EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 25th day of May, 2001, by and between
XXXXXXXX X. XXXXXXX, an individual residing at 0000 Xx. Xxxxx Xxxx.; Xxx. 00X,
Xxxxxxxx Xxxxx, XX 00000 ("Executive") and THE SAGEMARK COMPANIES LTD., a New
York corporation with its principal offices at 1285 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company").
W I T N E S S E T H :
WHEREAS, the Company desires to continue the services of Executive as
its Chief Executive Officer pursuant to the terms of a written employment
agreement; and
WHEREAS, Executive is willing to accept such employment, all on and
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby unconditionally acknowledged, the parties hereto do hereby agree as
follows:
1. Employment. During the Term (hereinafter defined) of this
Agreement, the Company hereby employs Executive as its President and Chief
Executive Officer and Executive hereby agrees to accept such employment, upon
and subject to the terms and conditions set forth in this Agreement.
2. Executive's Duties and Responsibilities.
---------------------------------------
2.1. Executive will perform all of the services customarily
associated with the position of President and Chief Executive Officer during the
Term of this Agreement, subject to the policies established by the Board of
Directors of the Company. Executive also agrees to perform such other services
and assume such other responsibilities consistent with such positions as the
Board of Directors of the Company may reasonably request of him from time to
time during the Term hereof, which services may include, but shall not be
limited to, serving as an officer and/or director of one or more of the
Company's subsidiaries or affiliates (including Premier P.E.T. Imaging
International, Inc. and Premier Cyclotron International Corp.), without
additional compensation. At no time during the Term hereof will the Company
change Executive's title or reduce or diminish Executive's aforementioned
responsibilities.
2.2. Executive agrees to devote a substantial portion of his
business time, attention and energy to the performance of his services under
this Agreement during the Term hereof and shall perform such services
diligently, in good faith and in a manner consistent with the best interests of
the Company. Executive further agrees to use his best efforts at all times
during the Term hereof to preserve, protect, enhance, and maintain the trade,
business and goodwill of the Company and its subsidiaries.
2.3. Executive shall perform his services wherever his
services are reasonably required. The Company acknowledges that Executive
resides in Florida and will render his services from Florida and, when and to
the extent reasonably required, from such other locations at which the Company
or any of its subsidiaries or affiliates provide their services or otherwise
conduct or engage in business. Executive will not be required to relocate his
current residence at any time during the Term hereof.
2.4. During the Term of this Agreement, Executive shall
provide the Company with notice of all proposed transactions or opportunities
that may be brought to his attention or otherwise introduced to him in the
positron emission tomography field promptly after the Executive's knowledge or
receipt of notice thereof and the Company shall have the exclusive right as
between the Company and Executive to take advantage or otherwise act upon any of
such proposed transactions or opportunities.
3. Term.
----
3.1. The term of this Agreement shall commence on May 25, 2001
and shall expire on May 24, 2006, subject to earlier termination as hereinafter
provided in Paragraph 3.2 hereof (the "Term").
3.2. Pursuant to the provisions of Paragraph 3.1 above, the
Term of this Agreement shall terminate on the earlier to occur of any of the
following events:
(a) The death of Executive;
(b) The Permanent Disability (hereinafter
defined) of Executive as provided in Paragraph 6 hereof;
(c) The failure and/or refusal of Executive to
perform the customary duties of his position and/or his services or other
material obligations under this Agreement and/or any breach of any material
representation, warranty or covenant of Executive under this Agreement; provided
that Executive is given notice of such breach by the Company (with Executive not
participating or voting with respect to any such notice if Executive is a
Director of the Company) and fails to cure any such breach within thirty (30)
days after such notice. Upon any determination by the Company's Board of
Directors (excluding Executive) that there has been a breach of this Agreement
by Executive, as aforesaid, the Company shall cause a special meeting of its
board of directors to be called and held at a time mutually convenient to the
Board and Executive, but in no event later than ten (10) business days after any
such notice contemplated by this subsection. Executive shall have the right to
appear before such special meeting with legal counsel of his choosing to refute
any claim of breach specified in such notice and the termination of Executive's
employment by reason thereof, and any termination of Executive's employment by
reason of such notice shall not be effective until Executive is afforded such
opportunity to appear at such special meeting;
-2-
(d) A final conviction of Executive for a felony
or other crime involving embezzlement, fraud or misappropriation of funds, in
all of such instances to the extent such crimes involve the Company or its
parent, subsidiaries or affiliated companies; or
(e) The delivery of notice to the Company by
Executive of the termination of this Agreement for any breach or default by the
Company of any of its material representations, warranties, obligations or
covenants under this Agreement; provided that any such breach or default is not
cured within thirty (30) days after the Company's receipt of such notice from
Executive.
