EMPLOYMENT AGREEMENT
AGREEMENT made as of the 8th day of May, 1997 by and between EA Industries,
Inc., a New Jersey corporation (the "Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to assure itself of the services of the
Executive, and the Executive wishes to serve in the employ of the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment, Term.
1.1 The Company agrees to employ the Executive, and the Executive agrees
to serve in the employ of the Company, for the term set forth in Section 1.2, in
the position and with the responsibilities, duties and authority set forth in
Section 2 and on the other terms and conditions set forth in this Agreement.
1.2 The term of the Executive's employment under this
Agreement shall be the period commencing on May 8, 1997 and continuing through
May 8, 2001, unless sooner terminated in accordance with this Agreement.
2. Position, Duties. The Executive shall serve the Company as President
and Chief Executive Officer and at the request of the Board of Directors of the
Company shall serve as an officer and director of the Company, its parents,
subsidiaries and/or affiliates without payment of any additional compensation.
The Executive shall have such duties and responsibilities, appropriate to said
positions as the Board of Directors of the Company (the "Board") shall assign to
the Executive. At the 1997 Annual Meeting of Shareholders the Company shall
nominate the Executive to serve as a Director or the Board shall at its next
meeting following such Annual Meeting increase the size of the Board and elect
the Executive to fill such vacancy. The Executive shall perform his duties and
responsibilities hereunder, faithfully and diligently and shall report to the
Chairman of the Board of Directors of the Company. The Executive shall devote
his full business time and attention to the performance of his duties and
responsibilities hereunder. The Executive hereby represents that he is not bound
by any confidentiality agreements, restrictive covenants or other agreements
which restrict or may restrict his ability to perform his duties hereunder, and
agrees that he will not enter into any such agreements or covenants during the
term of his employment hereunder, except such restrictive covenants or
confidentiality agreements which are required by the Company.
3. Cash Compensation. In consideration of the performance by the Executive
of the services set forth in Section 2 and his observance of the other
covenants set forth herein, the
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Company shall pay the Executive, and the Executive shall accept, a base
salary at the rate of $275,000 per annum during the first year of the term of
this Agreement, and $325,000 during the second year of the term of this
Agreement: The Company and the Executive shall negotiate in good faith to
determine the base salary of the Executive for the third and fourth years of
this Agreement, with a target date of February 18, 1999 to agree on the base
salary, but in any event, the base salary for the third and fourth years of this
Agreement shall not be less than $325,000 per annum. The base salary shall be
payable in accordance with the standard payroll practices of the Company. In
addition to the base salary payable hereunder, the Executive may be entitled to
receive merit increases in salary during the term hereof in amounts and at such
times as shall be determined by the Board in its sole discretion. In no event
shall the failure to grant any such increase (or the amount of any such
increase) give rise to a claim by the Executive under this Agreement. .
4. Bonus Plan. The Board of Directors shall establish an operating
budget for the Company for the remainder of 1997 by July 1, 1997, and for each
succeeding fiscal year by the beginning of such year, which shall include
targets for revenue, operating profit, market capitalization and other financial
and operating goals. The Board shall also weigh such factors as it deems
appropriate in determining how much of the Executive's salary shall be payable
as a bonus, in addition to the Executive's base salary, for achieving or
exceeding each such factor in its sole discretion. The calculation of a bonus
shall be based on the Company's annual audited financial statements. The
Executive shall be paid a bonus of up to sixty percent of his base salary for
the preceding fiscal year as an annual bonus for each year during the term
hereof. Such payment, if any, shall be made within thirty days after completion
of the Company's annual audit. The Executive shall be entitled to a minimum
bonus of $125,000 for the period beginning on May 8, 1997 and ending on May 8,
1998. This minimum bonus shall be paid $31,250 on each of July 1, 1997, October
1, 1997, January 1, 1998, and April 1, 1998. The Executive shall also be
entitled to a minimum bonus of $50,000 for the period beginning on May 9, 1998
and ending on May 8, 1999, payable on June 30, 1998. Such minimum payments shall
be credited against the bonus earned pursuant to the Bonus Plan for the portion
of the fiscal years included therein.
