EMPLOYMENT AGREEMENT
Exhibit
10.11
THIS
AGREEMENT made this 10th day of May, 2006, by and between StarInvest Group,
Inc., a Nevada corporation with its principal office at 0000 Xxxxx X Xxxxxx,
Xxxxx 0-000, Xxxxxxx, XX 00000 (hereinafter "STIV" or the "Company" or the
"Corporation") and Xxxxxx X. Xxxx, President of R & X Xxxx, Inc.
(hereinafter "Xxxx" or the "Executive") residing at 0000 xxx Xxxxxxxx Xx.,
Xxxxxxx, XX 00000.
WITNESSETH
WHEREAS,
the said Xxxx is to be the Chairman of the Board of Directors and the Chief
Executive Officer of STIV and an integral part of management and STIV desires
to
assure itself of his continuing services and of a continuity in management
and
also desires to assure Xxxx of continued employment during the period of
employment hereunder and of retirement benefits upon his retirement,
and
WHEREAS,
Xxxx is willing to commit himself to continue to remain in the employ of STIV,
and, except as is provided hereinafter, to forego opportunities elsewhere during
such period on the terms and conditions as set forth herein.
NOW
THEREFORE, in consideration of the mutual promises and conditions contained
herein, the parties, intending to be legally bound hereby, agree as
follows:
1.
EMPLOYMENT AND TERM:
(a)
The
Company hereby agrees to employ Xxxx,, and the said Xxxx hereby agrees to be
employed by STIV, upon the terms and conditions hereinafter stated, for a Period
of Employment which shall commence on May 10, 2006, (hereinafter the
"Commencement Date" and which shall be deemed the date of this Agreement) and,
subject only to the express terms of this Agreement relating to death and
disability, shall i) continue until the close of business on December 31, 2008
(the “Terminal Date”) or ii) until such later date as the parties shall agree
upon, or iii) upon such other date as shall result from the operation of the
terms and conditions of this Agreement, or iv) until Executive shall die, or
v)
until Executive is disabled as defined hereinafter. In the event that Executive
shall continue in the full-time employment of the Company after December 31,
2008, such employment shall continue to be subject to the terms and conditions
of this Agreement, as now stated or as hereafter amended, and the Period of
Employment shall include the entire period during which Executive in fact
continues in such employment.
(b)
The
termination date of December 31, 2008 set forth in (a) above shall be extended
for five years, as of that date and as of each subsequent fifth anniversary
of
that date, unless either party shall have given to the other party notice,
in
the manner hereinafter provided, no later than on September 30, 2008, or
September 30th of each subsequent fifth anniversary year of employment, that
the
Terminal Date is not to be extended. Upon such Terminal Date Executive shall
be
vested with all of the pension benefits commensurate with twenty years service
with the Company, its successors or assigns, pension, profit sharing, incentive
stock option, supplemental retirement or other compensation plans for qualified
and non-qualified executive employees of the Company, now or hereafter
implemented.
2.
POSITION, DUTIES AND RESPONSIBILITIES:
(a)
It is
contemplated that during the Period of Employment Executive will serve as Chief
Executive Officer and Chairman of the Board of Directors of the Company, its
successors and assigns, with office(s) and title(s), reporting responsibility,
duties, other responsibilities importance and scope, and with the functions,
duties and responsibilities attached thereto and as the same may be changed,
in
writing, from time to time after the date of this Agreement by mutual agreement
of the parties.
Notwithstanding
the foregoing, the parties further agree that they shall be deemed to have
mutually agreed to a change in office(s), title(s), reporting responsibility,
duties and responsibilities, at any time, if such change shall have been
assigned by the Board of Directors of the Company and Executive, shall have
agreed in writing in advance to such change, and provided that in all events
the
salaries and benefits reserved to Executive shall not be reduced or compromised
in any manner.
(b)
Executive's office(s), title(s), reporting responsibility, duties and
responsibilities as of the date of this Agreement, may not be changed after
the
date of this Agreement without the written consent of Executive.