3.3. In the event that this Agreement is terminated by
Executive pursuant to Section 3.2(e), the Company shall pay to Executive his
Base Salary in twenty-four (24) equal monthly installments (the "Severance
Compensation"), the first of which shall be payable on the 1st day of the first
full month following any such termination.
3.4. Upon any termination of this Agreement pursuant to this
Section, the Company shall pay to Executive any unpaid Base Salary accrued
through the effective date of any such termination, the Severance Compensation
and the Company shall pay any benefits, if any, owed to Executive under any plan
or benefit program provided for pursuant to Section 5 hereof, which is in effect
on the date of such termination. Except as provided above or elsewhere in this
Agreement, the Company shall have no further liability hereunder (other than for
reimbursement of reasonable business expenses incurred prior to the date of any
such termination subject, however, to the provisions of Section 4.5 hereof.
4. Compensation. In consideration of the performance of the
Executive's services under this Agreement during the Term hereof, the Company
shall pay Executive the following compensation:
4.1. An annual base salary of Two Hundred Thousand Dollars
($200,000) (the "Base Salary"), such salary to be paid to Executive in equal
monthly installments (less all applicable withholding and other payroll tax
deductions), in arrears, on the first day of each month during the Term hereof.
4.2. The Company shall also provide to Executive, in addition
to the Base Salary and in further consideration of the performance of the
services to be rendered by Executive under this Agreement, the following
incentive compensation:
(a) In each calendar year of the Term
thereafter, a bonus equal to five percent (5%) of the Net Pre-Tax Profits
(hereinafter defined) of the Company in each such year (the "Bonus"). For the
purpose of calculating the Bonus, the term "Net Pre-Tax Profits" shall mean the
consolidated net pre-tax profits of the Company in each calendar year in which a
Bonus is payable, as determined by the Company's independent certified public
-3-
accountants or the Company's Chief Financial Officer applying generally accepted
accounting principles consistently applied in each such year during the Term
hereof.
(b) The Bonus shall be payable to Executive
within thirty (30) days following the completion of the audited consolidated
financial statements of the Company for each calendar year during the Term of
this Agreement, but in any event, not later than May 1 of the calendar year
immediately following the calendar year in which Executive is entitled to such
Bonus (or within ten (10) days after the final resolution of any disagreement
with respect to the calculation of Net Pre-Tax Profits pursuant to the terms of
subsection 4.2(c) below, but only to the extent of that portion of the Bonus as
to which there is any such disagreement). In the event of any termination of
this Agreement prior to the expiration of the Term hereof and in calendar year
2006, the Company shall pay Executive (or his estate in the case of any earlier
termination due to Executive's death) the Bonus (and deliver to Executive the
Incentive Warrants, as hereinafter defined, if any) in a pro-rated amount based
upon Net Pre-Tax Profits for the number of days in any such calendar year in
which any such termination may occur (or through May 24, 2006 with respect to
the last year of the Term hereof), such payment (and delivery of the Incentive
Warrants) to be made not later than forty-five (45) days after any such
termination or expiration (unless such termination results from an occurrence
under Sections 3.2(c) or 3.2(d), in any of which instances, notwithstanding any
provision of this Agreement to the contrary, the Company shall have no
obligation to make any payment of a Bonus or deliver any Incentive Warrants to
Executive).
