EXHIBIT 3B
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 11th day of April, 1997, by and between
BUFFTON CORPORATION, a Delaware corporation (EMPLOYER"), and XXXX-XXXXXX XXXXXX
(hereinafter called the "EMPLOYEE").
W I T N E S S E T H :
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WHEREAS, the EMPLOYER wishes to employ EMPLOYEE, and EMPLOYEE wishes to
accept such employment on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment. The EMPLOYER hereby employs EMPLOYEE, and EMPLOYEE hereby
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accepts employment with EMPLOYER currently as President and Chief Operating
Officer of EMPLOYER, on the terms and conditions herein contained. EMPLOYEE
shall initially report to the Chief Executive Officer of EMPLOYER. The titles,
powers and the person to whom EMPLOYEE reports may be, from time to time,
changed and/or determined by the Board of Directors or Chief Executive Officer
of EMPLOYER; provided, however, EMPLOYEE'S duties and responsibilities shall at
all times include those customarily performed by a President and Chief Operating
Officer of a company comparable to EMPLOYER (the "Specific Duties"). EMPLOYEE
agrees to fully and faithfully perform the Specific Duties and such additional
duties and responsibilities as might be assigned and delegated to EMPLOYEE
from time to time by the Chief Executive Officer or Board of Directors of
EMPLOYER, for so long as this Agreement is in effect.
2. Term of Employment Agreement. The term of this Agreement shall be for
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an indefinite period beginning April 11, 1997 (the "Employment Agreement
Term").
3. Compensation.
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A. Salary. For all services rendered by EMPLOYEE under this
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Agreement, EMPLOYER shall pay to EMPLOYEE a fixed annual gross salary of One
Hundred Fifty Thousand and No/100 Dollars ($150,000.00), subject to deductions
and withholding mandated by law, payable in installments according to the then
prevailing payroll practices of the EMPLOYER with respect to its employees. The
Board of Directors of EMPLOYER may from time to time grant EMPLOYEE compensation
in excess of the salary set forth hereinabove; provided, however, EMPLOYER'S
contractual obligation to pay salary to EMPLOYEE under this Agreement shall be
the fixed annual gross salary specified in this Paragraph 3.A, plus any such
approved increases in salary.
B. Benefits. EMPLOYEE, through the effective date of a termination
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of this Agreement, shall be entitled to participate in all present and future
employee benefit plans, policies and programs that are available generally to
EMPLOYER'S full-time employees and senior executives.
C. Bonus. EMPLOYER shall adopt a bonus plan for each fiscal year
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during the Employment Agreement Term covering EMPLOYER'S employees, and EMPLOYEE
shall be paid on or before December 31, of each year during the Employment
Agreement Term the bonuses established for EMPLOYEE in such bonus plan.
D. Restricted Stock Grants. The Board of Directors of EMPLOYER may,
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in its sole discretion, grant restricted stock bonuses to EMPLOYEE from time to
time, in such amounts as the Board of Directors may determine.
4. Reimbursement for Expenses. EMPLOYER shall reimburse EMPLOYEE for all
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reasonable and necessary expenses incurred by EMPLOYEE in the performance of
EMPLOYEE'S duties contemplated hereby.
5. Vacations. For so long as this Agreement is in effect, EMPLOYEE shall
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receive twenty business days paid vacation each fiscal year beginning with
October 1, 1997. Such twenty business days paid vacation shall be deemed earned
for a given fiscal year on October 1 of each year. Any earned vacation not taken
by EMPLOYEE prior to September 30 of each fiscal year shall lapse. Upon a
termination of this Agreement for any reason, except for cause (other than for
cause following a Change in Control as hereinafter defined), EMPLOYEE shall be
entitled to receive the sum of $ 410.96 for each business day of earned but
untaken vacation days remaining for the then current fiscal year of termination
of this Agreement, payable in accordance with the terms of this Agreement.
6. Location of Services. It is understood that the EMPLOYER presently
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expects to maintain its principal place of business in the Dallas/Fort Worth
Metroplex area, but that EMPLOYEE is not required to locate in this area.
EMPLOYEE will spend as much time at the principal place of business as may be
requested by the Chief Executive Officer, which requests will not be for an
amount of time in excess of three weeks per month.