5. Stock Options. (a) On or before June 1, 1997, the Company will grant
the Executive options or warrants to purchase 340,000 of the Company's Common
Stock. The exercise price for such shares shall be the lower of $4.00 or the
closing price of the Common Stock of the Company on the New York Stock Exchange
on the date this Agreement is executed by the Company, but in no event less than
$3.00 per share (the "Option Price") and the options will vest 100,000 shares on
the date of grant. The remainder of the shares will vest, so long as the
Executive continues to be an employee of the Company, 80,000 shares on May 8,
1998, 80,000 shares on May 8, 1999 and the remainder on May 8, 2000. If the
Company terminates the employment of the Executive for any reason other than Due
Cause as defined in paragraph 8.3 of this Agreement, or the Executive terminates
his employment pursuant to a Change of Control, any remaining unvested options
then held by Executive shall become immediately vested and exercisable.
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(b) The Executive shall be entitled to separate grants of immediately
vested five year options or warrants to purchase 85,000 shares of Common Stock
with an exercise price equal to the Option Price upon the occurrence during the
term of this Agreement of each of the following:
(i) the Company's consolidated net income, as determined in
accordance with generally accepted accounting standards and as reported in its
Reports on Form 10-Q or 10-K, for any two consecutive fiscal quarters equals or
exceeds $550,000 for each of such quarters.
(ii) the trading price of the Company's Common Stock shall exceed
$6.50 for each of 30 consecutive trading days. Such trading price shall be the
volume weighted average per share of the Company's Common Stock as reported by
Bloomberg Business Service in its volume at price service.
(iii) the Company's consolidated net income, as determined in
accordance with generally accepted accounting standards and as reported in its
Reports on Form 10-Q or 10-K, for any two consecutive fiscal quarters equals or
exceeds $1,100,000 for each of such quarters.
(iv) the trading price of the Company's Common Stock shall exceed
$9.50 for each of 30 consecutive trading days. Such trading price shall be the
volume weighted average per share of the Company's Common Stock as reported by
Bloomberg Business Service in its volume at price service.
If each of the foregoing targets are met, the Company and the Executive
shall negotiate in good faith to agree on further extraordinary performance
targets and related option grants.
6. Expense Reimbursement. During the term of this Agreement, consistent
with the Company's policies and procedures as may be in effect from time to
time, the Company shall reimburse the Executive for all reasonable and necessary
out-of-pocket expenses (including the cost for purchase and installation of a
telephone in the Executive's automobile, minimum monthly usage charges, and all
calls on Company business) incurred by him in connection with the performance of
his duties hereunder, upon the presentation of proper accounts therefor in
accordance with the Company's policies.
7. Other Benefits. (a) During the term of this Agreement, the Executive
shall be entitled to receive vacation time in an amount equal to other
executives of the Company at levels comparable to the Executive, but in no event
less than four (4) weeks paid vacation time per annum and such other benefits,
including, subject to meeting standard eligibility requirements, participation
in any 401(k) plan in which the Company's Executives are eligible to
participate, customary medical insurance and continuing education benefits, as
are from time to time made available to other similarly situated employees of
the Company on the same terms as are available to such similarly situated
Executives, it being understood that the Executive shall be
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required to make the same contributions and payments in order to receive
any of such benefits as may be required of such similarly situated Executives.
In addition, the Executive shall receive an automobile allowance of seven
hundred fifty ($750) dollars per month during the term of this Agreement.
