Exhibit 10.21
EMPLOYMENT AGREEMENT
AGREEMENT, made as of March 20, 2000, by and between WALL STREET
STRATEGIES INC., a Delaware corporation with its offices at 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the "Company") and XXXXXX X. XXXXXX, an
individual residing at 0000-X Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the
"Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to retain the services of Executive to
render services to the Company on the terms and conditions hereinafter set
forth; and
WHEREAS, Executive desires to render such services to the Company on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment. Subject to all of the terms and conditions hereof, the
Company does hereby employ the Executive as the Chief Internet Officer of the
Company for a period (the "Employment Period") of three (3) years commencing on
March 20, 2000 (the "Commencement Date"), and the Executive does hereby accept
such employment and agrees to devote his full business time and attention to the
performance of his duties hereunder and to perform such duties faithfully,
competently, diligently, and in such manner as to effect his best efforts.
2. Duties of Executive. In his capacity as Chief Internet Officer of
the Company, Executive shall perform the duties customarily performed by a chief
internet officer and such duties as may, from time to time, be assigned to him
by the Chief Executive Officer and/or the Chief Operating Officer of the
Company. Executive's duties will be subject to the direction and control of the
Company's Board of Directors, Chief Executive Officer and Chief Operating
Officer. Executive will report to the Chief Operating Officer. Without limiting
the generality of the foregoing, Executive shall be responsible for the
day-to-day internet operations of the Company, providing overall management,
direction and support of the Company's internet operations, including
development and marketing of the Company's internet operations. Without limiting
the forgoing, Executive shall provide day-to-day management of the build-out,
maintenance, expansion, development and marketing of the Company's website in
consultation with and subject to oversight and direction by the Chief Operating
Officer.
3. Compensation and Related Matters.
(a) Annual Base Salary. During the Employment Period, the Executive
shall receive a salary of $175,000 per annum (the "Annual Base Salary"). The
Annual Base Salary will be payable in equal bi-weekly installments or otherwise
in accordance with the Company's policies in effect from time to time. The
Company will review the Annual Base Salary on or about the anniversary of the
Commencement Date of the Executive's employment for possible increase; any such
increase shall, however, be in the Company's discretion and nothing contained
herein shall be deemed to obligate the Company to increase the Annual Base
Salary at such time, or at any other time.
(b) Expenses. The Company shall reimburse the Executive for
reasonable business expenses incurred by the Executive in the performance of his
duties under this Agreement upon evidence of payment by Executive of such
expenses and otherwise in accordance with Company policies then in effect, as
such policies may change from time to time.
(c) Benefits. The Executive shall be entitled to participate in any
health insurance, profit sharing, life insurance, unmatched 401(k) plan or any
other similar plan or benefit afforded by the Company to the Company's executive
officers generally, if and to the extent that the Executive is eligible to
participate in accordance with the provisions of any such insurance, plan or
benefit generally. Nothing contained herein is intended, or shall be construed,
to require the Company to institute or retain any, or any particular, insurance
plan or benefit. In addition, the Company will, during the Employment Period,
pay tuition associated with Executive's attendance of the Northwestern
University Executive Masters Program, subject to and upon submission to the
Company of the invoices for such tuition.
(d) Incentive Bonus. Commencing with his performance in the current
year, the Executive shall be entitled to earn an annual incentive bonus of up to
50% of the Annual Base Salary, pro rated for a short year, if applicable, based
upon the achievement of performance goals to be mutually determined within 30
days after the Commencement Date (with respect to the first year of the
Employment Period), and prior to or within 30 days after each anniversary date
of the date of this Agreement (with respect to subsequent years of the
Employment Period). The performance goals will be directly tied to the
Executive's duties as set forth in Section 2 of this Agreement and will include
reasonable specifications regarding Company support for Executive's efforts to
meet his performance goals. Achievement of the performance goals will be
reviewed and measured quarter-annually, and the incentive bonus, to the extent
payable, will be paid within 30 days after the end of each quarter.
