Exhibit 10.12
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") effective as of the 1st day of June,
2000 between AMERICAN COMMERCE SOLUTIONS, INC., a Delaware corporation (together
with its successors and assigns referred to herein as the "Corporation"), with
principal executive offices located at 0000 Xxxxxxx Xxxxx, Xxxxxx, XX 00000; and
Xxxxxx X. Xxxxxx residing at 0000 X. Xxxxxx Xx., Xxxxxxx, Xxxxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Corporation desires to employ Executive as the Executive Vice
President of American Commerce Solutions, Inc. to engage in such activities and
to render such services under the terms and conditions hereof and has authorized
and approved the execution of this Agreement; and
WHEREAS, Executive desires to be employed by the Corporation under the
terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein
contained, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 SERVICES. The Corporation hereby employs Executive, for the Term
(as hereinafter defined in Section 2 hereof), to render services to the business
and affairs of the Corporation in the office referenced in the recitals hereof
and, in connection therewith, shall perform such duties as directed by the Board
of Directors of the Corporation from time to time, in its reasonable discretion,
and shall perform such other duties as shall be consistent with the
responsibilities of such office (collectively the "Services"). Executive shall
perform activities related to such office as he shall reasonably be directed or
requested to so perform by the Corporation's Board of Directors, to whom he
shall report. Executive shall use his best efforts, skill and abilities to
promote the interests of the Corporation and its subsidiaries.
1.2 ACCEPTANCE. Executive hereby accepts such employment and agrees to
render the Services.
1.3 REPRESENTATIONS OF THE EXECUTIVE. The Executive represents and
warrants to the Corporation that his execution and delivery of this Agreement,
his performance of the Services hereunder and the observance of his other
obligations contemplated hereby will not (i) violate any provisions of or
require the consent or approval of any party to any agreement, letter of intent
or other document to which he is a party or (ii) violate or conflict with any
arbitration award, judgment or decree or other restriction of any kind to or by
which he is subject or bound.
1.4 EXECUTIVE'S ABILITY TO CONTRACT. The Executive has no ability to
independently contract unless authorized, in writing, by the Executive Committee
of the Board of Directors or the full Board of Directors for a specific
contract.
2. TERM OF EMPLOYMENT.
The term of Executive's employment under this Agreement (the "Term") shall
commence on June 1, 2000 and shall terminate on May 31, 2003, unless sooner
terminated pursuant to Sections 9 or 5.1 of this Agreement; provided, however,
if the Corporation shall fail to give Executive notice of non-renewal not less
than 60 days prior to the scheduled expiration of the term hereof, the Term
shall automatically be extended for an additional two (2) year period.
Notwithstanding anything to the contrary contained herein, the provisions of
this Agreement governing Protection of Confidential Information shall continue
in effect as specified in Section 10 hereof.
3. BASE SALARY, EXPENSE REIMBURSEMENT AND STOCK OPTIONS.
3.1 BASE SALARY. During the Term, as full compensation for the
Services, the Corporation agrees to pay Executive a minimum base salary ("Base
Salary") at the annual rate of $60,000 for the period from June 1, 2000 to May
31, 2000. Such Base Salary shall be (i) increased four percent (4%) annually
effective June 1st of each year during the term of this Agreement, (ii) reviewed
periodically for possible increases promptly after each future acquisition by
the Corporation of any other corporation or business or other material increase
in the Corporation's revenues or scope of the Corporation's business and (iii)
renegotiated in good faith effective as of December 15, 2002 for possible
increase based upon the Corporation's historical performance and projections for
future performance. Such Base Salary shall be subject to withholding and other
applicable taxes, payable during the term of this Agreement in accordance with
the Corporation's customary payment practices, but not less frequently than
monthly.
3.2 BUSINESS EXPENSE REIMBURSEMENT. Upon submission to, and approval
by an officer of the Corporation designated by the Board of Directors of the
Corporation, of a statement of expenses, reports, vouchers or other supporting
information, which approval shall be granted or withheld based on the
Corporation's policies in effect at such time, the Corporation shall promptly
reimburse Executive for all reasonable business expenses actually incurred or
paid by him during the Term or renewals thereof in the performance of the
Services, including, but not limited to, expenses for entertainment, travel and
similar items.
