EXHIBIT 10.26
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated August 6, 1998, by and
between LogiMetrics, Inc. (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the
"Executive"), residing at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Company wishes to continue to employ the Executive as the
Chief Executive Officer of the Company and the Executive desires to continue
such employment, all as more fully set forth herein; and
WHEREAS, the Executive and the Company are currently parties to a
consulting agreement, dated March 4, 1998 (the "Consulting Agreement"), pursuant
to which the Executive provides the Company with Consulting Services (as defined
in the Consulting Agreement);
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
Section 1. Term of Employment; Position and Duties.
(a) Effective as of August 6, 1998 (the "Commencement Date"), the
Executive shall continue to serve as the Chief Executive Officer of the Company
and shall have such powers and duties as are commensurate with such position and
as may be conferred upon him from time to time by the Board of Directors of the
Company (the "Board"). Except as specifically set forth in this Section 1(a),
the terms of the Executive's employment shall, for the period commencing on the
Effective Date and continuing until the date upon which a Qualifying Offering
(as defined in Section 1(e)(i) below) is consummated (the "Initial Period"), be
governed by the Consulting Agreement. For all services rendered by the Executive
in any capacity required hereunder during the Initial Period, including, without
limitation, services as an executive officer, director, or member of any
committee of the Company or any subsidiary, affiliate or division thereof, the
Executive shall be compensated at a rate of $12,000 per month. Notwithstanding
anything set forth in this Agreement to the contrary, if the Company does not
consummate a Qualifying Offering on or before January 31, 1999, then the
Executive shall no longer be required to provide services hereunder and this
Agreement shall terminate; provided, however, that the Executive and the Company
may agree in writing to extend the Initial Period for additional monthly terms,
which shall be terminable by either party on not less than 30 days prior written
notice. Except as otherwise set forth herein, all terms and conditions of the
Consulting Agreement shall remain in full force and effect.
(b) Effective as of the date upon which a Qualifying Offering is
consummated and continuing (subject to earlier termination pursuant to Section
4) until the third anniversary of the Commencement Date (the "Employment
Period"), and except for illness or incapacity and reasonable vacation periods
consistent with Section 2 below, the Executive shall devote all of his business
time, attention, skill and efforts exclusively to the business and affairs of
the Company and its subsidiaries and affiliates; provided, however, that the
Executive may engage in charitable, educational, religious, civic and similar
types of activities (all of which shall be deemed to benefit the Company),
speaking engagements, membership on the board of directors of other
organizations (to the extent approved in advance by the Board), and similar
activities to the extent that such activities do not inhibit or prohibit the
performance of his duties hereunder or inhibit or conflict with the business of
the Company, its subsidiaries and affiliates.
(c) During the Term (as defined in Section 1(e)(ii) below), the
Executive shall be permitted to provide the services required hereunder from his
office in North Carolina; provided, however, that at the request of the Board,
the Executive shall travel to the Company's headquarters (or such other location
specified by the Board) to attend meetings of the Board (or committees thereof),
shareholders' meetings or other meetings or events on behalf of the Company.
(d) The Executive hereby represents and warrants that (i) he has the
legal capacity to execute and perform this Agreement, (ii) this Agreement is a
valid and binding obligation of the Executive enforceable against him in
accordance with its terms, (iii) the Executive's service hereunder will not
conflict with, or result in a breach of, any agreement, understanding, order,
judgment or other obligation to which the Executive is presently a party or by
which he may be bound, and (iv) the Executive is not subject to, or bound by,
any covenant against competition, confidentiality obligation or any other
agreement, order, judgment or other obligation which would conflict with,
restrict or limit the performance of the services to be provided by him
hereunder. The Executive knows of no reason why he would not be insurable at
regular rates.
(e) For purposes of this Agreement, the following terms shall have the
meanings set forth below:
(i) "Qualifying Offering" means a private or public sale of the
securities of the Company which results in net proceeds to the Company of at
least $10,000,000 (prior to the payment of costs and expenses incurred in
connection therewith).
(ii) "Term" means the Initial Period and the Employment Period,
collectively.
Section 2. Compensation. For all services rendered by the Executive in
any capacity required hereunder during the Employment Period, including, without
limitation, services as an executive officer, director, or member of any
committee of the Company or any subsidiary, affiliate or division thereof, the
Executive shall be compensated as follows:
(a) The Company shall pay the Executive a fixed salary at the rate of
$250,000 per annum or such higher annual amount as is being paid from time to
time pursuant to the terms hereof ("Base Salary"). The Base Salary shall be
subject to such periodic review and such periodic increases as the Board shall
deem appropriate in accordance with the Company's customary procedures and
practices. Base Salary shall be payable in accordance with the customary payroll
practices of the Company, but in no event less frequently than bi-weekly.
