Exhibit 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of this 1st day
of February, 2000, and is by and between Evergood Products Corporation, a
Delaware corporation with an office for purposes of this Agreement at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and its subsidiaries, (hereinafter collectively
the "Company" or "Employer") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ with a current address at c/o
Hoffinger ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereafter the "Employee").
W I T N E S S E T H:
WHEREAS:
(a) Company wishes to engage the services of Employee to render
services for and on its behalf in accordance with the following terms,
conditions and provisions; and
(b) Employee wishes to perform such services for and on behalf of the
Company, in accordance with the following terms conditions and provisions.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained and the parties hereto intending to be legally bound hereby
agree as follows:
1. EMPLOYMENT. Company hereby employs Employee and Employee accepts such
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employment and shall perform his duties and the responsibilities provided for
herein in accordance with the terms and conditions of this Agreement.
2. EMPLOYMENT STATUS. Employee shall at all times be Company's employee
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subject to the terms and conditions of this Agreement.
3. TERM. The term of this Agreement (the "Term") shall commence on
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February 1, 2000, and shall terminate on January 31, 2010 (the "Termination
Date"), for a total term of ten (10) years, unless earlier terminated pursuant
to terms and provisions of this Agreement; and, will be extended for an
additional four (4) consecutive five (5) year terms on terms mutually agreed to
by the parties.
4. POSITION. During Employee's employment hereunder, Employee shall serve
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as Executive Vice President, Treasurer, Assistant Secretary and Chief Operating
Officer of the Company. In such
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positions, Employee shall have the customary powers, responsibilities and
authorities of officers in such position of corporations of the size, type and
nature of the Company including being generally responsible for the overall
operations of Employer's business. Employee shall perform such duties and
exercise such powers commensurate with his position and responsibilities.
Neither Employee's title(s) nor any of his functions nor the manner in which he
shall report shall be changed, diminished or adversely affected during the Term,
as it may be extended, without his consent. Employee shall be provided with an
office, staff and other working facilities consistent with his positions and as
required for the performance of his duties. In addition, Company agrees to cause
Employee to be nominated to serve as a director of the Company and to use its
best efforts to cause Employee to be elected to the Board and be retained as a
director of the Company during Employee's employment during the Term, as it
may be extended.
Company acknowledges that Employee currently practices law at the above
address and therefore the services he is required to render to the Company on a
business and or legal basis are not exclusive.
5. COMPENSATION.
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(a) For the performance of all of Employee's services to
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be rendered pursuant to the terms of this Agreement, Company will pay and
Employee will accept the following compensation:
Base Salary. During the Term, Company shall pay the Employee an initial base
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annual salary of $495,000 (the "Base Salary") payable in regular installments in
accordance with the Company's usual payment practices (which currently is every
week) and such Base Salary shall not be decreased during the Term, as it may be
extended. Employee shall be entitled to such further increases, if any, in his
Base Salary as may be determined from time to time in the sole discretion of the
Board of Directors of the Company (the "Board"); but, in any event, Employee
shall be entitled to receive an annual increase equal to the increase in the CPI
for the New York Metropolitan Area on an annual basis plus five (5%) per cent.
Employee's Base Salary, as in effect from time to time, is hereinafter referred
to as the "Employee's Base Salary".
(b) Bonus Compensation. Company agrees to pay to Employee a bonus
during each year of the Term, as same may be extended. The bonus shall be
determined in the sole and absolute discretion of the Board and payment of the
bonus compensation shall be made in a lump sum within fifteen (15) days after
the Company receives the certified annual year-end financial statement of the
Company's consolidated operations from the independent accountants.
(c) Company shall deduct and withhold from Employee's compensation
all necessary or required taxes, including but not
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limited to Social Security, withholding and otherwise, and any other applicable
amounts required by law or any taxing authority.
(d) Participation in any qualified and or non-qualified stock option
plan the Company may initiate on the same basis as ▇▇▇ ▇▇▇▇.
6. EMPLOYEE BENEFITS.
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(a) During the Term, as it may be extended, and so long as Employee
is not terminated for cause Employee shall receive and be provided health and
life insurance benefits, and during Employee's employment hereunder, Employee
shall receive and be provided employee benefits (including without limitation,
fringe benefits, vacation, automobile, retirement plan participation and life,
health, accident and disability insurance, etc., (collectively, "Employee
Benefits")) on the same basis as those benefits are generally made available to
the most senior executives of the Company and no executive or senior executive
shall receive any benefits in excess of Employee -- to the extent that the Board
should conclude that a senior executive will receive any benefit greater than
Employee, Employee shall be entitled to receive such greater benefit on the same
basis as such senior executive receives same. Employee shall be entitled to
receive not less than four
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weeks vacation per year and if such vacation time, is not taken by Employee, in
the then current year, Employee, at his option, may accrue vacation or receive
compensation at the then current level.