(b) If the Executive transfers his principal place of residence to New
Jersey or a neighboring state on or before May 8, 1999 he shall be reimbursed
for the reasonable out of pocket costs associated with that move, such as costs
of shipping furniture and other personal property, sales commissions and
customary closing costs on the sale of his current residence and the purchase of
his new residence. The Company shall also reimburse the Executive for the
reasonable costs of renting an apartment in New Jersey for the period beginning
on May 8, 1997 and ending on the earlier of May 8, 1999 or the date of such
relocation. In addition, the Company shall "gross-up" the reimbursement to
compensate the Executive for the actual tax effect of such reimbursement.
8. Termination of Employment.
8.1 Death. In the event of the death of the Executive during the term of
this Agreement, the Company shall pay to the estate or other legal
representative of the Executive the salary provided for in Section 3(a) (at the
annual rate then in effect) (the "Base Salary") accrued to the Executive's date
of death and not theretofore paid, and the estate or other legal representative
of the Executive shall have no further rights under this Agreement. Rights and
benefits of the Executive, his estate or other legal representative under the
Executive benefit plans and programs of the Company, if any, will be determined
in accordance with the terms and provisions of such plans and programs.
8.2 Disability. If the Executive shall become incapacitated by reason of
sickness, accident or other physical or mental disability and shall for a period
of ninety (90) consecutive days be unable to perform his normal duties
hereunder, the employment of the Executive hereunder may be terminated by the
Company upon thirty (30) days' prior written notice to the Executive. Within
thirty (30) days after such termination, the Company shall pay to the Executive
the Base Salary accrued to the date of such termination and not theretofore
paid. Rights and benefits of the Executive, his estate or other legal
representative under the Executive benefit plans and programs of the Company, if
any, will be determined in accordance with the terms and provisions of such
plans and programs. Neither the Executive nor the Company shall have further
rights or obligations under this Agreement, except as provided in Sections 9 and
10.
8.3 Due Cause. The employment of the Executive hereunder may be
terminated by the Company at any time during the term of this Agreement for Due
Cause (as hereinafter defined). In the event of such termination, the Company
shall pay to the Executive the Base Salary accrued to the date of such
termination and not theretofore paid to the Executive, and, after the
satisfaction of any claim of the Company against the Executive arising as a
direct and proximate result of such Due Cause, neither the Executive nor the
Company shall have any further rights or obligations under this Agreement,
except as provided in Sections 9 and 10.
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Rights and benefits of the Executive, his estate or other legal representative
under the Executive benefit plans and programs of the Company, if any,
will be determined in accordance with the terms and provisions of such plans and
programs. For purposes hereof, "Due Cause" shall mean (i) the Executive's
willful and continued failure substantially to perform his duties with the
Company, (ii) fraud, misappropriation or intentional material damage to the
property or business of the Company by the Executive of (iii) the Executive's
conviction of, or plea of nolo contendere to, any felony that, in the judgment
of the Board adversely affects the Company's reputation or the Executive's
ability to carry out his obligations under this Agreement. In the event of an
occurrence under this Section 8.3, the Executive shall be given written notice
by the Company that it intends to terminate the Executive's employment for Due
Cause under this Section, which written notice shall specify the act or acts
upon the basis of which the Company intends so to terminate the Executive's
employment. If the basis for such written notice is an act or acts described in
clause (i) above the Executive shall be given ten (10) days to cease or correct
the performance (or nonperformance) giving rise to such written notice and, upon
failure of the Executive within such ten (10) days to cease or correct such
performance (or nonperformance), the Executive's employment by the Company shall
automatically be terminated hereunder for Due Cause.
8.4 Other Termination. (a) The Company may terminate the Executive's
employment prior to the expiration of the term of this Agreement for whatever
reason it deems appropriate; provided, however, that in the event that such
termination is not pursuant to Sections 8.1, 8.2 or 8.3, in lieu of notice or
any other termination payment pursuant to shortening the then current term of
this Agreement, the Company shall pay to the Executive:
(i) on the date of termination, the Base Salary accrued to the date
of termination and not theretofore paid to the Executive:
(ii) severance pay, in the form of (x) continuation of base salary
payments and other benefits described in Section 7 for a period commencing on
the date of termination and ending on May 8, 1999 or six months after the date
of termination, whichever is greater, at a rate equal to the base salary
provided for in Section 3(a) (at the annual rate then in effect) and (y) the
minimum bonus payments specified in Section 4 hereof to the extent they have not
been previously paid.
