CROSS/Z INTERNATIONAL, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of June 1, 1997 (the "Effective Date"), by and between Xxxx
Xxxxxxxxxxxxxx (the "Executive") and Cross/Z International, Inc., a California
company (the "Company").
R E C I T A L S
The Company and the Executive desire to enter into this Agreement in
order to provide additional financial security and benefits to the Executive, to
encourage the Executive to continue employment with the Company and to enhance
the motivation and incentive of the Executive to increase the profitability of
the Company.
In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of the Executive with the Company,
the parties agree as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITION. The Company shall employ the Executive in
the position of PRESIDENT & CEO with such duties, responsibilities and
compensation as in effect as of the Effective Date; provided, however, that the
Board of Directors of the Company (the "Board") shall have the right to revise
such responsibilities and compensation from time to time as the Board may deem
necessary or appropriate. Such duties and responsibilities shall be commensurate
with Executive's past practices and consistent with his position as President
and Chief Executive Officer of the Company. If any such revision constitutes
"Involuntary Termination" as defined in Section 8 (d) of this Agreement, the
Executive shall be entitled to benefits upon such Involuntary Termination as
provided under this Agreement.
(b) OBLIGATIONS. The Executive shall devote his full
business efforts and time to the Company and its subsidiaries. The foregoing,
however, shall not preclude the Executive from engaging in such activities and
services as do not interfere or conflict with his responsibilities to the
Company.
2. TERMINATION. This Agreement shall continue in force and effect
until the earliest of: (i) December 31, 1999 or (ii) until such time as notice
of non-renewal or termination of this Agreement is given in writing by either
the Company or the Executive to the other (the "Termination Event"). The Company
and the Executive agree to meet to negotiate in good faith the renewal of this
Agreement two (2) months prior to the Termination Event. This Agreement may be
extended for an additional period or periods by mutual written agreement of the
Company and the Executive. A termination of the terms of this Agreement pursuant
to the preceding sentence shall be effective for all purposes, except that such
termination shall not affect the payment or provision of compensation
or benefits on account of a termination of employment occurring prior to the
termination of the terms of this Agreement, nor affect Executive's right to
twelve (12) months of Base Compensation as severance pay after the termination.
3. COMPENSATION AND BENEFITS.
(a) BASE COMPENSATION. The Company shall pay the
Executive as compensation for services a base salary at the annualized rate of
not less than $150,000. Such salary shall be reviewed at least annually. Such
salary shall be paid periodically in accordance with normal Company payroll. The
annual compensation specified in this Section, as adjusted from time to time,
before any salary reduction under Section 401(k) of the Internal Revenue Code,
deferred compensation plan or agreement or any other benefit or plan requiring
reduction of salary, is referred to in this Agreement as "Base Compensation."
(b) BONUS. Beginning with the Company's current fiscal
year and for each fiscal year thereafter during the term of this Agreement, the
Executive shall be eligible to receive an annual bonus (the "Bonus") based upon
a target or targets approved by the Board annually. Although the maximum Bonus
that may be earned by an executive executing this Agreement may differ, it shall
exceed the maximum potential bonus that may be earned by executives with a lower
base compensation and be consistent with the Executive's position as a senior
executive (the maximum potential bonus hereinafter referred to as the "Target
Bonus"). The Bonus payable hereunder shall be payable in accordance with the
Company's normal practices and policies.
(c) VACATION. The Executive shall be entitled to four
(4) weeks of paid vacation per year or such additional vacation as may be
permitted from time to time by Company policy. In recognition that business
demands may prevent the Executive from taking such vacation in full, the
Executive may accrue any vacation not taken without limitation, notwithstanding
any Company policy to the contrary.
(d) EXECUTIVE BENEFITS. The Executive shall be eligible
to participate in the employee benefit plans and executive compensation programs
maintained by the Company of general applicability to other key executives of
the Company, including (without limitation) retirement plans, savings or
profit-sharing plans, deferred compensation plans, supplemental retirement or
excess-benefit plans, stock option, incentive or other bonus plans, life,
disability, health, accident and other insurance programs, paid vacations, and
similar plans or programs, subject in each case to the generally applicable
terms and conditions of the plan or program in question and to the determination
of the Board or any committee administering such plan or program. Participation
shall be consistent with the Executive's position as President of the Company.
