Exhibit 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 28th day of December, 2000 by and between
THE ▇▇▇▇▇▇ BIOMECHANICS GROUP, INC., a New York corporation with offices at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
residing at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Executive").
WHEREAS ▇▇▇▇▇▇ shares of common stock are currently the subject of a
tender offer for up to 75% of ▇▇▇▇▇▇'▇ common stock (the "Tender Offer"),
which Tender Offer is supported by ▇▇▇▇▇▇'▇ management and Board Of Directors
WHEREAS, ▇▇▇▇▇▇ is desirous of employing the Executive as a Vice
President of ▇▇▇▇▇▇, and the Executive is desirous of serving ▇▇▇▇▇▇ in such
capacities, all upon the terms and subject to the conditions hereinafter
provided;
WHEREAS in order to assist ▇▇▇▇▇▇ in its management transition the
Executive is willing to commence his employment as of the date hereof pursuant
to the terms of this Agreement, provided that if, for any reason, the Tender
offer is not consummated prior to February 28, 2001 (the date the Tender Offer
is consummated being hereafter referred to as the "TENDER OFFER CONSUMMATION
DATE"), the Company shall have the right to terminate this Agreement and without
payment of any kind to Executive;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, agree as
follows:
1. EMPLOYMENT.
▇▇▇▇▇▇ agrees to employ the Executive, and the Executive agrees to be
employed by ▇▇▇▇▇▇, upon the terms and subject to the conditions of this
Agreement.
2. TERM.
The term of the Executive's employment under this Agreement shall
commence on the date hereof and shall continue through December 31, 2003
(the "INITIAL TERM"), unless earlier terminated as hereinafter provided. The
Executive's employment shall continue after the Initial Term on a
year-to-year basis (each, an "Additional Term" and, together with the Initial
Term, the "Term") unless either the Executive or ▇▇▇▇▇▇ gives written notice
to the other not later than ninety (90) days prior to the expiration of the
Initial Term or any such Additional Term, as the case may be, of the decision
not to extend the Executive's employment.
3. DUTIES; EFFORTS.
(a) Effective on the date hereof, the Employee shall
serve as an unpaid employee of the Company performing such duties as may be
presented by the officers of ▇▇▇▇▇▇. Effective upon the Tender Offer
Consummation date, the Executive shall serve as Vice President
of ▇▇▇▇▇▇. After the Tender Offer Consummation Date, the Executive shall have
such duties as are customarily performed by the most senior Vice President
and also have such other powers and duties as may be, from time to time,
prescribed by the President and Chief Executive Officer of ▇▇▇▇▇▇, provided
that the nature of the Executive's powers and duties so prescribed shall not
be inconsistent with the Executive's position and duties hereunder. The
Executive shall report directly to the President and Chief Executive
Officer.
(b) The Executive shall devote all of his business
time, attention and energies to the business and affairs of ▇▇▇▇▇▇ and its
affiliated corporations, shall use his best efforts to advance the best
interests of ▇▇▇▇▇▇; provided, however, that, it shall not be a violation of
this Agreement for the Executive to (i) subject to approval by ▇▇▇▇▇▇'▇ Board
of Directors (the "Board") serve on professional, industry, civic or
charitable boards, committees or organizations, (ii) manage passive personal
investments, and (iii) attend professional educational seminars referred to
in Section 4(g) below, so long as any such activities do not interfere with
the performance of the Executive's responsibilities as an employee of ▇▇▇▇▇▇
in accordance with this Agreement.
(c) The Executive's principal office location will be
at ▇▇▇▇▇▇'▇ executive office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. Commencing on the Tender Offer
Consummation Date, ▇▇▇▇▇▇ shall pay to the Executive a base salary (the "BASE
SALARY") of (i) $140,000 for the first year of the Initial Term, (ii)
$155,000 for the second year of the Initial Term, and (iii) $165,000 for the
third year of the Initial Term. Base salary shall be paid in accordance with
▇▇▇▇▇▇'▇ payroll practices for its executive employees; provided, however,
that if the Tender Offer Consummation Date does not occur on or before
February 28, 2001, the Executive shall waive any payment of compensation
under this Agreement unless the Board of Directors shall within five (5)
business day thereafter reaffirm its obligations under this Agreement
notwithstanding that such Tender Offer Consummation Date has not occurred.