(c) The Company shall deliver to Executive with
each Bonus payment and with each delivery of an Incentive Warrant in each
calendar year during the Term hereof, a report setting forth the calculation of
Net Pre-Tax Profits. Unless Executive notifies the Company within thirty (30)
days after receipt of said calculations of his disagreement therewith (which
notice shall state with reasonable specificity the reasons for any such
disagreement and the amounts in dispute), said calculations will be final,
binding and conclusive on Executive. If there is a disagreement as to such
calculations, and the disagreement cannot be resolved by the Company and the
Executive within sixty (60) days following the delivery of such calculations,
the Company will immediately pay Executive all undisputed amounts and the items
in dispute may be submitted by either the Company or the Executive to
arbitration pursuant to Section 10 hereof, and the determination of the
arbitrators therein shall be final, binding and conclusive on the Company and
the Executive. The fees, costs and expenses of such arbitration proceeding shall
be allocated between the Company and the Executive as follows:
(i) If the Company or Executive submits
such calculations to arbitration, as aforesaid, and the arbitrators therein
confirm the calculations of Net Pre-Tax Profits (within 5% thereof, plus or
minus), the party which submitted such calculations to arbitration will pay all
of the costs therefor; or
-4-
(ii) If the Company or Executive submits
such calculations to arbitration, as aforesaid, and the arbitrators therein
determine that the calculation of Net Pre-Tax Profits was understated by more
than 5%, then the Company will pay all of the costs therefor; or
(iii) If the Company or Executive submits
such calculations to arbitration, as aforesaid, and the arbitrators therein
determine that the calculation of Net Pre-Tax Profits was overstated by more
than 5%, the Executive will pay all of the costs therefor.
(d) Executive shall have the right, at
Executive's sole expense, upon reasonable advance notice and during normal
business hours at the Company's offices, to examine and copy the books and
records of the Company relating to the calculation of Net Pre-Tax Profits.
4.3. The Company shall also provide to Xxxx Capital, Inc.
("Xxxx"), Executive's designee, in addition to the Base Salary and Bonus, and in
further consideration of the performance of the services to be rendered by
Executive under this Agreement, five year common stock purchase warrants, each
of such warrants to provide for the purchase of fifteen thousand (15,000) shares
of the common stock of the Company (the "Sagemark Common Stock") at an exercise
price equal to the closing price of the Sagemark Common Stock on the securities
market or exchange on which the Sagemark Common Stock is then trading (the
"Market Value") on the date Xxxx is entitled to receive the same or, if the
Sagemark Common Stock is not then trading on a securities market or exchange, at
the fair market value thereof on the date of issuance as determined by the
Company's Board of Directors (the "Incentive Warrant" or collectively, the
"Incentive Warrants"). Xxxx shall receive an Incentive Warrant for each One
Million Dollars ($1,000,000) of Net Pre-Tax Profits in each calendar year during
the Term hereof, up to a maximum of five (5) Incentive Warrants in each such
year. Notwithstanding the foregoing, for purposes of calculating Net Pre-Tax
Profits, when determining the number of Incentive Warrants to which Xxxx is
entitled hereunder, the Company will deduct from the Net Pre-Tax Profits the
amount of Net Pre-Tax Profits, if any, in the calendar year immediately prior to
the calendar year in which the determination of Net Pre-Tax Profits is made
hereunder (for example, if the Company had Net Pre-Tax Profits of $1,000,000 in
the second calendar year of the Term hereof, the Company will deduct $1,000,000
when determining the amount of Net Pre-Tax Profits in the third calendar year of
the Term hereof).
