This
employment agreement (the “Agreement”) is made effective as of December 1, 2005
by and between Xxxxxx Highland Group, Inc. (the “Company”) and Xxxx Xxxx Xxxxxxx
(the “Executive”).
WHEREAS,
the Company wishes to continue to employ the Executive and the Executive wishes to
continue to be employed in accordance with the terms and conditions set forth below.
NOW,
THEREFORE, in consideration of the conditions and mutual covenants contained in this
Agreement, the parties agree as follows:
1. Employment.
The Company will employ the Executive and the Executive accepts employment as
the Executive Vice President, Chief Financial Officer. The Executive will
perform duties normally associated with such position and/or other duties as
may be assigned from time to time during the Term as defined in Section 2
below. The Executive shall perform such duties in a manner consistent with
applicable laws and regulations and any code of ethics, compliance manual,
employee handbook or other policies and procedures adopted by the Company from
time to time and subject to any written directives issued by the Company from
time to time. The Executive must acknowledge receipt of the Company’s
Ethics Policy and confirm that the Executive will comply with the Policy.
Failure to confirm compliance annually with the Company’s Ethics Policy
will justify termination for cause unless, at the sole discretion of the Board,
non-compliance is deemed non-material.
2. Term
of Employment. The Executive’s employment under this Agreement will
commence on December 1, 2005 (the “Commencement Date”) and will
continue for a period of one (1) year thereafter, subject to earlier
termination as provided in Section 7 (the “Term”). This Agreement and
the Term will be automatically renewed and extended for periods of one (1) year
unless the Company or the Executive provides written notice no less than thirty
(30) days prior to the expiration of the then-current Term of its or the
Executive’s desire not to renew this Agreement.
3. Scope
of Responsibilities and Duties. The Executive agrees to devote the Executive’s
full business time, attention, efforts and energies in performance of the
Executive’s duties and responsibilities hereunder. While employed by the
Company, the Executive may not engage in any employment other than for the
Company, in any conflicting business activities, or have any financial
interest, directly or indirectly, in any business competing with the Company or
otherwise engaged in the business of the Company or its affiliates. The
foregoing does not prevent the Executive from (1) serving on the Board of
directors of another organization with the consent of the CEO or (2) passively
investing in publicly traded securities; provided such investments do not
require services on the part of the Executive which would in any way impair the
performance of the Executive’s duties pursuant to this Agreement.
4. Compensation
and Benefits. The Company will provide the Executive with the following
compensation and benefits during the Term:
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(a)
The Company will pay the Executive a salary of
$350,000 on an annualized basis, payable in accordance with the payroll
practices of the Company in effect from time to time, and less such taxes and
other deductions required by applicable law or authorized by the Executive (the
“Base Salary”).
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(b)
The
Executive will be entitled to accrue paid vacation at the rate of the greater
of (i) four (4) weeks plus four (4) personal days per year, or (ii) the
vacation allowance as provided under the Company’s vacation plan that
applies to similarly situated employees working at the office location at which
the Executive is based. In addition, the Company will provide the
Executive with other benefits of employment offered, from time to time to
similarly situated employees at the office location at which the Executive is
based.
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(c)
The
Executive will receive an annual bonus as provided under the Company’s
Senior Management Bonus Plan as is in effect from time to time.
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(d)
The
Executive will receive a signing bonus of $150,000 to be paid in early 2006 on
the same date as 2005 Company bonuses are paid to the other executives
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(e)
The
Executive will receive an allowance for housing in New York, in such amounts
and with such limitations as agreed to by the parties.
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5.
Additional
Agreements. This Agreement and the Executive’s employment hereunder is
contingent upon the Executive’s simultaneous execution of the
Confidentiality, Non-Solicitation and Work Product Assignment Agreement and
Mutual Agreement to Arbitrate Claims, which is attached as Attachment A and
forms a part of this Agreement.
6.
