Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is dated as of
March 23, 2000, by and between Iconixx Web Development, Inc., a
Maryland corporation (the "Company") and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive").
Recitals:
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A. Iconixx Corporation, a Delaware corporation ("Iconixx"), the
Company, Internet Information Services, Inc., a Maryland corporation ("IIS"),
and the Executive and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (collectively, the "Majority
Shareholders") have entered into an Asset Purchase Agreement dated as of March
23, 2000 (the "Asset Purchase Agreement") providing for the purchase by Iconixx,
through the Company, of substantially all of the assets of the Business (other
than those related to the Hardware/Software Business operated under a separately
incorporated entity known as IIS Systems, Inc., and certain domain names
specified in the Asset Purchase Agreement) (the "Business Assets") from IIS;
B. Pursuant to the Asset Purchase Agreement, the Executive, as one of
the Majority Shareholders, received a substantial portion of the purchase price
paid by the Company pursuant to the Asset Purchase Agreement;
C. Following the closing of the transactions contemplated by the
Asset Purchase Agreement, substantially all of the Business Assets have been
purchased by Iconixx through the Company;
D. The Company and Iconixx recognize that the Executive's services
have contributed to the goodwill inherent in the Business, which goodwill
constitutes a substantial asset of the Business Assets purchased by the Company;
E. The Company and Iconixx have required the Executive to enter into
this Agreement as a condition precedent to the purchase of the Business Assets
pursuant to the Asset Purchase Agreement;
F. As an employee of the Company, the Executive will be given access
to or come into contact with certain proprietary and/or confidential information
of the Company and Iconixx; and
G. The Company and the Executive desire to enter into this Agreement
to provide for the terms and conditions of the Executive's employment with the
Company.
Agreement:
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NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
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following meanings.
(a) "Board" means the Company's board of directors.
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(b) "Business" means the business of providing information technology
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consulting services, web design and graphic printing design services in the
United States of America.
(c) "Business Day" means any day other than a Saturday or Sunday or a
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day on which commercial banks are required or authorized to close in Bethesda,
MD.
(d) "Cause" means: (i) a material breach of this Agreement by the
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Executive that is not corrected within ten (10) days after notice thereof; (ii)
the conviction by the Executive of a felony, a crime involving theft, dishonesty
or moral turpitude, or any other act or omission which, in the reasonable
determination of the Board, is likely to cause material harm to the standing and
reputation of the Company or Iconixx; (iii) the Executive's substantial and
repeated failure to report to work, other than by reason of death or Permanent
Disability; (iv) the Executive's willful failure or gross negligence in the
performance of his assigned duties for the Company, which failure continues for
more than ten (10) or more days following the Executive's receipt of written
notice specifying the manner in which the Executive is in default of his duties;
(v) the Executive's failure to comply with or failure to perform the reasonable
directives of the Board or any statutory or common law duty of loyalty to the
Company or Iconixx that is not corrected within ten (10) days after notice
thereof; or (vi) any material misrepresentation or material non-disclosure by
the Executive to the Board in connection with the performance of Executive's
duties after the date hereof. For purposes hereof, whether or not the Executive
has committed an act or omission of the type referred to in subparagraphs (i)
through (vi) above will be determined by the Board in its reasonable discretion,
based upon the facts known to the Board at the relevant time.
(e) "Change in Control" has occurred when: (i) any "Person" (as
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defined in Section 3(a)(9) of Exchange Act, as modified and used in Sections
13(b) and 14(b) of the Exchange Act, other than ▇▇▇▇▇▇), is or becomes the
"Beneficial Owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of Iconixx or the Company representing more than
fifty percent (50%) of the combined voting power of the Company's or Iconixx's
then outstanding voting securities; (ii) the stockholders of Iconixx approve a
merger or consolidation of Iconixx with any other corporation, other than a
merger or consolidation which would result in the voting securities of Iconixx
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or parent company) fifty percent (50%) or more of the
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combined voting power of the voting securities of Iconixx or such surviving or
parent entity immediately after such merger or consolidation; or (iii) the
stockholders of Iconixx approve a plan of complete liquidation of Iconixx or an
agreement for the sale or disposition by Iconixx of all or substantially all of
Iconixx's assets (or any transaction having a similar effect) other than such a
sale or disposition to ▇▇▇▇▇▇ or its Affiliates.