(b) The Executive shall have the right to terminate this Agreement
during the three month period following a Change of Control occurring on or
before May 8, 1999 and in that event the Company shall pay to the Executive:
(i) on the date of termination, the Base Salary accrued to the date
of termination and not theretofore paid to the Executive.
(ii) severance pay, in the form of (x) continuation of base salary
payments and other benefits described in Section 7 for a period commencing on
the date of termination and ending on May 8, 1999, or six months after the date
of termination,
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whichever is greater at a rate equal to the base salary provided for
in Section 3(a) (at the annual rate then in effect) and (y) the minimum bonus
payments specified in Section 4 hereof to the extent they have not been
previously paid.
(c) In the event of a termination pursuant to this paragraph 8.4, rights
and benefits of the Executive, his estate or other legal representative under
the benefit plans and programs of the Company, if any, will be determined in
accordance with the terms and provisions of such plans and programs and neither
the Executive nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 9 and 10.
(d) For purposes of this Agreement, a Change in Control of the
Company shall be deemed to have occurred if:
(i) a "person" (meaning an individual, a partnership, or other group or
association as defined in Sections 13(d) and 14(d) the Securities Exchange Act
of 1934), other than a "person" who currently is a beneficial owner of five
percent (5%) or more of the Company's Common Stock, acquires thirty percent
(30%) or more of the combined voting power of the outstanding securities of the
Company having a right to vote in elections of directors, or
(ii) Continuing Directors shall for any reason cease to constitute a
majority of the Board of Directors of the Company; or
(iii) all or substantially all of the business and/or assets of the
Company is disposed of by the Company to a party or parties other than a parent,
subsidiary or other affiliate of the Company, pursuant to a partial or complete
liquidation of the Company, sale of assets (including stock of a subsidiary of
the Company) or otherwise.
For purposes of this Agreement, the term "Continuing Director" shall mean a
member of the Board of Directors of the Company who either was a member of the
Board of Directors of the Company on the date hereof or who subsequently became
a Director and whose election, or nomination for election, was approved by a
vote of at least two-thirds of the Continuing Directors then in office.
(e) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) the assignment to the Executive of any duties inconsistent in any
material respect with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2 of this Agreement, or any other action by the Company
which results in a material diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied in all material
respects by the Company promptly after receipt of notice thereof given by the
Executive;
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(ii) any failure by the Company to comply with any of the provisions of
Sections 2-7 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied in all
material respects by the Company promptly after receipt of notice thereof given
by the Executive;
(iii) the Company's requiring the Executive to be based at any office or
location more than fifty(50 miles from the Company's current location in West
Long Branch, New Jersey.
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement;
In the event the Executive exercises his right to terminate this Agreement as
described in this Section 8.4(e), The Company shall pay the Executive:
(i) on the date of termination, the Base Salary accrued to the date of
termination and not theretofore paid to the Executive;
(ii) Severance pay in the form of (x) continuation of base salary
payments and other benefits described in Section 7 for a period commencing on
the date of termination and ending May 8, 1999, or six months after the date of
termination, whichever is greater, at a rate equal to the Base Salary provided
in Section 3(a) (at the annual rate then in effect) and (y) The minimum bonus
payments specified in Section 4 hereof to the extent not previously paid.