(b) BONUS PROGRAMS.
(i) SIGNING BONUS. In consideration for the
Executive entering into this Agreement, ▇▇▇▇▇▇ shall pay the Executive a cash
signing bonus in the aggregate amount of $50,000, of which $30,000 shall be
paid on the date immediately following the Tender Offer Consummation Date and
$20,000 shall be paid on the first anniversary of the Tender Offer
Consummation Date; PROVIDED that the Executive has not voluntarily terminated
this Agreement without "Good Reason" or that ▇▇▇▇▇▇ has not terminated the
Agreement for Cause, in which event the second installment shall not be paid
and the first installment shall be promptly refunded by the Executive to
▇▇▇▇▇▇. In the event the Executive voluntarily terminates his employment
without Good Reason or if ▇▇▇▇▇▇ terminates the Executive for Cause prior to
the second anniversary date of this Agreement, Executive shall refund the
first and second installments of the Signing Bonus in full.
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(ii) ANNUAL BONUS. The Executive shall be
eligible to receive, with respect to each calendar year, a cash bonus (the
"Bonus"), in addition to and separate from the Executive's Base Salary,
pursuant to a bonus program to be developed for ▇▇▇▇▇▇'▇ executive employees.
The First such bonus shall be based on the calendar year commencing January
1, 2001. Notwithstanding the foregoing, and provided that the Tender Offer
Consummation Date shall have occurred, the Executive shall be paid a minimum
bonus for each of 2001, 2002 and 2003 in the amount of $10,000. In the event
that the Executive dies, becomes disabled, is terminated by the Company
without Cause or terminates his employment for Good Reason, a pro rata
portion of such minimum bonus shall be paid within ten (10) days after the
Executive's termination date.
(c) STOCK OPTIONS. In addition to the Executive's Base
Salary and Bonus, upon approval by ▇▇▇▇▇▇'▇ Board of Directors of this
Agreement, ▇▇▇▇▇▇ shall grant to the Executive, as of the date thereof,
options to purchase 80,000 shares of its common stock under ▇▇▇▇▇▇'▇ 1992
Stock Option Plan (the "OPTION PLAN"), at an exercise price of $1.525 per
share. The Options shall be issued pursuant to a stock option agreement
attached hereto as EXHIBIT A ("STOCK OPTION AGREEMENT"), and are intended to
be incentive stock options under the Internal Revenue Code of 1986, as
amended ("Code"). Of the foregoing, and subject to acceleration or
termination under certain circumstances as further provided below, or in the
Stock Option Agreement representing such Options, Options for 26,666 shares
shall vest on each of the first and second anniversary dates of the Stock
Option Agreement and Options for 26,667 shares shall vest on the third
anniversary date of the Stock Option Agreement. Notwithstanding the
foregoing, the Options shall terminate immediately, and no portion of the
Options shall be deemed to have vested, if the Tender Offer Consummation Date
does not occur on or before February 28, 2001 unless the Board of Directors
shall within five (5) business day thereafter reaffirm its obligations under
this Agreement notwithstanding that such Tender Offer Consummation Date has
not occurred.
(d) OUT-OF-POCKET EXPENSES. ▇▇▇▇▇▇ shall promptly pay
to the Executive the reasonable expenses incurred by him in the performance
of his duties hereunder, including, without limitation, those incurred in
connection with business related travel or entertainment, or, if such
expenses are paid directly by the Executive, shall promptly reimburse him for
such payment, provided that the Executive properly accounts therefor and
submits appropriate receipts therefor in accordance with ▇▇▇▇▇▇'▇ expense
policy.
(e) PARITICIPATION IN BENEFIT PLANS. The Executive,
subject to the terms, conditions and eligibility requirements applied
generally, shall be entitled to participate in or receive benefits under any
pension plan, health and accident plan or any other employee benefit plan or
arrangement made available now or in the future by ▇▇▇▇▇▇ to its employees
and senior executives including, without limitation, 401(k) plans, medical,
dental, life and disability plans of ▇▇▇▇▇▇. Nothing herein shall be deemed
to require the Company to establish or retain any such plans.