(e) Stock Options. On the Commencement Date, Wall Street Strategies
Corporation ("WSSC") will grant to Executive options under WSSC's 1999 Incentive
Program (the "Program") to acquire 200,000 shares of WSSC's common stock (the
"Options") at an exercise price of $7.50 per share. Such Options shall vest and
become exerciseable, for a period of five (5) years, subject to and in
accordance with the terms of the Program, as follows, subject to the Executive's
continued employment by the Company at the time of exercise of such Options: (i)
fifty (50%) percent of such Options shall vest on the first anniversary of the
Commencement Date; (ii) twelve and one-half (12.5%) percent shall vest on each
of the fifteen, eighteen, twenty-one and twenty-four month anniversaries of the
Commencement Date. Notwithstanding the foregoing, upon the termination of the
Executive's employment prior to the first annual anniversary of the Commencement
Date by reason of his death, Disability (as hereinafter defined) or
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Involuntary Termination Without Cause (as hereinafter defined), fifty (50%)
percent of the Options shall vest immediately and become exerciseable subject to
and in accordance with the terms of the Program. The Options granted will be
non-qualified stock options. The Executive and WSSC will enter into a stock
option agreement more fully setting forth the terms of such Options as soon as
practicable after the Commencement Date.
(f) Vacation. The Executive shall be entitled to ten business days
of annual vacation to be used (and not carried over) each year (including 2000,
without pro ration for the short year) at times mutually convenient to the
Company and Executive.
(g) Signing Bonus. The Company will pay to the Executive, upon
execution of this Agreement by both parties, a signing bonus of $25,000.
(h) Deductions and Withholdings. All amounts payable or which become
payable hereunder shall be subject to all deductions and withholding required by
law.
4. Executive Covenants.
(a) Notice of Creation. Executive will both during and after the
Employment Period promptly and fully disclose to the Company any and all
inventions, discoveries, improvements, ideas, devices, designs, models,
prototypes, processes, compositions, know-how, information, works (including
computer programs and written and graphics materials), mask works and data,
whether of a business, technical or other nature and whether or not protectable
under U.S. or foreign patent, copyright, trade secret or other law
(collectively, "Works"), that concern or relate directly to Competitive
Activities (as defined in Section 4(d) below) and that are first conceived,
reduced to practice, fixed in a tangible medium of expression or are otherwise
made by Executive solely or jointly with others during the Employment Period,
whether during regular business hours or otherwise (the "Intellectual
Property").
(b) Ownership of Intellectual Property. Upon its respective
conception, reduction to practice, fixation in a tangible of expression or other
making, an item of Intellectual Property and all worldwide right, title and
interest in and to that Intellectual Property, including all common law,
statutory, treaty and convention rights, including the right to xxx for all
past, present and future infringement, shall immediately become and forever
remain the property of Company without any further act or deed being required
and without any additional consideration from Company to Executive, and
Executive hereby irrevocably assigns to Company, and Company hereby accepts, all
such Intellectual Property and all such worldwide right, title and interest. The
Executive hereby waives and agrees not to assert any moral rights or similar
rights under the laws of any jurisdiction with respect to any Intellectual
Property.
(c) Further Assurances. Executive will from time to time, both
during and after the Employment Period, upon the request and at the expense of
the Company, but without further consideration from the Company, (i) make
application through the attorneys for the Company for Letters Patent, utility
models, copyright registrations and
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other forms of intellectual property protection for and on the Intellectual
Property in the United States and in countries foreign thereto, (ii) cooperate
with the attorneys in the prosecution, maintenance, reissue, renewal, extension
and defense of, and suit upon, all such applications and resulting Letters
Patent, utility models, copyright registrations and other forms of intellectual
property protection, and (iii) do and perform all acts, including executing
documents, believed by the attorneys to be necessary or desirable in furtherance
of the foregoing and for assigning and perfecting all right, title and interest
in and to the Intellectual Property in the Company or its successors or assigns,
including executing applications and assignment documents. All decisions
concerning such applications and resulting Letters Patent, utility models,
copyright registrations and other forms of intellectual property protection,
including all decisions concerning their filing, prosecution, maintenance,
reissue, renewal, extension, defense and suits upon them, shall be solely those
of the Company, and Executive shall have no claim or cause of action against the
Company arising out of or concerning any such decisions or the results of those
decisions.