4.4. As an inducement to Executive entering into this
Agreement, the Company will deliver to Xxxx, within ten (10) days of the date
hereof, a warrant to purchase up to 100,000 shares of Sagemark Common Stock (the
"Signing Bonus Warrant"). The Signing Bonus Warrant will provide that Tara's
right to acquire such Sagemark Common Shares shall vest at the rate of 33,334
shares of the Sagemark Common Stock upon the execution of this Agreement, 33,333
shares of the Sagemark Common Stock on May 24, 2002 and 33,333 of the Sagemark
Common Stock on May 24, 2003, provided that Executive is still then employed by
the Company, that the exercise price of such warrant shall be the Market Value
-5-
of the Sagemark Common Stock on the date of this Agreement and Xxxx shall have
the right to exercise such warrant with respect to each installment of such
shares for a period of five (5) years from the date of vesting of such shares of
Sagemark Common Stock, as aforesaid. Notwithstanding the foregoing, in the event
that this Agreement is terminated by Executive pursuant to Section 3.2(e) or if
the Company sells all or substantially all of its assets or all of its
outstanding shares of capital stock, Tara's right to purchase all then unvested
shares of Sagemark Common Stock under the Signing Bonus Warrant shall vest
effective upon the date of any such termination or sale. In addition, the
Incentive Warrants and the Signing Bonus Warrant and Incentive Warrants shall
also xxxxx Xxxx one demand registration right with respect to the vested shares
of Sagemark Common Stock underlying such warrants and "piggy-back" registration
rights with respect thereto.
4.5. The Company shall, in addition to the Base Salary, Bonus,
the Incentive Warrants and Signing Bonus Warrant, reimburse Executive for all
ordinary and necessary out-of-pocket expenses incurred by him in the performance
of his services under this Agreement, subject to and upon receipt by the Company
of invoices or other documentation in support thereof. Such expenses for which
Executive shall be entitled to reimbursement shall include, but not be limited
to, travel, entertainment and lodging expenses.
4.6. The Board of Directors of the Company (excluding, for
these purposes, Executive) may grant or award to Executive any other performance
or merit bonus or incentive compensation during the Term hereof (whether in cash
or securities) that it may determine is appropriate, if any.
5. Executive Benefits.
------------------
(a) In addition to the Base Salary, Bonus, Incentive Warrants
and Signing Bonus Warrant, Executive shall be entitled to participate in all
benefit programs established by the Company during the Term hereof for its
executive officers, including, without limitation, any retirement, pension,
profit sharing, insurance, hospitalization, disability or other employee benefit
plan of any type (including, without limitation, any incentive, profit sharing,
bonus or stock option plan) which may hereafter be adopted by the Company, it
being understood that Executive shall have the same rights and privileges to
participate in such Company (including its subsidiaries) benefit plans as any
other officer or executive employee of the Company or any of its subsidiaries.
(b) During each month during the Term hereof, the Company will
pay Executive a life and health insurance and automobile allowance in the amount
of $2,000 per month, such allowance to be payable on the first day of each such
month, in advance.
6. Disability. Notwithstanding anything to the contrary contained in
this Agreement if, during the Term hereof, Executive suffers a Permanent
Disability (hereinafter defined), the Company shall continue to pay Executive
the compensation provided for in Sections 4.1, 4.2 and 4.3 hereof during the
period of such disability, provided, however, that in the event Executive is so
disabled for a period of one-hundred-eighty (180) days in any 12 month period
(the "Disability Period"), the Company may, at its election, by a vote of its
-6-
Board of Directors within ninety (90) days from the end of the Disability
Period, terminate this Agreement. In the event of such termination, payment of
the Executive's Base Salary and fringe benefits shall be continued for a period
of 12 months from such termination. The term "Permanent Disability" shall mean
the complete inability of Executive to perform his duties under this Agreement
as determined by an independent physician selected with the approval of the
Company and Executive. Except as provided above or elsewhere in this Agreement,
the Company shall have no further liability hereunder (other than for
reimbursement of reasonable business expenses incurred by Executive prior to the
date of any such termination subject, however, to the provisions of Section 4.5
hereof).