(c)
During the Period of Employment Executive shall, without compensation other
than
that herein provided (unless the Board of Directors of the Company shall assign
an additional salary for said continued service), also serve and continue to
serve, if and when elected and re-elected, as an officer or director, or both,
of any subsidiary, division or affiliate of the Company, provided Executive
shall not be obliged to relocate from the Midland, Texas area and shall not
incur any personal liabilities therefore that the Company does not bond or
insure against in amounts satisfactory to Executive.
(d)
Throughout the Period of Employment Executive shall devote his primary time
and
attention during normal business hours to the business and affairs of the
Corporation except for reasonable vacations and except for illness or
incapacity, but nothing in this Agreement shall preclude Executive from devoting
reasonable periods required for i) serving as a director of any business,
corporation involving no conflict of interest with the interest of the
Corporation; (ii) delivering lectures, fulfilling speaking engagements, teaching
at educational institutions; (iii) engaging in charitable and community
activities; and (iv) managing investments, provided that such activities do
not
materially interfere with the regular performance of his duties and
responsibilities under this Agreement.
(e)
Unless otherwise agreed to by Executive, the office of Executive shall be
located at the principal offices of the Company within the area of Midland,
Texas and Executive shall not be required to locate his office elsewhere without
his prior written consent. Executive shall not be required to travel outside
the
Midland, Texas area more than 60 days per annum.
2
3.
COMPENSATION, COMPENSATION PLANS, PERQUISITES:
Upon
execution of this Agreement and for all services rendered by Executive in any
capacity during the Period of Employment, including, without limitation,
services as an executive, officer, director or member of any committee of the
Company or of any subsidiary, division or affiliate thereof, effective May
10,
2006, Executive shall be paid as compensation a base annual salary of $0. This
will continue through January 2007. Beginning in February 2007, R & X Xxxx,
Inc. shall be paid as compensation a base annual salary of $30,000, payable
in
equal monthly payments of $2,500, and together with such increases as shall
be
awarded by the Company from time to time effective in accordance with the
Company's regular administrative practices of other salary and bonuses
applicable to executives of the Company (such as attendance fees for Board
of
Directors meetings) in effect from time to time, together with incentive awards
or bonuses provided for herein, if any, and such annual short-term and long-term
incentive awards and bonuses, including qualified and non-qualified stock
options, provided for under any compensation plan, or any successor compensation
plan in effect as of the date of this Agreement or that may be adopted by the
Company during any period of employment, or as may be awarded from time to
time
by the Board of Directors of the Company or a duly authorized committee thereof
in its sole discretion.
Any
increase in salary or in annual incentive award or other compensation, including
stock options, paid or payable to Executive shall in no way diminish any other
obligation of the Company under this Agreement. [Xxx: I don’t think the
Additional Compensation Plan exists]
During
the Period of Employment Executive there will be no benefits provided. R & X
Xxxx, Inc. will furnish office space for STIV at no monthly charge.
During
the time the Company is subject to the Investment Company Act of 1940, as
amended, no compensation of any form whatsoever (including grants of stock
options) shall be granted or paid in violation of such Act, and any provisions
of this Agreement in violation of such Act shall be deemed null and
void.
4.
EFFECT
OF DEATH OR DISABILITY:
(a)
In
the event of the death of Executive during the Period of Employment, there
will
be no benefits paid, other than what has been described above.
3
(b)
In
the event of the Total Disability of Executive during the Period of Employment
Executive shall receive 100% of his compensation, until such time that the
Board
can replace him.
(c)
If
during the Period of Employment Executive shall become temporarily, or
intermittently, disabled through illness or accident from performing his duties
hereunder, he shall be entitled to a leave of absence from his employment duties
for the period of such temporary, or intermittent, disability, not to exceed
180
days in any twelve month period. Executive's full compensation and status as
an
employee shall continue during any such temporary, or intermittent, disability
and leaves of absence.
(d)
In
the event of the death of Executive during the Period of Employment the Company,
this agreement is terminated.
5.
TERMINATION:
Employment,
the provisions of this Article shall apply. Any provision of this Agreement
to
the contrary notwithstanding, the payments, benefits, service credit for
benefits and other matters provided by this Article in the event of such a
Termination are in addition to any payments, benefits, service credit for
benefits and other matters herein provided that may apply in such
event.