The Company shall reimburse the Executive for all reasonable business and travel
expenses actually incurred or paid by the Executive in the performance of
services on behalf of the Company, in accordance with the Company's expense
reimbursement policy as in effect from time to time.
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4. SEVERANCE BENEFITS.
(a) TERMINATION OF EMPLOYMENT DURING TERM OF AGREEMENT.
If the Executive's employment with the Company terminates during the term of
this Agreement, then the Executive shall be entitled to receive severance
benefits as follows:
(i) INVOLUNTARY TERMINATION. If, at any time
during the term of this Agreement, the Executive's employment terminates as a
result of Involuntary Termination other than for Cause, Disability or death, or
the Company breaches any of the material terms of this Agreement (either of the
foregoing, an "Event"), the Company shall pay the Executive severance in the
amount of one-twelfth (1/12) of the Base Compensation of the Executive at the
time of such termination (without giving effect to any reduction in Base
Compensation that resulted in such Involuntary Termination) per month, for a
period twelve (12) months or the number of full and partial months remaining on
the term of the Agreement, if lower, but not less than twelve (12) months (the
"Wind-down Period"). The Company shall retain the Executive as a consultant
during the Wind-down Period and the Executive shall continue to vest in the
options granted to the Executive to date (the "Options"). The Executive may take
other employment during the Wind-down Period, and any such other employment
shall not reduce such continuation of Option vesting and cash payments as set
forth herein.
(ii) VOLUNTARY RESIGNATION; TERMINATION FOR
CAUSE. If the Executive's employment terminates by reason of the Executive's
voluntary resignation (and is not an Involuntary Termination), or if the
Executive is terminated for Cause, then the Executive shall not be entitled to
receive severance or other benefits except for those (if any) as may then be
established (and applicable) under the Company's then-existing severance and
benefits plans and policies at the time of such termination.
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(iii) DISABILITY; DEATH. If the Company
terminates the Executive's employment as a result of the Executive's Disability,
or such Executive's employment is terminated due to the death of the Executive,
then the Executive shall not be entitled to receive severance or other benefits
except (i) those (if any) as may then be established (and applicable) under the
Company's then-existing severance and other benefits plans and policies at the
time of such Disability or death, (ii) benefits required by applicable laws, and
(iii) in the case of death, the Executive's salary for thirteen (13) weeks
payable to the Executive's surviving spouse, or if the Executive has no spouse,
to the Executive's estate. In the event of termination as a result of Disability
under this Agreement, the Executive shall be entitled to the benefits provided
under the Company's then-existing disability or extended sick pay plan, for so
long as such Executive continues to be disabled under this Agreement or benefits
otherwise terminate under such plan, whether or not the Executive is deemed to
be disabled under such plan.
(b) CONTINUING BENEFITS. In the event the Executive is
entitled to severance benefits pursuant to subsection 4(a)(i), then in addition
to such severance benefits, the Executive shall receive Company-paid health,
dental, vision, disability and life insurance coverage as provided to such
Executive immediately prior to the Executive's termination, upon the terms and
conditions, including deductibles and co-payments, provided in the Company's
then-existing plans, policies and programs (the "Company-Paid Coverage"). If
such coverage included the Executive's dependents immediately prior to the
Executive's termination, such dependents shall also be covered at Company
expense. Company-Paid Coverage shall continue for twelve (12) months after the
Termination Date in the case of life insurance coverage and for the joint lives
of the Executive and his spouse on the Effective Date in the case of medical,
dental and vision coverage.