(b) Within ten days of the date of the commencement of the Employment
Period, the Company shall pay to the Executive a one-time cash bonus equal to
the sum of (i) $50,000 and (ii) the product obtained by multiplying (x)
$8,333.33 by (y) the number of whole months in the Initial Period (the "Bonus").
(c) Effective as of the date of the commencement of the Employment
Period, the Company shall grant to the Executive a non-qualified option (the
"Option") to purchase 3,000,000 shares of common stock, $.01 par value per share
(the "Common Stock"), of the Company at an exercise price of $0.60 per share.
The Option shall be immediately exercisable upon grant. The number of shares
covered by the Option and the per share exercise price shall be subject to
adjustment for any increase, decrease or exchange of the number or kind of
outstanding shares of the Common Stock, including without limitation as the
result of the Company's proposed one-for-ten reverse stock split. As a condition
to grant of the Option, the Executive shall be required to execute a stock
option agreement prepared by the Company regarding the terms and conditions
governing such Option (the "Option Agreement").
(d) During the Employment Period, the Company shall maintain a term
insurance policy (the "Term Policy") insuring the life of the Executive in an
amount of not less than $1,000,000 at no cost to the Executive (except any
associated tax liability) with the beneficiary to be designated by the
Executive. In the event that the Executive's employment is terminated pursuant
to the terms hereof, the Company shall assign the Term Policy to the Executive
for no additional consideration and the Executive shall have the right to assume
the Company's obligations thereunder. Upon such assignment, the Company shall
have no further obligation with respect to the Term Policy.
(e) The Executive shall be entitled to four weeks of vacation in each
calendar year during the Employment Period (which shall be appropriately pro
rated for any partial year during the Employment Period); provided, however,
that the Executive shall not be entitled to carryover vacation from one year to
any other year or to any payment in respect of any unused or accrued vacation.
(f) During the Employment Period, the Company shall reimburse the
Executive for the Executive's actual out-of-pocket expenses of leasing a car of
the Executive's choice and all related maintenance, repairs, insurance and other
expenses, subject to a monthly cap of $700.
(g) During the Employment Period, the Company shall furnish the
Executive, without cost to him except any associated tax liability, with
perquisites consistent with those afforded other senior executives holding
positions with the Company comparable to the position held by Executive.
(h) During the Employment Period, the Executive shall be entitled to
participate in all compensation and employee benefit plans or programs, and to
receive all benefits, perquisites and emoluments, for which any salaried
employees of the Company are eligible under any plan or program now or hereafter
established and maintained by the Company, to the fullest extent permissible
under the general terms and provisions of such plans or programs and in
accordance with the provisions thereof. Notwithstanding the foregoing, nothing
in this Agreement shall preclude the amendment or termination of any such plan
or program; provided, that, such amendment or termination is applicable
generally to the senior officers of the Company or any subsidiary or affiliate.
Section 3. Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable travel or other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement, including, without limitation, the maintenance of an office in the
Charlotte, North Carolina area, subject to the Executive's presentation of
appropriate vouchers in accordance with such procedures as the Company may from
time to time establish for senior officers and to preserve any deductions for
federal income taxation purposes to which the Company may be entitled.
Section 4. Termination of Employment; Effects Thereof.
(a) The Company shall have the right, upon delivery of written notice
to the Executive, to terminate the Executive's employment hereunder prior to the
expiration of the Employment Period (or any subsequent term of full-time
employment) (i) pursuant to a Termination for Cause, (ii) upon the Executive's
becoming Permanent Disabled, or (iii) pursuant to a Without Cause Termination;
provided, however, that, without the Executive's written consent, no Without
Cause Termination shall be effective until 30 days after receipt by the
Executive of written notice of termination from the Company. The Executive shall
have the right, upon delivery of written notice to the Company, to terminate the
Executive's employment hereunder prior to the expiration of the Employment
Period (or any subsequent term of full-time employment) (i) pursuant to a
termination for Good Reason, (ii) following the occurrence of Change in Control
Event upon compliance with the procedures set forth in Section 4(f), or (iii) in
the Executive's sole discretion; provided, however, that, without the Company's
written consent, no termination of the Executive's employment pursuant to this
sentence shall be effective without the Company's consent until 90 days after
receipt by the Company of written notice of termination from the Executive. The
Executive's employment during the Employment Period (or any subsequent term)
shall terminate automatically without action by any party hereto upon the
Executive's death.