(d) Non-Competition. In order to induce the Company to enter into
this Agreement, the Executive hereby expressly covenants and agrees that he
shall not, without the express written consent of the Company, for his own
account or jointly with any other person, for the Employment Period, and for a
period of six (6) months thereafter, for any reason (i) participate in, engage
in or be connected in any way with, directly or indirectly, as a proprietor,
contractor, employee, principal, partner, officer, stockholder, member, advisor,
consultant, agent or licensor (whether paid or unpaid), Competitive Activities
(as defined below) anywhere in the United States where the Company conducts
business, (ii) directly or indirectly, own, manage, operate, join, control, loan
money to, invest in, or otherwise participate in, or be connected with, or
become or act as an officer, employee, consultant, representative or agent of
any Competitor (defined below), or (iii) intervene in or interfere with any
relationships between the Company and its vendors or customers or prospective
customers or disrupt its customer markets, anywhere in the United States where
the Company conducts business. Notwithstanding the foregoing, the Executive may
at any time own, solely as an inactive investor, securities of any entity,
whether or not in competition with the Company, if (A) such securities are
publicly traded on a nationally-recognized stock exchange or on NASDAQ, and (B)
the aggregate holdings of such securities by the Executive and his immediate
family do not exceed five percent (5%) of the voting power or five percent (5%)
of the capital stock of such entity. As used herein, "Competitive Activities"
means business activities primarily involving the preparation, marketing, and/or
sale of investment research or financial information services or content through
the internet or traditional media; and "Competitor" means any person whose
principal business activities consist of Competitive Activities, or any
combination thereof. For purposes of this Section 4 and determining the scope of
Competitive Activities hereunder, "Company" means Wall Street Strategies
Corporation and its direct or indirect wholly-owned subsidiaries and shall not
include any successor or parent company which may hereafter acquire the Company
or into which the Company may be combined (whether by merger, stock or asset
acquisition or otherwise) to the extent that the business or activities of such
successor are different than those of the Company at the time of such
acquisition or combination. Executive acknowledges that he is agreeing to be
bound by the
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restrictions contained in this Section 4(d) in consideration of the various
benefits to be provided to him under Section 3 hereof, including, specifically,
but without limitation, the stock option grant referenced in Section 3(e)
hereof.
(e) Reasonableness of Restrictions. The Executive acknowledges and
agrees that the covenants contained herein with respect to non-competition are
reasonable in scope, geographic application and duration, in view of the
economic bargain contained herein. The Executive represents and warrants to the
Company that his experience, background and skills are such that he is able to
obtain employment on reasonable terms and conditions without violation of the
restrictive covenant contained herein with respect to non-competition; and that
such covenant does not and will not pose any undue hardship to the Executive.
(f) Tangible Things. Executive covenants and agrees that (i) all
tangible things, including confidential memoranda, notes, notebooks, drawings,
lists (including, without limitation, mailing and customer lists), record and
other confidential documents (and all copies thereof), made or compiled by
Executive or made available to Executive concerning the Company's business shall
be the property of the Company, and (ii) if such tangible things are in the
possession or control of Executive, Executive shall deliver them to the Company
promptly following the Employment Period or at any other time upon request of
the Company.
(g) No Improper Disclosure. Executive represents and warrants that
Executive has not disclosed, and will not disclose, to the Company any
information, whether confidential, proprietary or otherwise, that the Executive
possesses and that Executive is not legally free to disclose. Executive further
agrees to defend, indemnify and hold harmless the Company against all claims,
demands, losses, damages or expenses, including attorneys' fees, suffered or
incurred as a result of any violation of the representations contained in this
subsection 4(g).