7. Termination.
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A. Without Cause. Notwithstanding the Employment Agreement Term,
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EMPLOYER shall have the right to terminate this Agreement without cause upon
sixty (60) days written notice to
EMPLOYEE to such effect, with such termination to be effective upon the
expiration of such sixty (60) day notice period. Upon a termination of this
Agreement without cause pursuant to this provision, the noncompetition
provisions set forth in Section 8 hereof shall terminate, and EMPLOYEE shall be
entitled to receive (i) any bonuses accrued through the effective date of a
termination of the Agreement by EMPLOYEE pursuant to the terms of the bonus plan
referenced in Paragraph 3.C. hereof, (ii) any earned but untaken vacation under
the terms and conditions of Paragraph 5 hereof, and (iii) $150,000 which amount
shall be paid to EMPLOYEE in one lump sum (with both such bonuses, salary and
vacation being payable in full on the effective date of such termination of this
Agreement). Upon a termination by EMPLOYER without cause, EMPLOYER agrees to
purchase from EMPLOYEE, at the request of EMPLOYEE, any and all shares of stock
of EMPLOYER owned by EMPLOYEE as of the date of the termination, with the
purchase price to be equal to the greater of EMPLOYEE'S cost of said shares or
the fair market value of said shares as reported in the Wall Street Journal on
the date of termination. EMPLOYEE shall notify EMPLOYER of EMPLOYEE'S desire to
sell EMPLOYEE'S shares of EMPLOYER to EMPLOYER within thirty (30) days of the
effective date of termination without cause by delivering written notice to
EMPLOYER to such effect. Said notice must be received by EMPLOYER and such
receipt acknowledged by EMPLOYER. If EMPLOYEE fails to deliver said notice to
EMPLOYER, EMPLOYER shall have no obligation to purchase any of its shares from
EMPLOYEE. EMPLOYEE shall have no duty to mitigate, nor shall any sums earned by
EMPLOYEE from other sources after a termination of this Agreement pursuant to
this provision be credited or offset against any sums due to EMPLOYEE.
B. With Cause. EMPLOYER shall have the right to terminate this
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Agreement at any time for cause, upon written notice to EMPLOYEE to such effect,
with such termination to be effective upon delivery of such notice to EMPLOYEE.
Upon a termination of this Agreement pursuant to this
provision, EMPLOYEE shall be entitled to receive only such salary payable
through the effective date of termination, payable in full on the effective date
of such termination of this Agreement. For purposes of this provision, the term
"for cause" shall mean (a) the failure or refusal to perform diligently the
duties of EMPLOYEE's employment after written notice of such failure or refusal
and a reasonable opportunity to remedy such has been provided, (b) the
conviction of an offense involving moral turpitude which, in the judgment of the
Board of Directors of EMPLOYER might bring discredit on EMPLOYER.
C. Disability. If, as a result of EMPLOYEE'S incapacity due to
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physical or mental illness, EMPLOYEE shall have been absent from his duties
hereunder on a full-time basis for the entire period of six consecutive months,
and within thirty (30) days after written notice of intention to termination of
this Agreement is given by EMPLOYER (which may occur thirty days before or at
any time after the end of such six month period) EMPLOYEE shall not have
returned to the performance of his duties hereunder on a full-time basis, this
Agreement shall terminate effective upon the expiration of the thirty (30) day
notice period. Upon a termination of this Agreement pursuant to this provision,
EMPLOYEE shall be entitled to receive (i) any bonuses accrued through the
effective date of a termination of the Agreement by EMPLOYEE pursuant to the
terms of the bonus plan referenced in Paragraph 3.C. hereof, (ii) any earned but
untaken vacation under the terms and conditions of Paragraph 5 hereof, and
(iii) $150,000 which amount shall be paid to EMPLOYEE in one lump sum (with both
such bonuses, salary and vacation being payable in full on the effective date of
such termination of this Agreement). If EMPLOYEE shall receive any disability
payments from any insurance policies provided by EMPLOYER, the payments by
EMPLOYER to EMPLOYEE during any period of disability shall be reduced by the
amount of disability payments received by EMPLOYEE under any such insurance
policy or policies.
