EXHIBIT 10.10
EMPLOYMENT AGREEMENT
Employment Agreement (the "Agreement") dated as of January 1, 2004, by and
between Innodata Isogen, Inc., a Delaware corporation (the "Company) with its
principal place of business at 0 Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 and Xxxxxx Xxxxxxxx (the "Executive"), residing at 0000 Xxxxxx Xxxx,
Xxxxxx, Xxxxx 00000.
WITNESSETH
1. EMPLOYMENT. The Company hereby employs the Executive as its Executive Vice
President for and during the term of this Agreement (as set forth in
Paragraph 4 below). The Executive hereby accepts such employment with the
Company under the terms and conditions set forth in this Agreement.
2. DUTIES AND AUTHORITIES OF THE EXECUTIVE. The Executive shall have such
duties and authorities as shall be consistent with his position as
Executive Vice President of the Company, as may be reasonably assigned to
him from time to time by the CEO of the Company, and he shall report
directly to the CEO of the Company
3. FULL BUSINESS TIME. The Executive agrees to devote his full business time
and services to the faithful performance of his duties hereunder. During
the term of his employment with the Company, the Executive shall engage in
no other business activities whatsoever during normal working hours and
shall perform his services from the premises of the Company; provided,
however, that the Executive may serve on the boards of directors of other
companies and charitable organizations and may devote reasonable time to
charitable and civic organizations, in all cases provided that the
performance of his duties and responsibilities on such boards and in such
service does not interfere with the performance of his duties and
responsibilities under this Agreement.
4. TERM. The term of this Agreement shall commence on January 1, 2004, and
end on December 31, 2008 (subject to Paragraph 7) (the "Term").
5. COMPENSATION.
(a) The Company shall pay the Executive a base annual salary ("Base
Salary") at the rate of $250,000 per annum for the Term, subject to
annual reviews by the Company's Board of Directors for discretionary
annual increases. The Company shall also pay to the Executive a
retroactive salary adjustment payment of $16,667 for the period
September 1, 2003 to December 31, 2003, representing the difference
between Executive's Base Salary and the Executive's salary received
for the period September 1, 2003 to December 31, 2003 under the
Employment Agreement dated as of November 30, 2001 between Isogen
International, LLC (a wholly-owned subsidiary of the Company) and
the Executive (the "Prior Employment Agreement").
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(b) The Executive is eligible to receive a performance bonus for
calendar year 2003 (the "2003 Bonus"). The amount of such bonus
shall be determined at the discretion of the Company's Board of
Directors, subject to the provisions of Paragraph 5(f). Commencing
with calendar year 2004, and for each subsequent calendar year
during the Term, the Executive shall be eligible to receive
incentive compensation pursuant to incentive compensation plans
(each, a "Plan") mutually agreed to in writing by the Executive and
the Company from time to time. In the absence of an agreed upon
Plan, incentive compensation for such period shall be at the
discretion of the Company's Board of Directors.
(c) Base Salary payments shall be made in accordance with the Company's
personnel handbook (currently, 24 pay periods per annum). Base
Salary and incentive payments, if any, shall be subject to deduction
for applicable U.S. federal, state and local withholding taxes.
(d) On November 10, 2003 the Executive was granted an option to purchase
200,000 shares of the Company's common stock, at a strike price of
$3.35, which option shall expire on November 9, 2013. Such option
will become vested and exercisable 25% on November 10, 2004 and
linear thereafter over the succeeding 36 months; provided, however,
that notwithstanding the foregoing, upon the occurrence of a "Change
of Control" (as defined below), any then outstanding stock options
theretofore granted to the Executive by the Company, including but
not limited to those stock options referred to in this Paragraph
5(d), shall automatically and immediately become fully vested and
exercisable. For purposes hereof, a "Change of Control" shall be
deemed to have occurred as of the earliest of any of the following:
(i) The public announcement by the Company or any person (other
than the Company, any subsidiary of the Company or any
employee benefit plan of the Company or of any subsidiary of
the Company) (a "Person") that such Person, together with all
"affiliates and "associates" (within the meanings of such
terms under Rule 12b-2 of the Securities Exchange Act of 1934,
as amended) (the "Exchange Act") of such Person, shall be the
beneficial owner of 50% or more of the Company's then
outstanding voting stock;
(ii) The commencement of, or after the first public announcement of
any Person to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the
beneficial owner of the Company's voting stock aggregating 50%
or more of the Company's then outstanding voting stock;
(iii) The Company enters into an agreement of merger, consolidation,
share exchange or similar transaction with any other
corporation other than a transaction which would result in the
Company's voting stock immediately prior to the consummation
of such transaction continuing to represent (either by
remaining outstanding or by being converted into voting stock
of the surviving entity) at least two-thirds of the combined
voting power of the Company's or such surviving entity's
outstanding voting stock immediately after such transaction;
or
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(iv) The Company's Board of Directors approves a plan of
liquidation or dissolution of the Company or an agreement for
the sale or disposition by the Company (in one transaction or
a series of transactions) of all or substantially all of the
Company's assets to any Person.