Notwithstanding the foregoing, if the Executive is
covered under any medical, life, dental, vision or disability insurance plan(s)
provided by a subsequent employer, then the amount of coverage required to be
provided by the Company hereunder shall be reduced by the amount of coverage
provided by the subsequent employer's plan(s) for so long as such coverage
continues. The Executive's rights under this Section 4(b) shall be in addition
to, and not in lieu of, any post-termination continuation coverage or conversion
rights the Executive may have pursuant to applicable law, including without
limitation, continuation coverage required by Section 4980B of the Internal
Revenue Code.
(c) ACCRUED SALARY, BENEFITS AND EXPENSES. In addition,
(i) the Company shall pay the Executive any unpaid base salary and unpaid bonus
due for periods prior to the Termination Date; (ii) the Company shall pay the
Executive all of the Executive's accrued and unused vacation through the
Termination Date; and (iii) following submission of proper expense reports by
the Executive, the Company shall reimburse the Executive for all expenses
reasonably and necessarily incurred by the Executive in connection with the
business of the Company prior to termination. These payments shall be made
promptly upon termination and within the period of time mandated by law.
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(d) RETIREMENT PLANS. In addition to any other
retirement rights to which Executive may be legally entitled by contract or
pursuant to any plan or program, the Company shall pay the Executive regularly
scheduled payments which shall commence on the Executive's normal retirement age
or earlier if the Executive elects early retirement and shall be payable in
accordance with the Company's then-existing retirement plan, if any, determined
as though the Executive continued his employment with the Company for an
additional twelve (12) months following the Termination Date or until Executive
has attained normal retirement age under such Plan, whichever occurs earlier.
For purposes of determining the amount Executive is to receive the Company shall
utilize the greater of the Executive's compensation as defined under any such
retirement plan in effect on the date of this Agreement for the year including
the Termination Date.
(e) OPTIONS. In the event the Executive is entitled to
severance benefits pursuant to subsection 4(a)(i), the Executive's stock options
and other exercise rights shall remain exercisable (i) a period of twelve (12)
months following such termination, or (ii) the date Executive no longer serves
as a consultant to the Company, subject to the applicable option or exercise
term, and except as provided in subsection 4(f) below.
(f) VESTING OF BENEFITS. If the Executive's employment
terminates as a result of Involuntary Termination other than Cause, Disability,
or death within twelve (12) months of a Change-in-Control or, prior thereto, if
resulting from a Change-in-Control, then any unvested benefits on the date of
termination, including stock options, restricted stock, stock appreciation
rights, growth units, or other incentive compensation (other than target bonus),
shall immediately accelerate and become fully vested and exercisable. The
Executive shall thereupon have fully vested rights to such benefits in
accordance with the terms of applicable plan or agreement.
In the event that the Executive has exercisable rights,
such as stock options, such rights shall remain exercisable for a period of
twelve (12) months following such termination, subject to any option or exercise
term under an applicable plan.
(g) DEFERRED COMPENSATION. Any compensation deferred by
the Executive shall be subject to the terms and conditions of any applicable
plan or agreement, and shall not be affected or altered by this Agreement.
5. PROPRIETARY RIGHTS AND SEPARATION AGREEMENT. The Company and the
Executive have previously entered into a Proprietary Rights and Separation
Agreement dated as of June 16, 1992 (the "Separation Agreement"). Sections 1 and
3 of the Separation Agreement shall remain in full force and effect after the
Effective Date of this Agreement. Section 2 of the Separation Agreement shall be
deemed superseded by the provisions of this Agreement.