(b) In the event that the Company terminates the Executive's
employment during the Employment Period (or any subsequent term of full-time
employment) pursuant to a Without Cause Termination, or the Executive terminates
his employment for Good Reason, the Company shall, as liquidated damages or
severance pay, or both, continue, subject to the provisions of Section 5 below,
to pay the Executive's Base Salary as in effect at the time of such termination
for the greater of (i) the remainder of the then-current employment term, or
(ii) a period of twelve months from the effective date of such termination.
(c) In the event that the Company terminates the Executive's
employment during the Employment Period (or any subsequent term of full-time
employment) pursuant to a Permanent Disability, the Company shall continue to
pay to the Executive his then-current Base Salary for a period of twelve months
from the date of termination less any amounts payable to the Executive pursuant
to any long term disability plan of the Company then in place. No other payments
shall be made, or benefits provided, by the Company under this Agreement except
as otherwise required by law.
(d) In the event that the Company terminates the Executive's
employment hereunder during the Employment Period (or any subsequent term of
full-time employment) due to a Termination for Cause or the Executive terminates
his employment with the Company other than for Good Reason (including, without
limitation, pursuant to any retirement plan or policy then maintained by the
Company), the Company shall pay the Executive any earned but unpaid Base Salary
as of the date of termination of employment. No other payments shall be made, or
benefits provided, by the Company whether under this Agreement or otherwise
except to the extent required by law.
(e) In the event that the Executive's employment hereunder is
terminated during the Employment Period (or any subsequent term of full-time
employment) due to the Executive's death, the Company shall pay the Executive's
executor or other legal representative (the "Representative") any earned but
unpaid Base Salary as of the date of termination of employment. No other
payments shall be made, or benefits provided, by the Company under this
Agreement except as otherwise required by law.
(f) If a Change in Control Event occurs during the Employment Period
(or any subsequent term of full-time employment), the Executive shall have the
right, in his sole discretion, to elect to terminate his employment by providing
written notice of his election to the Company within 180 days after the
occurrence of such Change in Control Event. Any termination of employment by the
Executive pursuant to this Section 4(f) shall be deemed to be a termination for
Good Reason and shall have the effects set forth in Section 4(b) hereof.
(g) For purposes of this Agreement, the following terms have the
following meanings:
(i) The term "Termination for Cause" means, to the maximum extent
permitted by applicable law, a termination of the Executive's
employment by the Company because the Executive has (a) materially
breached or materially failed to perform his duties under applicable
law and such breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness, (b) committed an act of dishonesty
in the performance of his duties hereunder or engaged in conduct
materially detrimental to the business of the Company, (c) been
convicted of a felony involving moral turpitude, (d) materially
breached or materially failed to perform his obligations and duties
hereunder, which breach or failure the Executive shall fail to remedy
within 30 days after written demand from the Company, or (e) violated
in any material respect the representations made in Section 1(d) above
or the provisions of Section 5 below.
(ii) The term "Good Reason" means a termination of the
Executive's employment by the Executive due to a failure of the
Company or its successors without the prior consent of the Executive
to fulfill its obligations under this Agreement in any material
respect, including (a) any failure to elect or re-elect or to appoint
or reappoint the Executive to the office of Chief Executive Officer
(or any equivalent title with substantially similar duties), (b) in
the event that the Company requires the Executive to relocate to an
area more than 50 miles in any direction from the outer city limits of
Charlotte, North Carolina or (c) any other material change by the
Company in the functions, duties or responsibilities of the
Executive's position with the Company which would materially reduce
the ranking or level, dignity, responsibility, importance or scope of
such position.
(iii) The term "Without Cause Termination" means a termination
during the Employment Period (or any subsequent term) of the
Executive's employment by the Company other than due to (i) a
Termination for Cause, (ii) Permanent Disability, (iii) the
Executive's death, or (iv) the expiration of this Agreement.