(h) No Employee Solicitation. The Executive hereby agrees that
during the Employment Period and for a period of two (2) years thereafter, he
shall not, directly or indirectly, for his own account or jointly with another,
or for or on behalf of any entity, as principal, agent or otherwise, solicit,
induce or hire or in any manner attempt to solicit, induce or hire any person
employed by the Company or any of its affiliates to leave such employment,
whether or not such employment is pursuant to a written contract with the
Company or otherwise.
(i) Trade Secrets. Executive acknowledges that Executive's work for
the Company is expected to bring Executive into close contact with various
confidential technical and research data, confidential business data and other
information of the Company not readily available to the public. The Executive
expressly covenants and agrees that he will not at any time, whether during or
after the Employment Period, directly or indirectly, on any basis for any
reason, use or permit third parties within his control, the use of any trade
secrets, confidential information or proprietary information of, or relating to,
the Company, or any affiliate of the Company (including, without limitation,
data and other information relating to any of the Company's processes,
apparatus, products, software,
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packages, programs, trends in research, product development techniques or plans,
research and development programs and plans or any works and all secrets,
customer lists, lists of Executives, sales representatives and their
territories, mailing lists, details of consultant contracts, pricing policies,
operational methods, marketing plans or strategies, business acquisition plans,
new personnel acquisition plans, designs and design projects and other
confidential business affairs concerning the Company and the Company's
business), in connection with any activity or business, whether for his own
account or otherwise, and will not divulge such trade secrets, confidential
information or proprietary information to any person, firm, corporation or other
entity whatsoever. The Executive shall not be prohibited from divulging
information deemed to be trade secret or confidential or proprietary information
of the Company: (i) if and to the extent that disclosure of any such information
is pursuant to appropriate safeguards on confidentiality and (x) necessary and
appropriate in connection with the submission of bids by the Company in the
ordinary course of business or (y) required pursuant to the Company's marketing
efforts directed to specific clients or bona fide prospective clients or the
provision of services to existing clients in the ordinary course of business or
(z) is made to other Executives of the Company or independent contractors
thereof in the ordinary course of the Company's business, (ii) if the specific
item of information becomes generally available to the public without violation
of this Agreement or any other confidentiality agreement among the Executive and
the Company or any other confidentiality agreement to which the Executive is a
party, or (iii) if such disclosure is compelled by law, in which event the
Executive agrees to give the Company prior written notice of any disclosure to
be made pursuant to this clause (iii), and the Executive, at the Company's
expense, shall cooperate fully with the Company to obtain protective orders,
confidential treatment or other such protective action as may be available to
preserve the confidentiality of the information required to be disclosed.
(j) Remedies. It is expressly understood and agreed that the
services to be rendered hereunder by the Executive are special, unique and of
extraordinary character, and in the event of the breach by the Executive of any
of the terms and conditions of this Agreement on his part to be performed
hereunder, or in the event of the breach or threatened breach by the Executive
of the terms and provision, of this Section 4 of this Agreement, then the
Company shall be entitled, if it so elects, to institute and prosecute any
proceedings in any court of competent jurisdiction, either in law or equity, for
such relief as it deems appropriate, including without limiting the generality
of the foregoing, any proceedings to obtain damages for any breach of this
Agreement or to enforce the specific performance thereof by the Executive or to
enjoin the Executive from performing services which are prohibited by this
Agreement for any other person, firm or corporation. If the Executive violates
Section 4(d), the time period set forth herein with respect to such provision
shall be extended (or shall be deemed to have been extended), until six months
after the date of entry of final judgment enforcing such provision and the time
for appeal has lapsed, provided that in no event shall such time period be
extended beyond the date which is 12 months after the end of the Employment
Period. If Executive is held by a court of competent jurisdiction to have
breached this Agreement, Executive shall be liable for any attorneys' fees and
costs incurred by the Company in enforcing its rights hereunder.