(b) Without limiting the generality of the foregoing, during
Employee's employment hereunder, Company shall use its reasonable efforts to
obtain, keep in effect, and pay premiums upon, insurance on the life of Employee
payable to such persons as Employee may, from time to time, designate in writing
to the Company or in the event Employee fails to provide such designation, to
the legal representative of Employee's estate. Such life insurance shall be in
the amount of $1,000,000. If and so long as the Company establishes and
maintains a group life insurance program for which Employee is eligible without
cost to Employee, benefits under such program shall offset the insurance
obligation otherwise provided for in this Section 6. Employee agrees to submit
to any physical examination required by any prospective insurer, and will
otherwise cooperate with the Company in connection with any life insurance on
Employee's life the Company may wish to obtain. If Employee is determined to be
suffering from a congenital defect or other illness or condition which would
preclude the Company from obtaining such insurance at a cost substantially
equivalent to the cost of obtaining such insurance for a healthy individual of
Employee's age and gender, Employee shall have the option to cause the Company
to obtain such insurance
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with Employee paying the excess premium above that which the Company would have
been responsible for had Employee not been suffering from such defect, illness
or condition, and if Employee does not exercise such option in a timely fashion,
the Company shall purchase the amount of insurance, if any, that can be
purchased at a cost substantially equivalent to the cost of obtaining such
insurance for a healthy individual of Employee's age and gender. In the event
that Employee does not qualify for any such life insurance, Company shall pay
directly to Employee an amount equal to such premiums that Company would have
paid to any insurance company to obtain such life insurance on an annual basis.
(c) At the Company's sole expense, Employee's travel for the Company
on business shall be paid for by the Company, portal to portal, on at least a
business class level, when available, and when not available on a first class
level.
(d) In addition to the benefits for which Employee shall be eligible
pursuant to paragraph (a) above, Company shall procure and maintain, at its
cost, catastrophic health insurance for the benefit of Employee; provided,
Employee shall be insurable for such health insurance at reasonable and
customary rates. Employee agrees to submit to any physical examination required
by any prospective insurer, and will otherwise cooperate with the Company in
connection with obtaining such health insurance. If Employee is determined to
be suffering from a congenital defect or other
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illness or condition which would preclude the Company from obtaining such
insurance at a cost substantially equivalent to the cost of obtaining such
insurance for a healthy individual of Employee's age and gender Employee shall
have the option to cause the Company to obtain such insurance with Employee
paying the excess premium above that which the Company, would have been
responsible for had Employee not been suffering from such defect, illness or
condition, and if Employee does not exercise such option in a timely fashion,
the Company shall purchase the amount of insurance, if any, that can be
purchased at a cost substantially equivalent to the cost of obtaining such
insurance for a healthy individual of Employee's age and gender.
7. BUSINESS EXPENSES AND PERQUISITES.
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(a) Reasonable travel, entertainment and other business expenses
incurred by Employee in the performance of his duties hereunder shall be
reimbursed by the Company in accordance with Company policies as in effect from
time to time. In addition, Employee shall be entitled to use, in connection
with his performance of services hereunder, transportation services of a car.
(b) Company shall provide to Employee a new automobile,
including all related maintenance, repairs, insurance, parking and other costs.
The base annual automobile rental expense shall not
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exceed $24,000 per annum.
8. TERMINATION.
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(a) For Cause by the Company. (i) Employee's employment
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hereunder may be terminated by the Company for cause. For purposes of this
Agreement, "cause" shall mean (i) Employee's unjustified failure to perform his
duties hereunder or to follow reasonable directions of the Board within 20
business days after receipt of written notice by Employee of such failure, (ii)
willful misconduct by Employee in connection with his employment, (iii)
Employee's conviction of, or plea of nolo contendere to, any crime constituting
a felony under the laws of the United States or any State thereof, or (iv)
Employee's material breach of any of the material provisions of this Agreement,
which breach Employee has failed to cure within 20 business days after receipt
of written notice by Employee of such breach or which breach Employee has failed
to begin to attempt to cure during said 20 day period if the breach is not
curable during the 20 day period. Termination of Employee's employment pursuant
to this Section 8(a) shall be made by delivery to Employee of a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the Board at an actual meeting of the Board called and held for that purpose
(after 30 days prior written notice to Employee and a reasonable opportunity for
Employee to be heard before the Board prior to such
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vote) finding that in the good faith judgment of the Board, Employee was guilty
of conduct set forth in any of clauses (i) through (iv) above and specifying the
particulars thereof.