Representations
and Warranties. The Executive represents and warrants as follows:
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(a)
All
information, oral and written (including, but not limited to information
contained on the Executive’s resume), provided by the Executive during the
recruiting and employment process is accurate and true to the best of the
Executive’s knowledge, and such information does not include any
misleading or untrue statement or omit to state any fact necessary to make the
information provided not misleading.
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(b)
The
Executive has never been the subject of any investigation or subject to any
disciplinary action by any governmental agency, industry self-regulatory body
or other employer.
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(c)
The
execution, delivery and performance of this Agreement by the Executive and the
Executive’s employment hereunder are not in violation of:
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(i)
the
terms, including any non-competition, non-disclosure, non-solicitation or
confidentiality provisions, of any written or oral agreement, arrangement or
understanding to which the Executive is a party or by which the Executive is
bound; or
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(ii)
any
United States federal or state statute, rule, regulation, or other law, or any
judgment, decree or order applicable or binding upon the Executive.
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7.
Termination.
This Agreement and the Executive’s employment may be terminated prior to
the expiration of the Term as follows:
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(a)
Death.
If the Executive dies during the Term, this Agreement shall automatically
terminate and the Company shall have no further obligation to the Executive or
the Executive’s estate, except to pay the Executive’s estate that
portion of the Base Salary earned through the date on which the Executive’s
death occurs.
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(b)
Disability.
If the Executive is unable to perform the Executive’s essential job duties
and responsibilities due to mental or physical disability for a total of twelve
(12) weeks, whether consecutive or not, during any rolling twelve (12) month
period, the Company may terminate the Executive’s employment and this
Agreement upon five (5) days’ written notice to the Executive. For
purposes of this Agreement, the Executive will be considered disabled when the
Company, with the advice of a qualified physician, determines that the
Executive is physically or mentally incapable (excluding infrequent and
temporary absences due to ordinary illness) of performing the Executive’s
essential job duties. The Executive shall cooperate with the Company in
obtaining the advice of a qualified physician regarding the Executive’s
condition. In the event of termination pursuant to this Section 7(b), the
Company will be relieved of all obligations under this Agreement, provided that
the Company will pay to the Executive that portion of the Base Salary under
Section 4(a) which has been earned through the date on which such termination
occurs.
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(c)
Discharge
without Cause. The Company may terminate the Executive and this Agreement
at any time during the Term for any reason, without Cause (as defined in
Section 7(e) below) upon thirty (30) days’ written notice to the
Executive. If the Company gives notice of non renewal of employment within the
30 day period as provided in Section 2, it will be treated as a termination
without cause. Upon such termination, the Company will have no further
liability to the Executive other than to provide the Executive with (i) that
portion of the Base Salary under Section 4(a) earned through the date of the
termination, (ii) severance pay in an amount equal to the Executive’s
then-current Base Salary, less applicable deductions, for a period of twelve
(12)months following such termination (the “Severance Period”), and
(iii) the Company’s portion of the premium for continued coverage under
the Company’s group health and dental insurance plan during the Severance
Period, provided the Executive applies and remains eligible for such
continuation coverage under applicable law, and provided further that the
Executive authorizes the Company to deduct only the Executive’s portion of such
premiums from the severance payments. It is understood that the period the
Company makes such payments will run concurrently with the period of
continuation coverage for which the Executive may be eligible under applicable
law. The Executive’s receipt of the severance payments and premium
payments by the Company set forth in this paragraph (7) are conditioned upon
the Executive executing a comprehensive release and waiver agreement and
covenant not to xxx as provided by the Company at the time of termination.
Severance payments will be made in equal installments on dates corresponding
with the Company’s regular pay dates during the Severance Period.
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(d)
Termination
for Cause. The Company may terminate the Executive’s employment and
this Agreement at any time during the Term for Cause as defined below. In such
case, this Agreement and the Executive’s employment shall terminate
immediately and the Company shall have no further obligation to the Executive,
except that the Company shall pay to the Executive that portion of the Base
Salary under Section 4(a) earned through the date on which such termination
occurs.
