AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.90
AMENDED
AND RESTATED
This
Employment
Agreement (the "Agreement")
is made and
entered into as of this day of June 1, 2002, and amended February 23, 2004,
June
16, 2005 and June 28, 2006, by and between Xxxxxx X. Xxxxxx ("Executive"),
and Building
Materials Holding Corporation, a Delaware corporation (the "Company").
WITNESSETH
WHEREAS,
Executive
is currently employed by the Company as its Chairman, Chief Executive Officer
and President;
WHEREAS,
Executive
and the Company are parties to an Amended and Restated Senior Management and
Key
Employee Severance Agreement (the "Severance
Agreement");
and
WHEREAS,
the
Company wishes to extend the duration of Executive's services and further
clarify the terms and conditions of his employment by entering into this
Agreement with Executive and Executive is willing to commit his services to
the
Company, on the terms and conditions set forth below.
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants herein contained,
Executive and the Company hereto agree as follows:
1. Term
This
Agreement
shall commence on the date hereof, and shall continue in effect for an initial
5-year period (the "Initial
Term").
Upon completion
of the Initial Term, the term of this Agreement shall be automatically extended
for a two-year period. The Initial Term and the two-year extension are referred
to in this Agreement as the "Employment
Term".
2. Employment
2.1 Engagement.
The Company
hereby employs Executive and Executive hereby agrees to be employed by the
Company, subject to the terms and conditions herein set forth. During the
Initial Term and any extended term, Executive shall be employed as Chief
Executive Officer and Chairman of the Company, and shall be responsible for
the
duties normally and customarily attendant to such offices. Executive shall
render such other services and duties of an executive nature consistent with
the
duties of a senior executive officer of the Company as may from time to time
be
designated by the Board of Directors (the "Board").
2.2 Exclusive
Employment.
During the
Employment Term, Executive shall devote his full business time to his duties
and
responsibilities set forth in Section 2.1. Without limiting the generality
of
the foregoing, Executive shall not, without the prior written approval of the
Board, during the Employment Term, render services of a business, professional
or commercial nature to any other person, firm or corporation, whether for
compensation or otherwise, except that Executive may engage in civic,
philanthropic and community service activities so long as such activities do
not
materially interfere with Executive’s ability to comply with this Agreement and
are not otherwise in conflict with the policies or interest of the Company,
and
Executive may serve on the board of directors of two companies without Company
approval.
3. Compensation
and General Benefits
3.1 Base
Salary.
During the term
of this Agreement, the Company shall pay Executive a base salary in an
annualized amount equal to five hundred fifty thousand dollars ($750,000)
("Base
Salary")
payable pro rata
on the Company's regular payday, and subject to adjustment as hereinafter
provided.
3.2 Salary
Reviews.
Executive's Base
Salary shall be reviewed annually by the Compensation Committee of the Board
for
the purpose of considering increases thereof. In conducting this review, the
Compensation Committee of the Board shall consider appropriate factors,
including, without limitation, Executive's performance, the Company's financial
condition and compensation afforded to senior executives of comparable
corporations. The Base Salary shall not be decreased without the written consent
of Executive.
3.3 Bonus.
(a) During
the
Employment Term, in addition to the Base Salary provided by Section 3.1,
Executive will participate in the Company's Annual CEO Incentive Plan (the
"Annual
Bonus
Plan"),
pursuant to
which Executive shall be eligible to receive additional incentive compensation
on an annual basis based upon meeting targeted objectives as determined annually
by the Compensation Committee of the Board. The range of the annual base bonus
shall be 0% to 200% of Base Salary with the base bonus set at 100% of Base
Salary if Executive meets the targeted objectives.
(b) During
the
Employment Term, in addition to the Base Salary and Annual Bonus Plan, Executive
shall participate in the Company's Long-Term Incentive Plan (the "LTIP")
pursuant to
which Executive shall be eligible to receive additional incentive compensation
under the LTIP of from 0% to 160% of Base Salary based upon meeting targeted
objectives determined for each three-year period in the LTIP and in accordance
with its terms, with such participation set at 80% of Base Salary if the
targeted objectives under the LTIP are met. Payments of awards under the LTIP
shall be made in accordance with the terms set forth in the LTIP as amended
from
time to time.