(ii) If Employee is terminated for cause, he shall be entitled to
receive Employee's Base Salary from Company for a period of one (1) year from
the date of termination. All other benefits, if any, due Employee following
Employee's termination of employment pursuant to this Subsection 8 (a) shall be
determined in accordance with the plans, policies and practices of the Company
for most senior executives.
(b) Disability or Death. (i) Employee's employment hereunder shall
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terminate upon his death or if Employee becomes physically or mentally
incapacitated and is therefore unable (or will as a result thereof, be unable)
for a period of six (6) consecutive months or for an aggregate of twelve (12)
months in any twenty-four (24) consecutive month period to perform his duties
(such incapacity is hereinafter referred to as "Disability"). If Company
terminates Employee's employment under the terms of this Agreement and Employee
does not receive disability insurance payments under the terms hereof in an
amount, at least, of $25,000 per month pursuant to a policy maintained and paid
for by the Company, Company shall be responsible to continue to pay Employee
Base Salary during the Term. Any question as to the existence of the Disability
of
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Employee as to which Employee and the Company cannot agree shall be determined
in writing by a qualified independent physician mutually acceptable to Employee
and the Company. If Employee and the Company cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two
physicians shall select a third who shall make such determination in writing.
The determination of Disability made in writing to the Company and Employee
shall be final and conclusive for all purposes of the Agreement.
(ii) Upon termination of Employee's employment hereunder during the
Term for Disability, Employee shall receive from the Company 50% of Employee's
Base Salary through the end of the Term and that amount equivalent to 50% of the
last bonus received by Employee under the terms of this Agreement times the
number of years remaining in the Term. Employee shall be entitled to no further
payments of Employee's Base Salary under this Agreement, provided that any
payment under this Section 8(b)(ii) shall be reduced by the amount of any
disability benefits paid to Employee under any other disability plan, program or
arrangement maintained and paid for by the Company or its affiliates.
(iii) Upon termination of Employee's employment hereunder during the
Term, as it may be extended, as a result of death, Employee's estate or named
beneficiary(ies) shall receive from the
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Company (x) Employee's Base Salary at the rate in effect at the time of
Employee's death through the end of the sixth month after the month in which his
death occurs and pro rata bonus paid to Employee during the immediately
preceding year of the Term, and (y) the proceeds of any life insurance policy
maintained for his benefit by the Company pursuant to Section 6(b) under this
Agreement.
(iv) All other benefits, if any, due Employee following Employee's
termination of employment pursuant to this Subsection 8(b) shall be determined
in accordance with the plans, policies and practices of the Company and shall be
at least equal to those received by the most senior executives and no senior
executive shall receive any fringe benefit that Employee does not receive.
(c) Without Cause by the Company or For Good Reason.
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(i) If Employee's employment is terminated by the Company
without cause (other than by reason of Disability or death) or Employee resigns
for good reason, in either case prior to a Change of Control, then Employee
shall be entitled to a lump sum cash payment from the Company, payable within 10
days after such termination of employment, in an amount equal to the greater of
2.49 times the sum of Employee's Base Salary and immediately prior year's bonus
as in effect as of the date of such termination of employment or Employee's Base
Salary and immediately prior year's bonus payable for the balance of the Term on
the basis of
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Employee's most recent year Employee's Base Salary and the bonus received. All
other benefits, if any, due Employee following Employee's termination of
employment pursuant to this Subsection 8(c)(i) shall be determined in accordance
with the plans, policies and practices of the Company and shall be at least
equal to those received by the most senior executives and no senior executive
shall receive any fringe benefit that Employee does not receive.
(ii) If there is a Change of Control within one (1) year of
the termination of this Agreement without cause by the Company, Employee shall
be entitled to receive the difference between those monies he actually received
upon such termination and 2.99 times Employee's base amount as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")
(the "Employee Base Amount").