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(k) Enforcement. It is hereby expressly agreed by the Company and
the Executive that if any portion of the restrictive covenants and provisions
set forth in this Section 4 is held to be unreasonable, arbitrary, against
public policy or otherwise unenforceable for any reason, then each such covenant
or provision shall be considered divisible as to scope, time and geographical
area, with each month of a specified period being deemed a separate period of
time and each county within any geographical area being deemed a separate
geographic area. The parties hereto expressly agree that notwithstanding their
mutual expectation that the covenants and restrictions contained herein will be
enforceable and enforced, a lesser scope, period of time or geographic area
shall be enforced to the extent that the covenants contained herein may be
unenforceable as written. The Company and the Executive also agree that in the
event that any court of competent jurisdiction determines a portion of the
restrictive covenants contained herein to be non-enforceable, such determination
by such court shall be deemed to have applicability only within the jurisdiction
in which such court is located and shall not be deemed to be effective in any
other jurisdiction. The existence of any claim or cause of action by the
Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the restrictive covenants contained in this Section 4.
(l) Covenants Non-Exclusive. The Executive acknowledges and agrees
that the covenants contained in this Section 4 shall not be deemed exclusive of
any common law rights of the Company in connection with the relationships
contemplated hereby; and that the Company shall have any and all rights as may
be provided by law in connection with the relationships contemplated hereby.
5. Termination. This Agreement may be terminated under the following
circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
his death. In the case of the Executive's death, the Company shall pay to the
Executive's beneficiaries or estate, as appropriate, promptly after his death,
any accrued but unpaid Annual Base Salary, and all expenses for which he is
entitled to be reimbursed pursuant to Section 3 through the date of his
termination. The Executive and his beneficiaries and estate, as appropriate,
shall be entitled to no other compensation under this Agreement following, or as
a result of, a termination under these circumstances.
(b) Disability.
(i) If a Disability (as defined below) of the Executive occurs
during the Employment Period, the Company may give the Executive written notice
of its intention to terminate his employment. In such event, the Executive's
employment with the Company shall terminate on the effective date specified in
such notice, which shall be not less than 14 days after the date of such notice.
In the case of a termination as a result of a Disability, the Company shall pay
to the Executive promptly after his termination any accrued but unpaid Annual
Base Salary, and all expenses for which he is entitled to be reimbursed pursuant
to Section 3 through the date of his termination. The Executive and his
beneficiaries and estate, as appropriate, shall be entitled to no other
compensation
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under this Agreement following, or as a result of, a termination under these
circumstances.
(ii) For the purpose of this subsection 5(b), "Disability" shall
mean the Executive's inability to perform his normal duties as Chief Marketing
Officer of the Company, with or without reasonable accommodation, due to a
mental or physical impairment, for a period of at least three (3) consecutive
months or six (6) months in the aggregate in any twelve (12) month period. The
Executive agrees to submit to a reasonable number of examinations by a medical
doctor selected by the Company and reasonably acceptable to the Executive (or
his legal representative) making the determination of disability under this
Section 5(b)(ii), and the Executive hereby authorizes the disclosure and release
to the Company of such determination and all supporting medical records.
(c) Termination by the Company for Cause.
(i) The Company may terminate the Executive's employment
hereunder for Cause (as defined below) at any time upon written notice to the
Executive. In such event, the Executive's employment shall terminate on the
effective date specified in such notice. In the case of the Executive's
termination for Cause, the Company shall promptly pay to the Executive any
accrued but unpaid Annual Base Salary and all expenses for which he is entitled
to be reimbursed pursuant to Section 3 through the date of his termination. The
Executive and his beneficiaries shall be entitled to no other compensation under
this Agreement following, or as a result of, a termination under these
circumstances.