3.4 Vacation.
Executive shall
be entitled to four weeks paid vacation in any fiscal year during the Employment
Term in accordance with Company vacation and leave policies. Vacation time
shall
be planned and taken consistent with Executive's duties and obligations
hereunder.
3.5 Other
Benefits.
During the
Employment Term, Executive (and his spouse and dependents) shall be entitled
to
participate in the Company's executive perquisite plan, supplemental retirement
plan, liability insurance, life insurance, disability insurance, dental
insurance, hospitalization insurance, medical, accident, and other employee
benefit plans from time to time adopted by the Company. The Company shall have
the right to change insurance carriers and benefit plans as may be appropriate
in light of future market conditions and shall have the right to purchase
individual policies covering Executive if necessary.
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3.6 Stock
Incentive
Plans.
Executive shall
also be eligible to receive additional incentive compensation in the form of
stock option or restricted stock grants. Review for any such grant shall be
concurrent with Executive's annual salary review and shall be in the sole
discretion of the Compensation Committee of the Board.
3.7 Reimbursement
of
Expenses.
Upon submission
of appropriate documentation in accordance with Company policy, the Company
will
promptly reimburse Executive for all reasonable business expenses incurred
by
Executive in pursuing the business of the Company, including, without
limitation, expenditures for entertainment and travel.
4. Confidential
Information
During
the term of
this Agreement and forever thereafter, Executive agrees to keep confidential
all
information provided by the Company, excepting any such information as is
already known to the public, and including any such information and material
relating to any customer, vendor, licensor, licensee, or other party transacting
business with the Company, and not to release, use, or disclose the same, except
with the prior written permission of the Company. Executive further covenants
and agrees that every document, computer disk, computer software program,
notation, record, diary, memorandum, development, investigation, or the like,
and any method or manner of doing business, of the Company (or containing any
other secret or confidential information of the Company) made or acquired by
Executive during his employment, is and shall be the sole and exclusive property
of the Company.
5. Covenants
of Executive.
5.1 Non-Compete.
Executive agrees
that, during the Employment Term and for a period of one year following a
termination of employment other than following a Change in Control (as defined
in the Severance Agreement), he will not, directly or indirectly, engage in
any
business or activity competitive with the business activities of the Company.
The foregoing shall not apply to passive investments by Executive of up to
5% of
the outstanding stock of any publicly traded company or to service by Executive
on boards of directors of companies as permitted under this Agreement,
regardless of whether such company competes with the Company.
5.2 Solicitation
of
Employees.
During the
Employment Term and for a period of one year following a termination of
employment other than following a Change in Control, (i) he shall not, directly
or indirectly, individually, or together through any other person, firm,
corporation or entity, hire any member of senior management of the Company
(defined as an officer with a title of vice president or higher) who is then
in
the employ of the Company, or (ii) solicit for hire any employee of the Company,
provided, however, that general solicitations not targeted to Company employees
shall not be deemed to violate this clause (ii).
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5.3 Solicitation
of
Customers and Suppliers.
Executive agrees
that, during the Employment Term and for a period of one year following a
termination of employment other than following a Change in Control , he shall
not, directly or indirectly, individually, or together through any other person,
firm, corporation or entity, (i) use the Company's Confidential Information
to
solicit the business of any material customers of or supplies to the Company,
or
(ii) discourage any person or entity which is a customer of the Company from
continuing its existing business or contractual relationship with the Company.
5.4 Compliance
with
Company Policies.
Executive agrees
that, during the Employment Term, he shall comply with the Company's employee
manual and other policies and procedures reasonably established by the Company
from time to time concerning matters such as management, supervision,
recruiting, diversity, and sexual harassment.
5.5 Cooperation.
For a period of
three years following his termination of employment under this Agreement, he
shall, upon Company’s reasonable request and in good faith and with his best
efforts, subject to his reasonable availability, cooperate and assist Company
in
any dispute, controversy, or litigation in which Company may be involved and
with respect to which Executive obtained knowledge while employed by the Company
or any of its affiliates, successors, or assigns, including, but not limited
to,
his participation in any court or arbitration proceedings, giving of testimony,
signing of affidavits, or such other personal cooperation as counsel for the
Company shall request. Any such activities shall be scheduled, to the extent
reasonably possible, to accommodate Executive’s business and personal
obligations at the time. The Company shall pay Executive’s reasonable travel and
incidental out-of-pocket expenses incurred in connection with any such
cooperation, as well as the reasonable costs of an attorney Executive engages
to
advise him in connection with the foregoing.