(iv) The term "Permanent Disability" means permanently disabled
so as to qualify for full benefits under any long-term disability
policy then maintained by the Company; provided, however, that if no
such disability policy is in effect on the date of determination,
"Permanent Disability" shall mean the inability of the Executive to
perform his duties hereunder on a full-time basis for a period of six
full calendar months during any twelve consecutive calendar months due
to illness or injury of a physical or mental nature, supported by the
completion by the Executive's attending physician (or a physician
selected by the Company and reasonably satisfactory to the Executive
or his legal representative if the Executive's physician is unable or
unwilling to provide the necessary certification) of a medical
certification form outlining the disability and treatment.
(v) The term "Change in Control Event" means any of the following
events:
(A) any person, firm or corporation (other than ▇▇▇▇▇▇▇ ▇.
Brand, members of his immediate family, or any trust or other entity
established for the benefit of Mr. Brand and/or members of his
immediate family) acquires directly or indirectly the beneficial
ownership (as defined in Section 13(d) of the Securities Exchange Act
of 1934, as amended) of any voting security of the Company and,
immediately after such acquisition, the acquirer has beneficial
ownership of voting securities representing 50% or more of the total
voting power of all the then-outstanding voting securities of the
Company;
(B) The individuals who (i) as of the date of this Agreement
constitute the Board of Directors (the "Original Directors"), (ii)
thereafter are elected to the Board of Directors and whose election or
nomination for election to the Board of Directors was approved by a
vote of at least 2/3 of the Original Directors then still in office
(such Directors being called "Additional Original Directors"), or
(iii) are elected to the Board of Directors and whose election or
nomination for election to the Board of Directors was approved by a
vote of at least 2/3 of the Original Directors and Additional Original
Directors then still in office, cease for any reason to constitute a
majority of the members of the Board of Directors;
(C) The Company shall consummate a merger, consolidation,
re-capitalization, or reorganization of the Company, other than any
such transaction which results in holders of outstanding voting
securities of the Company immediately prior to the transaction having
beneficial ownership of at least 50% of the total voting power
represented by the voting securities of the surviving entity
outstanding immediately after such transaction, with the voting power
of each such continuing holder relative to such other continuing
holders being not altered substantially in the transaction; or
(D) The Company shall consummate a plan of complete
liquidation of the Company or an agreement for the sale, assignment,
conveyance, transfer, lease or other disposition by the Company of all
or substantially all of its assets to any person, or group of related
persons, in one or a series of related transactions.
(h) Any payments to be made or benefits to be provided by the Company
pursuant to Section 4(b) or (f) hereof are subject to the receipt by the Company
of an effective general release and agreement not to ▇▇▇ in a form reasonably
satisfactory to the Company (the "Release") pursuant to which the Executive
agrees (i) to release all claims against the Company and certain related parties
(excluding claims for any severance benefits payable hereunder), (ii) not to
maintain any action, suit, claim or proceeding against the Company and certain
related parties, and (iii) to be bound by certain confidentiality and mutual
non-disparagement covenants specified therein. Notwithstanding the due date of
any post-employment payment, the Company shall not be obligated to make any
payments under Section 4(b) or (f) until after the expiration of any revocation
period applicable to the Release.
Section 5. Other Duties of Executive During and After the Employment
Period.
(a) The Executive recognizes and acknowledges that all information
pertaining to the affairs, business, clients, or customers of the Company or any
of its subsidiaries or affiliates (any or all of such entities being hereinafter
referred to as the "Business"), as such information may exist from time to time,
other than information that the Company has previously made publicly available,
is confidential information and is a unique and valuable asset of the Business,
access to and knowledge of which are essential to the performance of the
Executive's duties under this Agreement. In consideration of the payments made
to him pursuant hereunder, the Executive shall not, except to the extent
reasonably necessary in the performance of his duties under this Agreement,
divulge to any person, firm, association, corporation, or governmental agency,
any information concerning the affairs, businesses, clients, or customers of the
Business (except such information as is required by law to be divulged to a
government agency or pursuant to lawful process), or make use of any such
information for his own purposes or for the benefit of any person, firm,
association or corporation (except the Business) and shall use his reasonable
best efforts to prevent the disclosure of any such information by others. All
records, memoranda, letters, books, papers, reports, accountings, experience or
other data, and other records and documents relating to the Business, whether
made by the Executive or otherwise coming into his possession, are confidential
information and are, shall be, and shall remain the property of the Business. No
copies thereof shall be made which are not retained by the Business, and the
Executive agrees, on demand of the Company, to deliver the same to the Company.