6. LIMITATION ON PAYMENTS. In the event that any payment or benefit
received or to be received by the Executive pursuant to this Agreement or
otherwise (collectively the "Payments") would be subject to the Excise Tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any similar or successor provision (the "Excise Tax"), the Company
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shall pay to the Executive within ninety (90) days of the Termination Date (or,
if earlier, within ninety (90) days of the date the Executive becomes subject to
the Excise Tax), an additional amount (the "Gross-Up Payment") such that the net
amount retained by the Executive, after deduction of any Excise Tax and any
federal (and state and local) income tax on the Payments, shall be equal to the
Payments minus all applicable taxes on the Payments. For purposes of determining
whether any of the Payments will be subject to the Excise Tax and the amount of
Excise Tax, (i) any other payments or benefits received or to be received in
connection with a Change of Control of the Company or the Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company), shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the Code or any
similar or successor provision, and all "excess parachute payments" within
meaning of Section 280G(b)(1) or any similar or successor provision shall be
treated as subject to the Excise Tax, unless in the opinion of tax counsel
selected by the Company such other payments or benefits (in whole or in part) do
not constitute parachute payments, or such excess parachute payments (in whole
or in part) represent reasonable compensation for services within the meaning of
Section 280G(b) or any similar or successor provision of the Code in excess of
the base amount within the meaning of Section 280G(b)(3) or any similar or
successor provision of the Code, or are otherwise not subject to Excise Tax;
(ii) the amount of the Payments which shall be treated as subject to the Excise
Tax shall be equal to the lesser of (A) the total amount of the Payments or (B)
the amount of the excess parachute payments within the meaning of Section
280G(b)(1) (after applying clause (i) above), and (iii) the value of any
non-cash benefits or an deferred payment or benefit shall be determined by the
Company's independent auditors in accordance with the principles of Section
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at
the highest nominal marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made and state and local income
taxes at the highest nominal marginal rate of taxation in the state and locality
of the Executive's residence on the Termination Date, net of the maximum
reduction in federal income taxes which could be obtained from deducting of such
state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of the Executive's employment, the Executive shall repay to the
Company at the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the Excise Tax and
federal (and state and local) income tax imposed on the Gross-Up Payment being
repaid by the Executive if such repayment results in a reduction in Excise Tax
and/or a federal (and state and local) income tax deduction) plus interest on
the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time of the termination of the Executive's
employment (including by reason of a payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess (plus any interest
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
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7. NONCOMPETE.
(a) The Executive agrees that during his employment with
the Company and for two (2) years following termination of such employment, he
shall not engage in, own, manage or control, or participate in the ownership,
management or control, directly or indirectly, of any person, firm, corporation
or other entity engaged in the design, development, provision, sales or
marketing of any product for the creation, compression, storage, retrieval or
analysis of relational databases ("Restricted Business") anywhere in the world
(the "Restricted Area"). Notwithstanding the foregoing, the Executive may
acquire shares representing not more than 5% of the outstanding securities of
any publicly traded company engaged in the Restricted Business. The convenant
contained in this Section 7(a) shall be construed as a series of separate
covenants, one for each country in the world and each province or state within
such country. If, in any judicial proceeding, a court shall refuse to enforce
any of such separate covenants, such unenforceable covenant shall be deemed
deleted from this Agreement to the extent necessary to permit the remaining
separate covenants included in this Section 7(a) to be enforced.
(b) The provisions of Section 1.1 of the Separation
Agreement shall continue in full force and effect for a period of two (2) years
following the termination of the Executive's employment, unless such termination
is (i) an Involuntary Termination other than for Cause, (ii) due to the
Executive's death or Disability, (iii) due to the Company's unwillingness to
renew or extend this Agreement, or (iv) within one year following a Change of
Control.
8. DEFINITION OF TERMS. The following terms referred to in this
Agreement shall have the following meanings:
(a) CAUSE. "Cause" shall mean:
(i) Executive's failure to begin to
substantially perform his duties or responsibilities hereunder for a period of
fifteen (15) days after written notice thereof from the Board to Executive
setting forth in reasonable detail the respects in which the Company believes
Executive has not substantially performed his duties or responsibilities
hereunder or continued failure to begin to substantially perform such duties or
responsibilities for a period of thirty (30) days after such written notice;
(ii) Executive personally engaging in
knowing and intentional illegal conduct which is seriously injurious to the
Company or its affiliates;
(iii) Executive being charged with
committing a felony, or committing an act of dishonesty or fraud against, or the
misappropriation of property belonging to, the Company or its affiliates;
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(iv) Executive knowingly and intentionally
breaching in any material respect the terms of the Separation Agreement or any
other confidentiality agreement or invention or proprietary information
agreement with the Company;
(v) Executive's commencement of material
negotiation as regards employment with another employer while he is an employee
of the Company; or
(vi) any material breach by Executive of any
material provision of this Agreement for which a cure is not initiated within
fifteen (15) days of notice thereof from the Board to Executive or which remains
uncured for thirty (30) days following such notice.