5.6 Return
of
Business Records and Equipment.
Upon termination
of Executive's employment hereunder, Executive shall promptly return to the
Company: (i) all documents, records, procedures, books, notebooks, and any
other
documentation in any form whatsoever, including but not limited to written,
audio, video or electronic, containing any information pertaining to the Company
which includes confidential information, including any and all copies of such
documentation then in Executive's possession or control regardless of whether
such documentation was prepared or compiled by Executive, Company, other
employees of the Company, representatives, agents, or independent contractors,
and (ii) all equipment or tangible personal property entrusted to Executive
by
the Company. Executive acknowledges that all such documentation, copies of
such
documentation, equipment, and tangible personal property are and shall at all
times remain the sole and exclusive property of the Company.
6. Covenants
of the Company
6.1 Indemnification.
In the event
Executive is made, or threatened to be made, a party to any legal action or
proceeding, by reason of the fact that Executive is or was an employee, director
or officer of the Company or serves or served any other entity in any capacity
at the Company's request, Executive shall be indemnified by the Company, and
the
Company shall pay Executive's related expenses when and as incurred, including
but not limited to attorney fees, all to the fullest extent permitted by
law.
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6.2 Change
in
Control.
During the
Employment Term, the Company shall continue in full force and effect with
respect to Executive, the Severance Agreement, as amended from time to time
in
accordance with the terms thereof. The Severance Agreement shall control the
compensation and benefits to be received by Executive in the event of a Change
in Control (as defined in the Severance Agreement).
6.3 Supplemental
Retirement Program.
The Company shall
establish for Executive and make contributions to fund an additional defined
contribution supplemental retirement program (the "SRIP"),
designed to
provide Executive with a retirement annuity, at age 65, in an amount, taken
together with other pension and social security benefits to which Executive
may
be entitled at age 65, equal to 35% of his final average compensation from
Base
Salary and Annual Bonus for the last three years of his employment. The SRIP
shall be based on the assumptions set forth on Schedule 1 to this Agreement.
The
annual benefit will be reduced if Executive's employment terminates before
2008,
unless, subject to approval of by the Board, such termination occurs as a result
of a termination of employment by the Company without Cause or Executive for
Good Reason either following or 3 months prior to a Change in Control. The
annual contribution shall be calculated each year, and Executive acknowledges
that the amount of the contribution will likely be different from the amounts
shown in Schedule 1. Executive further acknowledges that the contribution will
vary based on the performance of the Company and whether Executive meets or
exceeds targeted bonus levels under the Annual Bonus Plan. LTIP participation
shall not be included in calculating average compensation above.
7. Compensation
and Benefits Upon Termination Other than in Connection with a Change in
Control.
7.1 Termination
Upon
Death.
If Executive dies
prior to the expiration of the Employment Term, the Company shall pay to
Executive's estate, or other designated beneficiary(s) as shown in the records
of the Company, any earned but unpaid Base Salary, a pro-rata amount of the
annual bonus that Executive would be eligible to receive under the Company's
Annual Bonus Plan for the year in which Executive's death occurs, LTIP benefits
in accordance with the terms of the LTIP, accrued benefits under the SRIP and
any other benefits that Executive is entitled to receive as of the Date of
Termination under applicable benefit plans of the Company,
less standard
withholdings for tax and social security purposes. Except as required by law,
after the Date of Termination, the Company shall have no obligation to make
any
other payment, including severance or other compensation, of any kind to
Executive’s estate upon a termination of employment by death.
7.2 Termination
Upon
Disability.
The Company may
terminate Executive's employment in the event Executive suffers a Disability.
In
the event that Executive's employment is terminated pursuant to this
Section 7.2, Executive shall receive payment for any earned and unpaid Base
Salary, a pro-rata amount of the annual bonus that Executive would be eligible
to receive under the Company's Annual Bonus Plan for the year in which such
termination occurs, LTIP benefits in accordance with the terms of the LTIP,
accrued benefits under the SRIP, and any other benefits that Executive is then
entitled to receive under applicable benefit plans of the Company, less standard
withholdings for tax and social security purposes.