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(e)
Definition of Cause. For purposes of this Agreement, Cause shall be defined as:
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(i)
the
willful or negligent failure of the Executive to perform the Executive’s
duties and obligations in any material respect (other than any failure
resulting from Executive’s disability), which failure is not cured within
fifteen (15) days after receipt of written notice thereof, provided that there
shall be no obligation to provide any additional written notice if the Executive’s
failure to perform is repeated and the Executive has previously received one
(1) or more written notices;
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(ii)
acts
of dishonesty or willful misconduct by the Executive with respect to the
Company;
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(iii)
conviction
of a felony or violation of any law involving moral turpitude, dishonesty,
disloyalty or fraud, or a pleading of guilty or nolo contendere to such
charge;
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(iv)
repeated
refusal to perform the reasonable and legal instructions of the Executive’s
supervisors; or
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(v)
any
material breach of this Agreement or Attachment A; or
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(vi)
failure
to confirm compliance with the Company’s Ethics Policy after 10 days’ written
notice requesting confirmation.
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(f)
Resignation.
The Executive may voluntarily resign from employment at any time during the
Term upon 3 months’ written notice and in compliance with the provisions
of Attachment A. In such event, the Company shall be relieved of all its
obligations under this Agreement, except that the Company shall pay to the
Executive that portion of the Base Salary under Section 4(a) earned through the
date on which such resignation is effective.
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(g)
The
Executive remains obligated to comply with the Executive’s obligations and
duties pursuant to Attachment A despite the termination of this Agreement and
the Executive’s employment for any reason.
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(h)
During
employment and after the termination of this Agreement and the Executive’s
employment for any reason, the Executive agrees to cooperate fully with and at
the request of the Company in the defense or prosecution of any legal matter or
claim in which the Company, any of its affiliates, or any of their past or
present employees, agents, officers, directors, attorneys, successors or
assigns, may be or become involved and which arises or arose during the
Executive’s employment. The Executive will be reimbursed for any
reasonable out-of-pocket expenses incurred thereby.
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(i)
During
and after the termination of this Agreement and the Executive’s employment
for any reason, the Executive agrees that, except as may be required by the
lawful order of a court or agency of competent jurisdiction, he will not take
any action or make any statement or disclosure, written or oral, that is
intended or reasonably likely to disparage the Company or any of its
affiliates, or any of their past or present employees, officers or directors.
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8.
Change
in Control. Notwithstanding any other provisions of this Agreement to the
contrary:
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(a)
Employment
Period. If a Change in Control (as defined below) occurs when the Executive
is employed by the Company, the Company will continue thereafter to employ the
Executive during the period commencing on the date of a Change in Control and
ending on the first anniversary of such date (the “Employment Period”)
and thereafter in accordance with Section 2 of this Agreement, and the
Executive will remain in the employ of the Company in accordance with and
subject to the terms and provisions of this Agreement.
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(b)
Covered
Termination. If there is any termination of the Executive’s employment
during the Employment Period (subject to Section 8(e)) by the Executive for
Good Reason (as defined below), or by the Company other than by reason of (i) death
pursuant to Section 7(a), (ii) disability pursuant to Section 7(b), or
(iii) Cause (a “Covered Termination”), then the Executive shall
be entitled to receive, and the Company shall promptly pay, that portion of the
base salary under Section 4(a) earned through the date of the termination and,
in lieu of further base salary for periods following such termination, as
liquidated damages and additional severance pay, the Termination Payment
pursuant to Section 8(c).
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(i)
The
“Termination Payment” shall be an amount equal to (A) the
Executive’s annual base salary immediately prior to the termination
of the Executive’s employment plus (B) the Executive’s target
annual bonus under the Company’s Senior Management Bonus Plan for the
year in which the termination of the Executive’s employment occurs.