Such stock options shall be subject to the terms and conditions of the Company's
Stock Option Plan under which the stock options are issued.
(e) Subsequent Option Grants. Commencing in calendar year 2004 the
Executive shall be eligible to receive annual option grants. Such
subsequent option grants shall be at the sole discretion of the
Company's Board of Directors. It is estimated that the number of
options granted to the Executive will be two times the average
number of options granted to the Company's Vice Presidents, provided
that the Executive has reached his assigned performance targets as
communicated to the Executive from time to time by the Company.
(f) Bonus Share Grant. On or about the date the parties execute and
deliver this Agreement, the Company shall pay the Executive $50,000
(subject to deduction for applicable U.S. federal, state and local
withholding taxes), which amount shall be forthwith used by the
Executive in a single market transaction to purchase common stock of
the Company (such shares acquired by the Executive pursuant to this
Section 5(f) to be hereinafter sometimes referred to as the "Bonus
Shares"). One-half of the value of such payment shall be applied
toward the 2003 Bonus.
6. EMPLOYEE BENEFITS.
(a) Throughout the Term, the Company shall provide the Executive and all
of his dependents with group medical and dental insurance in amounts
of coverage available to senior executives of the Company with
employee payment obligations on the same terms as such other senior
executives. However, if the Executive does not meet the requirements
of the Company's insurance underwriters, which requirements shall be
uniformly applicable to all of the Company's senior executives, the
Company shall not provide the Executive with such insurance but, in
lieu thereof, the Company shall pay to the Executive the amounts it
would otherwise have paid for the insurance premiums on the
Executive's behalf had the Executive met such requirements.
(b) The Executive shall be entitled to four weeks paid vacation for each
12 consecutive-month period occurring during the Term, which
vacation shall be taken by the Executive in accordance with the
reasonable business requirements of the Company. Two week's vacation
per each 12 consecutive-month period may be carried over from one
period to the next, subject to the Company's policies at such time.
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(c) The Executive shall be entitled to participate in all tax-qualified
retirement plans maintained by the Company to the extent that such
participation is made available to other senior executives of the
Company, and he shall also be entitled to whatever other perquisites
and pension, benefit and retirement plans are made available to any
senior officer of the Company.
(d) The Executive shall be entitled to prompt reimbursement of his
reasonable business expenses incurred in the performance of his
employment with the Company under this Agreement, including but not
limited to his travel expenses, entertainment expenses, and
incidental (under $100 per incident) gift expenses. The Executive
shall receive at his discretion a platinum AMEX card pursuant to
which the Executive's reasonable business expenses incurred in the
performance of his employment for the Company under this Agreement,
including but not limited to his aforementioned expenses, will be
directly billed to the Company. The Executive will be responsible
for complying in all respects with the Company's business expenses
policies promulgated by the Company from time to time. Any expenses
incurred by Executive not in conformity with such policies shall be
chargeable to Executive, whether charged to the plantinum AMEX card
or otherwise incurred.
7. TERMINATION. Notwithstanding any other provision in this Agreement, during
the Term:
(a) Death. If the Executive dies, this Agreement shall automatically
terminate as of the date of the Executive's death.
