Exhibit 10.20
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of the 1st day of April, 1999, by and
between Xxxxxxxxxxx.xxx, Inc., a Delaware corporation with offices c/o
Xxxxxxxxxxx.xxx, Ltd., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx XX 12, Bermuda (the
CORPORATION"), and E. Xxxxxxx Xxxxxx, an individual residing at 0000 Xxxxxxxxxx
Xx., Xxxxxxxx, Xxxxxxx 00000 (the "EXECUTIVE").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Corporation hereby agrees to employ the Executive
in an executive capacity, and the Executive hereby accepts and agrees to such
employment, commencing as of the date hereof, upon the terms and conditions
hereinafter set forth.
2. TERM. The term of the Executive's employment under this Agreement
shall commence as of the date hereof and shall continue until the close of
business on March 31, 2003, and shall automatically be renewed for twelve (12)
month periods thereafter unless either party gives the other written notice of
termination at least three (3) months prior to the expiration of the initial or
any renewal term, unless sooner terminated as provided elsewhere in this
Agreement (the "TERM").
3. DUTIES AND SERVICES. (a) The Executive agrees to serve the
Corporation as Chief Financial Officer and General Counsel of the Corporation
and shall also serve such of its subsidiaries and affiliated companies as may be
designated by the Corporation, faithfully, diligently and to the best of his
ability, subject to and under the direction and control of the President, Chief
Executive Officer and Board of Directors of the Corporation, devoting his entire
business time, energy and skill to such employment, and to perform from time to
time such executive services, advisory or otherwise, as the President, Chief
Executive Officer or Board of Directors shall request, and to act in such
capacities or other offices for the Corporation and for any of its subsidiary or
affiliated companies as the Board of Directors shall request without further
compensation other than that for which provision is made in this Agreement. The
Executive acknowledges that while there are no strict guidelines pertaining to
work hours, he shall be expected to work a longer than average week, and spend
the necessary time and effort to consistently deliver high quality results in a
time sensitive manner. The Executive acknowledges that his position with the
Corporation will require significant business trips, much of which will involve
travel during off-peak and non-business hours.
(b) The Executive acknowledges that the Corporation may
experience dramatic growth and it may in the future need or desire someone else
as Chief Financial Officer.
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The Executive agrees that the Corporation shall be entitled to replace Executive
as Chief Financial Officer at such time as it shall determine. Until such time,
however, as the Chief Financial Officer of the Corporation, the Executive will
primarily be responsible for all reports and other filings with the Securities
and Exchange Commission. For the time being, the Chief Executive Officer will
continue to be responsible for investor relations. The Executive may also be
involved in the management of business development and/or human resource
functions. The Executive acknowledges that the Corporation retains the right to
move senior management personnel to different positions, and the Executive will
be flexible in such respect.
(c) The principal place of employment of the Executive shall be
at corporate offices of the Corporation to be established in Parsippany, New
Jersey, or such other new offices of the Corporation in the New York
metropolitan area as shall be determined by the Board of Directors.
(d) If and when requested by the Chief Executive Officer, the
Executive shall relocate from Atlanta, Georgia to a place in the New York
metropolitan area proximate to the Corporation's office. In the case of such
relocation, the Corporation shall pay or reimburse the Executive, including the
tax effect (gross up) for any taxable payments, his reasonable, qualified moving
expenses, up to an aggregate amount of $50,000.
4. COMPENSATION. (a) SALARY. The Corporation agrees to pay to the
Executive, and the Executive agrees to accept, a basic salary for all his
services (the "SALARY") at the rate of $200,000 per annum, payable in accordance
with the Corporation's standard payroll policies from time to time.
(b) STOCK OPTIONS. The Executive shall be eligible to
participate in the 1996 Stock Option Plan of the Corporation, and effective
within ten (10) days after the date this Agreement is executed shall be granted
options to purchase 200,000 shares of Common Stock of the Corporation at an
exercise price equal to the fair market value on the date of grant, which shall
vest (subject to continued employment) at the rate of 50,000 options shares per
year, beginning on the first anniversary of the date of grant and on the same
day of each of the next three years thereafter, and shall also be subject to the
terms and conditions of the applicable option grant agreement and the 1996 Stock
Option Plan.
