EMPLOYMENT AGREEMENT
AGREEMENT, dated as of October 29, 1999 and retroactively effective to
January 1, 1999, between VANTAS Incorporated, a Nevada corporation (the
"Company"), and Xxxx X. Xxxxxx ("Executive").
In consideration of the mutual covenants and conditions provided herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and Executive agree as follows:
1. Term of Employment. The Company hereby employs Executive, and Executive
hereby accepts employment with the Company, for the period commencing as of
January 1, 1999 and ending on December 31, 2001 (the "Term"), on the terms and
conditions set forth in this Agreement. Executive and the Company explicitly
acknowledge and agree that such employment is terminable prior to the end of the
Term with notice given by either party in accordance with the provisions of
Paragraph 6. The Term of this Agreement shall automatically be extended for
successive six month periods thereafter (ending on a June 30 or December 31, as
the case may be) unless at least six months prior to the commencement date of
any six month extension period, either party shall have given notice to the
other party that the Term of this Agreement will not be extended for such
extension period.
2. Duties of Executive.
(a) Title; Position. Executive is hereby employed as Executive Vice
President and Chief Financial Officer, reporting to the Chief Executive Officer
and as the Board of Directors may direct. Executive will render services to the
Company in this capacity, and in such other suitable and comparable executive
and administrative capacities normally attendant to such responsibilities and as
the Company may reasonably assign to him from time to time.
(b) No Other Employment. Executive shall devote his entire business
time, attention and energies to the business of the Company and shall diligently
and faithfully serve the Company in such capacity during the term of this
Agreement, provided, that this provision shall not prevent Executive from
serving on civic and charitable boards or managing his and his immediate
family's investments, in each case, however, subject to the Company's policies
and only to the extent that such activities do not interfere with Executive's
performance of his duties under this Agreement.
3. Annual Payment. The Company shall pay to Executive (i) a fixed salary
during the Term at an annual rate of $170,000 per year (the "Annual Salary"),
and (ii) in addition to the Annual Payment, a fixed payment at an annual rate of
$30,000 (the "Covenant Payment" and, together with the Annual Salary, the
"Annual Payment") as separate consideration for the Executive's covenants and
agreements contained in Paragraph 7. Each of the Annual Salary and the Covenant
Payment (i) shall be increased effective January 1, 2000, over the Annual Salary
and the Covenant Payment, respectively, in effect for 1999, by the percentage
increase from the Consumer Price Index (New York-Northern New Jersey-Long
Island, NY-NJ-CT-PA; All Items; 1982-84=100; NSA) (the "CPI") for November 1998
to the CPI for November 1999, and (ii) shall be increased effective January 1,
2001, over the Annual Salary and the Covenant Payment, respectively, in effect
for 2000, by the percentage increase from the CPI for November 1999 to the CPI
for November 2000. The Annual Salary and the Covenant Payment shall be increased
on a similar basis (effective on January 1) for any period during which the Term
may be extended pursuant to Paragraph 1. The Annual Payments shall be payable in
such installments as is customary for executives of the Company.
4. Performance Bonus. Executive shall be eligible to receive a performance
bonus (the "Performance Bonus") for each calendar year during the Term with a
target amount of $150,000. The target amount of the Performance Bonus shall be
increased annually based on the CPI in the same manner as the Annual Salary and
the Covenant Payment. The Performance Bonus shall be determined and paid as
follows:
(a) With respect to calendar year 1999, the Performance Bonus shall
be determined as follows:
(i) $75,000 of the Performance Bonus for 1999 (the "EBITDA
Component") will be based upon the Company, on a consolidated basis, attaining
certain net income before interest, taxes, depreciation and amortization
("EBITDA") objectives for the 1999 calendar year. The Company's forecast for
EBITDA for 1999, as of the effective date of this Agreement, was $34,724,000
("Budgeted EBITDA"). The actual EBITDA of the Company for 1999 ("Actual EBITDA")
will be determined from the Company's audited financial statements. The
percentage ratio between Actual EBITDA and Budgeted EBITDA (the "Achieved EBITDA
Percentage") will be calculated (if the Achieved EBITDA Percentage would be more
than 150% as so calculated, then for purposes hereof the Achieved EBITDA
Percentage shall be deemed to be 150%). The EBITDA Component of the Performance
Bonus will then be determined as follows: (A) if the Achieved EBITDA Percentage
is 80% or more, the EBITDA Component will be equal to the Achieved EBITDA
Percentage multiplied by $75,000; (B) if the Achieved EBITDA Percentage is equal
to or greater than 60% but less than 80%, the EBITDA Component will be equal to
the Achieved EBITDA Percentage multiplied by $75,000 and divided by 2; and (C)
if the Achieved EBITDA Percentage is less than 60%, the EBITDA Component will be
equal to zero.