(f) "Companies" means, collectively, Iconixx, the Company and their
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Subsidiaries.
(g) "Confidential Information" shall have the meaning assigned to such
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term in the Asset Purchase Agreement.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
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amended from time to time.
(i) "Good Reason" means (i) any material and permanent reduction in
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the Executive's title, position or responsibilities such that the Executive is
no longer an executive or manager of the Company or its successor, or (ii) the
relocation of the Executive's office at which he is to perform his duties to a
location more than thirty (30) miles from Bethesda, Maryland, except for
required travel on Iconixx's or the Company's business to an extent reasonably
consistent with his business travel obligations prior to the acquisition of IIS
by Iconixx, through the Company.
(j) "Permanent Disability" means the Executive is unable to perform,
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by reason of physical or mental incapacity, his then duties or obligations to
the Company, for a period of ninety (90) consecutive days or a total period of
one hundred and eighty (180) days in any three hundred and sixty (360) day
period.
(k) "Person" means an individual, a partnership, a corporation, a
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limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or any other entity, including a
governmental entity or any department, agency or political subdivision thereof.
(l) "Securities Act" means the Securities Act of 1933, as amended from
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time to time.
(m) "Subsidiary" means, with respect to any Person, any Person of
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which: (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof, is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof; or (ii) if a partnership,
association or other business entity, a majority of the partnership, membership
or other similar ownership interests thereof, is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof.
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For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in another Person if such Person or Persons (x) shall be
allocated a majority of the gains or losses of such Person, or (y) shall be, or
shall control, the managing director or a general partner of such other Person.
(n) "▇▇▇▇▇▇" means ▇▇▇▇▇▇ Equity Investors IV, L.P., a Delaware
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limited partnership.
2. Employment. The Company agrees to employ the Executive, and the
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Executive hereby accepts employment with the Company, on a full-time basis
consistent with the Executive's position and duties, upon the terms and
conditions set forth in this Agreement, and for the period beginning on the date
hereof and ending as provided in Section 2(c) (the "Employment Period").
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(a) Position and Duties.
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(i) During the Employment Period, the Executive shall serve as
Vice President - Chief Business Strategy Officer, have the duties,
responsibilities and authority that are designated by the Board and the Chairman
(or his successor), and be subject to the direction and supervision of the Board
and the Chairman (or his successor).
(ii) The Executive shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs
of the Companies. The Executive shall perform his duties and responsibilities to
the best of his abilities in a diligent, trustworthy, businesslike and efficient
manner.
(b) Salary and Benefits.
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(i) During the Employment Period, the Executive's base salary
shall be $175,000 per year (such annual salary, as it may be adjusted upward by
the Board in its discretion, the "Base Salary"). The Base Salary shall be
payable in regular installments in accordance with the Company's general payroll
practices, shall be subject to customary withholding, and may be increased (but
not decreased) at the discretion of the Board.
(ii) In addition to the Base Salary, Executive will be eligible
for and shall be eligible to receive an annual cash incentive bonus payment for
each fiscal year of up to 120% of the Executive's Base Salary (each, a
"Performance Bonus"), commencing with the fiscal year ending December 31, 2000
(such Performance Bonus to be prorated for such year based on the number of days
elapsed in such year from the date hereof until December 31, 2000) in an amount
to be determined by the Board in its sole discretion.
(iii) The Company will reimburse the Executive for all reasonable
travel and other expenses incurred by the Executive in connection with the
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performance of his duties and obligations under this Agreement. The Executive
shall comply with such reasonable limitations and reporting requirements with
respect to expenses as may be established by the Company from time to time.