(c) PERFORMANCE BONUS PLAN. Executive shall be included as a
participant in any performance bonus plan introduced by the Corporation. This
bonus is not guaranteed by the Corporation and is extended at the sole
discretion of the Corporation.
(d) NON-ACCOUNTABLE EXPENSE ALLOWANCE. The Executive shall be
entitled to a non-accountable expense allowance of $50,000 per year, for the
first two years of this Agreement.
5. EMPLOYEE BENEFITS. (a) BUSINESS. The Corporation shall reimburse
the
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Executive for the reasonable business expenses incurred by him for or on behalf
of the Corporation in furtherance of the performance of his duties hereunder.
Such reimbursement shall be subject to receipt by the Corporation from the
Executive of such an expense statements and such vouchers and other reasonable
verifications as the Corporation shall require to satisfactorily evidence such
expenses, and shall also be subject to such policies as the Corporation shall
establish from time to time.
(b) BENEFIT PROGRAMS. The Executive shall be entitled to
participate, in accordance with the terms thereof, in employee benefit plans and
programs maintained for the executives of the Corporation, including, without
limitation, any health, hospitalization and medical insurance programs and in
any pension or retirement or other similar plans or programs. The foregoing
shall not be construed to require the Corporation to establish any such plans or
programs, or to prevent the Corporation from modifying or terminating any such
plans or programs once established.
(c) VACATION. The Executive shall be entitled to four (4) weeks
of vacation each employment year during the term of this Agreement, taken
consecutively or in segments, subject to the effective discharge of the duties
of the Executive hereunder. Vacation not taken during any such year cannot be
rolled over to the following or any subsequent year.
6. TERMINATION OF BENEFITS. (a) TERMINATION. Notwithstanding
anything to the contrary contained herein, the Executive's employment with the
Corporation, as well as the Executive's right to any compensation which
thereafter otherwise would accrue to him hereunder or in connection therewith,
shall terminate upon the earliest to occur of the following events:
(i) the death or disability (as defined below) of the
Executive,
(ii) the expiration of the Term of this Agreement,
(iii) the Executive's termination of such employment, or
(iv) upon delivery of written notice, with or without "cause"
(as defined below), to the Executive from the
Corporation of such termination.
(b) CERTAIN DEFINITIONS. For the purpose of this Section 6, (i)
the term "cause" is defined as (A) the commission by the Executive of a felony
or an offense involving moral turpitude, the Executive's engaging in theft,
embezzlement, fraud, obtaining funds or property under false pretenses, or
similar acts of misconduct with respect to the property of the Corporation or
its employees, stockholders, affiliates, customers, licensees, licensers or
suppliers, (B) the repeated failure by the Executive to perform his duties
hereunder or comply with reasonable policies or directives of the Board of
Directors of the Corporation, (C) misfeasance or malfeasance, or (D) the breach
of this Agreement or the Conditions of Employment referred to below by the
Executive in any material respect, which breach is not cured within thirty (30)
days after Executive's receipt of written notice of the breach and (ii) the
Executive shall be deemed
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"disabled" if, at the Corporation's option, it gives notice to the Executive or
his representative that due to a disabling mental or physical condition, he has
been prevented, for a continuous period of 90 days during the Term or for an
aggregate of 120 days during any six month period during the Term, from
substantially performing those duties which he was required to perform pursuant
to the provisions of this Agreement prior to incurring such disability.