(a)
In
the event of a Termination and subject to the provisions of this Agreement,
relating to mitigation of damages, and to compliance by Executive with the
provisions relating to confidential information, the Corporation shall, as
liquidated damages or severance pay, or both, pay to Executive and provide
him,
his dependents, beneficiaries and estate, with compensation for one month of
service after the month in which Termination shall have occurred at the rate
being paid at the time of Termination.
(b)
If a
Change in Control of the Company, as defined below, shall have occurred at
any
time during the term hereof, as same may be extended from time to time, the
Company shall pay to Executive, in cash, within ninety (90) days following
such
termination an amount equal to two (2) times the amount of Executive's then
monthly salary times, on time.
(c)
The
word "Termination," for the purpose of this of this Agreement, shall
mean
(i)
Termination by the Company its successors or assigns of the employment of
Executive by the Company and its subsidiaries for any reason other than for
Cause as defined below or for Disability as defined above; or
(ii)
Termination by Executive of his employment by the Company and its subsidiaries
upon the occurrence of any of the following events:
4
(A)
Failure to elect or re-elect Executive as Chief Executive Officer or as Chairman
of the Board of Directors of the Company during the Period of Employment, or
removal of Executive from, any of the office(s) described above;
(B)
A
significant change in the nature or scope of Executive's authorities, powers,
functions or duties, or a reduction in compensation, which is not remedied
within 30 days after receipt by the Company of written notice from
Executive;
(C)
A
determination by Executive made in good faith that as a result of a Change
in
Control of the Company, as defined in below, and a change in circumstances
thereafter and since the date of this Agreement significantly affecting his
position, he is unable to carry out the authorities, powers, functions or duties
attached to his position and contemplated by this Agreement and the situation
is
not remedied within 30 days after receipt by the Company of written notice
from
Executive of such determination;
(D)
A
breach by the Corporation of any provision of this Agreement not embraced within
the foregoing clauses of this subparagraph which is not remedied within 30
days
after receipt by the Company of written notice from Executive;
(E)
The
liquidation, dissolution, consolidation or merger of the Company or transfer
of
all or a significant portion of its assets unless a successor or successors
(by
merger, consolidation or otherwise) to which all or a significant portion of
its
assets have been transferred shall have assumed all duties and obligations
of
the Company under this Agreement but without releasing the corporation that
is
the original party to this Agreement; provided that in any event set forth
in
this subparagraph Executive shall have elected to terminate his employment
under
this Agreement upon not less than thirty and not more than ninety days' advance
written notice to the Board of Directors of the Company, attention of the
Secretary, given, except in the case of a continuing breach, within three
calendar months after (A) failure to be so elected or re-elected, or removed,
(B) expiration of the thirty-day cure period with respect to such event, or
(C)
the closing date of such liquidation, dissolution consolidation, merger or
transfer of assets, as the case may be. An election by Executive to terminate
his employment given under the provisions of this paragraph shall not be deemed
to be a voluntary termination of employment by Executive for the purpose of
this
Agreement or any plan or practice of the Company.
(d)
For
the purpose of any provision of this Agreement, the termination of Executive's
employment shall be deemed to have been for Cause only (i) if termination of
his
employment shall have been the result of a proven act or acts of dishonesty,
constituting a felony, adjudicated by a competent court having jurisdiction
of
Executive and resulting or intended to result directly or indirectly in gain
or
personal enrichment at the expense of the Company.