(f) VACATION. The Executive shall be entitled to four (4)
weeks of paid vacation in each calendar year (pro rated for the number of days
in any such year during which he is so employed) and to all paid holidays given
by ▇▇▇▇▇▇ to its employees. No more than two
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consecutive weeks of vacation shall be taken at any one time without the
approval of the Compensation Committee, and the Executive shall schedule
vacations in a manner consistent with ▇▇▇▇▇▇'▇ seasonal or other significant
business requirements.
5. TERMINATION AND TERMINATION PAYMENTS.
The Executive's employment hereunder shall terminate upon the
Executive's death or the Executive's voluntarily leaving the employ of ▇▇▇▇▇▇
(other than for "Good Reason" (as defined in Section 5(c)), and may be
terminated as follows:
(a) FOR CAUSE. ▇▇▇▇▇▇ shall have the right to
terminate the Executive's employment for "Cause," and, subject to ▇▇▇▇▇▇'▇
obligations under Section 6(c), without Cause. A termination for "CAUSE" is a
termination by the Chief Executive Officer or by the Board,
(i) in its sole and absolute discretion, and without
fault on the part of the Executive, in the event that the Tender Offer
Consummation Date does not occur on or before February 28, 2001, or
(ii) if the Chief Executive Officer or the Board makes
a finding that the Executive has:
(A) breached, failed or refused to comply
with any of the material terms of this Agreement (which shall include
Section 4(d)), for reasons other than Good Reason or Disability; or
(B) refused, neglected or failed to perform
his material duties under this Agreement, for reasons other than Good Reason
or Disability; or
(C) willfully or intentionally failed to carry
out, in any material respect, instructions of the Chief Executive Officer or the
Board which are not inconsistent with his position; or
(D) been convicted of or admitted to (including
NOLO CONTENDERE) any act of fraud, larceny, misappropriation of funds or
embezzlement or to or of a crime other than traffic offenses; or
(E) has committed an act constituting sexual
harassment or employment discrimination, or
(F) repeatedly engaged in substance abuse,
PROVIDED, however, that
(1) the case of clauses (A), (B) and (C) above, provided the
Executive shall have received written notice at least 30 days prior to such
termination specifying the actions constituting Cause, during which period he
shall have the opportunity to cure such conduct; and
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(2) in the case of paragraphs (D), (E), and (F) above the
Chief Executive Officer or the Board may terminate the Executive immediately
upon delivery of a notice of termination.
(b) UPON DEATH OR FOR DISABILITY. The Executive's
employment with ▇▇▇▇▇▇ shall immediately terminate upon his death without any
further action. ▇▇▇▇▇▇ shall have the right to terminate the Executive's
employment immediately upon delivery of notice to the Executive as a result of
the Executive's Disability. For purposes of this Agreement, a "DISABILITY" shall
be deemed to have occurred
(i) if (A) the Executive has been unable due
to any physical or mental illness or injury substantially to perform his
duties hereunder for at least 60 consecutive days (exclusive of any vacation
permitted under Section 4(f) hereof), (B) the Company delivers a written
notice to the Executive ("DISABILITY NOTICE") following such period stating
that the Board intends to terminate the Executive by reason of Disability but
no earlier than the 90th day following the onset of such Disability, and
(C) the Executive in fact fails to resume his fulltime employment with ▇▇▇▇▇▇
on or before the 90th day following the onset of such Disability; or
(ii) if the Executive is unable, due to any
physical or mental illness or injury, substantially to perform his duties
hereunder for more than 120 days in any 360 day period.
(c) BY THE EXECUTIVE FOR GOOD REASON. The Executive
shall have the right to terminate his employment with ▇▇▇▇▇▇ for "Good
Reason." For purposes of this Agreement, "GOOD REASON" shall mean:
(i) Removal from his position as Vice President
(other than for Cause or by reason of the Executive's death or Disability); or
the failure of the Company to renew this Agreement at the end of the Term for at
least one (1) year, (other than for Cause or by reason of the Executive's death
or disability).
