disclosure of the Confidential Information
shall be made until such time as an appropriate protective order, mutually
acceptable to Employer and Employee, shall be entered in any such action, suit,
or proceeding or, in the event the parties cannot mutually agree upon the terms
for such a protective order, upon the issuance of a protective order, upon
motion by either party, as shall be determined to be appropriate by the trier of
facts or arbitrator in any such proceeding.
Section 4. Covenant Not To Compete.
4.1 Acknowledgment. Employee acknowledges that he is being
employed by the Employer in a position in which he will be expected to
independently develop and maintain close relationships with customers and
clients of the Employer and in which he will be provided with access to
Confidential Information of Employer, and that such customer relationships and
Confidential Information constitute a significant part of the goodwill of the
Employer, the preservation of which is essential to the success of the Employer,
and that the Employer has a legitimate interest in restricting Employee's
ability to take advantage of such relationships and Confidential Information.
Employee further acknowledges that the rights, benefits, and privileges which
Employee has received pursuant to the Stock Purchase Agreement constitute
additional consideration for the Employee's covenants as set forth in this
Section 4.
4.2 Non-Competition Agreement.
(a) In light of the foregoing, and in consideration
of the continued employment of Employee hereunder, and for
other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Employee,
Employee hereby covenants and agrees that, during
Page 236
the Term of Employment and, except as expressly provided in
Section 4.2(b) hereinbelow, for a period of two (2) years
after any termination of this Employment Agreement and/or
Employee's employment hereunder, whether voluntary or
involuntary, and regardless of the reason for or manner of
termination, Employee shall not, alone or with others,
directly or indirectly (as owner, stockholder, partner,
lender, other investor, director, officer, employee,
consultant, or otherwise):
(i) Solicit, perform or engage in any
business of the same or similar nature to the
business of Employer anywhere within the Employer's
Territories (as hereinafter defined);
(ii) Solicit, engage in, perform, divert or
accept any business of the same or similar nature to
the business of Employer with or from any Customer
(as hereinafter defined) or Potential Customer (as
hereinafter defined) of Employer; or
(iii) Induce or attempt to induce any
Customer to reduce such Customer's business with
Employer or divert such Customer's business from the
Employer, by direct advertising, solicitation or
otherwise;
(iv) Disclose the names of any Customers or
Potential Customers of Employer to any other person,
firm, corporation or other entity which is engaged in
a business of the same or similar nature to the
business of Employer; or
(v) Employ, hire, cause to be employed or
hired, entice away, solicit, or establish a business
with any then current officer, employee, servant or
agent of Employer, or any other person who was
employed by Employer within the twelve (12) months
immediately prior to such employment or
establishment, or in any manner persuade or attempt
to persuade any officer, employee, servant or agent
of Employer to leave the employ of the Employer; or
(vi) Assist any person, firm, entity,
employer, business associate or member of Employee's
family to commit any of the foregoing acts.
(b) Notwithstanding anything to the contrary
contained herein, the terms and provisions of Section 4.2(a)
above shall not apply and shall have no further force or
effect after any termination of this Agreement:
(i) If Employer terminates this Agreement
and Employee's employment hereunder for any reason
other than as specified in Section 5.1(c)
hereinbelow;
(ii) If Employee terminates this Agreement
and Employee's employment hereunder pursuant to
Section 5.1(d) hereof; or
Page 237
(iii) In the event that Employer shall
discontinue operating its business (provided,
however, that any sale of the Employer's business,
either through a sale of all or a majority of the
stock of Employer or all or substantially all of the
assets of Employer, shall in no manner and in no
event constitute a discontinuation of the Employer's
business (other than in the context of a liquidation
or other similar circumstance where the business of
the Employer will not be continued or operated by any
third party to which such assets of the Employer have
been transferred).