(c) SEVERANCE; RELEASE. In the event of and upon the termination
by the Corporation of the employment of the Executive under this Agreement
without "cause", in addition to the Salary and other compensation (including
accrued vacation, cash bonuses, incentive and performance compensation) earned
hereunder and unpaid or not delivered through the date of termination and any
benefits referred to in Section 5(b) hereof in which the Executive has a vested
right under the terms and conditions of the plan or program pursuant to which
such benefits were granted (without regard to such termination), the Corporation
shall pay the Executive a cash payment (the "SEVERANCE PAYMENT") equal in the
aggregate to the sum of twelve months' Salary and all bonuses earned by the
Executive during the twelve (12) months preceding such termination. In the event
of termination of this Agreement by the Corporation by reason of the death or
disability of the Executive, the Corporation shall not be obligated to make the
Severance Payment to the Executive. The Severance Payment shall be paid to the
Executive in consecutive, equal monthly installments, on the fifteenth day of
each calendar month commencing during the month next following the (1) the first
to occur of the month in which the Executive is no longer employed by the
Corporation and (2) the effective date of a general release from the Executive
in customary form for such circumstances. The Severance Payment shall be in lieu
of any other claim for compensation under this Agreement, any wage continuation
law or at common law, or any claim to severance or similar payments or benefits
which the Executive may otherwise have or make. Without limiting any other
rights or remedies which the Corporation may have, it is understood that the
Corporation shall be under no further obligation to make any such severance
payments and shall be entitled to be reimbursed therefor by the Executive or his
estate if the Executive violates any of the covenants set forth in this
Agreement or in the Conditions of Employment attached as Exhibit A hereto. In
the event that the Severance Payment shall become payable to the Executive, the
Executive shall not be required, either in mitigation of damages or by the terms
of any provisions of this Agreement or otherwise, to seek or accept other
employment, and if the Executive does accept other employment, any benefits or
payments under this Agreement shall not be reduced by any compensation earned or
other benefits received as a result of such employment. Further, in the event
that the Severance Payment shall become payable to the Executive, the
Corporation shall continue to provide during such twelve-month period coverage
to Executive under the Corporation's health, hospitalization and medical
programs, to the same extent and at the same cost to the Executive as provided
during the term of Executive's employment with the Corporation (the "Health
Benefit").
(d) CHANGE OF CONTROL. In the event that the employment of the
Executive under this Agreement shall be terminated by the Corporation without
"cause" or by the Executive for "Good Reason" (as hereinafter defined) within
twelve (12) months after a Change
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of Control (as hereinafter defined) of the Corporation, in addition to the
Salary and other compensation (including accrued vacation, cash bonuses,
incentive and performance compensation) earned hereunder and unpaid or not
delivered through the date of termination and any benefits referred to in
Section 5(b) hereof in which the Executive has a vested right under the terms
and conditions of the plan or program pursuant to which such benefits were
granted (without regard to such termination) but in lieu of the Severance
Payment and any other payments under Section 6(c) hereof, the Corporation shall
pay the Executive a cash payment (the "Change of Control Payment") equal in the
aggregate to the sum of twenty-four months' Salary and all bonuses earned by the
Executive during the twenty-four (24) months preceding such termination. The
Change of Control Payment shall be paid to the Executive in consecutive, equal
monthly installments, on the fifteenth day of each calendar month commencing
during the month next following the (1) the first to occur of the month in which
the Executive is no longer employed by the Corporation and (2) the effective
date of a general release from the Executive in customary form for such
circumstances. The Change of Control Payment shall be in lieu of any other claim
for compensation under this Agreement, any wage continuation law or at common
law, or any claim to severance or similar payments or benefits which the
Executive may otherwise have or make. If group health plan benefits continue for
employees of the Corporation following such Change of Control, the Health
Benefit referred to in Section 6(c) shall also continue for such twenty-four
month period. Without limiting any other rights or remedies which the
Corporation may have, it is understood that the Corporation shall be under no
further obligation to make any such Change of Control Payments and shall be
entitled to be reimbursed therefor by the Executive or his estate if the
Executive violates any of the covenants set forth in this Agreement on in the
Conditions of Employment attached as Exhibit A hereto. In the event that the
Change of Control Payment shall become payable to the Executive, the Executive
shall not be required, either in mitigation of damages or by the terms of any
provisions of this Agreement or otherwise, to seek or accept other employment,
and if the Executive does accept other employment, any benefits or payments
under this Agreement shall not be reduced by any compensation earned or other
benefits received as a result of such employment.