(ii) $75,000 of the Performance Bonus will be qualitative and
based on an evaluation by the Company's CEO of Executive's performance during
the year, with the actual amount of this component of the Performance Bonus
determined by the CEO with the approval of the Company's Board of Directors (the
"Board").
(b) With respect to calendar years 2000 and 2001, and during any
period for which the Term may be extended pursuant to Paragraph 1, the
Performance Bonus will be determined using the same formulas or evaluation
methods, as are used in determining
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performance bonuses for such years for other senior executives of the Company
who do not have written employment contracts, provided that the allocation
between objective measures (tied to the Company's financial performance) and
subjective factors (tied to Executive's individual performance) may differ from
the allocation used for such other senior executives, and shall be determined by
the CEO with the approval of the Board. The portion of the Performance Bonus
based on such subjective factors (as well as the portion of the Performance
Bonus for 1999 determined pursuant to Paragraph 4(a)(ii) above) is referred to
herein as the "Subjective Component".
(c) The Performance Bonus will be paid within 30 days after the
issuance of the Company's audited financial statements for the applicable year.
5. Car Allowance; Benefits; Expenses.
(a) The Company shall pay to Executive an automobile allowance of
$1,250.00 per month (the "Car Allowance"), to be applied by Executive to the
expenses of leasing and/or operation of an automobile selected by Executive. The
Car Allowance shall represent taxable compensation to Executive, except to the
extent that Executive provides to the Company documentation which the Company
deems sufficient to establish the deductibility of such expenses for federal
income tax purposes.
(b) Executive shall be entitled to paid vacation each calendar year
in accordance with the Company's written policy. Executive shall be entitled to
participate in employee benefit plans, policies and programs, including health,
disability and life insurance plans, on the same terms and conditions made
available to other senior executives of the Company (except that the Company
shall pay the premiums for health insurance coverage for Executive's immediate
family).
(c) The Company shall maintain during the Term a policy or policies
of term life insurance in an aggregate face amount of $4,000,000 (which amount
shall include the face amount of any life insurance made available to the
Executive pursuant to Paragraph 5(b) hereof), with proceeds payable to a
beneficiary designated by Executive, and the Company shall pay the premiums due
thereunder.
(d) Executive shall be entitled to reimbursement of expenses
incurred in connection with his duties on behalf of the Company in accordance
with Company policy.
6. Termination of Employment.
(a) Definitions. The following terms shall have the following
meanings:
(i) "Cause" shall mean any of the following conditions:
(A) Executive has engaged in conduct which either (1)
resulted
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in a conviction of or plea of guilty or no contest to a misdemeanor
involving moral turpitude or involving the property of the Company,
or (2) resulted in a conviction of or plea of guilty or no contest
to a felony under the laws of the United States or any state or
political subdivision thereof;
(B) Executive commits or engages in (1) a breach of his
fiduciary duty to the Company or any of its affiliates, (2) gross
negligence or willful misconduct in connection with his employment
with the Company, or (3) any transaction which Executive knows or
should have known would constitute self-dealing or conflict of
interest between Executive and the Company and in which Executive
does or would receive any direct or indirect material economic or
pecuniary benefit without prior disclosure of such transaction to
the Company and receipt of prior approval from the Company;
(C) Executive violates the internal procedures or
policies of the Company of which he has been given notice in a
manner which has or reasonably may be expected to have a material
adverse effect on the reputation, business or prospects of the
Company (and for this purpose, conduct constituting employment
discrimination or sexual harassment shall be conclusively presumed
to have a material adverse effect);
(D) Material default or other material breach by
Executive of Executive's obligations hereunder and failure to remedy
such breach within thirty (30) days after notice thereof; or
(E) Failure by Executive to perform diligently and
competently his duties hereunder, after written notice from the
Company of such failure and a reasonable period of time to remedy
the deficiency described in such notice.