(b) CHANGE OF CONTROL. "Change of Control" shall mean
the occurrence of any of the following events:
(i) Any "person" or "group" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing 30%
or more of the total voting power represented by the Company's then outstanding
voting securities; or
(ii) A change in the composition of the
Board of the Company occurring within a two-year period after an Initial Public
Offering of the Company's common stock, as a result of which fewer than a
majority of the directors are Incumbent Directors. "Incumbent Directors" shall
mean directors who either (A) are directors of the Company as of the date
hereof, or (B) are elected, or nominated for election, to the Board of the
Company with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not include an
individual whose election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to the Company);
or
(iii) The shareholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
the Company's assets (other than to a subsidiary or subsidiaries).
(c) DISABILITY. "Disability" shall mean that the
Executive has been unable to perform his duties under this Agreement for a
period of three or more consecutive months due to illness, accident or other
physical or mental incapacity.
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(d) INVOLUNTARY TERMINATION. "Involuntary Termination"
shall include, but not be limited to,
(i) the continued assignment to Executive of
any duties or the continued material reduction of Executive's duties, either of
which is substantially inconsistent with the level of Executive's position with
the Company, for a period of thirty (30) days after notice thereof from
Executive to the Board of Directors setting forth in reasonable detail the
respects in which Executive believes such assignments or duties are
substantially inconsistent with the level of Executive's position;
(ii) a reduction in Executive's salary,
other than any such reduction which is part of, and generally consistent with, a
general reduction of officer salaries;
(iii) a reduction by the Company in the kind
or level of employee benefits (other than salary and bonus) to which Executive
is entitled immediately prior to such reduction with the result that Executive's
overall benefits package (other than salary and bonus) is materially reduced
(other than any such reduction applicable to officers of the Company generally);
(iv) the relocation of Executive's principal
place for the rendering of the services to be provided by him hereunder to a
location more than fifty (50) miles from the present location of the principal
executive office of the Company;
(v) any purported termination of the
Executive's employment by the Company other than for Cause or as a result of the
Executive's Disability;
(vi) the failure of the Company to obtain
the assumption of this Agreement by any successors contemplated in Section 9
below; or
(vii) any material breach by the Company of
any material provision of this Agreement which continues uncured for thirty (30)
days following notice thereof; provided that none of the foregoing shall
constitute Involuntary Termination to the extent Executive has agreed thereto.
(e) TERMINATION DATE. "Termination Date" shall mean (i)
if the Executive's employment is terminated by the Company for Disability,
thirty (30) days after notice of termination is given to the Executive (provided
that the Executive shall not have returned to the performance of the Executive's
duties on a full-time basis during such thirty (30) day period), (ii) if the
Executive's employment is terminated by the Company for any other reason, the
date on which a notice of termination is given, or (iii) if the Agreement is
terminated by the Executive, the date on which the Executive delivers the notice
of termination to the Company.
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9. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and/or assets shall assume the obligations under this
Agreement and agree expressly to perform the obligations under this Agreement in
the same manner and to the same extent as the Company would be required to
perform such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
described in this subsection (a) or which becomes bound by the terms of this
Agreement by operation of law.
(b) EXECUTIVE'S SUCCESSORS. The terms of this Agreement
and all rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
10. NOTICE.
(a) GENERAL. Notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or when mailed by U.S. registered or
certified mail, return receipt requested and postage prepaid. In the case of the
Executive, mailed notices shall be addressed to him at the home address which he
most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notices shall be directed to the attention of its Corporate Secretary.