For purposes of this Section, "GOOD REASON" shall mean the occurrence
of any of the following events: (x) a material adverse change in the nature or
scope of the Executive's responsibilities, authorities, title, powers,
functions, reporting procedures (including the status of the person to whom the
Executive reports directly and the status of the persons who report directly to
the Executive, but other than the appointment of a Chief Financial Officer) or
duties, in all cases in a manner inconsistent with Section 3 above and giving
due regard to the flexibility contemplated thereby, from the responsibilities,
authorities, title, powers, functions reporting procedures (including the status
of the person to whom the Executive reports directly and the status of the
persons which report directly to the Executive) or duties exercised by the
Executive prior to a Change of Control (other than changes to reflect the
integration of the Corporation with an acquiror's operations which do not amount
to the functional equivalent of a demotion); (y) a reduction in the Executive's
annual base Salary as in effect immediately prior to a Change of Control; or (z)
the relocation of the office at which the Executive is principally employed
immediately prior to a Change of Control to a location more than 50 miles from
such office or
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the requirement by the acquiror for the Executive to be based anywhere other
than such current office, except for required business travel to an extent
substantially consistent with the Executive's business travel obligations
immediately prior to the Change or Control.
For purposes of this Section, "CHANGE OF CONTROL" shall mean the
consummation of (i) a merger, combination, reorganization or consolidation of
the Corporation with or into another corporation (with respect to which less
than a majority of the outstanding voting power of the surviving or consolidated
corporation is held by shareholders of the Corporation immediately prior to such
event), (ii) the sale, transfer or other disposition of all or substantially all
of the properties and assets of the Corporation and its subsidiaries, (whether
tangible or intangible) or (iii) the sale to or purchase by (or a series of
sales to or purchases by) a person or entity (or an affiliated group of persons
or entities) which shall not be a stockholder of the Corporation (or a profit
sharing or other employee benefit plan of the Corporation) of securities of the
Corporation in a private transaction or transactions such that such unrelated
person or entity (or group of affiliated persons or entities) shall as a result
of such sale or sales or purchase or purchases beneficially own, directly or
indirectly, securities of the Corporation representing more than fifty percent
(50%) of the combined voting power of the Corporation's then outstanding
securities or have the right to designate a majority of the members of the Board
of Directors of the Corporation.
7. DEDUCTIONS AND WITHHOLDING. The Executive agrees that the
Corporation shall withhold from any and all payments required to be made to the
Executive pursuant to this Agreement (including the travel allowance) all
federal, state, local and/or other taxes which are required to be withheld in
accordance with applicable statutes and/or regulations from time to time in
effect.
8. NON-SOLICITATION, RESTRICTIVE COVENANTS, CONFIDENTIALITY AND
INJUNCTIVE RELIEF.(a) The Executive shall execute and deliver to and for the
benefit of the Corporation, the Conditions of Employment attached as EXHIBIT A
hereto, pertaining, among other matters, to proprietary information,
confidentiality obligations, and non-competition obligations, the provisions of
which shall be deemed incorporated herein by reference as if set forth herein
(the "CONDITIONS OF EMPLOYMENT"). In the event of any ambiguity and/or
inconsistency between this Agreement (not including Exhibit A) and the
Conditions of Employment attached as Exhibit A hereto, the terms of this
Agreement (not including Exhibit A) shall control. Without limiting the
forgoing, the following shall be applicable:
(i) NON-COMPETITION. In view of the fact that activity of
the Executive in violation of the terms hereof is likely to adversely affect the
Corporation and its subsidiaries and affiliates and would deprive the
Corporation of the benefits of its bargain hereunder, and to preserve the
goodwill associated with the Corporation's business, the Executive hereby agrees
that during the period commencing on the date hereof and ending on the first
(1st) anniversary of the date on which the Executive's employment with the
Company and its subsidiaries and affiliates terminates for any reason (the
"Non-Compete Period"), he will not, without the express written consent of the
Corporation, directly or indirectly, anywhere in the
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United States or Canada, engage in any activity which is, or participate or
invest in, or provide or facilitate the provision of financing to, or assist
(whether as owner, part-owner, shareholder, member, partner, director,
officer, trustee, employee, agent or consultant, or in any other capacity),
any business, organization or person other than the Corporation (or any
subsidiary or affiliate of the Corporation), whose business, activities,
products or services are directly competitive with any of the business,
activities, products or services conducted by the Corporation on the date the
Executive's employment with the Corporation terminates and which are in the
Corporation's Field of Interest (each a "Competitive Business"); provided
that the Executive shall be permitted to be employed by an entity which
operates an ancillary business in the Corporation's Field of Interest so long
as the Executive is not involved in such ancillary business. For purposes of
this Section 8(a)(i), the Corporation's "Field of Interest" shall include,
without limitation, the development, implementation or sale of on-line
marketing or advertising programs to pharmaceutical and other healthcare
organizations and any other business activity engaged in, or conducted by the
Corporation or its subsidiaries or affiliates on the date the Executive's
employment with the Corporation terminates. Notwithstanding anything in this
Section 8(a)(i) to the contrary, the Executive shall not be prohibited from
participating, directly or indirectly, in any activity or business with
Internet operations, including companies providing goods or services through
or providing e-commerce and content or otherwise, that is not a Competitive
Business.