(b) The Executive recognizes and acknowledges that the Company shall
own all Work Product created by the Executive during the Term. As used herein,
"Work Product" includes, but is not limited to, all intellectual property
rights, U.S. and international copyrights, patentable inventions, creations,
discoveries and improvements, works of authorship and ideas, whether or not
patentable or copyrightable and regardless of their form or state of
development. All Work Product shall be considered work made for hire by the
Executive and shall be owned by the Company.
If any of the Work Product may not, by operation of law, be considered
a work made for hire by the Executive for the Company, or if ownership of all
right, title and interest of the intellectual property rights therein shall not
otherwise vest exclusively in the Company, the Executive shall assign, and upon
creation thereof shall be deemed to have automatically assigned, without further
consideration, the ownership of all such Work Product to the Company and its
successors and assigns. The Company, its successors and assigns shall have the
right to obtain and hold in its or their own name copyrights, patents,
registrations and other protections available to the Work Product. The Executive
shall assist the Company in obtaining and maintaining patent, copyright,
trademark and other appropriate protection for all Work Product in all
countries, at the Company's expense. The Executive hereby irrevocably
relinquishes for the benefit of the Company, its successors and assigns any
moral rights in the Work Product recognized under applicable law.
The Executive shall disclose all Work Product promptly to the Company
and shall not disclose the Work Product to anyone other than authorized Company
personnel without the Company's prior written consent. The Executive shall not
disclose to the Company or induce the Company to use any secret or confidential
information or material belonging to others.
The provisions of this Section 5(b) cover Work Product of any kind
that is conceived or made by the Executive that (i) relates to the business of
the Company, its subsidiaries and affiliates, (ii) results from tasks assigned
to the Executive by the Company, its subsidiaries and affiliates, or (iii) are
conceived or made with the use of facilities or materials provided by the
Company, its subsidiaries and affiliates.
(c) In consideration of the payments made to him hereunder, during the
one-year period commencing on the effective date of termination of his
employment during the Employment Period (or any subsequent term of full-time
employment) for any reason, the Executive shall not, without express prior
written approval of the Board, directly or indirectly, own or hold any
proprietary interest in, or be employed by or receive remuneration from, any
corporation, limited liability company, business trust, partnership, sole
proprietorship or other entity engaged in competition with the Company or any of
its affiliates (a "Competitor"), other than severance-type or retirement-type
benefits from entities constituting prior employers of the Executive. The
Executive also shall not, during such one-year period, solicit for the account
of any Competitor, any customer or client of the Company or its affiliates, or
any entity or individual that was such a customer or client during the
twelve-month period immediately preceding the termination of the Executive's
employment. The Executive also shall not, during such one-year period, act on
behalf of any Competitor to interfere with the relationship between the Company
or its subsidiaries and affiliates and their respective employees.
For purposes of the preceding paragraph, (i) the term "proprietary
interest" means legal or equitable ownership, whether through stockholding or
otherwise, of an equity interest in a business, firm or entity other than
ownership of less than two percent of any class of equity interest in a publicly
held business, firm or entity and (ii) an entity shall be considered to be
"engaged in competition" if such entity is, or is a holding company for, a
company engaged in the design, manufacture, assembly, sale, maintenance or
servicing of high-power amplifiers, satellite communications equipment or
transmitting and receiving equipment (or related components) used in connection
with the provision of local multi-point distribution services anywhere in the
world.
(d) The Executive acknowledges that the restrictions contained in this
Section 5 are reasonable and necessary to protect the legitimate interests of
the Company and that any breach by the Executive of any provision contained in
this Section 5 will result in irreparable injury to the Company. The Executive
further acknowledges that, in addition to all remedies available at law, the
Company shall be entitled to equitable relief, including temporary, preliminary
and permanent injunctive relief, and an equitable accounting of all earnings,
profits or other benefits arising from any such breach and shall be entitled to
receive such other damages, direct or consequential, as may be appropriate. The
Company shall not be required to post any bond or other security in connection
with any proceeding to enforce the provisions of this Section 5.
(e) The Company's obligation to make payments, or provide for any
benefits under this Agreement (except to the extent vested or exercisable) shall
cease upon a violation by the Executive of the provisions of this Section 5. The
provisions of this Section 5 shall survive any termination of the Executive's
employment with the Company; provided however that in the event that the Company
fails to consummate a Qualifying Offering prior to January 31, 1999, the
provisions of this Section 5 shall not be applicable and shall become null and
void.