(b) Disability. If the Executive is unable to perform his duties
hereunder as a result of any physical or mental disability (i) which
continues for 60 consecutive days or (ii) for 90 days in any 365
consecutive-day period, then the Company may terminate this
Agreement upon 30 days written notice to the Executive, provided
that the Executive's Base Salary shall continue to accrue ratably
for 90 days after the date of the Executive's termination.
(c) Termination by the Company for Cause. The Company may terminate the
Executive's employment with the Company for cause. Termination "for
cause" shall mean termination by the Company upon written
notification to the Executive on account of one or more of the
following reasons:
(i) Executive's conviction by a court of competent jurisdiction in
the United States of a felony or a crime involving the
Company; or
(ii) The Executive's persistent and willful refusal to perform his
lawful duties under this Agreement or his willful misconduct
with respect to such duties, after prior written notice to the
Executive of the particular details thereof and a period of 30
days has elapsed for the Executive to reasonably correct such
refusal or misconduct, and the Executive's failure to
reasonably cure such refusal or misconduct by the end of such
period, provided that no such cure period shall apply if such
refusal or misconduct is not susceptible to reasonable cure,
and provided further that if any such refusal or misconduct is
not susceptible to reasonable cure within such 30-day period,
such period shall be extended for not more than 30 additional
days provided that during such period the Executive diligently
prosecutes such reasonable cure.
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(d) In addition to any other payments and continued benefits pursuant to
Paragraph 7(e), upon the Executive's resignation or upon any of the
terminations identified in Paragraphs 7(a), (b) or (c) above, the
Executive or his estate shall be entitled to receive his Base Salary
and any declared but unpaid Bonus and all of his then incurred but
un-reimbursed business expenses that conform to the requirements of
Paragraph 6(d), in each case to the date of the Executive's
resignation or termination.
(e)
(i) The Company may terminate the Executive's employment under
this Agreement without cause at any time, provided that, in
such case, the Company shall (A) continue to pay to the
Executive his then Base Salary in normal payroll installments
for twelve (12) months following the date of his termination
as if he were still employed by the Company, (B) continue to
maintain the Executive's (and as applicable, his dependents')
medical benefits, dental benefits, life insurance (if then
available), long-term disability insurance and non-qualified
retirement plan benefit accruals for twelve (12) months
following his termination.
(ii) In the event the Company shall fail to notify Executive six
months in advance of the expiration date of the Term that it
intends to allow the Term to expire OR in the event the
Company fails to present the Executive with a Board-approved
bona fide offer of a reasonably comparable employment
agreement to be effective immediately following the end of the
Term, the Term shall be deemed to be extended for an
additional period of one (1) year at the same terms and
conditions as contained herein (or with respect to Base
Salary, at the Base Salary then in effect). In the event the
Company notifies Executive six months in advance of the
expiration date of the Term that it intends to allow the Term
to expire without the Company having theretofore tendered a
Board-approved bona fide offer to the Executive of a
reasonably comparable employment agreement to be effective
immediately following the end of the Term, the Company shall
(A) continue to pay to the Executive his then Base Salary in
normal payroll installments for six (6) months following the
date of his termination as if he were still employed by the
Company, (B) continue to maintain the Executive's (and as
applicable, his dependents') medical benefits, dental
benefits, life insurance (if then available), long-term
disability insurance and non-qualified retirement plan benefit
accruals for six (6) months following his termination.
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(iii) For all purposes of this Agreement, including but not limited
to the Executive's entitlement to the payments and continued
benefits pursuant to Paragraph 7(e)(i) and (ii), the Executive
shall be deemed to have been terminated by the Company without
cause if (A) the Company breaches any of its material
obligations under this Agreement, (B) the Company purports to
terminate this Agreement prior to the end of the Term (other
than for cause), (C) the Company reduces the Executive's Base
Salary below the amount provided for in this Agreement, (D)
without the Executive's consent, the Company relocates the
Executive's regular office location(s) by more than 100 miles
from their locations as of December 1, 2003, (E) the Company
assigns duties to the Executive which are not consistent with
his office set forth in Section 1, or (F) the Company requires
the Executive to report to someone other than the then CEO of
the Company, but in each case only if within 30 days after the
Executive first has actual knowledge of the occurrence of such
action or event, the Executive gives notice to the Company of
his intention to terminate his employment hereunder, the
Company does not revoke or reasonably cure any such action or
event within 60 days after the date of such notice, and the
Executive resigns his employment within 30 days thereafter.