Notwithstanding anything herein to the contrary, the Executive may
make passive investments in any enterprise the shares of which are publicly
traded if such investment constitutes less than five percent (5%) of the
equity of such enterprise.
(ii) NON-SOLICITATION In addition to the restrictions in
Section 8(a)(i) above, the Executive also agrees that he will not during the
Non-Compete Period: (1) hire, attempt to hire, or participate in any way in
any effort by any person or entity (other than the Corporation or any of its
direct and/or indirect subsidiaries and affiliates) to hire or attempt to
hire any person who is at the time (or was within the immediately preceding
six (6) months) an officer or employee of the Corporation or its direct
and/or indirect subsidiaries or affiliates; (2) encourage any officer or
employee of the Corporation or its direct or indirect subsidiaries or
affiliates to terminate his or her relationship or employment with such
entity; or (3) on behalf of himself or any persons or entity, other than the
Corporation or any of its direct or indirect subsidiaries and affiliates,
solicit or accept business from any client of the Corporation or its direct
or indirect subsidiaries in the Corporation's Field of Interest; PROVIDED,
HOWEVER, that the foregoing provision will not prevent the Executive from
employing or offering to employ any such person who has been terminated by
the Corporation or a subsidiary or affiliate prior to the commencement of
employment discussions between the Executive and such employee, and the
Executive will be permitted to hire and offer to hire non-executive employees
of the Corporation who are contacted as a result of the use of general
newspaper or electronic advertisement and other general non-targeted
recruitment techniques in the ordinary course of business and consistent with
past practices as opposed to targeted solicitations of any one or more of the
Corporation's employees.
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For purposes of this Agreement, any reference to the
subsidiaries of the Corporation shall be deemed to include all entities directly
or indirectly controlled by it through an ownership of more than fifty percent
(50%) of the voting interests, the term "affiliate" shall mean, with respect to
any person or entity, any person or entity which directly or indirectly
controls, is controlled by or is under common control with such person or
entity, and the term "person" shall mean an individual, a corporation, an
association, a partnership, a limited liability company, an estate, a trust, and
any other entity or organization. .
(iii) SCOPE OF AGREEMENT. The parties acknowledge that the
time, scope, geographic area and other provisions of this Section 8 have been
specifically negotiated by the sophisticated commercial parties and agree that
(1) all such provisions are reasonable under the circumstances of this
Agreement, (2) are given as an integral and essential part of this Agreement and
(3) but for the covenants of the Executive contained in this Section 8, the
Corporation would not have entered into this Agreement. The Executive has
independently consulted with his counsel and has been advised in all respects
concerning the reasonableness and propriety of the covenants contained herein,
with specific regard to the business to be conducted by the Corporation and its
subsidiaries and affiliates, and represents that this Agreement is intended to
be, and shall be, fully enforceable and effective in accordance with its terms.
(iv) SEVERABILITY. In the event that any covenant contained
in this Agreement shall be determined by any court of competent jurisdiction to
be unenforceable by reason of its extending for too great a period of time or
over too great a geographical area or by reason of its being too extensive in
any other respect, it shall be interpreted to extend only over the maximum
period of time for which it may be enforceable and/or over the maximum
geographical area as to which it may be enforceable and/or to the maximum extent
in all other respects as to which it may be enforceable, all as determined by
such court in such action.
(v) CONFIDENTIAL INFORMATION. As used in this Agreement,
"Confidential Information" means information belonging to the Corporation which
is of value to the Corporation in the course of conducting its business and the
disclosure of which is reasonably likely to result in a competitive or other
disadvantage to the Corporation. Confidential Information includes, without
limitation, financial information, reports, and forecasts; inventions,
improvements and other intellectual property; trade secrets; know-how; designs,
processes or formulae, software; market or sales information or plans; customer
lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities) which have been
discussed or considered by the management of the Corporation. Confidential
Information includes information developed by the Executive in the course of the
Executive's employment by the Company, as well as other information to which the
Executive may have access in connection with the Executive's employment.