(ii) "Disability" means Executive's physical or mental
incapacity which (A) in the reasonable good faith determination of the Company,
has rendered Executive incapable of performing the essential functions of his
job as contemplated by this Agreement, to the extent required hereunder prior to
the commencement of such Disability, for a total of 90 days in a 180 day period,
or (B) in the opinion of a physician selected by the Company and reasonably
acceptable to Executive, is anticipated to render Executive incapable of
performing the essential functions of his job as contemplated by this Agreement,
to the extent required hereunder prior to the commencement of such Disability,
for a total of 90 days in a 180 day period. The effective date of termination of
employment by reason of Disability shall be the earlier of the date of the
determination by the Company under clause (A) above, or the date the opinion of
the physician is rendered under clause (B) above.
(iii) "Good Reason" means any of the following: (A) the
failure to pay in a timely manner any Annual Payment or Performance Bonus due to
Executive hereunder that the Company fails to remedy within thirty (30) days
after notice thereof by Executive; (B) a
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material breach by the Company of any provision of this Agreement that the
Company fails to remedy or cease within thirty (30) days after notice thereof by
Executive; (C) a material reduction in Executive's duties provided in this
Agreement that is so substantial that it would reasonably be construed to change
his position with the Company; or (D) a reduction in the amount of the Annual
Payments.
(b) Termination of Employment. The employment of Executive may be
terminated at any time:
(i) upon the death of Executive; or
(ii) upon the Disability of Executive; or
(iii) by the Company, immediately for Cause (provided that any
termination of Executive's employment for Cause pursuant to any of clause (B),
(C), (D), or (E) of Paragraph 6(a)(i) of this Agreement shall be based on a good
faith determination by the Company of the facts and circumstances which the
Company deems relevant after giving Executive an opportunity to appear before
the Company's Board of Directors to present any reasons why the Executive
believes he should not be terminated for Cause (provided, however, that nothing
contained herein is intended or shall be deemed to afford the Executive an
opportunity to appear with an attorney, present witnesses or otherwise conduct
an evidentiary hearing before the Board); or
(iv) by the Company, upon 15 days written notice of
termination of Executive's employment without Cause (for purposes of this
Agreement, a notice by the Company pursuant to Paragraph 1 that the Term of the
Agreement is not extended beyond any then scheduled expiration of the Term,
shall not be deemed a termination of Executive's employment without Cause); or
(v) by Executive, upon 15 days written notice of voluntary
termination of employment for Good Reason; or
(vi) by Executive, upon 15 days written notice of voluntary
termination of employment without Good Reason (for purposes of this Agreement, a
notice by Executive pursuant to Paragraph 1 that the Term of the Agreement is
not extended beyond any then scheduled expiration of the Term, shall not be
deemed a voluntary termination of employment without Good Reason).
(c) Compensation on Termination of Employment. Upon termination of
Executive's employment with the Company, his right to compensation or other
benefits following such termination shall be determined exclusively as follows:
(i) If Executive's employment is terminated by reason of death
or Disability, Executive (or his legal representative) shall be entitled (A) to
receive any Annual
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Payments and Car Allowance accrued up to the date of termination which remains
unpaid, (B) to be considered for payment of a Performance Bonus determined in
the manner provided in this Agreement, but prorated for the period up to the
date of termination of employment, provided, however, that with respect to the
Subjective Component of the Performance Bonus, Executive shall receive an amount
not less than the amount of the Subjective Component of the Performance Bonus
awarded to Executive for the previous full calendar year (pro rated for the
period up to the date of termination of employment), (C) in the case of
Disability, to continue to receive payments of Annual Payments for a period of
90 days following the effective date of termination by reason of Disability, but
in no event beyond the date that payments under the Company's long-term
disability policy commence, such payments of Annual Payments to be at the rate
in effect on the effective date of such termination of employment by reason of
Disability, and (D) to be paid such disability or death benefits as are provided
under any Company benefit plans in which Executive is a participant. Except as
set forth in Paragraph 6(d), Executive shall not be entitled to any other or
further compensation after the date of any such termination of employment.