(iv) In addition, the Executive will be entitled to participate in
all compensation or employee benefit plans or programs and receive all benefits
and perquisites for which salaried employees or senior executives of the Company
generally are eligible under any plan or program now or established later by the
Company, on the same basis as similarly situated salaried employees or senior
executives of the Company. The Executive will participate to the extent
permissible under the terms and provisions of such plans or programs, in
accordance with plan or program provisions. Nothing in this Agreement will
preclude the Company from amending or terminating any of the plans or programs
applicable to salaried employees or senior executives as long as (A) such
amendment or termination is applicable to all salaried employees or senior
executives and (B) such plans or programs are replaced with plans or programs no
less favorable, in the aggregate, than existing plans or programs.
(c) Term. The Employment Period shall initially extend until March
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23, 2003 and shall be extended for additional one-year periods ending on each
anniversary date of March 23, 2003 unless (A) either the Company or the
Executive gives the other 60-day prior written notice of its or his intention
not to further extend the term of the Executive's employment or (B) the
Executive's employment terminates prior to such date as a result of either the
Executive's death or Permanent Disability or upon resolution of the Board, with
or without Cause.
(d) Severance. If the Executive's employment with the Company is
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terminated by the Company without Cause, the Executive shall be entitled to
receive: (A) an amount equal to the greater of (1) the Executive's Base Salary
from the date of termination until the expiration of the first anniversary of
the date hereof, or (2) the Executive's salary for a nine (9) month period
following the date of such termination; and (B) for the nine (9) month period
following the date of such termination, all health care benefits to which he was
previously entitled (the "Severance Payments"). The salary portion of the
Severance Payments payable pursuant to this Section 2(d) shall be payable, as
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determined by the Board in its sole discretion, either in one lump sum payment
within thirty (30) days of the date of such termination or in regular
installments in accordance with the Company's regular payroll practices and
subject to customary withholding. The Executive hereby agrees that no Severance
Payments shall be payable in the event of termination for Cause or by
resignation, death or Permanent Disability and the Executive hereby waives any
claim for severance compensation except as set forth in this Section 2(d). The
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Executive shall give at least sixty (60) days notice of any resignation without
Good Reason of his employment with the Company.
(e) Termination or Reduction of Severance. If the Executive breaches
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any of the provisions of Section 5 or Section 6 hereof and if the Executive
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fails to cure such breach, in all material respects, within either (i) 15 days
after the Company has given to the Executive notice of such breach or (ii) a
reasonable period thereafter (not to exceed 45 days of
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notice) as long as the Executive commences good faith efforts to cure such
breach within the 15 day period and continues those efforts thereafter until
such breach is cured within the 45 day period, the Company shall no longer be
obligated to make any Severance Payments pursuant to Section 2(d) above.
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3. Representations and Warranties of the Executive.
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(a) The Executive hereby represents and warrants to the Company
that he:
(i) has not been convicted within the last five (5) years of (A)
any felony or misdemeanor in connection with the offer, purchase, or sale of any
security; or (B) any felony involving fraud or deceit (including, without
limitation, forgery, embezzlement, obtaining money under false pretenses,
larceny, or conspiracy to defraud);
(ii) is not currently subject to (A) any state administrative
enforcement order or judgment entered by a state securities administrator within
the last five (5) years or (B) any state's administrative enforcement order or
judgment, in which fraud or deceit (including, without limitation, making untrue
statements of material facts or omitting to state material facts) was found,
that was entered within the last five (5) years; and
(iii) is a citizen of the United States of America and resident
of the State of Maryland.
(b) This Agreement constitutes the legal, valid and binding
obligations of the Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by the Executive does not
and will not conflict with, violate or cause a breach of any agreement, contract
or instrument to which the Executive is a party or any judgment, order or decree
to which the Executive is subject.