Confidential Information also includes the confidential information of others
with which the Corporation has a business relationship. Notwithstanding the
foregoing, Confidential Information does not include information in the public
domain, unless due to breach of the Executive's duties under Section
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8(a)(vi) or information known to the Executive prior to his employment by the
Company.
(vi) CONFIDENTIALITY. The Executive understands and agrees
that the Executive's employment creates a relationship of confidence and trust
between the Executive and the Company with respect to all Confidential
Information. At all times, both during the Executive's employment with the
Corporation and after his termination, the Executive will keep in confidence and
trust all such Confidential Information, and will not use or disclose any such
Confidential Information without the written consent of the Corporation, except
as may be necessary in the ordinary course of performing the Executive's duties
to the Corporation.
(vii) INVENTIONS. The Executive recognizes that the
Corporation possess a proprietary interest in all of the Confidential
Information and has the exclusive right and privilege to use, protect by
copyright, patent or trademark, or otherwise exploit the processes, ideas and
concepts described therein to the exclusion of the Executive, except as
otherwise agreed between the Corporation and the Executive in writing. The
Executive expressly agrees that any products, inventions, discoveries or
improvements made by the Executive or his agents in the course of the
Executive's employment or during any period that the Executive has heretofore
been a consultant to the Corporation, including any of the foregoing which is
based on or arises out of the Confidential Information, shall be the property of
and inure to the exclusive benefit of the Corporation. The Executive further
agrees that any and all products, inventions, discoveries or improvements
developed by the Executive (whether or not able to be protected by copyright,
patent or trademark) during the course of his employment or during any period
that the Executive has heretofore been a consultant to the Corporation, or
involving the use of the time, materials or other resources of the Corporation
or any of its subsidiaries or affiliates, shall be promptly disclosed to the
Corporation and shall become the exclusive property of the Corporation and the
Executive shall execute and deliver any and all documents necessary or
appropriate to implement the foregoing.
(viii) BUSINESS OPPORTUNITIES. The Executive agrees, while he
is employed by the Corporation, to offer or otherwise make known or available to
it, as directed by the Board of Directors of the Corporation and without
additional compensation or consideration, any business prospects, contracts or
other business opportunities that he may discover, find, develop or otherwise
have available to him in the Corporation's Field of Interest, and further agrees
that any such prospects, contacts or other business opportunities shall be the
property of the Corporation.
(ix) DOCUMENTS, RECORDS, ETC. All documents, records, data,
apparatus, equipment and other physical property, whether or not pertaining to
Confidential Information, which are furnished to the Executive by the
Corporation or are produced by the Executive in connection with the Executive's
employment will be and remain the sole property of the Corporation. The
Executive will return to the Corporation all such materials and property as and
when requested by the Corporation. In any event, the Executive will return all
such materials and property immediately upon termination of the Executive's
employment for any
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reason. The Executive will not retain with the Executive any such material
property or any copies thereof after such termination.
(x) THIRD-PARTY AGREEMENTS AND RIGHTS. The Executive hereby
confirms that the Executive is not bound by the terms of any agreement with any
previous employer or other party which restricts in any way the Executive's use
or disclosure of information reasonably likely to be useful or necessary to the
performance by the Executive of his services hereunder, or the Executive's
engagement in any business. The Executive represents to the Corporation that the
Executive's execution of this Agreement, the Executive's employment with the
Corporation and the performance of the Executive's proposed duties for the
Corporation will not violate any obligations the Executive may have to any such
previous employer or other party. In the Executive's work for the Corporation,
the Executive will not disclose or make use of any information in violation of
any agreements with or right of any such previous employer or other party, and
the Executive will not bring to the premises of the Corporation any copies or
other tangible embodiments of non-public information belonging to or obtained
from any such previous employment or other party.