5
(e)
Anything in this paragraph or elsewhere in this Agreement to the contrary
notwithstanding, the employment of Executive shall in no event be considered
to
have been terminated by the Company for Cause if termination of his employment
took place (i) as the result of bad judgment or negligence on the part of
Executive, or (ii) as the result of an act or omission without intent of gaining
a profit there from, directly or indirectly, to which Executive was not legally
entitled, or (iii) because of an act or omission believed by Executive in good
faith to have been in or not opposed to the interests of the Company, or (iv)
for any act or omission in respect of which a determination could properly
be
made that Executive met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses under (A) the Bylaws
of
the Company, or (B) the laws of either the State of Nevada, or (C) the
directors' and officers' liability insurance of the Company, in each case either
as in effect at the time of this Agreement or in effect at the time of such
act
or omission, or (v) as the result of an act or omission which occurred more
than
twelve calendar months prior to Executive's having been given notice of the
termination of his employment for such act or omission unless the commission
of
such act or such omission could not at the time of such commission or omission
have been known to a member of the Board of Directors of the Company (other
than
Executive, if he is then a member of the Board of Directors), in which case
more
than twelve calendar months from the date that the commission of such act or
such omission was or could reasonably have been so known, or (vi) as the result
of a continuing course of action which commenced and was or could reasonably
have been known to a member of the Board of Directors of the Company (other
than
Executive, if he is then a member of the Board of Directors) more than twelve
calendar months prior to notice having been given to Executive of the
termination of his employment.
(f)
In
the event that Executive's employment shall be terminated by the Company during
the Period of Employment and such termination is alleged to be for Cause, or
Executive's right to terminate his employment under this Agreement shall be
questioned by the Company, or the Company shall withhold payments or provisions
of benefits because Executive is alleged to be engaged in Competition in breach
of the provisions of this Agreement or for any other reason, Executive shall
have the right, in addition to all other rights and remedies provided by law,
at
his election either to seek arbitration in New York City under the rules of
the
American Arbitration Association by serving a notice to arbitrate upon the
Company or, at Executive's sole and exclusive option, to institute a judicial
proceeding, in either case within ninety days after having received notice
of
termination of his employment or notice in any form that the termination of
his
employment is subject to question or that the Company is withholding or proposes
to withhold payments or provision of benefits or within such longer period
as
may reasonably be necessary for Executive to take action in the event that
his
illness or incapacity should preclude his taking such action within such
ninety-day period.
(g)
(i)
In
the event that the Company defaults on any obligation of this, Agreement and
shall have failed to remedy such default within thirty (30) days after having
received written notice of such default from Executive or his legal
representatives, in addition to all other rights and remedies that Executive
may
have as a result of such default, Executive may demand and the Company shall
thereupon be required to deposit, with the third-party stakeholder hereinafter
described, an amount equal to the undiscounted value of any and all
undischarged, future obligations of the Company under this Agreement and such
amount shall thereafter be held, paid, applied or distributed by such
third-party stakeholder for the purpose of satisfying such undischarged, future
obligations of the Company when and to the extent that they become due and
payable. Any interest or other income on such amount shall be paid over
currently as earned by the "Company." To the extent not theretofore expended,
such amount shall be repaid to the Company at such time as the third-party
stakeholder, in its sole discretion, reasonably exercised, determines, upon
the
advice of counsel and after consultation with the Company and Executive or,
in
the event of his death, his beneficiary, that all obligations of the Company
under this Agreement have been substantially satisfied.
6
(ii)
Such
amount shall, in the event of any question, be determined jointly by the firm
of
certified public accountants regularly employed by the Company and a firm of
certified public accountants selected by Executive, in each case upon the advice
of actuaries. To the extent the certified public accountants are unable to
agree
on a resolution of the question, such amount shall be determined by an
independent firm of certified public accountants selected jointly by both firms
of accountants.
6.
NO
OBLIGATION TO MITIGATE DAMAGES:
(a)
In
the event of a Termination other than a Voluntary Termination as defined herein,
Executive shall have no obligation to mitigate damages by seeking other
employment. Provided, further, that he shall not be required to accept a
position of less dignity and importance or of substantially different character
and salary than the highest position theretofore held by him with the Company
or
a position that would call upon him to engage in Competition within the meaning
below.
(b)
To
the extent that Executive shall receive compensation, benefits and service
credit for benefits from other employment secured pursuant to the provisions
of
the subparagraph above, the payments to be made and the benefits and service
credit for benefits to be provided by the Company (other than the credit for
Twenty (20) Years Constructive Service provided therein) shall be
correspondingly reduced. Such reduction shall, in the event of any question,
be
determined jointly by the firm of certified public accountants regularly
employed by the Company and a firm of certified public accountants selected
by
Executive, in each case upon the advice of actuaries to the extent the certified
public accountants consider necessary, and, in the event such two firms of
accountants are unable to agree on a resolution of the question, such reduction
shall be determined by an independent firm of certified public accountants
selected jointly by both firms of accountants.