3.3 STOCK OPTION AGREEMENT. In addition to the salary hereinabove
provided, the Executive shall be granted options to purchase 100,000 shares of
the Corporation's Common Stock as of June 1 of each year during the Term of this
Agreement at an exercise price equal to the average of the closing bid and asked
price of the Corporation's Common Stock during month of May immediately
preceding said June 1, pursuant to the terms of the Stock Option Agreement
between the Corporation and the Executive executed concurrently herewith.
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4. PROFIT SHARING.
4.1 PROFIT SHARING AMOUNT. In order to provide performance-based
incentive compensation to the Executive, the Corporation hereby agrees to pay
the Executive, in addition to the Base Salary set forth in Section 3 hereof, a
minimum cash bonus for each fiscal year during the Executive's employment
hereunder (the "Bonus") equal to Fifteen Thousand Dollars ($15,000.00) per
annum, payable in quarterly installments, when sufficient cash is available for
the payment. Additional profit sharing or Bonus methods are available to the
Executive in terms to be issued annually at the discretion of the Board of
Directors.
4.2 DETERMINATION AND PAYMENT. The final determination with respect to
any fiscal year shall be made promptly, and in any event within 15 days, after
the Corporation has filed its Annual Report on Form 10-K for each year with the
Securities and Exchange Commission. Within 45 days after the end of the
Corporation's fiscal year, based on the preliminary results of the Corporation
for such fiscal year, the Corporation shall pay the Executive an amount equal to
60% of the estimated minimum cash Bonus based on such preliminary results. The
balance of the definitive Bonus so determined, if any, shall be payable to the
Executive in a single lump sum no later than thirty days after the final
determination has been made. In any event, all matters pertaining to the Bonus
and to the payment of any Bonus to the Executive hereunder, shall be
administered and determined by the Board of Directors (or a subcommittee thereof
appointed for such purpose) in its reasonable discretion consistent with the
terms hereof, the determination of which shall be final, conclusive and binding
for all purposes, absent manifest error.
4.3 PARTIAL YEARS. Notwithstanding anything contained herein to the
contrary, no Bonus under this Section 4 shall be deemed earned or payable with
respect to any fiscal year during which this Agreement or the Executive's
employment is terminated by the Corporation for Cause (as such term is
hereinafter defined).
4.4 Nothing in this Section 4 shall be construed as conferring upon
the Executive any right (i) normally associated with the ownership of capital
stock; (ii) to continue in the employ of the Corporation or any affiliate of the
Corporation; or (iii) to interfere in any way with the right of the Corporation
to terminate this Agreement in accordance with the provisions hereof. Nothing in
this Agreement shall be construed to imply that any specific assets of the
Corporation have been set aside to provide for payments under this Agreement.
Any payments under this Agreement shall be made solely from general assets of
the Corporation existing at the time such payments are due.
5. SEVERANCE UPON TERMINATION.
5.1 TERMINATION. In the event that Executive's employment hereunder
shall be terminated by the Corporation without Cause (as defined in Section 9.3
hereof) or by the Executive for Good Reason (as defined in Section 9.4 hereof)
or upon a Change in Control (as defined in Section 9.5 hereof) or upon the Death
or Disability (as defined in Section 9.1 and 15.1, respectively) of Executive at
any time prior to the end of the Term, the Executive or his estate shall be
entitled to receive from the Corporation, in addition to any Base Salary earned
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to the date of termination, a severance payment in an amount equal to the
greater of (i) the balance of the Executive's Base Salary due through the
balance of the Term of this Agreement or (ii) one years salary in the event less
than one year remains in the current contract period.