4.3 Definitions. For purposes of this Section 4, the following
terms shall have the meanings hereinafter set forth:
(i) The term "Customer" shall mean any person, firm,
corporation or other entity or any parent, subsidiary or
affiliate thereof with which Employer has had a contract,
engaged in any business with or for which Employer has
performed any work or services during the twenty-four (24)
months immediately preceding Employee's termination and up to
and including the date of Employee's termination;
(ii) The term "Potential Customer" shall mean any
person, firm, corporation or other entity or any parent,
subsidiary or affiliate thereof from which Employer has
solicited or attempted to solicit any business or to which
Employer has submitted any written or oral proposal within the
twelve (12) months immediately preceding Employee's
termination and up to and including the date of Employee's
termination.
(iii) The term "Employer's Territories" shall mean
any market or geographic area in which Employer has performed
any work or services for any person, firm, corporation, or
other entity during the twenty-four (24) months immediately
preceding Employee's termination and up to and including the
date of Employee's termination and/or any market or geographic
area in which Employer has solicited any work or services from
any person, firm, corporation, or other entity during the
twelve (12) months immediately preceding Employee's
termination and up to and including the date of Employee's
termination.
(iv) The phrase "business of the same or similar
nature to the business of Employer" shall mean the supplying
of products, work or services which have the same or similar
characteristics as, or is competitive with, any products, work
or services engaged in, performed by or rendered by Employer
at the time of the termination of this Agreement and/or within
the twenty-four (24) months immediately preceding such
termination and/or any products, work or services which have
been the subject of any solicitation or proposal by Employer
within the twenty-four (24) months immediately preceding such
termination.
Page 238
4.4 Enforcement. The covenants and obligations of Employee
pursuant to this Section 4 shall be specifically enforceable in addition to and
not in limitation of any other legal or equitable remedies, including monetary
damages, which Employer may have. Employee recognizes and acknowledges that
irreparable injury may result to Employer in its business in the event of any
breach by Employee of any covenant or agreement contained herein, and, by reason
of the foregoing, Employee consents and agrees that in the event of any such
breach, Employer shall be entitled, in addition to any other remedies that it
may have, including monetary damages, to an injunction to restrain Employee from
committing or continuing any violation of any covenant or agreement set forth in
this Section 4. It is the intent of the parties hereto that this Agreement
contains covenants which are valid and enforceable, which are reasonable and
necessary to safeguard the interests of Employer and which will be binding upon
Employee. Therefore, in the event that any of the obligations of Employee are
determined to be unreasonable or unenforceable because of the duration of such
provision, the area covered thereby or the scope thereof so as to render any of
the foregoing covenants unenforceable, then such a covenant shall be interpreted
as to require only a reasonable duration, area or scope, and any Court making
any such determination shall have the power to reduce the duration, area or
scope of such provision and/or to delete or revise specific words and phrases,
and, in its reduced or revised form, such provisions shall be enforceable and
shall be enforced.
4.5 Subsequent Employment. After termination of the Employee's
employment with the Employer, regardless of the reason for or manner of
termination, the Employee will, if the covenant under this Section 4 is then in
effect, give notice to the Employer within ten (10) days after accepting any
other employment, of the identity of the Employee's employer. The Buyer or the
Employer may notify such employer that the Employee is bound by this Agreement,
and, at the Employer's election, furnish such employer with a copy of this
Agreement or relevant portions thereof.
Section 5. Termination of Agreement.
5.1. Right to Terminate.
(a) Death. This Agreement shall terminate immediately
upon Employee's death.
(b) Disability. In the event that Employee, become
Disabled, as defined below, unless otherwise prohibited by
applicable law, Employer shall have the right to terminate
Employee's employment hereunder upon five (5) days prior
written notice to Employee. For purposes of this Section 5.1
(b), "Disabled" means that, because of accident, disability,
or physical or mental illness, Employee is incapable of
performing his duties hereunder for either (i) a continuous
period of one hundred twenty (120) days and remains so
incapable at the end of such one hundred twenty (120) day
period; or (ii) periods amounting in the aggregate to one
hundred eighty (180) days within any one period of three
hundred sixty-five (365) days and remains so incapable at the
end of such aggregate period of one hundred eighty (180) days.