D. Death. In the event of the death of EMPLOYEE, this Agreement
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shall terminate effective upon the date of death, and EMPLOYEE'S estate shall be
entitled to receive (i) any bonuses accrued through the effective date of a
termination of the Agreement by EMPLOYEE pursuant to the terms of the bonus plan
referenced in Paragraph 3.C. hereof, (ii) any earned but untaken vacation under
the terms and conditions of Paragraph 5 hereof, and (iii) $150,000 which amount
shall be paid to EMPLOYEE in one lump sum (with both such bonuses, salary and
vacation being payable in full on the effective date of such termination of this
Agreement).
E. By EMPLOYEE. EMPLOYEE shall have the right to terminate this
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Agreement upon sixty (60) days written notice to EMPLOYER to such effect, with
such termination to be effective upon the expiration of such sixty (60) day
notice period. Upon a termination of this Agreement by EMPLOYEE pursuant to this
provision, EMPLOYEE shall be entitled to receive (i) any bonuses accrued by
EMPLOYEE pursuant to the terms of the bonus plan referenced in Paragraph 3.C.
hereof through the effective date of a termination of this Agreement, (ii) any
earned but untaken vacation under the terms and conditions of Paragraph 5
hereof, and (iii) such salary payable through the effective date of such
termination, all payable in full on the effective date of such termination of
this Agreement, unless such termination occurs within twenty-four (24) months
following a Change in Control as defined in Paragraph 7.F. hereof, and then
EMPLOYEE shall additionally be entitled to receive the compensation described in
Paragraph 7.F. hereof and any earned but untaken vacation pursuant to Paragraph
5 hereof.
If EMPLOYEE terminates this Agreement prior to the first annual
anniversary hereof, EMPLOYER shall be entitled to purchase from EMPLOYEE (a) all
of the Buffton Common Stock (the "Section 11 Stock") purchased by EMPLOYEE
pursuant to Section 11 of the Stock Exchange Agreement dated as of April 11,
1997 between EMPLOYER, EMPLOYEE and the other stockholder of Hotels of
Distinction, Inc., a Florida corporation, (the "Stock Exchange Agreement") and
still owned by EMPLOYEE on the termination date, (b) EMPLOYEE's 120,000 shares
of Buffton Common Stock (the "Exchange Stock") which EMPLOYEE received for his
Hotels of Distinction, Inc. Common Stock pursuant to Section 1 of the Stock
Exchange Agreement and still owned by Employee on the termination date, (c) the
Non Qualified Stock Option Agreement of even date herewith between EMPLOYER and
EMPLOYEE pursuant to which EMPLOYER granted EMPLOYEE an option to purchase
250,000 shares of Buffton Common Stock, and all rights and benefits of EMPLOYEE
thereunder (the "Stock Options") and (d) all Buffton Common Stock purchased by
EMPLOYEE by exercise of all or a part of the Stock Options (the "Exercised
Option Stock") and still owned by EMPLOYEE on the termination date. The
aggregate purchase price payable by EMPLOYER for the Section 11 Stock, the
Exchange Stock, the Stock Options and the Exercised Option Stock purchased
pursuant to the foregoing sentence will be the sum of (1) the average price per
share paid by EMPLOYEE for the Section 11 Stock times the number of shares of
Section 11 Stock sold to EMPLOYER pursuant to the foregoing, (2) 50% of the
market value of a freely tradeable share of Buffton Common Stock on the
termination date times the number of shares of Exchange Stock sold to EMPLOYER
pursuant to the foregoing and (3) the price paid by EMPLOYEE for the Exercised
Option Stock sold to EMPLOYER pursuant to the foregoing.
F. Termination Following a Change in Control. If within twenty-four
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(24) months after a Change in Control (as hereinafter defined), EMPLOYEE shall
voluntarily terminate this Agreement, or this Agreement is terminated by
EMPLOYER without cause, EMPLOYEE shall be entitled to receive (i) any earned but
untaken vacation pursuant to the terms and conditions of Paragraph 5 hereof; and
(ii) $450,000.