(ii) Material diminution in the Executive's
title, position, duties or responsibilities, or the assignment to the Executive
of duties that are inconsistent, in a material respect, with the scope of duties
and responsibilities associated with the position specified in this Agreement,
excluding for this purpose an isolated, insubstantial and inadvertent action not
taken in bad faith;
(iii) Reduction in the Executive's Base Salary or
failure to implement or pay any compensation arrangements (including stock
options) contemplated by this Agreement; or
(iv) The breach, failure or refusal of ▇▇▇▇▇▇ to
comply with any of its material obligations under this Agreement, in any case
other than an isolated, insubstantial and inadvertent failure not cured by the
Company within thirty (30) days after receiving written notice from the
Executive setting forth the nature of such breach.
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6. PAYMENTS UPON TERMINATION.
(a) DEATH OR DISABILITY. In the event of the
termination of the Executive's employment as a result of his death or
Disability on or after the Tender Offer Consummation Date, ▇▇▇▇▇▇ shall:
(i) pay to the Executive or his estate, as
the case may be, the Base Salary through the date of his death or Disability
(pro rated for any partial month);
(ii) pay to the Executive or his estate, as
the case may be, any accrued and unpaid Bonus in accordance with Section 4(b)
plus the pro rated portion of any guaranteed bonus for the year of
termination;
(iii) treat the Options as set forth in the
Stock Option Agreement;
(iv) reimburse the Executive, or his estate,
as the case may be, for any expenses reimbursable pursuant to Section 4(d)
(the amounts payable pursuant to the foregoing clauses (i), (ii) and this
clause (iv) being hereafter referred to as the "ACCRUED OBLIGATIONS"); and
(v) provide to the Executivc and/or his
family, as the case may be, (A) for the first year after the Executive's
death or Disability, continued coverage under all welfare benefit plans
including medical, accident, life or other disability plans and programs in
which the Executive and his family participated immediately prior to his
death or Disability to the extent such plans are maintained by the Company,
and sharing in the cost of such benefit coverage in the same proportion as
was in effect for the Executive immediately prior to his death or Disability
and (B) after such one (1) year period, the Executive or his estate, as the
case may be, shall be responsible for the full cost of the Executive's COBRA
coverage.
(b) BY ▇▇▇▇▇▇ FOR CAUSE OR BY THE EXECUTIVE
VOLUNTARILY (OTHER THAN FOR GOOD REASON). In the event that the Executive's
employment is terminated by ▇▇▇▇▇▇ for Cause or by the Executive voluntarily
(other than for Good Reason), ▇▇▇▇▇▇ shall (i) pay to the Executive the
Accrued Obligations and (ii) treat the Options as set forth in the respective
Stock Option Agreement, and the Executive shall have no further entitlement
to any other compensation or benefits from ▇▇▇▇▇▇. Without limitation of the
foregoing, all vested and unvested options held by the Executive shall be
cancelled and of no effect. In addition, the Executive shall be deemed to
have offered any shares of Common Stock purchased by him pursuant to the
Stock Option Agreement to ▇▇▇▇▇▇ at a price per share equal to the lower of
the Exercise Price or the fair market value (as determined pursuant to
Section 5 of the 1992 Stock Option Plan of ▇▇▇▇▇▇, as amended through
November 30, 1999) of the Common Stock at the time of such termination.
▇▇▇▇▇▇ shall have 30 days from the date of termination to deliver written
notice to the Executive electing to purchase such shares.
(c) BY THE EXECUTIVE FOR GOOD REASON OR BY ▇▇▇▇▇▇
OTHER THAN FOR CAUSE OR THE EXECUTIVE'S DISABILITY. In the event that on or
after the Tender Offer Consummation Date the Executive's employment is
terminated by the Executive for Good Reason or by ▇▇▇▇▇▇ other than for Cause
or the Executive's Disability, then ▇▇▇▇▇▇ shall:
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(i) pay to the Executive the Accrued
Obligations, within fifteen (15) days of termination of his employment;
(ii) treat the Options as set forth in the Stock
Option Agreement;
(iii) continue to pay Executive for a period of
twelve (12) months his Base Salary in effect on the date of termination;
(iv) pay to the Executive a lump sum in an amount
equal to (A) any accrued and unpaid Bonus in accordance with Section 4(b) plus
the pro rated portion of any guaranteed bonus for the year of termination; and
(v) pay or reimburse the Executive for twelve
(12) months after the Executive's termination, for continued coverage under
all welfare benefit including medical, accident, life or other disability
plans and programs in which the Executive participated immediately prior to
his termination, (provided that the Executive will share the cost of such
benefit coverage in the same proportion as was in effect for the Executive
immediately prior to his termination).