(iii) Subject to Section 8(f), if Employee's employment is
terminated by the Company without cause or by Employee for good reason during
the Term and coincident with or following a Change of Control, Employee shall be
entitled to a lump sum payment, payable within 10 days after such termination of
employment, equal to the product of (x) 2.99 times (y) the Employee Base Amount.
(iv) For purposes of this Agreement, "Good Reason" shall
mean:
(a) Any breach by the Company of this Agreement; or
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(b) The Company's failure to nominate and use its reasonable efforts
to cause Employee to be elected to the Board and/or be retained as
a director during Employee's employment hereunder,
provided that the foregoing events shall not be deemed to constitute Good Reason
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unless Employee shall have notified the Board in writing of the occurrence of
such event(s) and the Board shall have failed to have cured or remedied such
event; and
(c) within 20 business days of its receipt of such written notice or
which breach Employer has failed to begin to attempt to cure during said 20 day
period if the breach is not curable during the 20 day period.
(d) Termination by Employee. If Employee terminates his(her)
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employment with the Company for any reason (other than for Good Reason) during
the Term, Employee shall be entitled to the same payments he(she) would have
received if his(her) employment had been terminated by the Company for cause.
(e) Change of Control. For purposes of this Agreement, "Change of
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Control" shall mean (i) any transaction or series of transactions (including,
without limitation, a tender offer, merger or consolidation) the result of which
is that any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"), becomes the
"beneficial" owners (as defined in Rule 13 (d) (3) under the Securities Exchange
Act of 1934) of more than 50 percent (50%) of the total aggregate voting power
of all classes of the voting stock of the Company and/or warrants or options to
acquire such voting stock, calculated on a fully diluted basis, (ii) during any
period of two consecutive calendar years, individuals who at the beginning of
such period constituted the Board (together with any new directors whose
election by the Board or whose nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors then in office, or (iii) a
sale of assets constituting all or substantially all of the assets of the
Company (determined on a consolidated basis). In the event of such Change of
Control, the new entity shall be obligated to assume the terms and conditions of
this Agreement.
(f) Limitation on Certain Payments.
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(i) In the event it is determined pursuant to clause (ii) below,
that part or all of the consideration, compensation or benefits to be paid to
Employee under this Agreement in connection with Employee's termination of
employment
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following a Change of Control or under any other plan, arrangement or agreement
in connection therewith, constitutes a "parachute payment" (or payments) under
Section 28OG(b)(2) of the Code, then, of the aggregate present value of such
parachute payments (the "Parachute Amount") exceeds 2.99 times the Employee Base
Amount, the amounts constituting "parachute payments" which would otherwise be
payable to or for the benefit of Employee shall be reduced to the extent
necessary such that the Parachute Amount is equal to 2.99 times the Employee
Base Amount. Employee shall have the right to choose which amounts that would
otherwise be due him but for the limitations described in this paragraph shall
be subject to reduction. Notwithstanding the foregoing, if it is determined that
stockholder approval of the payment of such, compensation and benefits will
reduce the applicability of Section 280G of the Code to such payment, promptly
after request by Employee, Company will undertake reasonable efforts to hold
such a meeting to obtain such approval or to solicit such approval by written
consent, and to obtain such approval.
(ii) Any determination that a payment constitutes a parachute
payment and any calculation described in this Section 8 (f) ("Determination")
shall be made by the independent public accountants for the Company, and may, at
Company's election, be made prior to termination of Employee's employment where
Company determines that a Change in Control, as provided in this Section 8,
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is imminent. Such Determination shall be furnished in writing no later than 30
days following the date of the Change in Control by the accountants to Employee.
If Employee does not agree with such Determination, he(she) may give notice as
provided in Section 13(j) below within ten days of receipt of the Determination
from the accountants and, within 15 days thereafter, accountants of Employee's
choice must deliver to the Company their Determination that in their judgment
complies with the Code. If the two accountants cannot agree upon the amount to
be paid to Employee pursuant to this Section 8 within ten days of the delivery
of the statement of Employee's accountants to the Company, the two accountants
shall choose a third accountant who shall deliver their determination of the
appropriate amount to be paid to Employee pursuant to this Section 8(f), which
determination shall be final. If the final Determination provides for the
payment of a greater amount than that proposed by the accountants of the
Company, then the Company shall pay all of Employee's costs incurred in
contesting such Determination and all other costs incurred by the Company with
respect to such Determination.