Except
as required
by law,
after
the Date of
Termination, no other compensation of any kind or severance or other payment
of
any kind or payment in lieu of notice shall be payable by the Company to
Executive upon a termination of employment for Disability.
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7.3 Voluntary
Termination.
Executive
may
voluntarily terminate his employment with the Company at any time upon 90 days'
prior written notice. The Company may accelerate the termination of Executive's
employment and the right to any further compensation to a date prior to the
90th
day upon written notice thereof being delivered to Executive by the Company.
In
the event that Executive's employment is terminated under this Section 7.3,
Executive shall receive payment for any earned and unpaid Base Salary, and
benefits the Executive is entitled to receive under the employee benefit plans
of the Company, but excluding bonuses otherwise payable under the Company's
Annual Bonus Plan, less standard withholdings for tax and social security
purposes, through the Date of Termination. Except
as required
by law,
after
the Date of
Termination the Company shall have no further obligation to pay any compensation
of any kind or severance payment of any kind nor to make any further payment
in
lieu of notice to Executive.
7.4 Termination
for
Cause.
The Board may
terminate Executive's employment with the Company at any time for Cause. In
the
event that Executive's employment is terminated under this Section 7.4,
Executive shall receive payment for all earned but unpaid Base Salary, and
benefits the Executive is then entitled to receive under the employee benefit
plans of the Company, but excluding bonuses otherwise payable under the
Company's Annual Bonus Plan, less standard withholdings for tax and social
security purposes, through the Date of Termination. Except
as required
by law,
after
the Date of
Termination the Company shall have no further obligation to pay any severance
or
compensation of any kind nor to make any payment in lieu of notice to Executive.
Except as required by law, all benefits provided by the Company to Executive
under this Agreement or otherwise shall cease as of the Date of Termination.
7.5 Termination
Without Cause.
The Company may,
at any time and without prior written notice, terminate Executive without Cause.
In the event that Executive's employment with the Company is terminated without
Cause, Executive shall receive (i) payment for all earned but unpaid Base
Salary, and benefits the Executive is then entitled to receive under benefit
plans of the Company, if any, less standard withholdings for tax and social
security purposes, through the Date of Termination; (ii) within 90 days after
execution by Executive of a mutual release of claims, payment in a lump sum
of
an amount equal to 36 months of Executive's then current Base Salary if the
termination occurs during the first 24 months of the Initial Term, 24 months
of
Executive's then current Base Salary if the termination occurs during the last
36 months of the Initial Term, and 12 months if the termination occurs during
any renewal period or if the Agreement is not renewed at the end of the Initial
Term, in each case less standard withholdings for tax and social security
purposes; (iii) payment of a pro-rata amount of the Annual Bonus that
Executive would be eligible to receive under the Company's Bonus Plan for the
year in which the termination occurs; (iv) payment of amounts accrued under
the
LTIP in accordance with the terms of the LTIP; (v) if, and only if permitted
under the terms of the Company's plans, continuation of Executive's
participation in the Company's medical and health insurance plans during the
period he is to receive severance compensation and assuming Executive is
eligible and elects COBRA, payment on Executive's behalf of continuation
premiums for health insurance under Federal or State COBRA for a period of
18
months following the date that severance payments cease; (vi) acceleration
of
the vesting of a portion of any unvested stock options in the amount
that would
have become
vested at the end of the calendar year in which the termination occurred; and
(vii) payment of the annual contribution to the SRIP for the calendar year
in
which the termination occurs. No other compensation of any kind or severance
or
other payment of any kind shall be payable by the Company to Executive after
such Date of Termination. Except as specifically provided in this Section 7.5
and except as required by law, all benefits provided by the Company to Executive
under this Agreement or otherwise shall cease as of the Date of
Termination.
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7.6 Termination
for
Good Reason.
Notwithstanding
anything in this Section 7 to the contrary, Executive may voluntarily terminate
his employment with the Company and receive the benefits detailed in Section
7.5
upon or within 180 days following the occurrence of an event constituting Good
Reason.
7.7 Termination
Following a Change in Control.