4. Representations and Warranties of the Company. The Company
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hereby represents and warrants to the Executive that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Company has all
requisite corporate power and authority to carry out the transactions
contemplated by this Agreement.
(b) The execution, delivery and performance of this Agreement has been
duly authorized by the Company. This Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms. The
execution and delivery by the Company of this Agreement, and the fulfillment of
and compliance with the respective terms hereof by the Company, do not and shall
not: (A) conflict with or result in a breach of the terms, conditions or
provisions of, (B) constitute a default under, (C) result in the creation of any
lien, security interest, charge or encumbrance upon the Company's capital stock
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or assets pursuant to, (D) give any third party the right to modify, terminate
or accelerate any obligation under, (E) result in a violation of, or (F) require
any authorization, consent, approval, exemption or other action by or notice to
any court or administrative or governmental body pursuant to, the charter or
bylaws of the Company, any law, statute, rule or regulation to which the Company
is subject, or any agreement, instrument, order, judgment or decree to which the
Company is subject.
5. Confidentiality and Ownership.
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(a) Confidential Information. The Executive agrees that, except to
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the extent required by applicable law, statute, ordinance, rule, regulation or
orders of courts or regulatory authorities, he shall not disclose to any
unauthorized person or use for his own account any Confidential Information
without the prior written consent of the Board, unless and to the extent that
the aforementioned matters become generally known to and available for use by
the public other than as a result of the Executive's acts or omissions to act.
The Executive shall deliver to the Company at the termination of such
Executive's employment, or at any other time the Board may request, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and all copies thereof) relating to the Confidential
Information, Work Product (as defined below) and the Business of the Companies
which he may then possess or have under his control.
(b) Inventions and Patents. The Executive agrees that all inventions,
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innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information (whether or not patentable) that
relate to the Companies' actual or firmly planned business, research and
development or existing or future products or services and that are conceived,
developed, or made by the Executive while employed by the Company ("Work
Product") belong to the Companies. The Executive will promptly disclose such
Work Product to the Board and perform all actions reasonably requested by the
Board (whether during or after the Executive's employment period) to establish
and confirm such ownership (including, without limitation, executing
assignments, consents, powers of attorney and other instruments).
6. Non-compete, Non-solicitation.
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(a) The Executive acknowledges that, in the course of his employment
with the Company, he has become familiar and/or will become familiar with the
Company's trade secrets and with other Confidential Information and that his
services have been and will be of special, unique and extraordinary value to the
Company, and that the Company's ability to accomplish its purposes and to
successfully pursue its business plan and compete in the marketplace depend
substantially upon the skills and expertise of the Executive. Therefore, and in
further consideration of the compensation being paid to the Executive, the
Executive agrees that he shall not, during the time period ending on the later
of (i) the third anniversary of the date hereof or (ii) twelve (12) months after
the Termination of the Executive's employment hereunder (the "Covenant Period"),
directly or indirectly, own, operate, manage, control, participate in,
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consult with, advise, or engage in services for any Person engaged in the
Business in competition with the Business or in any manner engage in any start
up of a business (including by himself or in association with any person, firm,
corporation or other business organization or through any other entity) in
competition with the Business as in existence on the date of Termination of the
Executive's employment or the Business that will be engaged in by the Companies
within three (3) months after the date of such Termination pursuant to firm
plans of the Companies in effect as of the date of Termination, within the
United States, Canada & Mexico. Nothing herein shall prohibit the Executive from
being: (i) a passive owner of not more than five percent (5%) of the outstanding
stock or equity of a Person which is publicly traded, so long as the Executive
has no active participation in the business of such Person; and (ii) a
shareholder of ▇▇▇▇▇.▇▇▇, LLC and IIS Systems, Inc., so long as such ownership
interest in ▇▇▇▇▇.▇▇▇, LLC and IIS Systems, Inc. does not require, in the
aggregate, greater than six hours per month of the Executive's non-business
time.