7.
CONFIDENTIAL INFORMATION:
(a)
Executive agrees not to disclose, either while in the Company's employ or at
any
time thereafter, to any person not employed by the Company, or not engaged
to
render services to the Company, except in his sole discretion as he may deem
reasonable within the scope of his employment and in the interest of the
Company, any confidential information obtained by him while in the employ of
the
Company, including without limitation, information relating to any of the
Company's inventions, processes, formulae, plans, devices, compilations of
information, methods of distribution, customers, client relationships, marketing
strategies or trade secrets; provided, however, that this provision shall not
preclude Executive from use or disclosure of information in furtherance of
the
Company business opportunities or of such information known generally to the
public or of information not considered confidential by persons engaged in
the
business conducted by the Company or from disclosure required by law or Court
order. The agreement herein made in this paragraph shall be in addition to,
and
not in limitation or derogation of, any obligations otherwise imposed by law
upon Executive in respect of confidential information and trade secrets of
the
Company, its subsidiaries and affiliates.
7
(b)
Executive also agrees that upon leaving the Company's employ he will not take
with him, without the prior written consent of an officer authorized to act
in
the matter by the Board of Directors of the Company, and he will surrender
to
the Company any record, list, drawing, blueprint, specification or other
document or property of the Company, its subsidiaries and affiliates, together
with any copy and reproduction thereof, mechanical or otherwise, which is of
a
confidential nature relating to the Company, its subsidiaries and affiliates,
or, without limitation, relating to its or their methods of distribution, client
relationships, marketing strategies or any description of any formulae or secret
processes, or which was obtained by him or entrusted to him during the course
of
his employment with the Company.
8.
SEVERANCE ALLOWANCE, COMPETITION:
(a)
In
addition to the foregoing, in the event of termination of the employment of
Executive by the Company at any time prior to the attainment by Executive of
65
years of age and such termination shall be for any reason other than for Cause,
as defined above, the Company, subject to the provisions below relating to
Competition, shall pay Executive a severance allowance commencing on the first
day of each month following termination of his employment and continuing on
the
first day of each month until the next "Terminal Date". Such severance allowance
shall for each such month be an amount equal to the average Monthly Compensation
of Executive for the twelve-month period preceding the Termination
Date.
(b)
During the period that the payments provided for in subparagraph (a) of this
Article are required to be made, Executive, his dependents and beneficiaries,
shall continue to be entitled to all benefits inclusive of service credit for
benefits under employee benefit plans of the Company as if Executive were still
employed during such period and, if and to the extent that such benefits shall
not be payable under any such plan by reason of Executive's no longer being
an
employee of the Company, the Company shall itself pay or provide for payment
of
such benefits to Executive, his dependents and beneficiaries. The amount of
any
benefit payable under this paragraph shall be reduced by any corresponding
benefit with respect to the same period for which the cost is payable by the
Company under the provisions of this Agreement.
8
(c)
(A)
Subject to the provisions above, there shall be no obligation on the part of
the
Company to make any further payments provided for above and in this Article
or
to provide any further benefits specified above or in this Article if Executive
shall, during the period that such payments are being made or benefits provided,
engage in direct Competition with the Company as hereinafter defined, provided
all of the following shall have taken place:
(i)
The
Secretary of the Company, pursuant to resolution of the Board of Directors
of
the Company, shall have given written notice to Executive that, in the opinion
of the Board of Directors, Executive is engaged in such direct Competition,
specifying the details;
(ii)
Executive shall have been given a reasonable opportunity upon reasonable notice
to appear before and to be heard by the Board of Directors prior to the
determination of the Board evidenced by such resolution;
(iii)
Executive shall neither have ceased to engage in such direct Competition within
thirty days from his receipt of such notice nor diligently taken all reasonable
steps to that end during such thirty-day period and thereafter.