The Termination Payment shall be paid to the Executive in cash equivalent
ten (10) business days after the date of the executive’s termination
of employment with the Company. Such lump sum payment shall not be reduced
by any present value or similar factor, and the Executive shall not be
required to mitigate the amount of the Termination Payment by securing
other employment or otherwise, nor will such Termination Payment be
reduced by reason of the Executive securing other employment or for any
other reason. The Termination Payment shall be in lieu of, and acceptance
by the Executive of the Termination Payment shall constitute the Executive’s
release of any rights of the Executive to, any other cash severance
payments under any Company severance policy, practice or agreement.
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(ii) Notwithstanding
any other provision of this Agreement, if any portion of the Termination
Payment or any other payment under this Agreement, or under any other
agreement with or plan of the Company (in the aggregate, “Total
Payments”), would constitute an “excess parachute payment” as
defined in Section 280G (or any successor provision) of the Internal
Revenue Code of 1986, including any amendments thereto or any successor
tax codes thereof (the “Code”), then the Company shall pay the
Executive an additional amount (the “Gross-Up Payment”) such
that the net amount retained by the Executive after deduction of any
excise tax imposed under Section 4999 (or any successor provision) of
the Code and any interest charges or penalties in respect of the
imposition of such excise tax (collectively, the “Excise Tax”)
(but not any federal, state or local income tax, or employment tax) on the
Total Payments, and any federal, state and local income tax, employment
tax, and excise tax upon the payment provided for by this Section 9(c)(ii),
shall be equal to the Total Payments. For purposes of determining the
amount of the Gross-Up Payment, the Executive shall be deemed to pay
federal income tax and employment taxes at the highest marginal rate of
federal income and employment taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the
Executive’s domicile for income tax purposes on the date the Gross-Up
Payment is made, net of the maximum reduction in federal income taxes that
may be obtained from the deduction of such state and local taxes.
Notwithstanding the foregoing, if it shall be determined that the
Executive is entitled to a Gross-Up Payment, but that the Total Payments
would not be subject to the Excise Tax if the Total Payments were reduced
by an amount that is less than 10% of the Total Payments that would be
treated as “parachute payments” under Section 280G (or any
successor provision) of the Code, then the amounts payable to the
Executive under this Agreement shall be reduced (but not below zero) to
the maximum amount that could be paid to the Executive without giving rise
to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up
Payment shall be made to the Executive. For purposes of reducing the Total
Payments to the Safe Harbor Cap, only amounts payable under this Agreement
(and no other Total Payments) shall be reduced. If the reduction of the
amounts payable hereunder would not result in a reduction of the Total
Payments to the Safe Harbor Cap, no amounts payable under this Agreement
shall be reduced pursuant to this provision.
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(iii) For
purposes of this Agreement, the terms “excess parachute payment” and
“parachute payments” shall have the meanings assigned to them in
Section 280G (or any successor provision) of the Code and such
“parachute payments” shall be valued as provided therein.
Present value for purposes of this Agreement shall be calculated in
accordance with Section 1274(b)(2) (or any successor provision) of
the Code. Promptly following a Covered Termination or notice by the
Company to the Executive of its belief that there is a payment or benefit
due the Executive which will result in an “excess parachute payment” as
defined in Section 280G of the Code (or any successor provision), the
Executive and the Company, at the Company’s expense, shall obtain the
opinion (which need not be unqualified) of nationally recognized tax
counsel (“National Tax Counsel”) selected by the Company’s
independent auditors and reasonably acceptable to the Executive (which may
be regular outside counsel to the Company), which opinion sets forth (A)
the amount of the Base Period Income, (B) the amount and present value of
Total Payments, (C) the amount and present value of any excess parachute
payments, and (D) the amount of any Gross-Up Payment or the reduction of
any Total Payments to the Safe Harbor Cap, as the case may be. As used in
this Agreement, the term “Base Period Income” means an amount
equal to the Executive’s “annualized includable compensation for
the base period” as defined in Section 280G(d)(1) (or any
successor provision) of the Code. For purposes of such opinion, the value
of any noncash benefits or any deferred payment or benefit shall be
determined by the Company’s independent auditors in accordance with
the principles of Section 280G(d)(3) and (4) (or any successor
provisions) of the Code, which determination shall be evidenced in a
certificate of such auditors addressed to the Company and the Executive.