(xi) LITIGATION AND REGULATORY COOPERATION. During and after
the Executive's employment, the Executive shall cooperate fully with the
Corporation in the defense or prosecution of any claims or actions now in
existence or which may be brought in the future against or on behalf of the
Corporation which relate to events or occurrences that transpired while the
Executive was employed by the Corporation. The Executive's full cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to
act as a witness on behalf of the Corporation at mutually convenient times.
During and after the Executive's employment, the Executive also shall cooperate
fully with the Corporation in connection with any such investigation or review
of any federal, state or local regulatory authority as any such investigation or
review relates to events or occurrences that transpired while the Executive was
employed by the Corporation. The Corporation shall reimburse the Executive for
any reasonable out-of-pocket expenses incurred in connection with the
Executive's performance of obligations pursuant to this subsection (xi). The
performance by the Executive under this subsection (xi) after the termination of
the Executive's employment with the Corporation shall be subject to his other
employment obligations..
(b) The provisions of this Section 8 shall survive the
termination or expiration of this Agreement, irrespective of the reason
therefor, including under circumstances in which the Executive continues
thereafter in the employ of the Corporation.
9. INSURANCE. The Executive agrees that the Corporation may from
time to time and for the Corporation's own benefit apply for and take out life
insurance covering the Executive, either independently or together with others,
in any amount and form which the Corporation may deem to be in its best
interests. The Corporation shall own all rights in such insurance and in the
cash values and proceeds thereof and the Executive shall not have any right,
title or interest therein. The Executive agrees to assist the Corporation, at
the Corporation's
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expense, in obtaining any such insurance by, among things, submitting to
customary examinations and correctly preparing, signing and delivering such
applications and other documents as reasonably may be required. Nothing
contained in this Section 10 shall be construed as a limitation on the
Executive's right to procure any life insurance for his own personal needs.
10. NOTICES. All notices shall be in writing and shall be deemed to
have been duly given to a party hereto on the date of such delivery, if
delivered personally, or on the third day after being deposited in the mail if
mailed via registered or certified mail, return receipt requested, postage
prepaid, or on the next business day after being sent by recognized national
overnight courier service, in the case of the Executive at his current address
as set forth in the Corporation's records, and in the case of the Corporation,
at it address set forth above.
11. ASSIGNABILITY AND BINDING EFFECT. This Agreement shall inure to
the benefit of and shall be binding upon the heirs, executors, administrators,
successors and legal representatives of the Executive, and shall inure to the
benefit of and be binding upon the Corporation and its successors and assigns.
The Executive may not assign, transfer, pledge, encumber, hypothecate or
otherwise dispose of this Agreement, or any of his rights or obligations
hereunder, and any such attempted delegation or disposition shall be null and
void and without effect.
12. SEVERABILITY. In the event that any provisions of this Agreement
would be held to be invalid, prohibited or unenforceable in any jurisdiction for
any reason (including, but not limited to, any provisions which would be held to
be unenforceable because of the scope, duration or area of its applicability),
unless narrowed by construction, this Agreement shall, as to such jurisdiction
only, be construed as if such invalid, prohibited or unenforceable provision had
been more narrowly drawn so as not to be invalid, prohibited or unenforceable
(or if such language cannot be drawn narrowly enough, the court making any such
determination shall have the power to modify such scope, duration or area or all
of them, but only to the extent necessary to make such provision or provisions
enforceable in such jurisdiction, and such provision shall then be applicable in
such modified form). If, notwithstanding the foregoing, any provision of this
Agreement would be held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective to the extent of such
invalidity, prohibition or unenforceability, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New Jersey, without regard
to principles of conflict of laws and regardless of where actually executed,
delivered or performed.
14. COMPLETE UNDERSTANDING; COUNTERPARTS. This Agreement constitutes
the complete understanding and supersedes any and all prior agreements and
understandings between the parties with respect to its subject matter, and no
statement, representation, warranty or covenant has been made by either party
with respect thereto except as expressly set forth herein.
11
This Agreement shall not be altered, modified, amended or terminated except by
written instrument signed by each of the parties hereto. The Section and
paragraph headings contained herein are for convenience only, and are not part
of and are not intended to define or limit the contents of said Sections and
paragraphs. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which, when taken together, shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Xxxxxxxxxxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
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/s/ E. Xxxxxxx Xxxxxx
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Executive: E. Xxxxxxx Xxxxxx