Upon a termination by EMPLOYER within twenty-four months after a Change in
Control (as hereinafter defined), EMPLOYER agrees to purchase from EMPLOYEE, at
the request of EMPLOYEE, any and all shares of stock of EMPLOYER owned by
EMPLOYEE as of the date of the termination, with the purchase price to be equal
to the greater of EMPLOYEE'S cost of said shares or the fair market value of
said shares as reported in the Wall Street Journal on the date of the Change in
Control (as hereinafter defined). EMPLOYEE shall notify EMPLOYER of EMPLOYEE'S
desire to sell EMPLOYEE'S shares of EMPLOYER to EMPLOYER within thirty (30) days
of the effective date of termination without cause by delivering written notice
to EMPLOYER to such effect. Said notice must be received by EMPLOYER and such
receipt acknowledged by EMPLOYER. If EMPLOYEE fails to deliver said notice to
EMPLOYER, EMPLOYER shall have no obligation to purchase any of its shares from
EMPLOYEE.
EMPLOYEE shall have no duty to mitigate, nor shall any sums earned by
EMPLOYEE from other sources after a termination of this Agreement pursuant to
this provision be credited or offset against any sums due to EMPLOYEE.
It is the intention of EMPLOYER and EMPLOYEE that EMPLOYEE not be paid an
amount which would be deemed an "excess parachute payment" under Section 280G of
the Code, and accordingly, the amounts payable pursuant to this provision shall
be reduced in an amount necessary to eliminate the payment of any excess
parachute payment. The amounts payable pursuant to this provision shall be paid
in a lump sum within fifteen (15) days following the effective date of
termination of employment. If within twenty-four (24) months after a Change in
Control (as hereinafter defined) EMPLOYER terminates this Agreement without
cause, EMPLOYEE'S duties, obligations, covenants, and promises contained in
Paragraphs 8, 9, and 10 hereof shall terminate and have no further effect.
For the purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred upon any of the following events:
(i) the acquisition directly or indirectly, by any person (as
such terms are used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), other than EMPLOYER or any of its
subsidiaries or any employee benefit plan maintained by EMPLOYER or
any such subsidiary, of beneficial ownership of securities of EMPLOYER
representing fifteen percent (15%) or more of the combined voting
power of EMPLOYER'S then outstanding securities (with the terms used
herein and in Sections 13(d) and/or 14(d) of the Securities Exchange
Act of 1934, as amended, having the meanings of such terms in such
Sections);
(ii) if the stockholders of EMPLOYER approve a merger or
consolidation, a sale or disposition of all or substantially all of
EMPLOYER'S assets or a plan of liquidation or dissolution of EMPLOYER;
(iii) the election during any period of twenty-four (24) months
or less of a member or members of EMPLOYER'S Board of Directors
without the approval of the election or nomination for election of
such new member or members by a majority of the members of the Board
who were members at the beginning of the period, or members of the
Board thereafter recommended to succeed such original members (or
their successors hereunder) by a majority of the members of the Board
who were members at the beginning of the period (or their successors
hereunder); or
(iv) any person (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended) other than
EMPLOYER, any of its subsidiaries or any employee benefit plan
maintained by EMPLOYER or any such subsidiary, makes a tender or
exchange offer for any shares of EMPLOYER'S outstanding voting
securities at any point in time, pursuant to which any such shares are
purchased.
Unless the Continuing Board of Directors of EMPLOYER (as hereinafter
defined) determines that the happening of any of the foregoing events in a
particular case should not be deemed a Change in Control. The "Continuing Board
of Directors of EMPLOYER" shall mean (i) the members of EMPLOYER'S Board of
Directors in office immediately prior to the Change in Control, excluding any
who initiate a Change in Control or are affiliated with one who initiates a
Change in Control, and (ii) any subsequent directors who may be selected,
nominated or approved by a majority of the other Continuing Board of Directors
of EMPLOYER.
It is specifically agreed by EMPLOYER and EMPLOYEE that a sale of all
or a part of the stock or assets of EMPLOYER, that has been approved by the
Continuing Board of Directors of EMPLOYER, shall not be deemed a Change in
Control for purposes of this Agreement.
