Exhibit 10.10
EMPLOYMENT AGREEMENT
This Agreement is dated as of November 3, 1999 by and between IconixGroup,
Inc., a Maryland corporation (the "Company") and ▇▇▇ ▇. ▇▇▇▇▇▇ (the
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"Executive").
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Recitals:
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A. Empyrean Group Holdings, Inc., a Delaware corporation ("Empyrean
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Holdings"), the Company, The Invisions Group, Ltd. ("Invisions Group") and the
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stockholders of Invisions Group (the "Sellers"), have entered into a Stock
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Purchase Agreement dated as of October 29, 1999 (the "Stock Purchase Agreement")
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providing for the purchase of all of the outstanding shares of the capital stock
of Invisions Group from Sellers;
B. Pursuant to the Stock Purchase Agreement, the Executive received a
substantial portion of the purchase price paid by Empyrean Holdings pursuant to
the Stock Purchase Agreement;
C. The Company is a wholly-owned subsidiary of Invisions Group;
D. Following the closing of the transactions contemplated by the Stock
Purchase Agreement, substantially all of the shares of Invisions Group have been
purchased by Empyrean Holdings;
E. The Company and Empyrean Holdings recognize that 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 Empyrean
Holdings;
F. The Company and Empyrean Holdings have required Executive to enter into
this Agreement as a condition precedent to the purchase of the Sellers' stock by
Empyrean Holdings pursuant to the Stock Purchase Agreement;
G. As an employee of the Company, Executive will be given access to or come
into contact with certain proprietary and/or confidential information of the
Company and Empyrean Holdings; and
H. 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.
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.
"Board" means the Company's board of directors.
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"Business" means the business of providing information technology
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consulting services, web-site design and graphic and printing design services in
the United States of America.
"Business Day" means any day other than a Saturday or Sunday or a day on
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which commercial banks are required or authorized to close in Bethesda,
Maryland.
"Cause" means (i) a material breach of this Agreement by the Executive;
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(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 highly likely to cause material harm to
the standing and reputation of the Company or Empyrean Holdings; (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 violation
of any statutory or common law duty of loyalty to the Company or Empyrean
Holdings; 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.
"Companies" means collectively Empyrean Holdings, the Company and their
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Subsidiaries.
"Confidential Information" shall have the meaning assigned to such term in
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the Stock Purchase Agreement.
"Good Reason" means (i) any material and permanent reduction in Executive's
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title, position or responsibilities such that Executive is no longer an
executive or manager of the Company or its successor or (ii) the relocation of
Executive's office at which he is to perform his duties to a location more than
30 miles from Bethesda, Maryland, except for required travel on Empyrean
Holdings' or the Company's business to an extent reasonably consistent with his
business travel obligations prior to the acquisition of the Company by Empyrean
Holdings.
"Permanent Disability" means the Executive is unable to perform, by reason
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of physical or mental incapacity, his then duties or obligations to the Company,
for a period of 90 consecutive days or a total period of 180 days in any 360-day
period.
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"Person" means an individual, a partnership, a corporation, a limited
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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.
"Securities Act" means the Securities Act of 1933, as amended from time to
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time.
"Subsidiary" means, with respect to any Person, any Person of which (i) if
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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. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in another Person if such Person or Persons
shall be allocated a majority of the gains or losses of or shall be or control
the managing director or a general partner of such other Person.
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 for the period beginning on the date
hereof and ending as provided in Section 2(c) (the "Employment Period").
(a) Position and Duties.
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(i) During the Employment Period, the Executive shall serve as
President of the Company and Executive shall have the duties, responsibilities
and authority that are designated by the Board and the Company's Chairman,
subject to the direction and supervision of the Company's Chairman and the
Company's Board. Notwithstanding the foregoing, it is agreed and understood that
Executive's primary responsibility shall be to the business of the Company with
the Executive spending such amount of time devoted to the business of Empyrean
Holdings as is mutually agreed on from time to time by the Executive and the
Company.
(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, provided, however, that Executive shall be able to serve as a
director of TravelGuide Software, Inc. so long as it does not unreasonably
interfere with his duties hereunder. The Executive shall perform his duties and
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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, Executive's base salary shall be
$180,000 per year (such annual salary, as it may be adjusted upward by the Board
in its discretion, being referred to as the "Base Salary"). The Base Salary
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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 $75,000 (each, a "Performance Bonus"), commencing with the
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fiscal year ending December 31, 1999 (prorated for such year based on the number
of days elapsed in such year from the date hereof until December 31, 1999) in an
amount to be determined by the Company's Board. Beginning with Empyrean
Holdings' fiscal year ending December 31, 2000, the aggregate amount of the
Performance Bonus shall be in an amount, as determined by the Company's Board,
not to exceed 120% of Executive's then current Base Salary.