Page 239
(c) Termination by Employer for Cause. Employer shall
have the right to terminate Employee's employment hereunder
for cause immediately without prior notice to Employee. The
term "cause" shall mean (i) any failure by Employee to perform
any of the material duties assigned to Employee pursuant to
this Agreement, which failure has not been cured within five
(5) days after receipt of written notice from Employer (except
that, in the event of any subsequent failure by Employee to
perform the same or similar material duties as were the
subject of any previous notice given by Employer pursuant
hereto within any twelve (12) month period, no such notice
from the Employer shall be required); (ii) any breach by
Employee of any of the material terms of this Agreement which
breach has not been cured within five (5) days after receipt
of written notice of such breach from Employer (except that,
in the event of any subsequent breach by Employee of the same
or similar material terms of this Agreement as were the
subject of any previous notice given by Employer pursuant
hereto within a twelve (12) month period, no such notice from
the Employer shall be required); or (iii) misappropriation of
any business opportunity; or (iv) fraud, embezzlement or
misappropriation of funds involving assets of the Employer,
its customers, suppliers, or any of their affiliates; or (v)
conviction of Employee of any criminal offense which adversely
affects Employee's ability to perform his duties hereunder or
the reputation of Employer; or (vi) the willful and repeated
breach or habitual neglect by Employee of his material duties
under this Agreement (after the Employee has received at least
one (1) written notice from Employer identifying such willful
and repeated breach or habitual neglect and has been given a
period of at least five (5) days to cease and desist such
conduct); or (vii) Employee making disparaging statements to
third parties or other employees of Employer about the
Employer, its parent, affiliates or subsidiaries or their
business after Employee has received written notice from
Employer identifying such disparaging statements and
requesting that Employee cease making such statements.
(d) Termination by Employee for Cause. Employee shall
have the right to terminate this Agreement hereunder for cause
in the event that: (i) Employer shall fail (other than as the
result of a termination by Employer in accordance with the
terms of this Section 5.1) to provide Employee with his
compensation as agreed upon herein and shall fail to have
cured any such breach within five (5) days after written
notice thereof from Employee to Employer (except that, in the
event of any subsequent failure by Employer to provide
Employee with his compensation as agreed upon herein within
any twelve (12) month period, no such notice from the Employee
shall be required); (ii) either (A) Employer has failed to
make a payment due under the Convertible Promissory Note
issued to the Employee pursuant to the Stock Purchase
Agreement, and such failure constitutes an Event of Default
thereunder, or (B) Employer has failed to make a payment due
under the Employee's Retention Bonus Agreement (as defined in
the Stock Purchase Agreement), and such failure constitutes a
default thereunder, or (iii) after the expiration of the
Initial Period of Employment, Employer reduces the Employee's
Base Salary provided for in Section 1.4(a) above.
Notwithstanding the foregoing, Employee shall not have the
right to terminate this Agreement hereunder for cause pursuant
to Section 5.1(d)(ii) or
Page 240
Section 5.1(d)(iii) above in the event that either: (x) in the
case of a termination pursuant to Section 5.1(d)(ii) above,
Employee has exercised his rights under the Guaranty (as
defined in the Stock Purchase Agreement) of American Eco
Corporation ("American Eco") as a result of the default of the
Employer referenced in Section 5.1(d)(ii)(A) or 5.1(d)(ii)(B)
above, and American Eco has made payment to Employee pursuant
to (and otherwise satisfied its obligations under) the terms
of such Guaranty (as defined in the Stock Purchase Agreement);
or (y) in the case of termination pursuant to either Section
5.1(d)(ii) or Section 5.1(d)(iii) above, the Net Operating
Income of the Employer is less than One Dollar ($1.00) for the
twelve (12) months immediately preceding the date on which
Employee exercises his right to terminate for cause pursuant
to either Section 5.1(d)(ii) or Section 5.1(d)(iii), provided
that Employee shall exercise such right to terminate for cause
pursuant to Section 5.1(d)(ii) or Section 5.1(d)(iii) within
at least thirty (30) days after the date of the occurrence of
the default which is the subject of Employee's right to
terminate. The term "Net Operating Income" means the net
income from operations of Employer before any reduction for
taxes or any allocation of expenses, charges, costs or other
corporate overhead from Buyer determined in accordance with
generally accepted accounting principles applied on a
consistent basis.