G. Failure to Close on Sale of Current Technology. EMPLOYER has
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contracted to sell substantially all of the assets of one of its wholly owned
subsidiary, Current Technology, Inc, a Delaware corporation, . In the event this
sale does not close by August 31, 1997, EMPLOYEE shall have a right to terminate
this Agreement effective upon delivery of written notice to EMPLOYER to such
effect. In the event EMPLOYEE terminates this Agreement pursuant to the
provisions of this Paragraph 7.G., EMPLOYEE'S duties, obligations, covenants,
and promises contained in Paragraph 8 hereof shall terminate and EMPLOYER shall
havethe option to purchase at the fair market value any and all shares of
EMPLOYER owned by EMPLOYEE as of the effective date of the termination by
EMPLOYEE pursuant this Paragraph 7.G. Upon a termination of this Agreement
pursuant to this provision, EMPLOYEE shall be entitled to receive (i) any
bonuses accrued by EMPLOYEE pursuant to the terms of the Bonus Plan referenced
in Paragraph 3.C. hereof to the effective date of the termination of this
Agreement, (ii) any earned by untaken vacation under the terms and conditions of
Paragraph 5 hereof, and (iii) such salary payable pursuant to Paragraph 3.A.
hereof accrued to the effective date of the termination of this Agreement.
H. Provisions Surviving Termination. Except as set forth above,
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notwithstanding a termination of this Agreement, EMPLOYER's obligations to
EMPLOYEE pursuant to this Paragraph 7 shall remain in full force and effect, and
EMPLOYEE's duties, obligations, covenants and promises contained in Paragraphs
8, 9, 10 and 11 hereof shall remain in full force and effect; and such
Paragraphs
shall survive a termination of this Agreement and remain fully enforceable by
EMPLOYER or EMPLOYEE, as applicable.
8. Noncompetition.
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A. EMPLOYEE acknowledges that EMPLOYER has agreed to provide him,
and he shall receive from the EMPLOYER, special training and knowledge specific
to EMPLOYER's business. EMPLOYEE acknowledges that included in the special
knowledge received is confidential and proprietary information including the
Confidential Information defined in Paragraph 9 below which EMPLOYER invested
extensive time and resources in developing and creating . EMPLOYEE acknowledges
that this Confidential Information is valuable to EMPLOYER, and therefore, its
protection and maintenance constitutes a legitimate interest to be protected by
EMPLOYER by the enforcement of this covenant not to compete. Therefore, as an
inducement to EMPLOYER to enter into this agreement, to invest time in training
and educating EMPLOYEE and to disclose to EMPLOYEE confidential and proprietary
information, EMPLOYEE agrees that prior to a termination of this Agreement and
for a period of thirty-six months following the effective date of a termination
of this Agreement (specifically excluding a termination of this Agreement by
EMPLOYER without cause pursuant to Paragraph 7.A. hereof and specifically
excluding a termination of this Agreement by EMPLOYEE following a Change in
Control, as defined in Paragraph 7.F. hereof), EMPLOYEE will not, directly as a
principal (whether individually or in any form of entity) or as an employee or
consultant, engage in, consult with or participate in or with, any business
reasonably competitive with and within a five mile radius of any hotel or
restaurant owned, operated, managed or under construction by EMPLOYER, or any
"affiliate", as hereinafter defined, of EMPLOYER, during the Employment
Agreement Term or at the time this Agreement is terminated. For
purposes of this Agreement, "affiliates" means any person or entity that is
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, EMPLOYER.
EMPLOYEE represents to EMPLOYER that the enforcement of the
restriction contained in this Paragraph 8.A. would not be unduly burdensome to
EMPLOYEE and that in order to induce EMPLOYER to pay EMPLOYEE'S compensation
during the Employment Agreement Term, to train EMPLOYEE and to divulge
Confidential Information to EMPLOYEE, EMPLOYEE further represents and
acknowledges that EMPLOYEE is willing and able to compete in other geographical
areas not prohibited by this Section 8.A.
B. EMPLOYEE agrees that a breach or violation by EMPLOYEE of the
covenants contained in this Paragraph 8 shall entitle EMPLOYER, as a matter of
right, to an injunction issued by any court of competent jurisdiction,
restraining any further or continued breach or violation of this covenant. Such
right to an injunction shall be cumulative and in addition to, and not in lieu
of, any other remedies to which the EMPLOYER may show itself justly entitled
including without limitation EMPLOYEE'S forfeiture of any sums then owed to
EMPLOYEE pursuant to Paragraph 7 hereof and/or the obligation by EMPLOYEE to
repay EMPLOYER for any sums previously paid to EMPLOYEE pursuant to Paragraph 7
hereof.