The opinion of National Tax Counsel shall be addressed to the Company and
the Executive and shall be binding upon the Company and the Executive. If
such National Tax Counsel so requests in connection with the opinion
required by this Section 8(c)(iii), the Executive and the Company
shall obtain, at the Company’s expense, and the National Tax Counsel
may rely on, the advice of a firm of recognized executive compensation
consultants as to the reasonableness of any item of compensation to be
received by the Executive solely with respect to its status under Section 280G
of the Code and the regulations thereunder. Within five (5) days after the
National Tax Counsel’s opinion is received by the Company and the
Executive, the Company shall pay (or cause to be paid) or distribute (or
cause to be distributed) to or for the benefit of the Executive such
amounts as are then due to the Executive under this Agreement.
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(iv) In
the event that upon any audit by the Internal Revenue Service, or by a state
or local taxing authority, of the Total Payments or Gross-Up Payment, a
change is finally determined to be required in the amount of taxes paid by
the Executive, appropriate adjustments shall be made under this Agreement
such that the net amount which is payable to the Executive after taking
into account the provisions of Section 4999 (or any successor
provision) of the Code shall reflect the intent of the parties as
expressed in this Section 8(c), in the manner determined by the
National Tax Counsel.
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(v) The
Company agrees to bear all costs associated with, and to indemnify and hold
harmless, the National Tax Counsel of and from any and all claims,
damages, and expenses resulting from or relating to its determinations
pursuant to this Section 8(c), except for claims, damages or expenses
resulting from the gross negligence or willful misconduct of such firm.
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(d) Additional
Benefits. If there is a Covered Termination and the Executive is entitled
to the Termination Payment, then (i) until the earlier of the end of the
Employment Period or such time as the Executive has obtained new employment and
is covered by benefits which in the aggregate are at least equal in value to
the following benefits, the Executive shall continue to be covered, at the
expense of the Company, by the same or equivalent health and dental coverage as
the Executive was covered by immediately prior to the termination of the
Executive’s employment and (ii) the Company shall bear up to $15,000 in
the aggregate of fees and expenses of consultants and/or legal or accounting
advisors engaged by the Executive to advise the Executive as to matters
relating to the computation of benefits due and payable under Section 8(c).
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(e)
Anticipatory Termination. Anything in
this Agreement to the contrary notwithstanding, if a Change in Control occurs
and if the Executive’s employment with the Company is terminated (other
than a termination due to the Executive’s death or as a result of the
Executive’s disability) during the period of 180 days prior to the
date on which the Change in Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (i) was
at the request of a third party who has taken steps reasonably calculated to
effect a Change in Control or (ii) otherwise arose in connection with or
in anticipation of a Change in Control, then for all purposes of this Section 8
such termination of employment shall be deemed a “Covered Termination” and
the “Employment Period” shall be deemed to have begun on the date of
such termination.
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(f)
Expenses and Interest. If, after a
Change in Control of the Company, (i) a dispute arises with respect to the
enforcement of the Executive’s rights under this Agreement or (ii) any
legal or arbitration proceeding shall be brought to enforce or interpret any
provision contained herein or to recover damages for breach hereof, in either
case so long as the Executive is not acting in bad faith, then the Company
shall reimburse the Executive for any reasonable attorneys’ fees and
necessary costs and disbursements incurred as a result of the dispute, legal or
arbitration proceeding (“Expenses”), and prejudgment interest on any
money judgment or arbitration award obtained by the Executive calculated at the
rate of interest announced by The Bank of New York, from time to time at its
prime or base lending rate from the date that payments to him or her should
have been made under this Agreement. Within ten days after the Executive’s
written request therefor, the Company shall pay to the Executive, or such other
person or entity as the Executive may designate in writing to the Company, the
Executive’s reasonable Expenses in advance of the final disposition or
conclusion of any such dispute, legal or arbitration proceeding.