7. Confidentiality and Non-Disclosure Covenant. During the Term of this
Agreement, Executive hereby acknowledges that he may obtain and be entrusted
with unpublished and material confidential and proprietary information relating
to the Company's present and proposed business and operations including, without
limitation, financial information relating to the Company's present and proposed
business and operations, the cost and pricing of the Company's services,
proposed acquisitions of the Company, and the terms of all material agreements
to which the Company is a party. All of such information that may be obtained by
Executive shall, for purposes hereof, be referred to herein as "Confidential
Information". Executive hereby agrees that, unless the Confidential Information
becomes publicly known through legitimate origin not involving any improper act
or omission of Executive, neither he, nor any entity or person owned or
controlled directly or indirectly by him, shall, during the Term of this
Agreement or thereafter, use for his own benefit or for the benefit of others
for any purpose and in any manner whatsoever, divulge to any person, firm,
corporation or other entity or otherwise publish or disclose any Confidential
Information (except as necessary in connection with the performance of
Executive's services under this Agreement). This provision shall survive the
expiration or termination of this Agreement. Notwithstanding the foregoing,
Executive shall not be in breach of this covenant with respect to any use or
disclosure of any Confidential Information by him which is or becomes available
in the public domain or is required as a result of any legal process served upon
him in any judicial or administrative proceeding or was obtained by Executive
from a third party without such third party's breach of agreement or obligation
of trust or which does not have a material adverse effect on the Company.
8. Non-Competition; Non-Solicitation.
8.1. Executive acknowledges and recognizes the highly
competitive nature of the business and proposed business of the Company and
hereby agrees that, during the Term hereof and for a period of two years after
the expiration or any earlier termination of the Term of this Agreement (other
than any such earlier termination by Executive pursuant to the provisions of
Section 3.2(e) hereof) (such period to be referred to hereinafter as the
"Applicable Period"), he will not, directly or indirectly, on his own behalf or
in the service of or on behalf of others, whether as an officer, director,
stockholder, partner, trustee, principal, employee, consultant, agent, or owner
of any capital stock, partnership interest or other interest in any corporation,
-7-
partnership or other entity, or in any other capacity, own an interest in,
perform any services or conduct any activity for or on behalf of any entity
which is engaged in a business which is the same or substantially similar to or
is or would be in any way competitive with the business of the Company and which
is located or provides services to customers within an area consisting of the
greater of a one hundred (100) mile radius of any facility which is owned and/or
operated, in whole or in part, by the Company (for these purposes to include any
parent, subsidiary or affiliate thereof) (a "Facility") or any county in which
there is a Facility, or for any such entity which may own or operate such
facility which is located outside any such area but which nevertheless may be
reasonably deemed by the Company to be in competition with any business engaged
in by the Company which is located within such area (a "Precluded Business
Activity"). Executive acknowledges that, due to the nature of the Company's
business, it is essential to provide for as broad a geographical limitation as
possible with respect to the aforementioned covenant inasmuch as the Company
will make substantial capital investments and commitments for each of its
aforementioned facilities. Without limiting the generality of the foregoing, it
is expressly understood and agreed that although Executive and the Company
consider the restrictions contained in this Section 8.1 to be reasonable, the
Executive agrees that in the event it is finally judicially determined by a
court of competent jurisdiction that the specified time period or geographical
area or scope of the foregoing restriction is unreasonable, arbitrary, or
against public policy, contrary to law, invalid and unenforceable, the remaining
provisions of this Agreement (including the remaining provisions of this
Section) shall not be rendered void, shall not be affected thereby and shall
remain in full force and effect and the provisions hereof which are the subject
of any such judicial determination shall be deemed amended to apply to any such
lesser time period, geographical area, or scope which is judicially determined
or indicated to be reasonable, non-arbitrary and not violative of public policy,
not contrary to law, invalid and/or unenforceable and such provisions, as
modified, may be enforced by the Company against the Executive in accordance
with the Terms hereof. Notwithstanding the foregoing, nothing contained in this
Section is intended to nor shall preclude (i) the ownership by Executive of not
more than five (5%) percent of the outstanding securities of any publicly owned
corporation or other entity engaged in a Precluded Business Activity, provided
that such ownership is solely for investment purposes and is not coupled with
any working relationship between Executive and such corporation or entity, or
(ii) the ownership and/or operation of any medical diagnostic imaging entity or
facility which utilizes imaging modalities other than positron emission
tomography or a cyclotron or other devices utilized for the production of
radio-nuclides.