8. CONFIDENTIALITY AGREEMENT AND OWNERSHIP OF INFORMATION.
(a) During the Executive's employment with the Company and for three
years thereafter (except, during the course of his employment with
the Company, if in furtherance of the Company's business):
(i) The Executive will not disclose to any person or entity,
without the Company's prior consent, any confidential or
proprietary information, whether prepared by him or others.
(ii) The Executive will not remove confidential or proprietary
information from the premises of the Company without the prior
written consent of the Company.
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(b)
(i) Upon termination of his employment with the Company for
whatever reason, with or without cause, the Executive will
promptly deliver to the Company all originals and copies
(whether in note, memo or other document form or on video,
audio or computer tapes or discs or otherwise) of (A)
confidential or proprietary information of the Company, or the
Company's customers (including, but not limited to, customers
obtained for the Company by the Executive), that is in his
possession, custody or control, whether prepared by him or
others, and (B) all records, designs, patents, plans, manuals,
memoranda, lists and other property of the Company delivered
to the Executive by or on behalf of the Company, as the case
may be, or by the Company's customers (including, but not
limited to, customers obtained for the Company by the
Executive), and all records compiled by the Executive which
pertain to the business of the Company, whether or not
confidential. All such material shall be and remain the
property of the Company and shall be subject at all times to
the Company's discretion and control.
(ii) Information shall not be deemed confidential if:
(A) such information was generally available to the public
prior to disclosure thereof by the Executive, or
(B) such information shall, other than by an act or omission
on the Executive's part, be or become generally
available to the public or lawfully made available by a
third party without restrictions as to disclosure.
(c) Confidential information may be disclosed where required by law or
order of a court of competent jurisdiction, provided that, to the
extent reasonably practicable, the Executive first gives to the
Company reasonable prior notice of such disclosure and affords the
Company, to the extent reasonably practicable, the reasonable
opportunity for the Company to obtain protective or similar orders,
where available.
9. NON-COMPETE PROVISIONS.
(a) During the Limitation Period (as hereinafter defined), the Executive
will not anywhere in the world directly or indirectly be employed or
otherwise engaged (whether as an owner, partner, employee,
consultant, broker, contractor or otherwise) by (i) any person or
entity which competes with the business the Company shall be
conducting at the time of the Executive's termination or (ii) any
person or entity the major business of which is competitive with the
Company, nor will the Executive directly or indirectly own any
interest in any such person or entity or render to it any
consulting, brokerage, contracting, or other services. The foregoing
shall not prohibit the Executive from owning not in excess of 2% of
the outstanding stock of any company that is a reporting company
under the Securities Act of 1934.
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(b) During the Limitation Period (as herein defined), the Executive will
not anywhere directly or indirectly (whether as an owner, partner,
employee, consultant, broker, contractor or otherwise, and whether
personally or through other persons) approve, solicit or retain, or
assist in the employment or solicitation or retention (whether as an
employee, consultant or otherwise) of, any person who, to the
Executive's then actual knowledge, was an employee of the Company at
any time during the twelve month period preceding the termination of
the Executive's employment with the Company.
(c) The "Limitation Period" shall mean the period during which the
Executive is actually employed by the Company and the following
number of months thereafter:
(i) Twenty-four months if the Executive's employment hereunder is
terminated either by his resignation (other than under any of
the circumstances set forth in Paragraph 7(e)(ii)) or by the
Company "for cause."
(ii) Twelve months if the Executive's employment hereunder is
terminated either by his resignation under any of the
circumstances set forth in Paragraph 7(e)(iii)) or by the
Company "without cause."
(iii) Twelve months if the Executive's employment is not continued
after the conclusion of the Term.
(d) Since monetary damages may be inadequate and the Company would be
irreparably harmed if the provisions of Section 8 and this Section 9
are not specifically enforced, the Company shall be entitled, among
other remedies, to seek an injunction from a court of competent
jurisdiction restraining any violation of any such provision
(without any bond or other security being required) by the Executive
and by any person or entity to whom the Executive provides or
proposes to provide any services in violation of such provision.