(ii) If Executive's employment is terminated by the Company
for Cause, or is voluntarily terminated by Executive without Good Reason,
Executive shall be entitled to receive any Annual Payments and Car Allowance
accrued up to the date of termination which remains unpaid. Executive shall not
be entitled to any other or further compensation after the date of any such
termination of employment.
(iii) If Executive's employment is terminated by the Company
without Cause, or is voluntarily terminated by Executive for Good Reason,
Executive shall be entitled (A) to receive any Annual Payments and Car Allowance
accrued up to the date of termination which remains unpaid, (B) to be considered
for payment of a Performance Bonus for the calendar year of termination of
employment, determined in the manner provided in this Agreement, but prorated
for the period up to the date of termination of employment, provided, however,
that with respect to the Subjective Component of the Performance Bonus,
Executive shall receive an amount not less than the amount of the Subjective
Component of the Performance Bonus awarded to Executive for the previous full
calendar year (pro rated for the period up to the date of termination of
employment), (C) to receive a severance payment equal to the greater of (x) the
aggregate of Annual Payments and Performance Bonus paid to Executive for the
calendar year preceding the calendar year in which employment terminates, or (y)
the amount of Annual Payments which would have been due during the balance of
the Term (if employment had not terminated), calculated at the rate of Annual
Payments in effect immediately prior to such termination, such severance payment
to be paid in twelve equal monthly installments commencing on the first day of
the calendar month following termination, and (D) to be maintained by the
Company, at its cost, under its health, disability and life insurance plans as
in effect at the time of termination of employment, for a period equal to the
greater of one year, or the balance of the Term (if employment had not
terminated). Except as set forth in Paragraphs 6(d) and 6(e), Executive shall
not be entitled to any other or further compensation after the date of any such
termination of employment. Notwithstanding the foregoing, if the Term of this
Agreement has been extended beyond December 31, 2001 pursuant to the last
sentence of
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Paragraph 1, then (1) instead of the amount of the severance payment calculated
under clause (C) above, the severance payment shall be equal to the aggregate of
Annual Payments paid to Executive for the last six months of the calendar year
preceding the calendar year in which employment terminates plus one half of the
Performance Bonus paid to Executive for such preceding calendar year, such
severance payment to be paid in six equal monthly installments commencing on the
first day of the calendar month following termination, and (2) instead of the
insurance provided under clause (D) above, Executive shall be entitled to be
maintained by the Company, at its cost, under its health, disability and life
insurance plans as in effect at the time of termination of employment, for a
period equal to six months after termination of employment.
(iv) If Executive's employment terminates by reason of the
expiration of the Term of this Agreement, Executive shall be entitled (A) to
receive any Annual Payments and Car Allowance accrued up to the date of
termination which remain unpaid, and (B) to be considered for payment of a
Performance Bonus determined in the manner provided in this Agreement for the
period through the end of the Term, provided, however, that with respect to the
Subjective Component of the Performance Bonus, Executive shall receive an amount
not less than the amount of the Subjective Component of the Performance Bonus
awarded to Executive for the previous full calendar year (pro rated for the
period up to the date of termination of employment). Executive shall not be
entitled to any other or further compensation under this Agreement after the
date of any such termination of employment.
(d) Life Insurance. Upon any termination of employment of Executive,
the Company shall take such steps as are necessary to cause the policies of life
insurance provided for in Paragraph 5(b) to be transferred to Executive or his
designee. The Company shall continue to pay the premiums on such life insurance
policy which are due during any period for which payments of Annual Payments
continue to be made after termination of employment pursuant to Paragraph 6(c).
(e) Options. If Executive's employment is terminated by the Company
without Cause, or is voluntarily terminated by Executive for Good Reason, all
options to purchase capital stock of the Company held by Executive as of the
date of this Agreement ("Options") which are not otherwise then fully vested and
exercisable, shall immediately become fully vested and exercisable,
notwithstanding the terms of any plan, agreement or other document governing the
terms of such Options (the "Option Documents"). Upon any termination of
employment of Executive for any reason, and notwithstanding the terms of the
Option Documents, all Options which are vested and exercisable as of the date of
such termination of employment (whether by the terms of the Option Documents or
pursuant to the first sentence of this paragraph), shall remain exercisable for
six months following the effective date of such termination of employment, and
if not exercised within such six month period, shall expire and be canceled and
no longer be exercisable. Except as set forth in this paragraph, the foregoing
provisions of this Paragraph 6 shall not apply to or affect any Options, and
such Options and Executive's rights therein shall be governed solely by the
terms of the Option Documents.