8.2. Executive will not, at any time during or after the Term
hereof, directly or indirectly, (i) solicit the business of any client or
customer of the Company for purposes of utilizing positron emission tomography
procedures or a cyclotron or other devices utilized for the production of
radio-nuclides, or (ii) solicit, interfere with, or endeavor either to cause any
employee, agent, customer or supplier of the Company (including, for purposes of
this Section, the Company's subsidiaries and affiliates) to leave his or her
employment with the Company, or terminate its relationship with the Company, or
(iii) induce or attempt to induce any such employee, agent, customer or supplier
to breach any employment agreement or other agreement or arrangement that such
employee, agent, customer or supplier may have with the Company.
-8-
8.3. Executive hereby acknowledges that the provisions of
Section 7 and of this Section 8 are necessary for the protection of the
Company's business and goodwill and are considered by Executive to be fair and
reasonable. Executive further acknowledges that he has fully and carefully
reviewed, considered and understands all of the restrictions imposed upon him
under Section 7 and this Section 8. Accordingly, Executive hereby acknowledges
and agrees that in the event of any actual or threatened breach of the
provisions of Section 7 and/or this Section 8, there will be no adequate remedy
at law for any such breach or threatened breach and that any such breach or
threatened breach may cause irreparable harm to the Company and, therefore,
Executive hereby consents in any such instance to the granting of injunctive or
other equitable relief to the Company, as a non-exclusive remedy, in any court
of competent jurisdiction, without the necessity of showing any actual damage or
that monetary damages would not provide an adequate remedy at a law or posting a
bond thereof.
9. Representations and Warranties. The Company and Executive
hereby represent and warrant to each other as follows:
9.1. All action on the part of the Company and Executive
necessary for the authorization, execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, has been
taken and this Agreement constitutes a valid and legally binding obligation of
the Company and Executive, as applicable, , enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws affecting generally the enforcement of
creditors' rights and by general principles of equity.
9.2. The authorization, execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby,
will not result in any violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, a default under any provision
of any instrument, judgment, order, writ, decree or agreement to which the
Company or Executive, as applicable, is a party or by which it or he is bound.
9.3. There is no action, suit, proceeding, or investigation
pending, or to the knowledge of the Company or Executive, as applicable, ,
currently threatened against the Company or Executive, as applicable, in any way
relating to the validity of this Agreement or the right of the Company or
Executive, as applicable, to enter into or to consummate this Agreement and the
transactions contemplated hereby.
10. Arbitration. All disputes, controversies and differences between
the parties hereto arising under this Agreement which the parties hereto are
unable to settle amicably shall be resolved in New York, New York, by binding
arbitration in accordance with the Rules then in force of the American
Arbitration Association. The arbitration shall be held before three arbitrators
one of which shall be selected by each of Executive and the Company and one of
which shall be selected by the other two arbitrators, and the decision of such
arbitrators shall be deemed to be final, and judgment upon any award or decision
-9-
rendered thereby may be entered in any court, domestic or foreign, having
jurisdiction thereof.
11. Miscellaneous.
-------------
11.1. This Agreement constitutes the sole and entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, representations, warranties, statements,
promises, information, arrangements and understandings, whether oral or written,
express or implied, between the parties hereto with respect to the subject
matter hereof (other than any prior Resolution of the Company's Board of
Directors approving the issuance to Executive of warrants to purchase shares of
the Company's Common Stock). This Agreement may not be changed or modified
except by an instrument in writing signed by the party to be bound thereby.
11.2. All notices, consents, requests, demands and other
communications required or permitted to be given under this Agreement shall be
in writing and delivered personally, receipt acknowledged, or mailed by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the parties hereto as follows (or to such other address and/or to
such other persons as either of the parties hereto shall specify by notice given
in accordance with this provision):
(a) If to the Company:
The Sagemark Companies Ltd.