6. ADDITIONAL BENEFITS.
6.1 IN GENERAL. In addition to the compensation, bonuses, expenses and
other benefits to be paid under Sections 3, 4 and 5 hereof, Executive will be
entitled to all rights and benefits for which he shall be eligible under any
insurance, health and medical, incentive, bonus, profit-sharing, pension or
other extra compensation or "fringe" benefit plan of the Corporation or any of
its subsidiaries now existing or hereafter adopted for the benefit of the
executives or employees generally of the Corporation. The provisions of this
Agreement, which incorporate employee benefit packages, shall change as and when
such employee benefit packages change. In the event that the Corporation does
not provide family health and medical insurance for the benefit of the
executives and employees generally of the Corporation, the Corporation shall
provide Executive and pay all the costs associated with family health and
medical insurance for the benefit of Executive as selected by Executive in his
sole discretion.
6.2 AUTOMOBILE. The Corporation shall lease for the Executive an
automobile of his choice to be used by the Executive in connection with the
Corporation's business, at a monthly rental not to exceed $750 and for a lease
term not to exceed three (3) years. The Corporation shall be responsible for all
reasonable costs of operating, repairing, maintaining and insuring such
automobile.
6.3 LIFE AND DISABILITY INSURANCE. The Corporation shall provide the
Executive with (i) a policy of term life insurance in an amount equal to not
less than three (3) times his annual Base Salary hereunder, payable to such
beneficiary or beneficiaries as shall be designated by him in writing and (b) a
policy of disability insurance that will provide Executive with an annual amount
equal to not less than seventy-five percent (75%) of his then current Base
Salary, payable until Executive shall reach 70 years of age, with a waiting
period not to exceed 120 days.
6.4 DIRECTOR'S AND OFFICERS INSURANCE. The Corporation shall provide
the Executive with a policy of director's and officers liability insurance in
such amounts and providing such coverage as the Executive and the Corporation
shall reasonably agree, consistent with policies obtained by other publicly held
companies of similar size and engaged in similar businesses.
7. VACATION.
The Executive shall be entitled, during the Term of this Agreement, to a
vacation period annually, as follows:
June 1, 2000 through May 31, 2003 -- four (4) weeks in each year of the
contract;
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during which all salary, compensation, benefits and other rights to which the
Executive is entitled to hereunder shall be provided in full. Such vacation may
be taken in the Executive's discretion, at such time or times as are not
inconsistent with the reasonable business needs of the Corporation. In addition,
Executive shall be entitled to up to eight (8) sick days and two (2) personal
days for each year commencing June 1, during which all salary, compensation,
benefits and other rights to which the Executive is entitled to hereunder shall
be provided in full.
8. INSURABILITY; RIGHT TO INSURE. Executive agrees that the Corporation
shall have the right during the Term to insure the life of Executive by a policy
or policies of insurance in such amount or amounts as it may deem necessary or
desirable, and the Corporation shall be the beneficiary of any such policy or
policies and shall pay the premiums or other costs thereof. The Corporation
shall have the right, from time to time, to modify any such policy or policies
of insurance or to take out new insurance on the life of Executive. Executive
agrees, upon request, at any time or times prior to the commencement of or
during the Term to sign and deliver any and all documents and to submit to any
physical or other reasonable examinations which may be required in connection
with any such policy or policies of insurance or modifications thereof.
9. TERMINATION.
9.1 DEATH. If Executive dies during the Term of this Agreement,
Executive's employment hereunder shall terminate upon his death and all
obligations of the Corporation hereunder shall terminate on such date, except
that Executive's estate or his designated beneficiary shall be entitled to
payment of any unpaid accrued Base Salary through the date of his death. In
addition, any accrued and unpaid Bonus shall be paid in accordance with Section
4 hereof. In addition, Executive's estate or his designated beneficiary shall be
entitled to payment of the severance payments set forth in Section 5.1 hereof.
9.2 TERMINATION FOR CAUSE. The Corporation may at any time during the
Term, without any prior notice, terminate this Agreement and discharge Executive
for Cause, whereupon the Corporation's obligation to pay compensation or other
amounts payable hereunder to or for the benefit of Executive shall terminate on
the date of such discharge. As used herein the term Cause shall mean: (i) a
willful and material breach by Executive of the terms of this Agreement which
breach shall not have been cured within thirty (30) days of written notice of
such breach; (ii) willful violation of specific and lawful written direction
from the Board of Directors of the Corporation, which violation shall not have
been cured within thirty (30) days of written notice of such violation, provided
such direction is not inconsistent with the Executive's duties and
responsibilities as the President of Rhode Island operations of the Corporation;
or (iii) conviction of the Executive of a felony by a federal or state court of
competent jurisdiction, which felony is directly and materially related to or
arises out of Executive's employment with the Corporation. The obligations of
the Executive under Section 10 shall continue notwithstanding termination of the
Executive's employment pursuant to this Section 9.2.