(e) If any provision contained in this Section 9 is determined to be
void, illegal or unenforceable, in whole or in part, then the other
provisions contained herein shall remain in full force and effect as
if the provision which was determined to be void, illegal, or
unenforceable had not been contained herein. The courts enforcing
this Section 9 shall be entitled to modify the duration and scope of
any restriction contained herein to the extent such restriction
would otherwise be unenforceable, and such restriction as modified
shall be enforced. The "Agreement Concerning Confidentiality and
Non-Disclosure" signed by the Executive on December 5, 2001 shall
remain in full force and effect. To the extent that any provision of
Sections 8 or 9 hereof conflicts with any provision thereof, the
more restrictive provision (as benefiting the Company) shall be
deemed to control.
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10. INVENTIONS. The Executive shall disclose promptly to the Company any and
all inventions, improvements and valuable discoveries, whether patentable
or not, which are conceived or made by the Executive solely or jointly
with another during his employment hereunder and which are related to the
business or activities of the Company or which the Executive conceives
during and as a direct result of his employment by the Company, and the
Executive hereby assigns and agrees to assign all his interests therein to
the Company or its nominee. Whenever reasonably requested to do so by the
Company, the Executive shall execute any and all applications, assignments
or other instruments that the Company shall deem necessary to apply for
and obtain Letters Patent of the United States or any foreign country or
to otherwise protect the Company's interest therein.
11. USE OF GENERAL ABILITIES. Nothing contained in this Agreement shall
restrict the Executive after the termination of his employment under this
Agreement from using his general business, organizational and financial
abilities, and the exertion of his efforts, in the prosecution and
development of any business, so long as the specific non-compete and other
provisions of this Agreement are not thereby violated.
12. RESTRICTIONS ON TRANSFER OF BONUS SHARES AND 2002 SHARES.
(a) Representations of Executive. In connection with the acquisition of
the Bonus Shares under this Agreement, and the issuance and
acquisition of 11,587 unregistered common shares of the Company
under Paragraph 5(e) and (f) of the Prior Employment Agreement (the
"2002 Shares"), the Executive hereby represents and warrants to the
Company as follows:
(i) He is acquiring and will hold the 2002 Shares for investment
for his account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning
of the Securities Act of 1933, as amended (hereinafter the
"Securities Act").
(ii) He understands that the 2002 Shares have not been registered
under the Securities Act or under any applicable state law by
reason of a specific exemption therefrom and that the 2002
Shares may not be offered or sold, transferred, pledged,
hypothecated or otherwise disposed of, unless they are
subsequently registered under the Securities Act or he obtains
an opinion of counsel, in form and substance satisfactory to
the Company and its counsel, that such registration is not
required. He further acknowledges and understands that, other
than the obligation contained in Section 12 (e) hereof, the
Company is under no obligation to register the 2002 Shares.
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(iii) He is aware of the adoption of Rule 144 by the Securities and
Exchange Commission under the Securities Act, which permits
limited public resale of securities acquired in a non-public
offering, subject to the satisfaction of certain conditions,
including (without limitation) the availability of certain
current public information about the issuer, the resale
occurring only after the holding period required by Rule 144
has been satisfied, the sale occurring through an unsolicited
"broker's transaction," and the amount of securities being
sold during any three-month period not exceeding specified
limitations. He acknowledges and understands that the
conditions for resale set forth in Rule 144 have not been
satisfied and that the Company has no plans to satisfy these
conditions in the foreseeable future.
(iv) He will not sell, transfer or otherwise dispose of the 2002
Shares in violation of the Securities Act, the Securities
Exchange Act of 1934, or the rules promulgated thereunder,
including Rule 144 under the Securities Act. He agrees that he
will not dispose of the 2002 Shares unless and until he has
complied with all requirements of this Agreement applicable to
the disposition of such 2002 Shares, as the case may be, and
he has provided the Company with written assurances, in
substance and form satisfactory to the Company, that the
proposed disposition does not require registration of such
2002 Shares, as the case may be, under the Securities Act or
all appropriate action necessary for compliance with the
registration requirements of the Securities Act or with any
exemption from registration available under the Securities Act
(including Rule 144) has been taken.