(b) During the Covenant Period, the Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of or independent contractor to the Company or, to the extent known by the
Executive, the other Companies, to leave the employ of or breach contracts with
the Companies, or in any way deliberately interfere with the relationship
between the Companies and any employee thereof (including, without limitation,
inducing or attempting to induce any union, employee or group of employees to
interfere with the Business or operations of any of the Companies), (ii) hire
any person who was an employee of the Company or any executive officer of any of
the Companies at any time within the six (6) month period prior to the date the
Executive employs or seeks to employ such person, or (iii) induce or attempt to
induce any customer, supplier, distributor, franchisee, licensee or other
business relation of the Company or, to the extent known by the Executive, the
other Companies, to cease doing business with any of the Companies, or in any
way deliberately interfere with the relationship between any such customer,
supplier, distributor, franchisee, licensee or business relation and the
Companies.
(c) The Executive agrees that: (i) the covenants set forth in this
Section 6 are reasonable in geographical and temporal scope and in all other
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respects; (ii) the Company would not have entered into this Agreement but for
the covenants of the Executive contained herein; and (iii) the covenants
contained herein have been made in order to induce the Company to enter into
this Agreement.
(d) If, at the time of enforcement of this Section 6, a court shall
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hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law.
(e) Available Remedies. The Executive recognizes and affirms that in
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the event of his material breach of any provision of this Section 6, money
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damages would be
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inadequate and the Company would have no adequate remedy at law. Accordingly,
the Executive agrees that in the event of a breach or a threatened breach by the
Executive of any of the provisions of this Section 6, the Company, in addition
to other rights and remedies existing in its favor, may apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce or prevent any violations of the
provisions hereof (without posting a bond or other security therefor).
7. Liquidated Damages and Pledge of Collateral.
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(a) The Executive, as an employee of the Company, understands that:
(i) the Executive's services have contributed to the goodwill inherent in the
Company's business, which goodwill constitutes a substantial asset of the
Company purchased by the Company; and (ii) the Executive's continued employment
with the Company following the Closing Date is of vital importance to the
Company. In consideration for the purchase price paid to the Executive pursuant
to the Asset Purchase Agreement and the salary to be paid to the Executive
pursuant to this Agreement, the Executive agrees that, subject to the provisions
of Section 7(b) below, in the event that either (i) the Executive is terminated
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by the Company for Cause or (ii) the Executive resigns for any reason other
those set forth in Section 7(d) below, then the Executive shall be required to
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pay to the Company upon the earlier of (A) the receipt of notice of such
termination or (B) the date of the Executive's actual termination (such date,
the "Termination Date"), the amount determined in accordance with the following
schedule as liquidated damages (the "Damages"):
Occurrence of Termination Date Damages Amount
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On or prior to the first anniversary $300,000
of the date hereof
After the first anniversary and on $200,000
or prior to the second anniversary of
the date hereof
After the second anniversary and on or $100,000
prior to the third anniversary of the
date hereof;
(b) The Executive and the Company agree that the Company's first
recourse for non-payment of any Damages payable by the Executive pursuant to the
provisions set forth above shall be to the "Collateral" (as defined below). The
Company and the Executive further agree that the value of the Collateral to be
surrendered in payment of any Damages shall be determined according to the
"Collateral Valuation" procedure set forth in the Pledge Agreement (as defined
in Section 7(e), below).
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(c) The Executive and the Company agree that it is impossible to
determine with any reasonable accuracy the amount of prospective damages to the
Company
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upon breach of this Agreement by the Executive. The Executive and the Company
further agree that the damages set forth above are reasonable, and not a
penalty, based upon the facts and circumstances of the parties at the time of
entering this Agreement, and with due regard to future expectations.