(e) Bankruptcy. Employer shall have the right to
terminate this Agreement and Employee's employment hereunder
immediately without prior notice to Employee, in the event of
the bankruptcy, liquidation or reorganization of Employer or
the appointment of a receiver of the assets of Employer
initiated by a creditor of Employer that is not an affiliate
thereof.
(f) Other. Notwithstanding anything to the contrary
contained herein, after the Initial Period of Employment, this
Employment Agreement and Employee's employment with Employer
may be terminated by either party with or without cause at any
time and for any reason.
(g) Rights and Obligations of Employee Upon Termination.
(i) Except for any termination by Employee
pursuant to Section 5.1(d) above (in which event
Employee shall be entitled to exercise any and all
remedies he may have hereunder or otherwise,
including at law or in equity), upon the termination
of Employee's employment pursuant to Section 5.1 of
this Agreement, Employer shall not have any further
obligation to Employee under this Agreement except to
distribute to Employee his Base Salary and other
benefits and expense reimbursement and any earned and
accrued unpaid vacation time due pursuant to Section
1.4 hereof (and accrued vacation pay, if any) up to
the date of termination.
Page 241
(ii) Upon the termination of this Agreement
and Employee's employment hereunder, whether
voluntary or involuntary, and regardless of the
reason for or manner of termination, all of the
obligations of Employee under Sections 2.2, 2.3, 3,
and 4 shall remain in full force and effect and shall
survive the termination of this Agreement to the
extent set forth herein.
Section 6. Miscellaneous.
6.1 Remedies.
(a) Injunctions. Inasmuch as any breach of, or
failure to comply with, this Agreement will cause serious and
substantial damage to both Employer and Employee, if either
party should in any way breach or fail to comply with the
terms of this Agreement, the other party shall be entitled to
an injunction restraining the defaulting party from such
breach or failure.
(b) Cumulative Remedies. All remedies of Employer and
Employee expressly provided for herein are cumulative of any
and all other remedies now existing at law or in equity. Each
of Employer and Employee shall, in addition to the remedies
herein provided, be entitled to avail itself of all such other
remedies as may now or hereafter exist at law or in equity for
compensation, and for the specific enforcement of the
covenants contained herein. Resort to any remedy provided for
hereunder or provided by law shall not prevent the concurrent
or subsequent employment of any other appropriate remedy or
remedies, or preclude the recovery by Employer of monetary
damages.
6.2 Recoupment. The Employer shall be entitled to recoup the
amount of any and all claims that the Buyer may have against the Employee under
the Stock Purchase Agreement by reducing any and all amounts owing to Employee
under this Agreement; provided, however, Employer may only exercise such right
of recoupment hereunder in accordance with the provisions of Section 8(g) of the
Stock Purchase Agreement and then only to the extent that recoupment of the
amount is not then available to Buyer under the Convertible Promissory Notes or
Retention Bonus Agreements (all as defined in the Stock Purchase Agreement).
6.3 Representations and Warranties by the Employee. The
Employee represents and warrants to the Employer that the execution and delivery
by the Employee of this Agreement does not, and the performance by the Employee
of the Employee's obligations hereunder will not, with or without the giving of
notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to the Employee; or (b) conflict with, result in the breach of any provisions of
or the termination of, or constitute a default under, any agreement to which the
Employee is a party or by which the Employee is or may be bound.
Page 242
6.4 Obligations Contingent on Performance. The obligations of
each party hereunder, including, but not limited to, the Employer's obligation
to pay Employee the compensation provided for herein, are contingent upon the
other party's performance of its obligations hereunder.
6.5 Amendment. This Agreement may be amended only by a writing duly
executed by the parties hereto.
6.6 Entire Agreement. This Agreement and any other agreements
expressly referred to herein set forth the entire understanding of the parties
hereto regarding the subject matter hereof and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties regarding the subject
matter hereof.
6.7 Notice. For purposes of this Agreement, notices and
communications provided or permitted to be given hereunder shall be deemed to
have been given when (i) made by telex, telecopy or facsimile transmission; or
(ii) sent by overnight courier or mailed by United States registered or
certified mail, return receipt requested, postage prepaid to the parties at
their addresses set forth above, or at such other addresses as either may
designate in writing as aforesaid from time to time.