7. Restrictive Covenants. In consideration of the agreement of the Company
to
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employ Executive in accordance with the terms of this Agreement, Executive
agrees as follows:
(a) Definitions. For purposes of this Paragraph 7, the following
terms shall have the following meanings:
(i) "Affiliate" means, with respect to a Person, any Person
that (a) directly or indirectly controls, is controlled by or is under common
control with such Person or (b) is an executive officer or director of such
Person.
(ii) "Client" means a customer, subtenant or licensee of a
Person engaged in an Executive Office Suite Business.
(iii) "Company Employee" means any Person who is an employee
of the Company or any of its Affiliates, at any time during the six month period
preceding the date that Executive ceases to be an employee of the Company or any
of its Affiliates.
(iv) "Executive Office Suite Business" means the business of
the outsourcing of office operations, both on an on-site and off-site basis, and
the outsourcing of business support services to customers or clients of the
Company which purchase any of the Company's products or services.
(v) "Person" means any individual, proprietorship,
partnership, corporation, limited liability company, trust, estate, or other
form of entity.
(b) Non-Competition. During the period beginning on the effective
date of this Agreement and ending two years after Executive ceases to be an
employee of the Company or any of its Affiliates, Executive will not directly or
indirectly engage in the business of, or own or control any interest in, or act
as a director, officer, managing member, or partner of, or consultant to, or be
connected in any manner with, as an employee or otherwise, (i) if Executive's
employment is terminated for Disability or for Cause, any Person directly or
indirectly engaged in an Executive Office Suite Business in the United States,
or within a 25 mile radius of any existing executive office suite of the Company
or its subsidiaries located outside of the United States (including executive
office suites managed for other Persons) as of the date of termination of
employment, or (ii) if Executive's employment is terminated without Cause or
Executive voluntarily terminates his employment with Good Reason, any of HQ
Global Workplaces, Inc., Regus Business Center Corp., Omni Offices U.K., or any
other Person which (together with its Affiliates) owns, operates, maintains or
manages 30 or more executive office suite locations. The foregoing shall not
prohibit Executive from owning less than 1% of any class of outstanding voting
securities of any Person whose voting securities are listed on a national
securities exchange or regularly traded in the over-the-counter market.
(c) Non-Solicitation. During the period beginning on the effective
date of this Agreement and ending two years after Executive ceases to be an
employee of the Company or any of its Affiliates (the "Non-Solicitation
Period"), neither Executive, nor any Person of which
8
he may act as a director, officer, managing member, partner, or consultant, or
of which he may own, directly or indirectly, 1% or more of the outstanding
voting securities, will (i) employ or solicit for employment, or encourage,
assist, facilitate or participate in the employment or solicitation for
employment of, any Company Employee, or (ii) directly or indirectly, solicit, or
encourage, assist, facilitate or participate in the solicitation of, any Person
that at any time during the Non-Solicitation Period is a Client of the Company
or any of its Affiliates, to become a Client of any other Person engaged in an
Executive Office Suite Business.
(d) Non-Disclosure. Executive recognizes and acknowledges that he
will have access to certain confidential and proprietary information
("Proprietary Information") of the Company which is a valuable, special and
unique asset of the Company's business. Proprietary Information includes, but is
not limited to, the following: business methods of the Company or any of the
trade or business secrets of the Company, including but not limited to,
operating procedures, pricing information, customer or client lists or accounts,
market research and development procedures, marketing strategies, investment or
acquisition opportunities and strategies, and information or lists concerning
the current, future or proposed business of the Company, or the costs associated
therewith and/or any other business related information. Accordingly, Executive
covenants and agrees that during, or at any time after the term of, this
Agreement he will not use for himself or reveal to anyone any part of the
Proprietary Information, and he will take all reasonable precautions to
safeguard the confidential nature of the Proprietary Information and prevent
inadvertent disclosure thereof. The obligations of Executive pursuant to this
Paragraph 7(d) shall not apply to any particular portion of the Proprietary
Information which Executive can document (and satisfy the burden of proof) (i)
was in the public domain at the time Executive received knowledge of it, or (ii)
entered the public domain through no fault of Executive subsequent to the time
Executive received knowledge of it, or (iii) was in Executive's possession free
of any obligation of confidence at the time Executive received knowledge of it.