(B)
The
word "Competition" for the purposes of this paragraph and any other provision
of
this Agreement shall mean (i) taking a management position with or control
of a
business engaged in the design, development, marketing or distribution of
services and products which constituted 15% or more of the sales of the Company
and its subsidiaries and affiliates during the last fiscal year of the Company
preceding the termination of Executive's employment, in any geographical area
in
which the Company, its subsidiaries or affiliates is at the time engaging in
the
design, development, manufacture, marketing or distribution of such products;
provided, however, that in no event shall ownership of less than 5% of the
outstanding capital stock entitled to vote for the election of directors of
a
corporation with a class of equity securities held of record by more than 500
persons, standing alone, be deemed Competition with the Company within the
meaning of this paragraph, (ii) soliciting any person who is a customer of
the
businesses conducted by the Company, or any business in which Executive has
been
engaged on behalf of the Company and its subsidiaries or affiliates at any
time
during the term of this Agreement on behalf of a business described in clause
(i) of this subparagraph or (iii) inducing or attempting to persuade any
employee of the Company or any of its subsidiaries or affiliates to terminate
his employment relationship in order to enter into employment with a business
described in clause (i) of this subparagraph.
9.
WITHHOLDING:
Anything
to the contrary notwithstanding, all payments required to be made by the Company
under this Agreement to Executive or his estate or beneficiaries shall be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Company independent Certified Public Accounting firm
may reasonably determine it should withhold pursuant to any applicable law
or
regulation. In lieu of withholding such amounts, the Company may accept other
provisions to the end that it has sufficient funds to pay all taxes required
by
law to be withheld in respect of any or all of such payments.
9
10.
NOTICES:
All
notices, requests, demands and other communications provided for by this
Agreement shall be in writing and shall be sufficiently given if and when mailed
in the continental United States by registered or certified mail or personally
delivered to the party entitled thereto at the address stated from time to
time
in the Exhibit to this Agreement which address shall be such address as the
addressee January have given most recently by a similar notice. Any such notice
delivered in person shall be deemed to have been received on the date of
delivery.
11.
GENERAL PROVISIONS:
(a)
There
shall be no right of set-off or counterclaim in respect of any claim, debt
or
obligation against any payments to Executive, his dependents, beneficiaries
or
estate, provided for in this Agreement.
(b)
The
Company and Executive recognize that each party will have no adequate remedy
at
law for breach by the other of any of the agreements contained in this Agreement
and, in the event of any such breach, the Company and Executive hereby agree
and
consent that the other shall be entitled to a decree of specific performance,
mandamus or other appropriate remedy to enforce performance of such
agreements.
(c)
No
right or interest to or in any payments shall be assignable by Executive;
provided, however, that this provision shall not preclude him from designating
one or more beneficiaries to receive any amount that may be payable after his
death and shall not preclude the legal representative of his estate from
assigning any right hereunder to the person or persons entitled thereto under
his will or, in the case of intestacy, to the person or persons entitled thereto
under the laws of intestacy applicable to his estate.
(d)(i)
No
right, benefit or interest hereunder, shall be subject to anticipation,
alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or
set-off in respect of any claim, debt or obligation, or to execution,
attachment, levy or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified in the
immediately preceding sentence shall, to the full extent permitted by law,
be
null, void and of no effect
(ii)
Executive shall not have any right, title, or interest whatsoever in or to
any
investments which the Company may make to aid it in meeting its obligations
under this Agreement.
(iii)
Subject to the provisions above, nothing contained in this Agreement shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Company and Executive or any other person.
10
(iv)
Subject to the provisions above, to the extent that any person acquires a right
to receive payments from the Company under this Agreement, except to the extent
provided by law such right shall be no greater than the right of an unsecured
general creditor of the Company.
(v)
Subject to the provisions above, all payments to be made under this Agreement
shall be paid from the general funds of the Company and except as provided
herein no special or separate fund shall be established and no segregation
of
assets shall be made to assure payment of amounts payable under this Agreement,
except as set forth in paragraph 4(c). Provided, however, that the Company
shall
have, at its sole discretion, the right to substitute fully paid annuity
policies in place and instead of any deferred compensation benefits provided
that such annuity provide to Executive, and or his beneficiaries, payments
at
least equal to the payment of the deferred compensation as required under any
plan of deferred compensation in which Executive may have been enrolled in
at
any time.