9. Confidential Information.
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9.1 (a) The Executive shall, during the Executive's employment with the
Company and at all times thereafter, treat all confidential material (as
hereinafter defined) of the Company or any member of the Company Group (as
hereinafter defined) confidentially. The Executive shall not, without the prior
written consent of the Board of Directors of the Company, disclose such
confidential material, directly or indirectly, to any party, who at the time of
such disclosure is not an Executive or agent of any member of the Company Group,
or remove from the Company's premises any notes or records relating thereto,
copies or facsimiles thereof (whether made by electronic, electrical, magnetic,
optical, laser, acoustic or other means), or any other property of any member of
the Company Group. The Executive agrees that all confidential material, together
with all notes and records of the Executive relating thereto, and all computer
disks, copies or facsimiles thereof in the possession of the Executive (whether
made by the foregoing or other means) are the exclusive property of the Company.
The Executive shall not in any manner use any confidential material of the
Company Group, or any other property of any member of the Company Group, in any
manner not specifically directed by the Company or in any way which is
detrimental to any member of the Company Group, as determined by the Board of
Directors of the Company in its sole discretion.
(b) For the purposes hereof, the term Company Group, shall mean
collectively, the Company and the Company's subsidiaries, affiliates and parent
entities, and the term "confidential material" shall mean all information in any
way concerning the activities, business or affairs of any member of the Company
Group or any of the customers and clients of any member of the Company Group,
including, without limitation, information concerning trade secrets, together
with all sales and financial information concerning any member of the Company
Group and any and all information concerning projects in research and
development or marketing plans for any products or projects of the Company
Group, and all information concerning the practices, customers and clients of
any member of the Company Group, and all information in any way concerning the
activities, business or affairs of any of such customers or clients, as such,
which is furnished to the Executive by any member of the Company Group or any of
its agents, customers or clients, as such, or otherwise acquired by the
Executive in the course of the Executive's employment with the Company;
provided, however, that the term "confidential material" shall not include
information which (i) becomes generally available to the public other than as a
result of a disclosure by the Executive, (ii) was available to the Executive on
a non-confidential basis prior to his employment with any member of the Company
Group or (iii) becomes available to the Executive on a non-confidential basis
from a source other than any member of the Company Group or any of its agents,
customers or clients, as such, provided that such source is not bound by a
confidentiality agreement with any member of the Company Group or any of such
agents, customers or clients.
9.2 Promptly upon the request of the Company, the Executive shall deliver
to the Company all confidential material relating to any member of the Company
Group in the possession of the Executive without retaining a copy thereof,
unless, in the opinion of counsel for the Company, either returning such
confidential material or failing to retain a copy thereof would violate any
applicable Federal, state, local or foreign law, in which event such
confidential material shall be returned without retaining any copies thereof as
soon as practicable after such counsel advises that the same may be lawfully
done.
9.3 In the event that the Executive is required, by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any confidential material
relating to any member of the Company Group, the Executive shall provide the
Company with prompt notice thereof so that the Company may seek an appropriate
protective order and/or waive compliance by the Executive with the provisions
hereof; provided, however, that if in the absence of a protective order or the
receipt of such a waiver, the Executive is, in the opinion of counsel for the
Company, compelled to disclose confidential material not otherwise disclosable
hereunder to any legislative, judicial or regulatory body, agency or authority,
or else be exposed to liability for contempt, fine or penalty or to other
censure, such confidential material may be so disclosed.
10. Equitable Relief. In the event of a breach or threatened breach by the
Executive of any of the provisions of Section 9 of this Agreement, the Executive
hereby consents and agrees that the Company shall be entitled to pre-judgment
injunctive relief or similar equitable
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relief restraining the Executive from committing or continuing any such
breach or threatened breach or granting specific performance of any act required
to be performed by the Executive under any of such provisions, without the
necessity of showing any actual damage or that money damages would not afford an
adequate remedy and without the necessity of posting any bond or other security.
The parties hereto hereby consent to the jurisdiction of the Federal courts for
the Eastern District of Pennsylvania and the state courts located in such
District for any proceedings under this Section 10. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies at law or
in equity which it may have.