(iii) The Company will reimburse Executive for all reasonable travel
and other expenses incurred by Executive in connection with the performance of
his duties and obligations under this Agreement. 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, 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 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 senior executives of the Companies. Executive will
participate to the extent permissible under the terms and provisions of such
plans or programs, in accordance with 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 such amendment or termination is applicable to all salaried employees or
senior executives, as the case may be, so long as such plans or programs are
replaced with plans no less favorable, in the aggregate, than existing plans.
(c) Term. The Employment Period shall initially extend until October 31,
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2002 but shall be extended for an additional one-year period on each anniversary
date of the date hereof after October 31, 2002 unless either the Company or
Executive gives the other 60 days prior written notice of its or his intention
not to further extend the term of Executive's
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employment; provided that Executive's employment shall terminate prior to such
date (x) upon Executive's death or Permanent Disability or (y) upon resolution
of the Board, with or without Cause.
(d) Severance. If Executive's employment with the Company is terminated
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by the Company without Cause or if Executive terminates his employment with the
Company for Good Reason, the Executive shall be entitled to (i) receive an
amount equal to the greater of (a) Executive's Base Salary from the date of
termination until the expiration of the first anniversary of the date hereof or
(b) Executive's Base Salary for twelve (12) months following the date of such
termination and (ii) for the 12-month period following the date of such
termination, all health care benefits to which he was previously entitled. All
amounts payable to Executive pursuant to this provision shall be payable, as
determined by the Board in its discretion, either in one lump sum payment within
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 compensation shall be
payable in the event of termination for Cause or by resignation other than for
Good Reason, death or Permanent Disability and the Executive hereby waives any
claim for severance compensation except as set forth in this Section 2(d).
(e) Termination or Reduction of Severance. If Executive breaches any of
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the provisions of Section 5 or Section 6 hereof and if Executive fails to cure
such breach, in all material respects, within 15 days after the Company has
given to Executive notice of such breach, the Company shall no longer be
obligated to make any payments pursuant to Section 2(d) above.
3. Representations and Warranties of the Executive.
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(i) The Executive:
(1) has not been convicted within the last five years of any
felony or misdemeanor in connection with the offer, purchase, or sale of any
security or any felony involving fraud or deceit, including, but not limited to,
forgery, embezzlement, obtaining money under false pretenses, larceny, or
conspiracy to defraud;
(2) is not currently subject to any state administrative
enforcement order or judgment entered by a state securities administrator within
the last five years or is subject to any state's administrative enforcement
order or judgment in which fraud or deceit, including, but not limited to,
making untrue statements of material facts and omitting to state material facts,
was found and the order or judgment was entered within the last five years; and
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(3) is a citizen of the United States of America and resident of
the State of Maryland.
(ii) 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 hereby
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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 Maryland. 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 (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the creation of
any lien, security interest, charge or encumbrance upon the Company's capital
stock or assets pursuant to, (iv) give any third party the right to modify,
terminate or accelerate any obligation under, (v) result in a violation of, or
(vi) 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, or 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) Information. The Executive agrees that, except to the extent
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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 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.
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(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 which relates to the Companies'
actual or firmly planned business, research and development or existing or
future products or services and which are conceived, developed or made by the
Executive prior to the date hereof while employed by the Company ("Work
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Product") belong to the Companies. The Executive will promptly disclose such
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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, 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 he 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. Therefore, the Executive agrees that he shall not, during the time
period ending on the later of (i) the fourth anniversary of the date hereof or
(ii) 12 months after the Termination of Executive's employment hereunder (the
"Covenant Period"), directly or indirectly own, operate, manage, control,
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participate in, 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, corporate 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 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 (i) being a passive owner of not more than 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 or (ii) serving as a
director or stockholder of TravelGuide Software, Inc., so long as the Executive
has no active participation in the business of such Person.
(b) During the Covenant Period, the Executive shall not directly or
indirectly through another entity (i) directly 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 month period prior to the date the
Executive employs or seeks to employ such
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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
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 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 period, scope and area
permitted by law.
(e) The Executive recognizes and affirms that in the event of his
material breach of any provision of this Section 6, money damages would be
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
and supplementary 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).