Section 6. Withholdings. The Company may directly or indirectly
withhold from any payments made under this Agreement all federal, state, city or
other taxes and all other deductions as shall be required pursuant to any law or
governmental regulation or ruling or pursuant to any contributory benefit plan
maintained by or on behalf of the Company.
Section 7. Consolidation, Merger, or Sale of Assets. Nothing in this
Agreement shall preclude the Company from consolidating or merging into or with,
or transferring all or substantially all of its assets to, or engaging in any
other business combination with, any other person or entity which assumes this
Agreement and all obligations and undertakings of the Company hereunder. Upon
such a consolidation, merger, transfer of assets or other business combination
and assumption, the term "Company" as used herein shall mean such other person
or entity and this Agreement shall continue in full force and effect.
Section 8. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be given in writing and
shall be deemed to have been duly given if delivered or mailed, postage prepaid,
by same day or overnight mail (i) if to the Executive, at the address set forth
above, or (ii) if to the Company, as follows:
LogiMetrics, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address as either party shall have previously specified in
writing to the other.
Section 9. No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect; provided, however,
that nothing in this Section 9 shall preclude the assumption of such rights by
executors, administrators or other legal representatives of the Executive or his
estate and their assigning any rights hereunder to the person or persons
entitled thereto.
Section 10. Expenses. Except as set forth herein, each party hereto
shall pay its own expenses incident to the preparation, negotiation,
administration and enforcement of this Agreement and the transactions
contemplated herein.
Section 11. Source of Payment. All payments provided for under this
Agreement shall be paid in cash from the general funds of the Company. The
Company shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments, and, if the Company shall make
any investments to aid it in meeting its obligations hereunder, the Executive
shall have no right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written instrument
relating to such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Company and the Executive
or any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right, without prejudice to rights
which employees may have, shall be no greater than the right of an unsecured
creditor of the Company.
Section 12. Binding Agreement; No Assignment. This Agreement shall be
binding upon, and shall inure to the benefit of, the Executive and the Company
and their respective permitted successors, assigns, heirs, beneficiaries and
representatives. This Agreement is personal to the Executive and may not be
assigned by him without the prior written consent of the Company. Any attempted
assignment in violation of this Section 12 shall be null and void.
Section 13. Dispute Resolution. At the option of either the Company or
the Executive, any dispute, controversy or question arising under, out of or
relating to the Consulting Agreement, this Agreement or the respective breach
thereof, other than pursuant to Section 5 hereof, shall be referred for decision
by arbitration in the State of New York by a neutral arbitrator mutually
selected by the parties hereto. Any arbitration proceeding shall be governed by
the Rules of the American Arbitration Association then in effect or such rules
last in effect (in the event such Association is in existence). If the parties
are unable to agree upon such a neutral arbitrator within 30 days after either
party has given the other written notice of the desire to submit the dispute,
controversy or question for decision as aforesaid, then either party may apply
to the American Arbitration Association for an appointment of a neutral
arbitrator, or if such Association is not then in existence or does not act in
the matter within 30 days of any such application, either party may apply to the
Presiding Judge of the Superior Court of any county in New York for an
appointment of a neutral arbitrator to hear the parties and settle the dispute,
controversy or question, and such Judge is hereby authorized to make such
appointment. In the event that either party exercises the right to submit a
dispute, controversy or question arising hereunder to arbitration, the decision
of the neutral arbitrator shall be final, conclusive and binding on all
interested persons and no action at law or in equity shall be instituted or, if
instituted, further prosecuted by either party other than to enforce the award
of the neutral arbitrator. The award of the neutral arbitrator may be entered in
any court that has jurisdiction. The Executive and the Company shall each bear
all their own costs (including the fees and disbursements of counsel) incurred
in connection with any such arbitration and shall each pay one-half of the costs
of any arbitrator appointed hereunder.
Section 14. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without reference to the choice of law principles thereof.
Section 15. Entire Agreement. This Agreement and the Option Agreement
shall constitute the entire agreement among the parties with respect to the
matters covered hereby and shall supersede all previous written, oral or implied
understandings among them with respect to such matters.
Section 16. Amendments. This Agreement may only be amended or
otherwise modified, and compliance with any provision hereof may only be waived,
by a writing executed by all of the parties hereto. The provisions of this
Section 16 may only be amended or otherwise modified by such a writing.
Section 17. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by the undersigned, thereunto duly authorized, and the Executive has
signed this Agreement, all as of the date first written above.
LOGIMETRICS, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