9.3 TERMINATION WITHOUT CAUSE. The Corporation shall have the option
to terminate this Agreement Without Cause upon sixty (60) days written notice to
the Executive. In the event the Corporation terminates this Agreement without
Cause as defined above, the Corporation shall pay the Executive upon
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termination, the amount required pursuant to Section 5.1. The obligations of the
Executive under Section 10 hereof shall continue notwithstanding termination of
the Executive's employment pursuant to this Section 9.3.
9.4 TERMINATION BY EXECUTIVE FOR GOOD REASON. The Executive shall have
the right to terminate this Agreement for Good Reason, as hereinafter defined,
upon written notice to the Corporation. Good Reason shall mean any of the
following: (i) the assignment to the Executive of duties inconsistent with the
Executive's position, duties, responsibilities, titles or offices as described
herein; (ii) any material reduction by the Corporation of the Executive's duties
and responsibilities; (iii) any reduction by the Corporation of the Executive's
compensation or benefits payable hereunder (it being understood that a reduction
of benefits applicable to all executives of the Corporation, including the
Executive, shall not be deemed a reduction of the Executive's compensation
package for purposes of this definition); (iv) requiring the Executive to be
based without his consent at a location not within reasonable commuting distance
of Lakeland, Florida.
9.5. TERMINATION BY EXECUTIVE UPON CHANGE IN CONTROL. Executive, at
his option, shall be able to terminate this Agreement upon written notice given
to the Secretary of the Corporation within ninety (90) days of an occurrence of
a "Change in Control". A "Change in Control" of the Corporation shall mean a
change in control of the Corporation or any entity controlling the Corporation
(referred to collectively in this Section 9.5 as the Corporation) of a nature
that would be required to be reported in response to Item 1 of a Current Report
on Form 8-K, pursuant to Section 13 or 15(d) of the Securities Exchange Act of
0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, such a Change in
Control shall be deemed to have occurred at such time as (a) any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a
person who or which was a shareholder of the Corporation immediately prior to
the Corporation's secondary offering (the "SO"), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing twenty-five percent
(25%) or more of the combined voting power of the Corporation's outstanding
securities ordinarily having the right to vote at elections of directors; or (b)
individuals who constitute the Board concurrent with the execution of this
Agreement (the incumbent Board) cease for any reason to constitute at least a
majority thereof, provided that any person becoming a director subsequent to the
date hereof whose election or nomination for election by the Corporation's
shareholders was approved by a vote of at least three quarters of the directors
comprising the Incumbent Board, shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board; or (c) a sale by
the Corporation of all or substantially all of its assets occurs.
Notwithstanding anything in the foregoing to the contrary, no Change in Control
shall be deemed to have occurred for purposes of this Agreement by virtue of any
transactions which result in the acquisition by the Executive, or by a group of
persons which includes the Executive, directly or indirectly, of a majority of
either the outstanding shares of common stock of the Corporation or the voting
securities of any corporation which acquires all or substantially all of the
assets of the Corporation, whether by way of merger, consolidation, sale of such
assets or otherwise.
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10. PROTECTION OF CONFIDENTIAL INFORMATION.
In view of the fact that Executive's work for the Corporation will bring
him into close contact with confidential information and plans for future
developments, Executive agrees to the following:
10.1 SECRECY. To keep secret and retain in the strictest confidence
all confidential matters of the Corporation, including, without limitation,
trade "know how" and trade secrets, customer lists, pricing policies, marketing
plans, technical processes, formulae, inventions, research projects, patents or
copyrights and all other proprietary rights owned by or in which the corporation
or its subsidiaries has an interest, and other business affairs of the
Corporation, learned by him heretofore or hereafter, and not to disclose them to
anyone inside or outside of the Corporation, except in the course of performing
the Services hereunder or with the express written consent of the Chief
Executive Officer or Board of Directors of the Corporation and except to the
extent such information is already known to the general public
10.2 RETURN MEMORANDA, ETC. To deliver promptly to the Corporation on
termination of his employment, or at any other time as the Chief Executive
Officer or the Board of Directors of the Corporation may so request, all
memoranda, notes, records, reports, manuals, drawings, blueprints, facsimile or
e-mail copies and other documents (and all copies thereof) relating to the
Corporation's business and all property associated therewith, which he may then
possess or have under his control.