(e) Savings Provision. If any provision of this Paragraph 7 shall be
adjudicated to be invalid or unenforceable because it is held to be excessively
broad as to duration, geographic scope, activity or subject, then such provision
shall be deemed amended by limiting and reducing it so as to be valid and
enforceable to the maximum extent compatible with the applicable laws and public
policies of the jurisdiction in which such adjudication is made or such
provision is sought to be enforced, such amendment only to apply with respect to
the operation of such provision in the jurisdiction in which such adjudication
is made or such provision is sought to be enforced.
(f) Injunctive and Other Equitable Remedies. Executive understands
and agrees that the Company will suffer immediate, irreparable harm in the event
Executive fails to comply with any of Executive's obligations under this
Paragraph 7, that monetary damages will be inadequate to compensate the Company
for such breach and that the Company shall be entitled to injunctive relief as a
remedy for any such breach. Such remedy shall not be deemed to be the exclusive
remedy in the event of breach of this Paragraph 7 by Executive, but shall be in
addition to all other remedies available to the Company at law or in equity.
Executive hereby
9
waives, to the extent he may legally do so, any requirement for security or the
posting of any bond or other surety in connection with any temporary or
permanent award of injunctive or other equitable relief, and further waives, to
the extent he may legally do so, the defense in any action for specific
performance or other equitable remedy that a remedy at law would be adequate.
Notwithstanding anything to the contrary contained in this Agreement, in the
event the Executive violates his obligations under this Paragraph 7, then, in
addition to all other rights and remedies available to the Company, the Company
shall have no further obligation to pay Executive any money or to provide
Executive with any rights or benefits to which Executive would have been
entitled pursuant to this Agreement had Executive not breached this Paragraph 7.
8. Miscellaneous.
(a) Notices. All notices, requests, demands, acceptances and other
communications which are required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, or (b) when sent by fax if received on a business day prior to 5:00
P.M. local time at the place of receipt, or on the following business day if
received after 5:00 P.M. or on a non-business day, or (c) on the day following
delivery to a courier service if sent by next day delivery via a recognized
international courier service, or (d) five (5) days after the date when mailed
by registered or certified mail, return receipt requested, postage prepaid. All
such notices, requests, demands, acceptances and other communications shall be
addressed to the parties as follows, or at such other address as shall be
specified by like notice:
If to the Company: VANTAS Incorporated
00 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Att: Xxxxx X. Xxxxx, President
Fax: (000) 000-0000
If to Executive: Xxxx X. Xxxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
(b) Waivers. Either party hereto may, at its or his option, by
written notice to the other, (a) extend the time for the performance of any of
the obligations or other actions of the other, (b) waive compliance with any of
the terms, conditions or covenants required to be complied with by the other
hereunder; and (c) waive or modify performance of any of the obligations of the
other hereunder. 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 other or
subsequent breach.
(c) Amendment. No change, amendment or modification of any provision
of
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this Agreement shall be valid unless set forth in a written instrument signed by
the party to be bound thereby.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supercedes all prior written or oral negotiations or agreements with respect
thereto.
(e) Binding Effect; Benefits. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective permitted
successors and assigns. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto or their
respective permitted successors and assigns, any rights, remedies, obligations
or liabilities.
(f) Assignment. This Agreement is personal in nature and neither of
the parties hereto shall, without the written consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder. In the event of
merger, consolidation, transfer or sale of all or substantially all of the
assets of the Company, the successor or transferee corporation's continued
performance of this Agreement shall not be deemed an assignment.
(g) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
(h) Governing Law. The interpretation and performance of this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to such State's conflicts of laws principles.
(i) Jurisdiction, Venue. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND
HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS
FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND
ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF
BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN
PARAGRAPH 8(a), SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
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(j) Headings. Headings of the paragraphs in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall be deemed to be one and the same instrument.
(l) Facsimile Signatures. This Agreement may be signed by facsimile
copy and shall be valid and binding upon delivery of a signed copy by facsimile.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
VANTAS INCORPORATED
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
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