(ii) For purposes of this Agreement, "Cause" shall mean (A) any
act of gross negligence, malfeasance or gross misconduct by the Executive
materially detrimental to the Company or its affiliates; (B) any willful
misappropriation or embezzlement by the Executive of the property of the Company
(whether or not a felony or misdemeanor); (C) any indictment for a felony; (D)
the commission by the Executive of any misdemeanor involving theft, fraud,
dishonesty or misrepresentation; (E) the material breach by the Executive of any
of his covenants and obligations hereunder, including, without limitation, the
covenants contained in Section 4 hereof which breach shall not have been cured
within fifteen (15) days after delivery of the written notice referred to in
Section 5(c)(i) (other than a breach of Section 4 hereof with respect to which
such cure period shall not apply); or (F) the refusal of the Executive to accept
the lawful directions of the Company (consistent with his duties and
responsibilities hereunder) or other willful disobedience or material breach by
the Executive of any of the Company's written rules, instructions or orders,
which breach shall not have been cured within fifteen (15) days after delivery
of the written notice referred to in Section 5(c)(i).
(d) Involuntary Termination by the Company Without Cause. In the
event of the Executive's "Involuntary Termination Without Cause," the Company
shall pay to the Executive any accrued but unpaid Annual Base Salary and
expenses to which he is entitled pursuant to Section 3 through the date of his
termination. In addition, the Executive shall receive continuation of his Annual
Base Salary for a period of three (3)
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months from the date of termination and, commencing on the date which is three
months after such date of termination, three additional monthly payments, each
in an amount equal to one month's Annual Base Salary. The Executive and his
beneficiaries shall be entitled to no other compensation under this Agreement
following, or as a result of, a termination under these circumstances. As used
herein "Involuntary Termination Without Cause" means:
(i) The Company's termination of the Executive's employment
hereunder by written notice to the Executive for any reason other than death,
Disability or Cause, in which case the Executive's employment shall terminate on
the effective date specified in such notice; or
(ii) The Executive's termination of his employment hereunder by
written notice to the Company upon the material and continuing breach by the
Company of any of its material covenants and obligations hereunder, which breach
shall not have been cured within fifteen (15) days after delivery of such
written notice or upon the Company's failure to provide the Executive with an
office in Chicago, Illinois, together with reasonable customary office
resources, provided that after the first year of the Employment Period, such
failure shall not constitute grounds for Executive's termination of his
employment pursuant to this Section 5(d) if the Company offers to relocate
Executive to its principal executive offices and to provide Executive with
reasonable relocation expenses.
(e) Mutual Agreement. The Executive's employment may be terminated
by written mutual agreement of the Executive and the Company at any time.
6. Assignment; Successors and Assigns. The Executive agrees that he
will not assign, sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, any rights or obligations under this Agreement,
nor shall the Executive's rights be subject to encumbrance of the claims of
creditors. Any purported assignment, transfer, delegation, disposition or
encumbrance in violation of this Section 6 shall be null and void and of no
force or effect. Nothing in this Agreement shall prevent the consolidation or
merger of the Company with or into any other entity, or the sale by the Company
of all or any portion of its respective properties or assets, or the assignment
by the Company of this Agreement and the performance of its obligations
hereunder to any subsidiary of the Company, or any successor in interest or any
other affiliated entity, and the Executive hereby consents to any and all such
assignments. Subject to the foregoing, this Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not benefit any
person or entity other than those enumerated above.
7. Choice of Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York. The Executive
irrevocably consents to the service of any and all process in any action or
proceeding arising out of or relating to this Agreement by the mailing of copies
of such process to such Executive at the address specified in Section 10. The
parties hereto irrevocably submit to the jurisdiction of the United States
District Court for the Southern District of New York or any state court located
in New York County, State of New York over any dispute arising out of or
relating to this
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Agreement or any of the transactions contemplated hereby. Each party hereby
irrevocably agrees that all claims in respect of such dispute or proceeding may
be heard and determined in such courts. The parties hereby irrevocably waive, to
the fullest extent permitted by applicable law, any objection which they may now
or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum in connection therewith.