(d) The Executive acknowledges that upon the
termination of his employment pursuant to Sections 6(a), 6(b) or 6(c), he
shall not be entitled to any payments or benefits that are not explicitly
provided herein.
7. COVENANT REGARDING INVENTIONS.
The Executive shall disclose promptly to ▇▇▇▇▇▇ any and all
inventions, discoveries, improvements and patentable or copyrightable works
developed, initiated, conceived or made by him, either alone or in conjunction
with others, during the Term hereof, all of which shall be considered "work
for hire," and he assigns and shall assign, without additional
consideration, all of his right, title and interest therein to ▇▇▇▇▇▇ or its
nominee. Whenever requested to do so by ▇▇▇▇▇▇, the Executive shall execute
any and all applications, assignments or other instruments that ▇▇▇▇▇▇ shall
deem necessary to apply for and obtain letters patent, trademarks or
copyrights of the United States or any foreign country, or otherwise protect
▇▇▇▇▇▇'▇ interest therein. These obligations shall continue beyond the
conclusion of the Term with respect to inventions, discoveries, improvements
or copyrightable works made by the Executive during the Term and shall be
binding upon the Executive's assigns, executors, administrators and other
legal representatives.
8. PROTECTION OF CONFIDENTIAL INFORMATION.
As an inducement to ▇▇▇▇▇▇ to enter into and perform its
obligations under this Agreement, the Executive acknowledges that he has been
and will be provided with information about, and his employment by ▇▇▇▇▇▇
will, throughout the Term, bring him into close contact with, many
confidential affairs of ▇▇▇▇▇▇, including proprietary information about the
Business including, without limitation, costs, profits, finances, internal
financial statements, projections,
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markets, sales, customers, advertisers, vendors, products, key personnel,
pricing policies, operational methods, technical processes and methods, plans
for future developments, software, data bases, computer programs,
specifications, documentation, designs, trade secrets, technology, know-how,
research and development, inventions, patents and copyrights (and any
renewals, reissues, extensions, divisions, continuations and continuations in
part thereof and registrations, applications, patents of addition and
inventors certificates) and other information not available to the public
(collectively "Confidential Information"), all of which are highly
confidential and proprietary and all of which were developed by ▇▇▇▇▇▇ at
great effort and expense. The Executive further acknowledges that the
services to be performed by him under this Agreement are of a special unique,
unusual, extraordinary and intellectual character and that the nature of the
relationship of the Executive with ▇▇▇▇▇▇ is such that the Executive is
capable of competing with ▇▇▇▇▇▇. In recognition of the foregoing, the
Executive covenants and agrees during the Term and thereafter he will:
(a) keep secret all Confidential Information of
▇▇▇▇▇▇'▇ Business and not disclose them to anyone outside of ▇▇▇▇▇▇, either
during or after the Term, except with ▇▇▇▇▇▇'▇ prior written consent;
(b) not make use of any of such confidential matters
for his own purposes or the benefit of anyone other than ▇▇▇▇▇▇, provided
that the confidential matters referred to in clauses (i) and (ii) of this
Section 8(a) shall not apply to information that (A) is required to be
disclosed by law or by any government, regulatory or self-regulatory agency
or body, except with respect to Confidential Information which the Executive
is advised in writing by counsel to ▇▇▇▇▇▇ is not required to be disclosed;
or (B) is or becomes generally available to the public other than as a result
of the Executive's breach of this Section 8(a); PROVIDED that Executive shall
have given ▇▇▇▇▇▇ prompt notice of any such order or subpoena so that ▇▇▇▇▇▇
may contest any such production; and
(c) deliver promptly to ▇▇▇▇▇▇ on termination of this
Agreement, or at any time ▇▇▇▇▇▇ may so request, all Confidential
Information, including but not limited to memoranda, notes, records, computer
software discs, reports and other confidential documents (and all copies
thereof) relating to the Business, that he may then possess or have under his
control, except that he may retain personal notes, notebooks, journals and
diaries provided that such materials do not contain confidential information.