C. The representations and covenants contained in this Paragraph 8
on the part of EMPLOYEE will be construed as ancillary to and independent of any
other provision of this agreement and the existence of any claim or cause of
action of EMPLOYEE against EMPLOYER or any officer or director of EMPLOYER,
whether predicated on a disagreement or otherwise, shall not constitute a
defense to the enforcement by EMPLOYER of the covenants of EMPLOYEE contained in
this Paragraph 8.
D. The parties to this agreement agree that the limitations
contained in this Paragraph 8 with respect to geographic area, duration and
scope of activity are reasonable. However, if any court shall determine that the
geographic area, duration or scope of activity of any restriction contained in
this Paragraph 8 is unenforceable, it is the intention of the parties that such
restrictive covenant set forth herein shall not thereby be terminated but shall
be deemed amended to the extent required to render it valid and enforceable.
9. Disclosure of Confidential Information.
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A. EMPLOYEE will disclose to the EMPLOYER all ideas and business
plans developed by EMPLOYEE through the effective date of a termination of this
Agreement that relate directly to the business of the EMPLOYER.
B. The EMPLOYEE recognizes and acknowledges that by virtue of
EMPLOYEE'S position with EMPLOYER that EMPLOYER will provide EMPLOYEE with
access to certain Confidential Information (as hereinafter defined) of the
EMPLOYER, and that all such information constitutes valuable, special and unique
property of the EMPLOYER that is not generally known or readily ascertainable by
independent investigation. The EMPLOYEE agrees that, prior to a termination of
this Agreement, and for a period of thirty-six (36) months after the effective
date of a termination of this Agreement, EMPLOYEE will not, without the prior
written consent of the EMPLOYER, disclose or authorize disclosure or permit
anyone under his direction to disclose to anyone not properly entitled thereto
any of such Confidential Information. For purposes of this immediately preceding
sentence, persons properly entitled to such information shall be the Board of
Directors of the EMPLOYER and such officers, employees and agents of the
EMPLOYER or any affiliate thereof to whom such information is furnished in the
normal course of business under established policies approved by the EMPLOYER.
For purpose of this Agreement, the
term "Confidential Information" shall mean such information which has been
clearly marked or identified as Confidential by EMPLOYER, or any affiliate of
EMPLOYER, any documents, contracts, written information, procedural or technical
manuals, training manuals, customer lists, customer account analysis, price
books, computer files, operating manuals, raw material costing information,
product cost information, food recipes, recipe books, concept profiles,
accounting papers, work papers, corporate records and any other information
which is understood to be of a confidential character and which has not been
published or otherwise become a matter of general public knowledge through no
fault of EMPLOYEE, all of which is owned or possessed by or relates to the
business of EMPLOYER or any affiliate of EMPLOYER. The restrictions on EMPLOYEE
set forth herein shall not limit or restrict the protection of any Confidential
Information provided to EMPLOYER pursuant to law, but are cumulative to those
rights. Further, the restrictions set forth herein shall not be interpreted to
grant to EMPLOYEE any right at the expiration of the thirty-six (36) month
period to use, disclose or authorize a third party to use any Confidential
Information.
C. The EMPLOYEE further agrees that (i) at all times prior to a
termination of this Agreement, and (ii) upon the termination of this Agreement,
he will not copy, remove from EMPLOYER'S or any affiliate of EMPLOYER'S
premises, take with him or retain, without the prior written authorization of
the EMPLOYER, any Confidential Information or any documents or copies thereof
belonging to the EMPLOYER or any affiliate of EMPLOYER, or any other information
of any kind belonging to the EMPLOYER (collectively "EMPLOYER'S Information).
EMPLOYEE represents and warrants that prior to the execution of this Agreement
he has returned to EMPLOYER any and all EMPLOYER'S Information which may
previously have come into his possession except for EMPLOYER'S Information with
respect to which EMPLOYER has consented to EMPLOYEE'S possession thereof. In the
event of a breach or
threatened breach by the EMPLOYEE of the provisions of this Paragraph 9, the
EMPLOYER and the EMPLOYEE agree that the remedy at law available to the EMPLOYER
would be inadequate and that the EMPLOYER shall be entitled to an injunction,
without the necessity of posting bond therefor, restraining the EMPLOYEE from
disclosing, in whole or in part, the Confidential Information. Nothing herein
shall be construed as prohibiting the EMPLOYER from pursuing any other remedies,
in addition to the injunctive relief available under this Paragraph 9, for such
breach or threatened breach, including the recovery of damages from the
EMPLOYEE.