11. Indemnification. The Company shall indemnify the Executive to the
fullest extent permitted by the laws of the state of incorporation of the
Company, as amended from time to time, for all amounts (including, without
limitation, judgments, fines, settlement payments, expenses and attorney's fees)
incurred or paid by the Executive in connection with any action, suit,
investigation or proceeding arising out of or relating to the performance by the
Executive of services for, or acting by the Executive as a director, officer or
executive of, the Company or any other person or enterprise at the Company's
request, and shall to the fullest extent permitted by the laws of the state of
incorporation of the Company, as amended from time to time, advance all expenses
incurred or paid by the Executive in connection with, and until disposition of
any action, suit, investigation or proceeding arising out of or relating to the
performance by the Executive of services for, or acting by the Executive as a
director, officer or executive of, the Company or any other person or enterprise
at the Company's request.
12. Successors and Assigns.
12.1 Assignment by the Company. The Company shall require any successors
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place. As used in this Section, the "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law and this Agreement shall be binding upon, and
inure to the benefit of, the Company, as so defined.
12.2 Assignment by the Executive. The Executive may not assign this
Agreement or any part thereof; provided, however, that nothing herein shall
preclude one or more beneficiaries of the Executive from receiving any amount
that may be payable following the occurrence of his legal incompetency or his
death and shall not preclude the legal representative of his estate from
receiving such amount or from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries," as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Executive
(in the event of his incompetency) or the Executive's estate.
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13. Governing Law. This Agreement shall be deemed a contract made under,
and for all purposes shall be construed in accordance with, the laws of the
State of New Jersey applicable to contracts to be performed entirely within such
State.
14. Entire Agreement. This Agreement contains all the understandings and
representations between the parties hereto pertaining to the subject matter
hereof and supersede all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto.
15. Modification and Amendment; Waiver. The provisions of this Agreement
may be modified, amended or waived, but only upon the written consent of the
party against whom enforcement of such modification, amendment or waiver is
sought and then such modification, amendment or waiver shall be effective only
to the extent set forth in such writing. No delay or failure on the part of any
party hereto in exercising any right, power or remedy hereunder shall effect or
operate as a waiver thereof, nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy.
16. Notices. All notices, requests or instructions hereunder shall be in
writing and delivered personally, sent by telecopier or sent by registered or
certified mail, postage prepaid, as follows:
If to the Company:
EA Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman of the Board
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy delivered in the same manner to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Mesirov ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered or telecopied, and two business days after the date of
mailing, if mailed.
17. Severability. Should any provision of this Agreement be held by a court
of competent jurisdiction to be enforceable only if modified, such holding shall
not affect the validity of the remainder of this Agreement, the balance of which
shall continue to be binding upon the parties hereto with any such modification
to become a part hereof and treated as though originally set forth in this
Agreement. The parties further agree that any such court is expressly authorized
to modify any such unenforceable provision of this Agreement in lieu of severing
such unenforceable provision from this Agreement in its entirety, whether by
rewriting the offending provision, deleting any or all of the offending
provision, adding additional language to this Agreement, or by making such other
modifications as it deems warranted to carry out the intent and agreement of the
parties as embodied herein to the maximum extent permitted by law. The parties
expressly agree that this Agreement as so modified by the court shall be binding
upon and enforceable against each of them. In any event, should one or more of
the provisions of this Agreement be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and if such provision or provisions are not
modified as provided above, this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had never been set forth herein.
18. Withholding. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as permitted by law, provided it is
satisfied in its sole discretion that all requirements of law affecting its
responsibilities to withhold such taxes have been satisfied.
19. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
20. Expenses. Each of the parties hereto shall bear his or its own costs
and expenses, including attorneys' fees and disbursements, incurred in
connection with this Agreement and the transactions contemplated hereby.
21. Titles. Titles of the sections of this Agreement are intended solely
for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
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22. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
* * *
IN WITNESS WHEREOF, a duly authorized officer of EA and ▇▇. ▇▇▇▇▇▇▇▇▇▇▇
have executed this Agreement.
EA Industries, Inc.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