6.8 Assignment. This Agreement is personal as to Employee and
shall not be assignable by Employee. Upon the prior written consent of Employee,
which consent shall not be unreasonably withheld or delayed, Employer may assign
its rights under this Agreement to any person, firm, corporation, or other
entity which may acquire all or substantially all of the business which is now
or hereafter conducted by Employer or which may require substantially all of the
assets of Employer or with or into which Employer may be consolidated or merged,
provided, that any such assignment shall be subject to the express terms and
conditions hereof; provided, however, that if Employee shall refuse to consent
to such assignment under the circumstances set forth herein, then Employer may
terminate this Agreement upon written notice to Employee, and any such
termination shall in no manner affect the obligations of Employee as set forth
in Sections 2, 3, 4.2(a), 4.3, 4.4 and 4.5 which shall all remain in full force
and effect and shall survive such termination of this Agreement by Employer.
6.9 Governing Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Illinois.
6.10 Severability. Each section and subsection of this
Agreement constitutes a separate and distinct provision hereof. It is the intent
of the parties hereto that the provisions of this Agreement be enforced to the
fullest extent permissible under the laws and public policies applicable in each
jurisdiction in which enforcement is sought. Accordingly, if any provision of
this Agreement shall be adjudicated to be invalid, ineffective or unenforceable,
the remaining provisions shall not be affected thereby. The invalid, ineffective
or unenforceable provisions shall, without further action by the parties, be
automatically amended to affect the original purpose and intent of the invalid,
ineffective and unenforceable provision; provided, however, that such amendment
shall apply only with respect to the operation of such provision in the
particular jurisdiction with respect to which such adjudication is made.
Page 243
6.11 Waiver. The failure of either Employer or Employee to
insist upon strict adherence to any term of this Agreement on any occasion shall
not be construed as a waiver of or deprive Employer or Employee, as the case may
be of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Any waiver by either Employer or Employee must be
in writing and (i) in the case of a waiver by Employer, signed by a duly
authorized representative of Employer other than Employee or (ii) in the case of
a waiver by Employee, signed by Employee.
6.12 Headings. The headings of this Agreement are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
6.13 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which together will constitute one and the same instrument.
6.14 Third Parties. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
or entity other than Employer and Employee any rights or remedies under, or by
reason of, this Agreement.
6.15 Income Tax Reporting. As a condition to Employee's
entitlement to all amounts to be paid hereunder, Employee shall report all Base
Salary and all other compensation to be paid to Employee hereunder as earned
income for federal, state or local income tax purposes.
6.16 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their heirs, personal
representatives, successors and permitted assigns.
IN WITNESS WHEREOF, Employer has caused this Agreement to be duly
executed and delivered by its duly authorized officer, and Employee has duly
executed and delivered this Agreement, as of the date first above written, the
parties intending this document to take effect as a sealed instrument.
Employer: Employee:
X.X. MANTA, INC.
By: ______________________________ ______________________________
Name: Xxxxxxx X. Xxxxxx
Title:
Page 243
NOTICE RE: ILLINOIS ACT 83-493
We are required under Illinois Act 83-493 to provide each Employee who,
after January 1, 1984, enters into an employment agreement containing a
provision requiring the Employee to assign any of the Employee's rights and
inventions to the Employer with a written notification to the Employee as
follows:
This Agreement does not apply to an invention for which no equipment,
supplies, facility, or trade secret information of the Employer was
used and which was developed entirely on the Employee's own time,
unless (a) the invention relates (i) to the business of the Employer,
or (ii) to the Employer's actual or demonstrably anticipated research
or development, or (b) the invention results from any work performed by
the Employee for the Employer.
Please acknowledge that you have received a copy of this Notice by
signing this Notice in the space provided hereinbelow.
RECEIPT ACKNOWLEDGED:
Signature
Xxxxxxx X. Xxxxxx
Printed Name
November 18, 1997
Date
g:\common\corp\agreemnt\employmt\jlmanta2.mjc
Page 244