(b) NOTICE OF TERMINATION. Any termination by the
Company for Cause or by the Executive as an Involuntary Termination shall be
communicated by a notice of termination to the other party hereto given in
accordance with this Agreement. Such notice shall indicate the specific
termination provision in this Agreement relied upon, shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and shall specify the termination
date (which shall be not more than 30 days after the giving of such notice). The
failure by the Executive to include in the notice any fact or circumstance which
contributes to a showing of Involuntary Termination shall not waive any right of
the Executive hereunder or preclude the Executive from asserting such fact or
circumstance in enforcing his rights hereunder.
11. CONFIDENTIALITY. Except as required by applicable laws, neither
party shall disclose the contents of this Agreement without first obtaining the
prior written consent of the other party, provided, however, that the Executive
may disclose this Agreement to his attorney, financial planner and tax advisor
if such persons agree to keep the terms hereof confidential.
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12. MISCELLANEOUS PROVISIONS.
(a) VOLUNTARY EXECUTION; CONFLICT WAIVER. The Executive
has been advised to obtain independent legal counsel regarding this Agreement.
The Executive is signing this Agreement knowingly and voluntarily. The Company
and the Executive acknowledge that Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx ("WSGR") has
acted as counsel to the Company in negotiating this Agreement and will continue
to serve as the Company's general counsel in the future, acknowledge that each
has received full disclosure of any potential conflict of interest which may
result from such representation, and knowingly and voluntarily waive any such
conflict of interest.
(b) WAIVER. No provision of this Agreement shall be
modified, waived or discharged unless the modification, waiver or discharge is
agreed to in writing and signed by the Executive and by an authorized officer of
the Company (other than the Executive). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or
of the same condition or provision at another time.
(c) WHOLE AGREEMENT; INTEGRATION. This Agreement,
Sections 1 and 3 of the Separation Agreement, any written agreements or other
documents evidencing matters referred to herein and any written Company existing
plans that are referenced herein represent the entire agreement and
understanding between the parties as to the subject matter hereof and thereof
and supersede all prior or contemporaneous agreements as to the subject matter
hereof and thereof, whether written or oral. No waiver, alteration, or
modification, if any, of the provisions of this Agreement shall be binding
unless in writing and signed by duly authorized representatives of the parties
hereto.
(d) CHOICE OF LAW. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of New York. The parties hereto consent to the personal jurisdiction
of the state and federal courts of the County of Nassau, State of New York.
(e) SEVERABILITY. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) NO ASSIGNMENT OF BENEFITS. The rights of any person
to payments or benefits under this Agreement shall not be made subject to option
or assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
(g) EMPLOYMENT TAXES. All payments made pursuant to this
Agreement will be subject to withholding of applicable income and employment
taxes.
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(h) ASSIGNMENT BY COMPANY. The Company may assign its
rights under this Agreement to an affiliate, and an affiliate may assign its
rights under this Agreement to another affiliate of the Company or to the
Company; provided, however, that the Company shall remain jointly and severally
liable under this Agreement, and provided further, that no assignment shall be
made if the net worth of the assignee is less than the net worth of the Company
at the time of assignment. In the case of any such assignment, the term
"Company" when used in a section of this Agreement shall mean the corporation
that actually employs the Executive.
(i) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
(j) LEGAL FEES. In the event that the Executive is
required to enforce this Agreement or to procure the benefits hereunder through
arbitration or litigation, the Executive shall be entitled to reasonable legal
fees and all out-of-pocket expenses.
(k) INTEREST. In the event that the Company fails to
make any payment hereunder or afford any benefit when due, the Company shall pay
interest at the rate of the publicly-announced prime rate of interest of Bank of
America N.T. & S.A. or its successor in effect from time to time plus 3%, or the
maximum amount permitted by law, whichever is less.
IN WITNESS WHEREOF, each of the parties has executed
this Agreement, in the case of the Company by its duly authorized officer, as of
the day and year first above written.
"COMPANY" CROSS/Z INTERNATIONAL, INC.
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Vice President-Finance & Administration
"EXECUTIVE" XXXX XXXXXXXXXXXXXX
/s/ XXXX XXXXXXXXXXXXXX
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