(e)
The
term "beneficiaries" as used in this Agreement shall, in the event of the death
of Executive, will be R & X Xxxx, Inc., unless a change in beneficiary or
beneficiaries designated on a form filed with the Company by Executive to
receive any amount that may be payable after his death.
(f)
In
the event of Executive's death or a judicial determination of his incompetence,
reference in this Agreement to Executive shall be deemed, where appropriate,
to
refer to his legal representative or, where appropriate, to his beneficiary
or
beneficiaries.
(g)
If
any event provided for in this Agreement is scheduled to take place on a legal
holiday, such event shall take place on the next succeeding business day that
is
not a legal holiday.
(h)
The
titles to sections in this Agreement are intended solely for convenience and
no
provision of this Agreement is to be construed by reference to the title of
any
section.
(i)
This
Agreement shall be binding upon and shall inure to the benefit of Executive,
his
heirs and legal representatives, and the Company and its successors, including
and not limited to STIV as provided herein.
(j)
This
instrument contains the entire agreement of the parties relating to the subject
matter of this Agreement and supersedes and replaces all prior agreements and
understandings with respect to such subject matter, and with respect to the
subject matter herein contained the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein.
11
12.
AMENDMENT OR MODIFICATION; WAIVER:
No
provision of this Agreement may be amended, modified or waived unless such
amendment, modification or waiver shall be authorized by the Board of Directors
of the Company or any authorized committee of the Board of Directors and shall
be agreed to in writing, signed by Executive and by an officer of the Company
thereunto duly authorized. Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of a subsequent breach of such condition
or
provision or a waiver of a similar or dissimilar provision or condition at
the
same time or at any prior or subsequent time.
13.
SEVERABILITY:
Anything
in this Agreement to the contrary notwithstanding:
(i)
In
the event that any provision of this Agreement, or portion thereof, shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement and parts of such provision not
so
invalid or unenforceable shall be unaffected thereby and shall remain in full
force and effect to the fullest extent permitted by law;
(ii)
Any
provision of this Agreement, or portion thereof, which may be invalid or
unenforceable in any jurisdiction shall be limited by construction thereof,
to
the end that such provision, or portion thereof, shall be valid and enforceable
in such jurisdiction; and
(iii)
Any
provision of this Agreement, or portion thereof, which may for any reason be
invalid or unenforceable in any jurisdiction shall remain in effect and be
enforceable in any jurisdiction in which such provision, or portion thereof,
shall be valid and enforceable.
14.
SUCCESSORS TO THE COMPANY
Except
as
otherwise provided herein, this Agreement shall be binding upon and inure to
the
benefit of the Company and any successor of the Company, including, without
limitation, any corporation or corporations acquiring directly or indirectly
all
or substantially all of the assets of the Company whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "the Company for the purposes of this Agreement),
but
shall not otherwise be assignable by the Company.
15.
CHANGE IN CONTROL
For
the
purpose of this Agreement, the term "Change in Control of the Company" shall
mean a change in control of a nature that would be required to be reported
in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 as in effect on the date of this Agreement;
provided that, without limitation, such a change in control shall be deemed
to
have occurred if and when (a) any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934) is or becomes a
beneficial owner, directly or indirectly, of securities of the Corporation
representing twenty-five percent (25%) or more of the combined voting power
of
the Corporation's then outstanding securities or (b) during any period of 24
consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such twenty-four month period were directors
of the Company cease for any reason to constitute at least a majority of the
Board of Directors of the Company.
16.
GOVERNING LAW: The validity, interpretation, construction, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Texas without giving effect to the principles of conflict of laws
thereof.
12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and
year first above written.
| Accepted and Agreed: | |||
| R & X Xxxx, Inc. |
Signature
|
||
| Xxxxxx X. Xxxx |
Name
and Title
|
13