(d) The Executive and the Company agree that if either (i) the
Executive's employment hereunder is terminated by the Company without Cause or
due to the death or Permanent Disability of the Executive (as determined by the
Board in good faith); or (ii) the Executive resigns within thirty (30) days
following either (A) a Change in Control, or (B) an event constituting Good
Reason, then the Executive shall not be required to pay any Damages and shall be
entitled to the return and release of all "Collateral" (as defined below).
(e) As collateral for the Executive's obligations under this
Agreement, the Executive agrees to enter into that certain Pledge Agreement
attached hereto as Exhibit A (the "Pledge Agreement") in which Executive agrees
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to pledge to the Company the Pledged Securities (as defined in the Pledge
Agreement) attached to the Pledge Agreement. The Pledged Securities and/or the
proceeds received after the sale of such Pledged Securities in accordance with
the Pledge Agreement and such other collateral as is allowed under the Pledge
Agreement (collectively, the "Collateral") shall be in an aggregate value at the
Closing Date equal to the sum of $300,000, subject to adjustment as set forth in
the Pledge Agreement. If the Executive does not pay the Damages payable in
accordance with the schedule set forth in Section 7(a), above within thirty (30)
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days following the date of termination of the Executive's employment with the
Company, the Company shall have the right to take legal possession and ownership
of an appropriate portion of the Collateral (as determined in the Pledge
Agreement), in addition to pursuing any and all other legal remedies that it may
have concerning the Damages.
(f) As discussed in the Pledge Agreement, if the Executive shall not
be required to pay any Damages, the Executive shall be entitled to the prompt
return and release of all Collateral.
8. Notices. All notices, demands or other communications to be given or
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delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
sent via a nationally recognized overnight courier, or sent via facsimile to the
recipient with a confirmation of receipt and accompanied by a certified or
registered mailing. Such notices, demands and other communications will be sent
to the address indicated below:
If to the Company or Iconixx:
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Iconixx Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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with copies (which shall not constitute notice) to:
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▇▇▇▇▇▇ Capital Partners, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with copies (which shall not constitute notice) to:
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▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Executive:
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Iconixx Web Development, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice) to:
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Simon, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
9. Miscellaneous.
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(a) Severability. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision of this Agreement or the validity, legality or
enforceability of the Agreement in any other jurisdiction. In such event, this
Agreement will be
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reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) Complete Agreement. This Agreement and the agreements referred to
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herein embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof.
(c) Waiver of Jury Trial. The parties to this Agreement each hereby
--------------------
waives, to the fullest extent permitted by law, any right to trial by jury of
any claim, demand, action, or cause of action: (i) arising under this Agreement;
or (ii) in any way connected with or related or incidental to the dealings of
the parties hereto in respect of this Agreement or any of the transactions
related hereto, in each case whether now existing or hereafter arising, and
whether in contract, tort, equity, or otherwise. The parties to this Agreement
each hereby agrees and consents that any such claim, demand, action, or cause of
action shall be decided by court trial without a jury and that the parties to
this Agreement may file an original counterpart of a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
(d) Counterparts; Facsimile Transmission. This Agreement may be
------------------------------------
executed simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts taken
together will constitute one and the same Agreement. This Agreement may also be
executed and delivered by facsimile transmission.
(e) Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by the
Executive and the Company, and their respective successors and assigns.
(f) Governing Law. All issues concerning this Agreement shall be
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governed by and construed in accordance with the laws of the State of Maryland,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Maryland or any other jurisdiction) that would cause
the application of the law of any jurisdiction other than the State of Maryland.
(g) Remedies. Each of the parties to this Agreement will be entitled
--------
to enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys' fees) caused by any breach of any
provision of this Agreement, and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may, in its sole discretion, apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or injunctive or other relief to enforce or prevent any
violations of the provisions of this Agreement.
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(h) Amendment and Waiver. The provisions of this Agreement may be
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amended and waived only with the prior written consent of the Company and the
Executive.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ICONIXX WEB DEVELOPMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Secretary
THE EXECUTIVE
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