If the employment
of Executive is terminated within the period commencing 3 months prior to a
Change in Control and ending 3 years following a Change in Control, the
provisions of this Section 7 shall not apply and all payments shall be made
in
accordance with the provisions of the Severance Agreement, except that, subject
to the approval of the Board, in the event such termination occurs as a result
of a termination of employment by the Company without Cause or by Executive
for
Good Reason, Executive shall also be entitled to (i) payment of the annual
contribution to the SRIP for the calendar year in which the termination occurs
and (ii) payment of an additional contribution to the SRIP in an amount
necessary to ensure that the anticipated target benefit provided to Executive
under the SRIP (i.e. 35% of his final average compensation from Base Salary
and
Annual Bonus for the last three years of his employment) is fully funded as
of
the date of such termination.
7.8 Certain
Definitions.
For purposes of
this Agreement, the following term shall have the meanings set forth
below.
(a) "Cause"
shall mean that
Executive shall: (i) commit an act of fraud, embezzlement or misappropriation
involving the Company; (ii) be convicted by a court of competent jurisdiction
of, or enter a plea of guilty of no contest to, any felony involving moral
turpitude or dishonesty; (iii) commit an act, or fail to commit an act,
involving the Company which amounts to, or with the passage of time would amount
to, willful misconduct, gross negligence or a breach of this Agreement and
which
results or will result in material harm to the Company, if such act is not
corrected within 30 days following receipt written notice thereof from the
Company; or (iv) willfully fail to perform the responsibilities and duties
specified herein for a period of 30 days following receipt of written notice
from the Company which specifically describes past instances of willful failure
of performance; provided that in the case of (iv) above, during the 30-day
period following receipt of such notice, Executive shall be given the
opportunity to take reasonable steps to cure any such claimed past failure
of
performance; provided, however, that Executive shall not be deemed to have
been
terminated for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board at a meeting
of
the Board called and held for the purpose (after reasonable notice to Executive
and an opportunity for Executive, together with Executive 's counsel, to be
heard before the Board), finding that in the good faith opinion of the Board
Executive was guilty of the conduct set forth above and specifying the
particulars thereof in detail. Notwithstanding the foregoing, Executive shall
have the right to contest his termination for Cause (for purposes of this
Agreement) by arbitration in accordance with the provisions of this
Agreement.
7
(b) "Date
of
Termination"
shall mean
(i) if Executive is terminated by the Company for Disability, 30 days after
written notice of termination is given to Executive (provided that Executive
shall not have returned to the performance of his duties on a full-time basis
during such 30-day period) or (ii) if Executive's employment is terminated
by the Company for any other reason or by Executive, the date on which a written
notice of termination, specifying in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment is given; provided that, in the case of a termination for Cause,
Executive shall not have cured the matter or matters stated in the notice of
termination within the 10-day notice period provided in Section 7.8(a)
above.
(c) "Disability"
shall mean a
physical or mental disability that renders Executive unable, as determined
in
good faith by a licensed physician, to perform the essential functions of his
position, even with reasonable accommodation, for 180 days within any 12-month
period. The Company and Executive or his legal representative shall use their
best efforts to agree on the physician to determine disability. If they cannot
agree within 10 days after the first party makes a written proposal stating
the
name of a physician, then the other party shall select a physician within 10
days and within 10 days thereafter the two physicians shall select a third
physician. All such physicians must be board certified in the medical area
giving rise to the alleged disability. The determination of the third physician
shall be final and binding. If one party fails to select a physician within
the
10-day period, the physician named by the other party shall make the
determination of disability.
(d) "Good
Reason"
shall mean
Executive's resignation from employment within 180 days after the occurrence
of
one of the following events without Executive’s express written consent:
(i)
a change of
Executive's title as Chief Executive Officer or a material reduction in
Executive's responsibilities or the assignment to Executive by the Company
of
duties inconsistent with his position as Chief Executive Officer;
(ii)
a reduction in
his Base Salary or participation in the Annual Bonus Plan or other employee
benefit plans described in this Agreement;
(iii)
a relocation
to any place more than 25 miles from the office regularly occupied by Executive,
except for reasonably required travel by Executive on the Company's business;
(iv)
any material
breach by the Company of any provision of this Agreement or any other material
agreement between the Company or any subsidiary and Executive; or
(v)
the failure by
the Company or by any successor or assign of the Company (whether by operation
of law or otherwise, including any surviving company in a merger or similar
transaction involving the Company), within ten business days following a Change
in Control, to deliver to Executive an agreement expressly reaffirming its
obligations under or agreeing to assume and comply with the obligations of
the
Company under this Agreement.