10. Intellectual Property. EMPLOYEE hereby assigns to EMPLOYER all of
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EMPLOYEE'S right, titles and interest in and to all patents, formulae,
inventions, processes, copyrights, recipes, concepts and concept profiles,
proprietary information, trademarks or trade names, or future improvements to
patents, formulae, inventions, processes, copyrights, recipes, concepts and
concept profiles, proprietary information, trademarks or trade names, developed
or completed by the EMPLOYEE, which relate to the business of EMPLOYER, at any
time prior to a termination of this Agreement (collectively the "Items); and the
Items shall be promptly disclosed to the EMPLOYER, and the EMPLOYEE shall
execute such instruments of assignment of the Items to the EMPLOYER as the
EMPLOYER shall request. The EMPLOYEE acknowledges that a remedy at law for any
breach by him of the provisions in this Paragraph 10 would be inadequate, and
the EMPLOYEE hereby agrees that the EMPLOYER shall be entitled to injunctive
relief in case of any such breach.
11. Non-Solicitation of Employees. The EMPLOYEE agrees that prior to a
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termination of this Agreement, and for a period of thirty-six (36) months after
the effective date of a termination of this Agreement, Employee shall not,
directly or indirectly, hire, offer to hire, entice, solicit or in any other
manner persuade or attempt to persuade any employee of EMPLOYER, or any
affiliate of EMPLOYER,
to discontinue or alter such employee's employment relationship with EMPLOYER,
or any affiliate of EMPLOYER. The EMPLOYEE acknowledges that a remedy at law for
any breach by him of the provisions in this Paragraph 11 would be inadequate,
and the EMPLOYEE hereby agrees that the EMPLOYER shall be entitled to injunctive
relief in case of any such breach.
12. Assignment. The services to be rendered and obligations to be
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performed by EMPLOYEE hereunder are special and unique, and all such services
and obligations and all of EMPLOYEE'S rights hereunder are personal to EMPLOYEE
and shall not be assignable by EMPLOYEE and any purported assignment thereof by
EMPLOYEE shall not be valid or binding upon the EMPLOYER. However, in the event
of EMPLOYEE'S death during the term of this Agreement, EMPLOYEE'S personal
representative shall be entitled to the rights as specified in Paragraph 7.D. of
this Agreement and shall be obligated to execute any documents and perform any
other acts necessary to carry out and give effect to the terms and provisions of
this Agreement. EMPLOYER may assign this Agreement and all of its rights
hereunder to any person, firm or corporation succeeding to the business of the
EMPLOYER, provided said company shall assume (by contract or operation of law)
the EMPLOYER'S obligations hereunder. In the event this Agreement is assumed by
any person, firm or corporation succeeding to the business of EMPLOYER, then
EMPLOYER shall be released and discharged from any and all obligations to
EMPLOYEE under this Agreement.
13. Arbitration. In the event of a dispute arising out of or relating to
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this Agreement, or relating to any claim or cause of action which may arise or
be asserted under any federal, state or local statutory, regulatory or common
law, including, without limitation, claims of discrimination, breach of contract
or tort, such as intentional infliction of emotional distress, then, upon notice
by any party to the other party (an "Arbitration Notice") and to American
Arbitration Association ("AAA"), 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000 [telephone (000) 000-0000; fax (000) 000-0000], the
controversy or dispute shall be submitted to a sole arbitrator who is
independent and impartial, for binding arbitration in Fort Worth, Texas, in
accordance with AAA's Commercial Arbitration Rules (the "Rules"). The parties
agree that they will faithfully observe this agreement and the Rules and that
they will abide by and perform any award rendered by the arbitrator. The
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section
1-16 (or by the same principles enunciated by such Act in the event it may not
be technically applicable). The award or judgment of the arbitrator shall be
final and binding on all parties and enforced by any court having jurisdiction.