(v) He has been furnished with, and has had access to, such
information as he considers necessary or appropriate for
deciding whether to invest in the Bonus Shares and the 2002
Shares, and he has had an opportunity to ask questions and
receive answers from the Company regarding the terms and
conditions of the issuance of the Bonus Shares and the 2002
Shares.
(vi) He is aware that his investment in the Company is a
speculative investment that has limited liquidity and is
subject to the risk of complete loss. He is able, without
impairing his financial condition, to hold the Bonus Shares
and the 2002 Shares for an indefinite period and to suffer a
complete loss of his investment in the Bonus Shares and the
2002 Shares.
(b) Securities Law Restrictions. Regardless of whether the offering and
sale of the 2002 Shares under this Agreement have been registered
under the Securities Act or have been registered or qualified under
the securities laws of any state, the Company at its discretion may
impose restrictions upon the sale, pledge or other transfer of the
2002 Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in
the reasonable judgment of the Company, such restrictions are
necessary or desirable in order to achieve compliance with the
Securities Act, the securities laws of any state or any other law.
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(c) Rights of the Company. The Company shall not be required to (i)
transfer on its books any portion of the 2002 Shares that have been
sold or transferred in contravention of this Agreement or (ii) treat
as the owner of any portion of the 2002 Shares, or otherwise to
accord voting, dividend or liquidation rights to, any transferee to
whom any portion of the 2002 Shares have been transferred in
contravention of this Agreement.
(d) Additional Restriction on Transfer. Executive agrees that he will
hold the Bonus Shares and the 2002 Shares for at least twelve (12)
months from their respective grant dates (or in the case of the
Bonus Shares, their acquisition date).
(e) Piggyback Registration Rights. If the Company at any time proposes
to register any of its shares of common stock under the Securities
Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to
registration statements on Forms S-4 or S-8 or another form not
available for registering the sale of the 2002 Shares to the public
generally or in the case of the registration of the sale of common
stock issuable upon the conversion of convertible debt of the
Company), Executive may request, and the Company shall cause upon
such request, the registration of the 2002 Shares, as applicable,
provided, however, that Executive shall only be entitled to one (1)
such registration. In addition, if any registration pursuant to this
Section 12(e) shall be, in whole or in part, an underwritten public
offering of stock, the Company shall have the right to reduce, at
the direction of the managing underwriter(s), the 2002 Shares to be
registered before reducing any other securities to be included in
such registration.
(f) Legends.
All certificates evidencing the 2002 Shares shall bear the following
legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY APPLICABLE STATE LAW.
THEY MAY NOT BE OFFERED OR SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF WITHOUT: (1) REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE LAW, OR
(2) AT HOLDER'S EXPENSE, AN OPINION (SATISFACTORY TO THE
CORPORATION) OF COUNSEL (SATISFACTORY TO THE CORPORATION) THAT
REGISTRATION IS NOT REQUIRED"
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13. EXCISE TAX GROSS-UP PAYMENT. If any payments to the Executive by the
Company, whether or not under this Agreement ("Payments"), become subject
to the tax (the "Excise Tax") imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), the Company shall, as soon
as reasonably practicable thereafter, make an additional cash payment to
the Executive (the "Gross-Up Payment") in an amount such that the net
amount retained by the Executive, after deduction of any Excise Tax on the
Payments and all income taxes and Excise Tax upon such Company payment,
shall be equal to the amount of the Payments. The determination of whether
any Payments are subject to the Excise Tax shall be based upon the opinion
of tax counsel selected by the Company and reasonably acceptable to the
Executive, whose fees and expenses shall be paid by the Company. For
purposes of determining the amount of the Gross-Up Payment, the Executive
shall be deemed to pay federal, state and local income taxes at the
highest marginal rate of income taxation applicable to any individual
residing in the jurisdiciton in which the Executive resides in the
calendar year in which the Gross-Up Payment is to be made. 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 hereunder, 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 that portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income tax imposed on the Gross-Up
Payment attributable to the Excise Tax and federal, state and local income
tax imposed on the Gross-Up Payment being repaid by the Executive to the
extent that such repayment results in a reduction in Excise Tax and/or a
federal, 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 exceeed the amount
taken into account hereunder at the time of the termination of the
Executive's employment (including by reason of any 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, penalties or additions payable by the
Executive with respect to such excess) at the time that the amount of such
excess is finally determined. The Executive and the Company shall each
reasonably cooperate with the other in connection with any administrative
or judicial proceedings concerning the existence or amount of liability
for Excise Tax with respect to the Payments.