8. Severability of Provisions. In the event that any provision or any
portion thereof should ever be adjudicated by a court of competent jurisdiction
to exceed the limitations permitted by applicable law, as determined by such
court in such action, then such provisions will be deemed reformed to the
maximum limitations permitted by applicable law, the parties hereby
acknowledging their desire that in such event such action be taken. In addition
to the above, the provisions of this Agreement are severable, and the invalidity
or unenforceability of any provision or provisions of this Agreement or portions
thereof will not affect the validity or enforceability of any other provision,
or portion of this Agreement, which will remain in full force and effect as if
executed with the unenforceable or invalid provision or portion thereof
eliminated. Notwithstanding the foregoing, the parties hereto affirmatively
represent and acknowledge that this Agreement and each of its provisions is
enforceable in accordance with its terms, and expressly agree not to challenge
the enforceability of the Agreement or any of its provisions in the future. The
parties hereto are expressly relying upon this representation and acknowledgment
in determining to enter into this Agreement.
9. Warranty. (a) As an inducement to the Company to enter into this
Agreement, the Executive represents and warrants to the Company (subject to the
provisions of Section 9(b)) that there exists no impediment or restraint,
contractual or otherwise, on his power, right or ability to enter into this
Agreement and to perform his duties and obligations hereunder.
(b) Notwithstanding the provisions of Section 9(a), the Executive
and the Company acknowledge that the Executive is a party to a certain
Assignment of Inventions and Company Information Agreement dated October 2, 1995
by and between the Executive and Zacks Investment Research, Inc. (the "Zacks
Agreement"), a true and correct copy of which has been delivered by the
Executive to the Company. The Company agrees to defend, indemnify and hold
harmless the Executive from and against all claims, demands, losses, damages or
expenses, including reasonable attorneys' fees, suffered or incurred by the
Executive as a result of a breach by him of Section IV of the Zacks Agreement
occasioned solely by his employment by the Company hereunder.
10. Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method upon receipt of
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telephonic or electronic confirmation; the day after it is sent, if sent for
next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
If to the Executive, addressed to:
Xxxxxx X. Xxxxxx
0000-X Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxx, Xxxxx & Samotny Ltd.
000 X. Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
If to the Company addressed to:
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
or to such other place and with such other copies as either party may designate
as to itself or himself by written notice to the others.
11. Cumulative Remedies. All rights and remedies of either party hereto
are cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other right or remedies.
12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
13. Entire Agreement; Amendments and Waivers. This Agreement is
intended by the parties to be, and is, the complete, exclusive and final
expression of their agreement with respect to the subject matter hereof.
Moreover, this Agreement supersedes, and may not be contradicted by, or modified
or supplemented by, evidence of
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any prior or contemporaneous agreement as to the subject matter hereof,
including, without limitation, that certain letter dated March 2, 2000 between
the Company and the Executive, and no extrinsic evidence whatsoever may be
introduced in any judicial, administrative or other legal proceeding to vary the
terms of this Agreement. No amendment, supplement, modification or waiver of
this Agreement shall be binding unless executed in writing by each party to be
bound thereto. No waiver of any of the provisions of this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed or be
construed as a further, continuing or subsequent waiver of any such provision or
as a waiver of any other provision of this Agreement. No failure to exercise and
no delay in exercising any right, remedy or power hereunder shall preclude any
other or further exercise of any other right, remedy or power provided herein or
by law or in equity.
14. Representation of Counsel; Mutual Negotiation. Each party has had
the opportunity to be represented by counsel of its choice in negotiating this
Agreement. This Agreement shall therefore be deemed to have been negotiated and
prepared at the joint request, direction and construction of the parties, at
arm's-length, with the advice and participation of counsel, and shall be
interpreted in accordance with its terms without favor to any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
WALL STREET STRATEGIES INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
-----------------------
Title: Chief Strategy Officer
----------------------
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