7. Liquidated Damages and Pledge of Collateral.
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(a) Executive, as an employee of the Company, understands that (i)
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 Empyrean Holdings and (ii) 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 Executive pursuant to the Stock
Purchase Agreement, Executive agrees that, subject to the provisions of Sections
7(b) and 7(f) below, in the event that either Executive is terminated by the
Company for Cause or Executive resigns without Good Reason, then Executive shall
be required to pay to the Company upon the date of Executive's actual
termination (such date referred to as the "Termination Date"), the amount
determined in accordance with the following schedule as liquidated damages (the
"Damages"):
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Occurrence of Termination Date Damages Amount
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On or prior to the first anniversary $350,000.00
of the date hereof
After the first anniversary and on $250,000.00
or prior to the second anniversary of
the date hereof
After the second anniversary and on or $150,000.00
prior to October 31, 2002;
provided, however the termination of this Agreement due to the
death or the Permanent Disability of the Executive (as
determined by the Board in its good faith judgment) shall not
be deemed to be a resignation by Executive.
(b) The Company and the Executive 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 in
paragraph (e) 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 based on the "Collateral Valuation" determination provided in the
Pledge Agreement (as defined in paragraph (e) below).
(c) Executive and the Company agree that it is impossible to
determine with any reasonable accuracy the amount of prospective damages to
either party upon breach of this Agreement by the other. 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) If the Executive's employment hereunder is terminated by
the Company without Cause or is terminated due to the death or Permanent
Disability of the Executive, 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 Executive's obligations under this
Agreement, Executive agrees to enter into that certain Pledge Agreement attached
hereto as Exhibit A (the "Pledge Agreement") in which Executive agrees to pledge
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to the Company the Pledged Shares (as defined in the Pledge Agreement) attached
to the Pledge Agreement; provided, however, that the Pledged Shares and/or the
proceeds received after the sale of such Pledged Shares in accordance with the
Pledge Agreement and such other collateral as allowed under the Pledge Agreement
(collectively, the "Collateral") shall be in an aggregate value at the Closing
Date equal to the Damages. In the event that the Executive does not pay the
Damages payable as determined in accordance with the schedule set forth in
Section 7(a) above within 30 days following the
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Termination Date, the Company shall have the right to take legal possession and
ownership of an equivalent portion of the Collateral (as determined in the
Pledge Agreement).
(f) In the event the Executive resigns within 30 days following either (i)
a Change in Control (defined below) or (ii) an event constituting Good Reason,
the Executive shall not be required to pay any Damages and shall be entitled to
the prompt return and release of all Collateral.
(i) "Change of Control" as used herein shall be deemed to have
occurred if:
(A) Any "Person" (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934 ("Exchange Act") as modified
and used in Sections 13(b) and 14(b) of the Exchange Act)
other than ▇▇▇▇▇▇ ITech Holdings, L.L.C. ("▇▇▇▇▇▇")), is or
becomes the "Beneficial Owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities of Empyrean Holdings or the Company representing
more than 50% of the combined voting power of Empyrean
Holdings' or the Company's then outstanding voting
securities;
(B) The stockholders of Empyrean Holdings or the Company approve
a merger or consolidation of Empyrean Holdings or the
Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of
Empyrean Holdings or the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving or parent company) 50% or more of the combined
voting power of the voting securities of Empyrean Holdings,
the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation; or
(C) The stockholders of Empyrean Holdings or the Company approve
a plan of complete liquidation of Empyrean Holdings or the
Company or an agreement for the sale or disposition by
Empyrean Holdings or the Company of all or substantially all
of Empyrean Holdings' or the Company's assets (or any
transaction having a similar
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effect) other than such a sale or disposition to ▇▇▇▇▇▇ or
its Affiliates.
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,
or 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:
To the Company:
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c/o Empyrean Group Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO
with copies (which shall not constitute notice) to:
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▇▇▇▇▇▇ Capital Partners
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with copies (which shall not constitute notice) to:
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▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
To the Executive:
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c/o IconixGroup, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
with copies to:
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▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇.: (▇▇▇) ▇▇▇-▇▇▇▇
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 or any other jurisdiction, but this Agreement will be
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
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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
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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
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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
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Agreement shall bind and inure to the benefit of and be enforceable by the
Executive, 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
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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 in order to enforce or prevent any
violations of the provisions of this Agreement.
(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.
ICONIXGROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
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Its: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