10.3 COVENANTS.
10.3.1 NON-COMPETITION. Executive agrees that at all times while
he is employed by the Corporation and regardless of the reason for termination
of his employment or this Agreement, for a period of one (1) year thereafter, he
will not, as a principal, agent, employee, employer, consultant, stockholder,
investor, director or co-partner of any person, firm, corporation or business
entity other than the Corporation, or in any individual or representative
capacity whatsoever, directly or indirectly, without the express prior written
consent of the Corporation:
(i) engage or participate in any business with customers of the Corporation
or its subsidiaries directly or indirectly or make use of the customer
lists directly or indirectly as may from time to time be owned by the
Corporation.
(ii) aid or counsel any other person, firm, corporation or business entity
to do any of the above;
(iii) become employed by a firm, corporation, partnership or joint venture
which competes with the business of the Corporation or from its customer
lists on the date of termination or resignation within the United States or
Puerto Rico; or
(iv) approach, solicit business from, or otherwise do business or deal with
any customer of the Corporation in connection with any product or service
competitive to any provided by the Corporation.
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10.3.2 ANTI-RAIDING. Executive agrees that during the term of his
employment hereunder, and, thereafter for a period of two (2) year, he will not,
as a principal, agent, employee, employer, consultant, director or partner of
any person, firm, corporation or business entity other than the Corporation, or
in any individual or representative capacity whatsoever directly or indirectly,
without the prior express written consent of the Corporation approach, counsel
or attempt to induce any person who is then in the employ of the Corporation to
leave the employ of the Corporation or employ or attempt to employ any such
person or persons who at any time during the preceding six months was in the
employ of the Corporation.
10.3.3 EXECUTIVE'S ACKNOWLEDGEMENTS. Executive acknowledges (i)
that his position with the Corporation requires the performance of services
which are special, unique, and extraordinary in character and places him in a
position of confidence and trust with the Customers and employees of the
Corporation, through which, among other things, he shall obtain knowledge of the
Corporation's "technical information" and "know-how" and become acquainted with
its customers, in which matters the Corporation has substantial proprietary
interests; (ii) that the restrictive covenants set forth above are necessary in
order to protect and maintain such proprietary interests and the other
legitimate business interests of the Corporation; and (iii) that the Corporation
would not have entered into this Agreement unless such covenants were included
herein.
Executive also acknowledges that the business of the Corporation
presently will extend throughout the United States, and that he will
personally supervise and engage in such business on behalf of Corporation
and, accordingly, it is reasonable that the restrictive covenants set forth
above are not more limited as to geographic area than is set forth therein.
Executive also represents to the Corporation that the enforcement of such
covenants will not prevent Executive from earning a livelihood or impose an
undue hardship on the Executive.
10.4 SEVERABILITY. If any of the provisions of this Section 10, or any
part thereof, is hereinafter construed to be invalid or unenforceable, the same
shall not affect the remainder of such provision or provisions, which shall be
given full effect, without regard to the invalid portions. If any of the
provisions of this Section 10, or any part thereof, is held to be unenforceable
because of the duration of such provision, the area covered thereby or the type
of conduct restricted therein, the parties agree that the court making such
determination shall have the power to modify the duration, geographic area
and/or other terms of such provision and, as so modified, said provision(s)
shall then be enforceable. In the event that the courts of any one or more
jurisdictions shall hold such provisions wholly or partially unenforceable by
reason of the scope thereof or otherwise, it is the intention of the parties
hereto that such determination not bar or in any way affect the Corporation's
right to the relief provided for herein in the courts of any other jurisdictions
as to breaches or threatened breaches of such provisions in such other
jurisdictions, the above provisions as they relate to each jurisdiction being,
for this purpose, sever able into diverse and independent covenants.