9. RESTRICTION OF COMPETITION; INTERFERENCE; NON-SOLICITATION.
(a) As an inducement to ▇▇▇▇▇▇ to enter into and
perform its obligations under this Agreement, the Executive covenants and
agrees that, during the period of his employment and, provided that the
Tender Offer Consummation Date shall have occurred, for a period of one (1)
year after the termination of his employment for any reason, neither the
Executive nor his affiliates will, directly or indirectly, for their account
or on behalf of any other Person (as defined in Section 9(b) below) or as an
employer, employee, consultant, manager, agent, broker, contractor,
stockholder, director or officer of a corporation, investor, owner, lender,
partner, joint venturer, licensor, licensee, sales representative,
distributor, or otherwise:
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(i) Solicit or engage in any business that engages in the
business of ▇▇▇▇▇▇ (each, a "COMPETITIVE BUSINESS").
(ii) Directly or indirectly for his own account or the
benefit of others solicit, hire or retain any employee of ▇▇▇▇▇▇ or its
affiliates or persuade or entice any employee of ▇▇▇▇▇▇ or its affiliates to
leave the employ of ▇▇▇▇▇▇ or its affiliates.
(iii) Molest or interfere with the goodwill and
relationship with any of the customers or suppliers of ▇▇▇▇▇▇ or its affiliates.
(iv) Persuade, accept, induce or solicit any of the
customers, subscribers or accounts of ▇▇▇▇▇▇ or its affiliates, now existing
or hereafter obtained, to engage anyone, other than ▇▇▇▇▇▇ or its affiliates,
to design, manufacture or market foot and gait-related biomechanical products
for such customers, subscribers or accounts; or
(v) invest in, lend money or give financial support to
any Competitive Business.
(b) Nothing contained in this Section 9 shall be deemed to
prohibit the Executive from directly acquiring or holding, solely for
investment, securities of any entity some of the activities of which
constitute a Competitive Business so long as such securities do not, in the
aggregate, constitute more than five percent (5%) of any class or series of
outstanding securities of such entity. For the purpose of this Agreement,
"PERSON " shall mean any individual, entity or group within meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT").
(c) Notwithstanding the foregoing, if ▇▇▇▇▇▇ shall fail to make
any payment due to the Executive under Section 6(c) which failure shall
continue for ten (10) days after delivery to ▇▇▇▇▇▇ of written notice of
non-payment, the restrictions set forth in subsection (a) above shall
terminate.
10. SPECIFIC REMEDIES.
It is understood by the Executive and ▇▇▇▇▇▇ that the covenants
contained in this Section 10 and Sections 7, 8 and 9 are essential elements
of this Agreement and that, but for the agreement of the Executive to comply
with such covenants, ▇▇▇▇▇▇ would not have agreed to enter into this
Agreement. If the Executive commits a material breach of any of the
provisions of Sections 7, 8 or 9 hereof, which is not cured or rectified
within the time periods set forth in Section 5(a) above, such breach shall be
grounds for termination for Cause. In addition, the Executive acknowledges
that ▇▇▇▇▇▇ may have no adequate remedy at law if he violates any of the
terms thereof. The Executive therefore understands and agrees that ▇▇▇▇▇▇
shall have, without prejudice as to any other remedies, the right upon
application to any court of proper jurisdiction and without posting of any
bond or other security whatsoever, to a temporary restraining order,
preliminary injunction, injunction, specific performance or other equitable
relief, it being acknowledged and agreed that any such breach will cause
irreparable injury to ▇▇▇▇▇▇ and that money damages will not provide an
adequate remedy to ▇▇▇▇▇▇.
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11. ACKNOWLEDGMENTS OF THE EXECUTIVE AND ▇▇▇▇▇▇.
(a) The Executive represents that (i) he has the right
to enter into this Agreement and this Agreement constitutes a valid and
binding obligation enforceable in accordance with its terms (ii) his
execution and delivery of this Agreement, and the performance of his
obligations hereunder are not in violation of, and do not conflict with or
constitute a default under any agreement by which he is bound or any order,
decree or judgment to which he is subject; and (iii) the provisions of
Section 7, 8 and 9 will not impose a hardship, financial or otherwise, on the
Executive nor prevent him from being gainfully employed.