8
8. Warranties
and Representations.
Executive hereby
represents and warrants to the Company that he is not now under any obligation
of a contractual or quasi-contractual nature known to him that is inconsistent
or in conflict with this Agreement or that would prevent, limit or impair the
performance by Executive of his obligations hereunder; and has been or has
had
the opportunity to be represented by legal counsel in the preparation,
negotiation, execution and delivery of this Agreement and understands fully
the
terms and provisions hereof
9. Notices
All
notices
required or permitted to be given by either party hereunder shall be in writing
and shall be deemed sufficiently given if mailed by registered or certified
mail, or personally delivered to the party entitled thereto at the address
stated below, or to such changed address as the addressee may have given by
a
similar notice:
|
To
the
Company:
|
Xxxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn:
Chairman of the Compensation Committee
Fax:
(000)
000-0000
|
|
With
a Copy
to:
|
000
Xxxx
Xxxx., Xxxxx 000
X.X.
Xxx
0000
Xxxxx,
Xxxxx,
00000
Fax:
(000)
000-0000
Attention:
Xxxx Street, Esq.
|
|
To
Executive:
|
Xxxxxx
X.
Xxxxxx
Xxxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier:
(000) 000-0000
|
10. General
Provisions
10.1 Waiver.
No waiver by any
party hereto of any failure of any other party to keep or perform any covenant
or condition of this Agreement shall be deemed to be a waiver of any preceding
or succeeding breach of the same, or any other covenant or
condition.
9
10.2 Amendments.
No provision of
this Agreement may be amended, modified or waived unless such amendment,
modification or waiver shall be agreed to in writing and signed by Executive
and
a duly authorized officer of the Company.
10.3 Severability.
The provisions of
this Agreement are severable and in the event that a court of competent
jurisdiction determines that any provision of this Agreement is in violation
of
any law or public policy, in whole or in part, only the portions of this
Agreement that violate such law or public policy shall be stricken. All portions
of this Agreement that do not violate any statute or public policy shall not
be
affected thereby and shall continue in full force and effect. Further, any
court
order striking any portion of this Agreement shall modify the stricken terms
as
narrowly as possible to give as much effect as possible to the intentions of
the
parties under this Agreement.
10.4 Assignment.
No right to or
interest in any payments shall be assignable by either party; provided; however,
that this provision shall not preclude Executive from designating one or more
beneficiaries to receive any amount that may be payable after his death and
shall not preclude his executor or administrator from assigning any right
hereunder to the person or persons entitled hereto. Further, the Company may
assign this Agreement: (a) to an affiliate so long as such affiliate assumes
the
Company's obligations hereunder, or (b) in connection with a merger or
consolidation involving the Company or a sale of substantially all its assets
or
shares to the surviving corporation or purchaser as the case may be so long
as
such assignee assumes the Company's obligations hereunder.
10.5 Successors
and
Assigns.
This Agreement
and the obligations of the Company and Executive hereunder shall be binding
upon
and shall be assumed by their respective successors including, without
limitation, any corporation or corporations acquiring the Company, whether
by
merger, consolidation, sale or otherwise.
10.6 Governing
Law.
The validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of California without regard to the principles of
conflict of laws thereof.
10.7 Attorney's
Fees
and Costs.
If any action at
law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees,
costs, and necessary disbursements in addition to any other relief to which
that
party may be entitled. This provision shall be construed as applicable to the
entire contract.
10.8 No
Representation.
No officer,
employee or representative of the Company has any authority to make any
representation or promise in connection with this Agreement or the subject
matter hereto which is not contained herein, and Executive agrees that he has
not executed this Agreement in reliance upon any such representation or
promise.
10.9 Interpretation
of Agreement.
Each of the
parties has been represented by counsel in the negotiation and preparation
of
this Agreement. The parties agree that this Agreement is to be construed as
jointly drafted. Accordingly, this Agreement will be construed according to
the
fair meaning of its language, and the rule of construction that ambiguities
are
to be resolved against the drafting party will not be employed in the
interpretation of this Agreement.