(iii) If the final Determination made pursuant to Clause (ii) of
this Section 8(f) results in a reduction of the payments that would otherwise be
paid to Employee except for the application of Clause (i) of this Section 8(f),
Employee may then elect, in his sole discretion, which and how much of any
particular
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entitlement shall be eliminated or reduced and shall advise the Company in
writing of his(her) election within ten days of the final Determination of the
reduction in payments. If no such election is made by Employee within such ten-
day period, the Company may elect which and how much of any entitlement shall be
eliminated or reduced and shall notify Employee promptly of such election.
Within ten days following such Determination and the elections hereunder, the
Company shall pay to or distribute to or for the benefit of Employee such
amounts as are then due to Employee under this Agreement and shall promptly pay
to or distribute to or for the benefit of Employee in the future such amounts as
become due to Employee under this Agreement.
(iv) As a result of the uncertainty in the application of Section
28O(G) of the Code at the time of a determination hereunder, it is possible that
payments will be made by the Company which should not have been made under
clause (i) of this Section 8(f) ("Overpayment") or that additional payments
which are not made by the Company pursuant to Clause (i) of this Section 8 (f)
should have been made ("Underpayment"). In the event that there is a final
determination by the Internal Revenue Service, or a final determination by a
court of competent jurisdiction, that an overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to Employee which
Employee shall repay to the Company together with interest at
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the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In
the event that there is a final determination by the Internal Revenue Service, a
final determination by a court of competent jurisdiction or a change in the
provisions of the Code or regulations pursuant to which an Underpayment arises
under this Agreement, any such Underpayment shall be promptly paid by the
Company to or for the benefit of Employee, together with interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the Code.
9. NON-DISCLOSURE OF INFORMATION. Employee acknowledges that by virtue of
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his(her) position he(she) will be privy to the Company's trade secrets including
but not limited to Company's customers list and private processes, as they may
exist or, as Company may determine from time to time, and that such secrets are
valuable, special, and unique assets of Company's business and constitute
confidential information and trade secrets of Employee (hereafter collectively
"Confidential Information") Employee shall not, during the Term and for a period
of six (6) months thereafter, intentionally disclose all or any part of the
Confidential Information to any person, firm, corporation, association or any
other entity for any reason or purpose whatsoever, nor shall Employee and any
other person by, through or with Employee, during the Term and for a period of
six (6) months thereafter,
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intentionally make use of any of the Confidential Information for any purpose or
for the benefit of any other person or entity, other than Company, under any
circumstances. For a period of six (6) months after the termination of this
Agreement, Employee shall not intentionally take any action which in any manner
shall be injurious to the Company. Company and Employee agree that a violation
of the foregoing covenants will cause irreparable injury to the Company, and
that in the event of a breach or threatened breach by Employee of the provisions
of this Section, Company shall be entitled to an injunction restraining Employee
from:
(a) Disclosing, in whole or in part, any Confidential Information, or
from rendering any services to any person, firm, corporation, association or
other entity to whom any such information, in whole or in part, has been
disclosed or is threatened to be disclosed in violation of this Agreement.
(b) Continuing such injurious actions.
Nothing herein stated shall be construed as prohibiting the Company from
pursuing any other rights and remedies, at law or in equity, available to the
Company for such breach or threatened breach, including the recovery of damages
from the Employee.
10. RESTRICTIVE COVENANT.
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(a) For a period of six (6) months after the termination
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of this Agreement by Employer without cause and for a period of one (1) year
after the termination of this Agreement by Employer or Employee for any other
reason, or expiration of this Agreement, Employee covenants and agrees that,
within a radius of ten (10) miles from each of the then present place(s) of
Company's business or any other area in which Company is engaged in business, he
shall not own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation, or control,
whether directly or indirectly, as an individual on his own account, or as a
partner, member, joint venturer, officer, director or shareholder of a
corporation or other entity, of any business similar to or competitive with the
type of business conducted by Company at the time of the termination or
expiration of this Agreement.
(b) For a period of six (6) months after the termination of this
Agreement by Employer without cause and for a period of one (1) year after the
termination of this Agreement by Employer or Employee for any other reason, or
expiration of this Agreement, Employee further covenants and agrees he(she)
shall not interfere with, solicit or disrupt or attempt to interfere with,
solicit or disrupt the relationship, contractual or otherwise, between Company
and any customer, supplier, lessee or employee of Company, its parent or
subsidiaries.