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxx Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
00 Xxxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
(b) If to Executive:
Xxxxxxxx X. Xxxxxxx
0000 Xx. Xxxxx Xxxx.; Apt. 12S
Xxxxxxxx Xxxxx, XX 00000
Except as otherwise expressly provided elsewhere in this Agreement, all
such notices, consents, requests, demands and other communications shall be
deemed given when personally delivered as aforesaid, or, if mailed as aforesaid,
-10-
on the third business day after the mailing thereof or on the day actually
received, if earlier, except for a notice of a change of address which shall be
effective only upon receipt.
11.3. Neither party hereto may assign this Agreement or their
respective rights, benefits or obligations hereunder without the written consent
of the other party hereto. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs, personal
representatives, administrators, executors and permitted assigns. Nothing
contained herein is intended to confer upon any person or entity, other than the
parties hereto, and their respective successors, heirs, personal
representatives, administrators, executors or permitted assigns, any rights,
benefits, obligations, remedies or liabilities under or by reason of this
Agreement.
11.4. No waiver of this Agreement shall be effective unless in
writing and signed by the party to be bound thereby. The waiver by either party
hereto of a breach of any provision of this Agreement, or of any representation,
warranty, or covenant in this Agreement by the other party hereto shall not be
construed as a waiver of any subsequent breach or of any other provision,
representation, warranty, or covenant of such other party, unless the instrument
of waiver expressly so provides.
11.5. Except as otherwise provided elsewhere in this
Agreement, this Agreement shall be governed by and construed in accordance with
the laws of the State of New York with respect to contracts made and to be fully
performed therein, without regard to the conflicts of laws principles thereof.
By his execution hereof, Executive hereby consents and irrevocably submits to
the in personam jurisdiction of the American Arbitration Association tribunal
located in the City, County and State of New York and agrees that any process in
any action commenced in such tribunal under this Agreement may be served upon
him personally, by certified or registered mail, return receipt requested, or by
Federal Express or other courier service, with the same full force and effect as
if personally served upon him in New York City. Each of the parties hereto
hereby waives any claim that the jurisdiction of any such tribunal is not a
convenient forum for any such action and any defense of lack of in personam
jurisdiction with respect thereto. In the event of any action or proceeding
under this Agreement, the party prevailing therein shall be entitled to payment
from the other party hereto of all of its costs in connection therewith,
including its counsel fees and disbursements.
11.6. The parties hereto hereby agree that, at any time and
from time to time during the Term hereof, upon the reasonable request of the
other party hereto, they shall do, execute, acknowledge and deliver, or cause to
be done, executed, acknowledged and delivered, such further acts, deeds,
assignments, transfers, conveyances and assurances as may be reasonably required
to more effectively consummate this Agreement and the transactions contemplated
thereby or to confirm or otherwise effectuate the provisions of this Agreement.
11.7. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, is finally determined by a
court or arbitration tribunal to any extent to be illegal, invalid or
-11-
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to which it is held
illegal, invalid or unenforceable, shall not be affected thereby and each term
and provision of this Agreement shall be valid and shall be enforced to the
fullest extent permitted hereunder and by law.
11.8. During and after the Term of this Agreement, the Company
shall defend, indemnify and hold Executive harmless from any claims, causes of
action, liabilities, damages, costs or expenses incurred by Executive based upon
or in connection with the performance of his services under this Agreement to
the fullest extent permitted by the laws of the State of Delaware and of the
Certificate of Incorporation and By-Laws of the Company. This provision will
survive the expiration or termination of the Term of this Agreement. In
addition, the Company shall enter into an indemnity agreement with Executive
providing for additional indemnification rights in favor of Executive no later
than thirty (30) days after the date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the year and date first above written.
WITNESS: THE SAGEMARK COMPANIES LTD.
________________________ By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
________________________ Xxxxxx X. Xxxxxx
Print Name Chairman of the Board
WITNESS:
/s/ XXXXXXXX X. XXXXXXX
________________________ -----------------------------------------
Xxxxxxxx X. Xxxxxxx
________________________
Print Name
-12-