14. GENERAL PROVISIONS.
(a) Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed to have
been delivered (i) on the date personally delivered, or (ii) one day
after properly sent by Federal Express, DHL or other reputable
overnight courier service, addressed to the respective parties at
the following addresses:
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To the Company:
Innodata Isogen, Inc.
Three Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx, Esq.
To the Executive:
Xxxxxx Xxxxxxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Either party hereto may designate a different address by providing
written notice of such new address to the other party hereto as
provided above. A copy of each notice to the Company shall be
forwarded to Xx. Xxxxxx X. Xxxxxxx, Esq., Xxxxxxx Xxxxx LLP, 00
Xxxxxx Xxxx, Xxx Xxxx, XX 00000-0000. All such copies shall be given
in the manner provided for notices in this Paragraph 14 (a).
(b) Severability. If any provision contained in this Agreement shall be
determined to be void, illegal or unenforceable, in whole or in
part, then the other provisions contained herein shall remain in
full force and effect as if the provision which was determined to be
void, illegal, or unenforceable had not been contained herein.
(c) Waiver and Modification. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach of any party. This Agreement
may not be modified, altered or amended except by written agreement
of both of the parties hereto.
(d) Integration. This Agreement amends and restates in its entirety the
Prior Employment Agreement, and contains the entire agreement of the
parties concerning employment. This Agreement supersedes any and all
other inconsistent agreements, either oral or in writing, between
the parties hereto with respect to the employment of the Executive
by the Company, other than that the "Agreement Concerning
Confidentiality and Non-Disclosure" signed by the Executive on
December 5, 2001, which shall remain in full force and effect;
provided, however, that the Executive shall no longer be employed by
Isogen International, LLC, and all obligations of Executive to
Isogen International, LLC shall hereafter flow to the Company.
(e) Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the Company and its successors and permitted
assigns, and upon the Executive, his heirs and his executors and
administrators. Neither the Executive nor the Company shall be
entitled to assign the Executive's duties hereunder without the
other's prior written consent.
13
(f) Equitable Relief. Executive agrees that the remedy at law for any
breach of Paragraphs 8, 9, and 10 of this Agreement would not be
adequate and that the Company would be entitled to injunctive or
other equitable relief for any such breach.
(g) Jurisdiction, Etc. Executive hereby consents to the jurisdiction of
the courts of the State of New Jersey, County of Bergen, and the
United States District Court, District of New Jersey with respect to
any claims or disputes arising from or in connection with this
Agreement, except that the Company shall not be precluded hereunder
from seeking injunctive or other equitable relief in any federal,
state or local court pursuant to Paragraph 14(f) above. Service of
process shall be effective when forwarded in the manner provided for
notices in Paragraph 14(a). Trial by jury is hereby waived by both
of the parties to this Agreement. The prevailing party in any
dispute shall be entitled to recover reasonable attorneys' fees and
costs from the other.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
(i) Indemnification. The Company shall indemnify the Executive to the
full extent permitted by applicable Delaware law for all liabilities
incurred by the Executive in connection with his execution of his
duties under this Agreement. Further, the Company shall obtain and
maintain in full force and effect directors' and officers' liability
insurance from established and reasonable insurers in reasonable
amounts as the Board of Directors of the Company shall determine
and, in all such policies, the Executive shall be named as an
insured party.
(j) Survival. The obligations of the parties hereto contained in
Paragraphs 7, 8, 9, 10, 12 and 14 shall survive the termination of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
INNODATA ISOGEN, INC.
By: Xxxx Xxxxxxx
----------------------------
Its: Chairman of the Board and
Chief Executive Officer
Xxxxxx Xxxxxxxx
----------------------------
Xxxxxx Xxxxxxxx