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10.5 INJUNCTIVE RELIEF. Executive acknowledges and agrees that,
because of the unique and extraordinary nature of his services, any breach or
threatened breach of the provisions of Sections 10.1, 10.2, or 10.3 hereof will
cause irreparable injury and incalculable harm to the Corporation, and the
Corporation shall, accordingly, be entitled to injunctive and other equitable
relief for such breach or threatened breach and that resort by the Corporation
to such injunctive or other equitable relief shall not be deemed to waive or to
limit in any respect any right or remedy which the Corporation may have with
respect to such breach or threatened breach. The Corporation and Executive agree
that any such action for injunctive or equitable relief shall be heard in a
state or federal court situated in Florida and each of the parties hereto,
hereby agrees to accept service of process by registered mail and to otherwise
consent to the jurisdiction of such courts.
10.6 EXPENSES OF ENFORCEMENT OF COVENANTS. In the event that any
action, suit or proceeding at law or in equity is brought to enforce the
covenants contained in Sections 10.1, 10.2, or 10.3 hereof or to obtain money
damages for the breach thereof, the party prevailing in any such action, suit or
other proceeding shall be entitled upon demand, to reimbursement from the other
party for all expenses (including, without limitation, reasonable attorneys'
fees and disbursements) incurred in connection therewith.
10.7 SEPARATE AGREEMENT. The provisions of this Section 10 shall be
construed as an agreement on the part of the Executive independent of any other
part of this Agreement or any other agreement, and the existence of any claim or
cause of action of the Executive against the Corporation, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Corporation of the provisions of this Section 10.
11. INDEMNIFICATION.
The Corporation shall provide the Executive (including his heirs, executors
and administrators) with coverage under a standard directors and officers
liability insurance policy at the Corporation's expense to the same extent as
provided for any other director, officer or trustee of the Corporation. In
addition, the Corporation shall indemnify the Executive (and his heirs,
executors and administrators) to the fullest extent permitted under the law of
its state of incorporation against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which the Executive may be involved by reason of his having been a
director or officer of the Corporation or any subsidiary thereof. Such expenses
and liabilities shall include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements, such settlements to be
approved by the Board if such action is brought against the Executive in his
capacity as a director or officer of the Corporation or any subsidiary thereof.
The Corporation shall, upon the request of the Executive, advance to the
Executive such amounts as necessary to cover expenses, including without
limitation legal fees and expenses, incurred by the Executive in connection with
any suit or proceeding in which the Executive may be involved by reason of his
being or having been a director or officer of the Corporation or of any
subsidiary thereof. Such indemnity and advance of expenses, however, shall not
extend to matters as to which the Executive is finally adjudged to be liable for
willful misconduct in the performance of his duties.
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12. ARBITRATION.
Except with respect to any proceeding brought under Section 10 hereof, any
controversy, claim, or dispute between the parties, directly or indirectly,
concerning this Employment Agreement or the breach hereof, or the subject matter
hereof, including questions concerning the scope and applicability of this
arbitration clause, shall be finally settled by arbitration in Polk County,
Florida pursuant to the rules then applying of the American Arbitration
Association. The arbitrators shall consist of one representative selected by the
Corporation, one representative selected by the Executive and one representative
selected by the first two arbitrators. The parties agree to expedite the
arbitration proceeding in every way, so that the arbitration proceeding shall be
commenced within thirty (30) days after request therefore is made, and shall
continue thereafter, without interruption, and that the decision of the
arbitrators shall be handed down within thirty (30) days after the hearings in
the arbitration proceedings are closed. The arbitrators shall have the right and
authority to assess the cost of the arbitration proceedings and to determine how
their decision or determination as to each issue or matter in dispute may be
implemented or enforced. The decision in writing of any two of the arbitrators
shall be binding and conclusive on all of the parties to this Agreement. Should
either the Corporation or the Executive fail to appoint an arbitrator as
required by this Section 12 within thirty (30) days after receiving written
notice from the other party to do so, the arbitrator appointed by the other
party shall act for all of the parties and his decision in writing shall be
binding and conclusive on all of the parties to this Employment Agreement. Any
decision or award of the arbitrators shall be final and conclusive on the
parties to this Agreement; judgment upon such decision or award may be entered
in any competent Federal or state court located in the United States of America;
and application may be made to such court for confirmation of such decision or
award or for enforcement and for any other legal remedies that may be necessary
to effectuate such decision or award.
13. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by prepaid telegram, telecopy or
mailed first-class, postage prepaid, by registered or certified mail (notices
sent by telegram or mailed shall be deemed to have been given on the date sent),
to the parties at their respective addresses hereinabove set forth or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith. Copies of all notices shall be sent to the attorney
selected by the Executive and noticed in writing to the Corporation from time to
time.
14. GENERAL.
14.1 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the local laws of the State in which the primary
corporate offices of the parent corporation are located at the time either party
seeks remedies or to enforce this contract. The venue shall be in the county in
which the primary corporate offices of the parent corporation are then located
at the time either party seeks remedies or to enforce this contract.
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14.2 CAPTIONS. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
14.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
14.4 SEVERABILITY. If any of the provisions of this Agreement shall be
unlawful, void, or for any reason, unenforceable, such provision shall be deemed
sever able from, and shall in no way affect the validity or enforceability of,
the remaining portions of this Agreement.
14.5 WAIVER. The waiver by any party hereto of a breach of any
provision of this Agreement by any other party shall not operate or be construed
as a waiver of any subsequent breach of the same provision or any other
provision hereof.
14.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
14.7 ASSIGNABILITY. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive. The Corporation may
assign its rights, together with its obligations, hereunder in connection with
any sale, transfer or other disposition of all or substantially all of its
business or assets; in any event the rights and obligations of the Corporation
hereunder shall be binding on its successors or assigns, whether by merger,
consolidation or acquisition of all or substantially all of its business or
assets; provided, however, that any such assignment shall not release the
Corporation from its obligations hereunder. This Agreement shall inure to the
benefit of, and be binding upon, the Executive and his executors,
administrators, heirs and legal representatives.
14.8 AMENDMENT. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. No superseding instrument,
amendment, modification, cancellation, renewal or extension hereof shall require
the consent or approval of any person other than the parties hereto. The failure
of either party at any time or times to require performance of any provision
hereof shall in no matter affect the right at a later time to enforce the same.
No waiver by either party of the breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such breach, or a waiver of the breach of any other term or covenant contained
in this Agreement.
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15. ADDITIONAL PROVISIONS
15.1 DISABILITY. If Executive shall be unable to perform a significant
part of his duties and responsibilities in connection with the conduct of the
business and affairs of the Corporation and such inability lasts for (i) a
period of at least one hundred twenty (120) consecutive days, or (ii) periods
aggregating at least one hundred eighty (180) days during any three hundred
sixty-five (365) consecutive days, by reason of Executive's physical or mental
disability, whether by reason of injury, illness or similar cause, Executive
shall be deemed disabled, and the Corporation may, at any time thereafter
terminate Executive's employment hereunder by reason of the Corporation being
required to replace the position. Upon delivery to Executive of such notice, all
obligations of the Corporation hereunder shall terminate, except that Executive
shall be entitled to payment of any unpaid accrued Base Salary through the date
of termination. In addition, any accrued and unpaid Bonus shall be paid in
accordance with Section 4 hereof. In addition, the Executive shall be entitled
to those severance payments set forth in Section 5.1 hereof. The obligations of
Executive under Section 10 hereof shall continue notwithstanding termination of
Executive's employment pursuant to this Section 15.1.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ATTEST: AMERICAN COMMERCE SOLUTIONS, INC.
By: /s/ Xxxxxx X. Birmingham By: /s/ Xxxxx X. XxXxxxx
------------------------------- ------------------------------------
Name: Xxxxxx X. Birmingham Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer Title: President
WITNESS:
/s/ Xxxxxx Xxxxxxx Jr. /s/ Xxxxxx X. Xxxxxx
----------------------------------- ----------------------------------------
XXXXXX X. XXXXXX, individually
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