If any party becomes the subject of a bankruptcy, receivership or other similar
proceeding under the laws of the United States of America, any state or
commonwealth or any other nation or political subdivision thereof, then, to the
extent permitted or not prohibited by applicable law, any factual or substantive
legal issues arising in or during the pendency of any such proceeding shall be
subject to all of the foregoing mandatory arbitration provisions and shall be
resolved in accordance therewith. The agreements contained herein have been
given for valuable consideration, are coupled with an interest and are not
intended to be executory contracts. The fees and expenses of the arbitrator will
be shared equitably and ratably (as determined by the arbitrator) by all parties
engaged in the dispute or controversy.
Promptly after the Arbitration Notice is given, AAA will select five
possible arbitrators, to whom AAA will give the identities of the parties and
the general nature of the controversy. If any of those arbitrators disqualifies
himself or declines to serve, AAA shall continue to designate potential
arbitrators until the parties have five to select from. After the panel of five
potential arbitrators has been completed, a two page summary of each of the
potential arbitrators will be given to each of the parties, and the parties will
have a period of 10 days after receiving the summaries in which to attempt to
agree upon the arbitrator
to conduct the arbitration. If the parties are unable to agree upon an
arbitrator, then one of the parties shall notify AAA, and AAA shall select the
arbitrator from one of the five. The decision of AAA with respect to the
selection of the arbitrator will be final and binding.
Within 10 days after the selection of the arbitrator, the parties and their
council will appear before the arbitrator at a price an time designated by the
arbitrator for the purpose of each party making a one hour or less presentation
and summary of the case. Thereafter, the arbitrator will set dates and times
for additional hearings until the proceeding is concluded. The desire and goal
of the parties is, and the arbitrator will be advised that his goal should be,
to conduct and conclude the arbitration proceeding as expeditiously as possible.
If any party or his council fails to appear at any hearing, the arbitrator shall
be entitled to reach a decision based on the evidence which has been presented
to him by the parties who did appear.
14. Entire Agreement. This Agreement constitutes the whole agreement
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between the parties hereto and there are no terms other than those contained
herein. This Agreement supersedes any prior contract or understanding relating
to employment of EMPLOYEE by EMPLOYER.
15. Amendment. No variation hereof shall be deemed valid unless in
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writing and signed by the parties hereto, and no discharge of the terms hereof
shall be deemed valid unless by full performance by the parties hereto or by a
writing signed by the parties hereto.
16. Governing Law. This Agreement shall be construed and enforced in
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accordance with the laws of the State of Texas.
17. Severability. Each provision of this Agreement is intended to be
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severable from the others so that if any provision or term hereof is illegal or
invalid (Pounds)or any reason whatsoever, such illegality or invalidity shall
not affect the validity of the remaining provisions and terms hereof.
18. Captions. Captions used in this Agreement are used for convenience
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only and are not intended to, nor are they to be construed to, have any
substantive meaning or control in the construction of this Agreement.
19. Notice. Any notice hereunder to the parties hereto shall be in
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writing and shall be sufficient in all respects if personally delivered or
mailed by registered or certified United States mail, postage prepaid, and
addressed to such party at the address shown below, or at such other address as
such party may, by written notice received by the other party to this Agreement,
have designated as the address of such party for such purpose. Any notice
required under this Agreement shall be effective on receipt.
EMPLOYER: BUFFTON CORPORATION
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
EMPLOYEE: XXXX-XXXXXX XXXXXX
_____________________________
_____________________________
20. No Third Party Benefits. Except as otherwise provided by law,
-----------------------
EMPLOYEE shall not have any power in any manner to alienate, anticipate, charge
or encumber any payments contemplated by this Agreement, and all rights and
benefits of EMPLOYEE shall be for the sole personal benefit of EMPLOYEE, and no
other person shall acquire any right, title or interest hereunder by reason of
any sale, assignment, transfer, claim or judgment or bankruptcy proceedings
against EMPLOYEE.
EXECUTED as of the day and year first written above.
EMPLOYER:
BUFFTON CORPORATION
By: /S/ Xxxxxx XxXxxx
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Name: Xxxxxx XxXxxx
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Title: CEO
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EMPLOYEE
/S/Xxxx-Xxxxxx Xxxxxx
---------------------------------
XXXX-XXXXXX XXXXXX