(b) ▇▇▇▇▇▇ represents that (i) it has all requisite
corporate power and authority to enter into and perform its obligations under
this Agreement, (ii the execution and delivery of this Agreement by ▇▇▇▇▇▇
and the performance by ▇▇▇▇▇▇ of the transactions contemplated herein have
been duly and validly authorized by all necessary corporate actions, (iii)
this Agreement is a legal, valid and binding obligation of ▇▇▇▇▇▇ and (iv)
the execution and delivery of this Agreement by ▇▇▇▇▇▇ and the performance of
its obligations hereunder are not in violation of, and do not conflict with
or constitute a default under any agreement by which ▇▇▇▇▇▇ is bound or any
order, decree or judgment to which ▇▇▇▇▇▇ is subject.
12. NOTICES.
Any notice or other communications required or permitted hereunder
shall be in writing and shall be deemed effective (a) upon personal delivery,
if delivered by hand, (b) upon receipt of electronic confirmation, if sent by
facsimile transmission, (c) three (3) days after the date of deposit in the
mails, if mailed by certified or registered mail (return receipt requested),
or (c) on the next business day, if mailed by an overnight mail service. to
the parties,
IF TO ▇▇▇▇▇▇ : IF TO THE EXECUTIVE:
The ▇▇▇▇▇▇ Biomechanics Group, Inc. Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copies of all notices to ▇▇▇▇▇▇ or the Executive under this Agreement shall
be sent to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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and: ▇▇▇▇ ▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or facsimile number as either party may from time to
time specify to the other.
13. MISCELLANEOUS.
(a) SUCCESSORS; BINDING EFFECT; THIRD PARTY
BENEFICIARIES. In the event of a future disposition by ▇▇▇▇▇▇ (whether direct
or indirect, by sale of assets or stock, merger, consolidation or otherwise)
of all or substantially all of its business and/or assets, ▇▇▇▇▇▇ will
require any successor, by agreement in form and substance reasonably
satisfactory to the Executive or by operation of law, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that ▇▇▇▇▇▇ would be required to perform if no such disposition had taken
place. As used in this Agreement, "▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ as herein before
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or
otherwise.
This Agreement is personal to the Executive and, without
the prior written consent of ▇▇▇▇▇▇, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution with respect
to the Executive's rights, if any, to be paid or receive benefits hereunder.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives. Except for the foregoing, this Agreement
shall not create any rights in favor of any party other than the parties
hereto or their respective successors and assigns.
(b) LAW GOVERNING; JURISDICTION. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York (without giving effect to the principles of conflicts of law). ▇▇▇▇▇▇
and the Executive each agrees that the federal or state courts located in
the State of New York shall have exclusive jurisdiction in connection with
any dispute arising out of this Agreement. Any litigation proceeding under
this Agreement shall be confidential in nature to the fullest extent
permitted by applicable law.
(c) SEVERABILITY. If any provision of this Agreement,
or any part of any of them, is hereafter construed or adjudicated to be
invalid or unenforceable, the same shall not affect the remainder of the
covenants or rights or remedies which shall be given full effect without
regard to the invalid portions. If any of the covenants set forth herein is
held to be invalid or unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision and in its reduced form said provision shall then be enforceable.
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(d) HEADINGS. The headings of this Agreement are for
convenience of reference only and shall not affect in any manner any of the
terms and conditions hereof.
(e) ACTS AND DOCUMENTS. The parties agree to do, sign and
execute all acts, deeds, documents and corporate proceedings necessary or
desirable to give full force and effect to this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
(g) MODIFICATIONS AND WAIVERS. No term, provision or
condition of this Agreement may be modified or discharged unless such
modification or discharge is authorized by the Board and is agreed to in writing
and signed by the Executive. No waiver by either party hereto of any breach by
the other party hereto of any term, provision or condition of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
(h) ENTIRE AGREEMENT. This Agreement, together with
the other Executive Agreements, constitute the entire agreement between the
parties with respect to the subject matter herein and supersedes all prior
agreements, negotiations and discussions between the parties hereto, there
being no extraneous agreements. This Agreement may be amended only in writing
executed by the parties hereto affected by such amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first set forth above.
EXECUTIVE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇ BIOMECHANICS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP - Finance
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