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10.10 Headings.
The headings of
sections and subsections are included solely for convenience of reference and
shall not control the meaning or interpretation of any of the provisions of
this
Agreement.
10.11 Entire
Agreement.
This document
constitutes the entire understanding and Agreement of the parties with respect
to the subject matter of this Agreement, and any and all prior agreements,
understandings and representations are hereby terminated and cancelled in their
entirety and are of no further force or effect.
10.12 Counterparts.
This Agreement
may be executed in two or more counterparts with the same effect as if the
signatures to all such counterparts was upon the same instrument, and all such
counterparts shall constitute but one instrument.
10.13 Remedies. In
view of the
position of confidence which Executive will enjoy with the Company and the
anticipated relationship with the clients, customers, and employees of the
Company and its affiliates pursuant to his employment hereunder, and recognizing
both the access to confidential financial and other information which Executive
will have pursuant to his employment, Executive expressly acknowledges that
the
restrictive covenants set forth in Section 5 are reasonable and necessary in
order to protect and maintain the proprietary interests and other legitimate
business interests of the Company and its affiliates. Executive further
acknowledges that (1) it would be difficult to calculate damages to the Company
and its affiliates from any breach of his obligations under this Section 5,
(ii)
that injury to the Company and its affiliates from any such breach would be
irreparable and impossible to measure, and (iii) that the remedy at law for
any
breach or threatened breach of Section 5 would therefore be an inadequate remedy
and, accordingly, the Company shall, in addition to all other available remedies
(including without limitation seeking such damages as it can show it and its
affiliates has sustained by reason of such breach and/or the exercise of all
other rights it has under this Agreement), be entitled to injunctive and other
similar equitable remedies.
10.14 No
Mitigation of
Damages.
Executive shall
not be required to mitigate damages or the amount of any payment provided for
under this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for under this Agreement be reduced by any
compensation earned by Executive as a result of employment by another employer
or by retirement benefits after the Date of Termination, except as specifically
provided hereunder. The provisions of this Agreement, and any payment provided
for hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish the Executive's then existing rights, or rights which would accrue
solely as a result of the passage of time, under any Company benefit plan or
other contract, plan or arrangement.
10.15 Dispute
Resolution and Binding Arbitration.
Executive and the
Company agree that in the event a dispute arises concerning or relating to
Executive's employment with the Company, or any termination therefrom, such
dispute shall be submitted to binding arbitration in accordance with the
employment arbitration rules of Judicial Arbitration and Mediation Services
("JAMS")
by a single
impartial arbitrator experienced in employment law selected as follows: if
the
Company and Executive are unable to agree upon an impartial arbitrator within
10
days of a request for arbitration, the parties shall request a panel of
employment arbitrators from JAMS and alternatively strike names until a single
arbitrator remains. The arbitration shall take place in San Francisco,
California, and both Executive and the Company agree to submit to the
jurisdiction of the arbitrator selected in accordance with JAMS' rules and
procedures. Except as set forth in Section 10.13 hereof, Executive and the
Company further agree that arbitration as provided for in this section will
be
the exclusive and
binding remedy
for any such dispute and will be used instead of any court action, which is
hereby expressly waived, except for any request by either party hereto for
temporary or preliminary injunctive relief pending arbitration in accordance
with applicable law, or an administrative claim with an administrative
agency,
and that the
award of the arbitrator shall be final and binding on both parties, and
nonappealable. The arbitrator shall have discretion to award monetary and other
damages, or no damages, and to fashion such other relief as the arbitrator
deems
appropriate. The Company will be responsible for paying any filing fees and
costs of the arbitration proceeding itself (for example, arbitrators' fees,
conference room, transcripts), but each party shall be responsible for its
own
attorneys' fees. THE COMPANY AND EXECUTIVE ACKNOWLEDGE AND AGREE THAT BY
AGREEING TO ARBITRATE, THEY ARE WAIVING ANY RIGHT TO BRING AN ACTION AGAINST
THE
OTHER IN A COURT OF LAW, EITHER STATE OR FEDERAL, AND ARE WAIVING THE RIGHT
TO
HAVE CLAIMS AND DAMAGES, IF ANY, DETERMINED BY A JURY.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
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By:
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Title:
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