(c) Employee acknowledges that the restrictions contained
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in this Paragraph 10 are reasonable. In that regard, it is the intention of the
parties to this Agreement that the provisions of this Paragraph 8 shall be
enforced to the fullest extent permissible under the law and public policy
applied in each Jurisdiction in which enforcement is sought. Accordingly, if any
portion of this Paragraph 10 shall be adjudicated or deemed to be invalid or
unenforceable, the remaining portions shall remain in full force and effect, and
such invalid or unenforceable portion shall be limited to the particular
jurisdiction in which such adjudication is made.
11. BREACH OR THREATENED BREACH OF COVENANTS. In the event of Employee's
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actual or threatened breach of his obligations under either Paragraph 9 or 10,
or both, of this Agreement, or Company's breach or threatened breach of it's
obligations under this Agreement, in addition to any other remedies either party
may have, such party shall be entitled to obtain a temporary restraining order
and a preliminary and/or permanent injunction restraining the other from
violating these provisions. Nothing in this Agreement shall be construed to
prohibit Company or Employee, as the case may be, from pursuing and obtaining
any other available remedies which Company or Employee, as the case may be, may
have for such breach or threatened breach, whether at law or in equity,
including the recovery of damages from the other.
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12. REPRESENTATIONS AND WARRANTIES BY EMPLOYEE. Employee hereby warrants
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and represents that he is not subject to or a party to any restrictive covenants
or other agreements that in any way preclude, restrict, restrain or limit him
(a) from being an Employee of Company, (b) from engaging in the business of
Company in any capacity, directly or indirectly, and from competing with any
other persons, companies, businesses or entities engaged in the business of
Company.
13. ARBITRATION. Any controversy or claim arising out of or relating to
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this Agreement, the performance thereof or its breach or threatened breach shall
be settled by arbitration in the State of New York, County of New York in
accordance with the then governing rules of the American Arbitration
Association. The finding of the arbitration panel or arbitrator shall be final
and binding upon the parties. Judgment upon any arbitration award rendered may
be entered and enforced in any court of competent jurisdiction. In no event may
the arbitration determination change Employee's compensation, title, duties or
responsibilities, the entity to whom Employee reports or the principal place
where Employee is to render his services.
14. NOTICES. Any notice required, permitted or desired to be
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given under this Agreement shall be sufficient if it is in writing and (a)
personally delivered to Employee or an authorized member of Company, (b) sent by
overnight delivery, or (c) sent by registered or certified mail, return receipt
requested, to Employer's or Employee's address as provided in this Agreement or
to a different address designated in writing by either party. Notice is deemed
given on the day it is delivered personally or by overnight delivery, or five
(5) business days after it is received, if transmitted by the United States Post
Office.
15. ASSIGNMENT. Employee acknowledges that his services are unique and
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personal. Accordingly, Employee may not assign his rights or delegate his duties
or obligations under this Agreement. Company's rights and obligations under this
Agreement shall inure to the benefit of and shall be binding upon the Company's
successors and assigns. Company has the absolute right to assign it's rights and
benefits under the terms of this Agreement.
16. WAIVER OF BREACH. Any waiver of a breach of a provision of this
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Agreement, or any delay or failure to exercise a right under a provision of this
Agreement, by either party, shall not operate or be construed as a waiver of
that or any other subsequent breach or right.
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17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
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parties. It may not be changed orally but only by an agreement in writing
which is signed by the parties. The parties hereto agree that any existing
employment agreement between them shall terminate as of the date of this
Agreement.
18. GOVERNING LAW. This Agreement shall be construed in accordance with and
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governed by the internal laws of the State of New York.
19. SEVERABILITY. The invalidity or non-enforceability of any provision of
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this Agreement or application thereof shall not affect the remaining valid and
enforceable provisions of this Agreement or application thereof.
20. CAPTIONS. Captions in this Agreement are inserted only as a matter of
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convenience and reference and shall not be used to interpret or construe any
provisions of this Agreement.
21. GRAMMATICAL USAGE. In construing or interpreting this Agreement,
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masculine usage shall be substituted for those feminine in form and vice versa,
and plural usage shall be substituted or singular and vice versa, in any place
in which the context so requires.
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22. CAPACITY. Employee has read and is familiar with all of the terms and
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conditions of this Agreement and has the capacity to understand such terms
conditions hereof. By executing this Agreement, Employee agrees to be bound by
this Agreement and the terms and conditions hereof.
23. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
24. LEGAL FEES. Company agrees to reimburse Employee for any and all legal
----------
expenses incurred by Employee in connection with the negotiation and execution
of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first hereinabove written.
EVERGOOD PRODUCTS CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇
-------------------------
Employee:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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