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(g)
Definition
of Change in Control. For purposes hereof, a “Change in Control” shall
be deemed to occur on the first to occur of any one of the following events:
(a) the consummation of a consolidation, merger, share exchange or
reorganization involving the Company, unless such consolidation, merger, share
exchange or reorganization is a “Non-Control Transaction” (as defined
below); (b) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all, or substantially all, of the assets of the
Company (in one transaction or a series of related transactions within any
period of 24 consecutive months), other than a sale or disposition by the
Company of all, or substantially all, of the Company’s assets to an entity
at least 75% of the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale; (c) any person
(as such term is used in Section 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) (other than (1) the
Company, (2) any subsidiary of the Company, (3) a trustee or other fiduciary
holding securities under any employee benefit plan (or any trust forming a part
thereof) maintained by the Company or any subsidiary or (4) a corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock in the Company)
is or becomes the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person any securities
acquired directly from the Company after the date hereof pursuant to express
authorization by the Board that refers to this exception) representing more
than 20% of the then outstanding shares of Common Stock or the combined voting
power of the Company’s then outstanding voting securities; or (d) the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, as of the date hereof,
constitute the entire Board of Directors of the Company (the “Board”)
and any new director (other than a director whose initial assumption of office
is in connection with an actual or threatened election contest) whose
appointment or election by the Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least two-thirds of
the directors then still in office who either were directors on the date hereof
or whose appointment, election or nomination for election was previously so
approved or recommended. Notwithstanding the foregoing, no “Change in
Control” shall be deemed to have occurred if there is consummated any
transaction or series of integrated transactions immediately following which
the record holders of the Common Stock immediately prior to such transaction or
series of transactions continue to have substantially the same proportionate
ownership in an entity that owns all or substantially all of the assets or
voting securities of the Company immediately following such transaction or
series of transactions. A “Non-Control Transaction” shall mean a
consolidation, merger, share exchange or reorganization of the Company where
(a) the stockholders of the Company immediately before such consolidation,
merger, share exchange or reorganization beneficially own, directly or
indirectly, more than 50% of the then outstanding shares of common stock and
the combined voting power of the outstanding voting securities of the
corporation resulting from such consolidation, merger, share exchange or
reorganization (the “Surviving Corporation”); (b) the individuals who
were members of the Board immediately prior to the execution of the agreement
providing for such consolidation, merger, share exchange or reorganization
constitute at least 50% of the members of the board of directors of the
Surviving Corporation; and (c) no person (other than (1) the Company, (2) any
subsidiary of the Company or (3) any employee benefit plan (or any trust
forming a part thereof) maintained by the Company, the Surviving Corporation or
any subsidiary) is or becomes the beneficial owner, directly or indirectly, of
securities of the Company (not including in the securities beneficially owned
by such person any securities acquired directly from the Company after the date
hereof pursuant to express authorization by the Board that refers to this
exception) representing more than 20% of the then outstanding shares of the
common stock of the Surviving Corporation or the combined voting power of the
Surviving Corporation’s then outstanding voting securities.
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(h)
Good
Reason. The Executive shall have “Good Reason” for termination of
employment in connection with a Change in Control of the Company in the event
of:
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(i) any
breach of this Agreement by the Company, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith that the
Company remedies promptly after receipt of notice thereof given by the
Executive;
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(ii) any
reduction in the Executive’s base salary, percentage of base salary
available as incentive compensation or bonus opportunity or benefits, in
each case relative to those most favorable to the Executive in effect at
any time during the 180-day period prior to the Change in Control;
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(iii) the
removal of the Executive from, or any failure to reelect or reappoint the
Executive to, any of the positions held with the Company on the date of
the Change in Control or any other positions with the Company to which the
Executive shall thereafter be elected, appointed or assigned, except in
the event that such removal or failure to reelect or reappoint relates to
the termination by the Company of the Executive’s employment for
Cause or by reason of disability pursuant to Section 7(b);
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(iv) a
good faith determination by the Executive that there has been a material
adverse change, without the Executive’s written consent, in the
Executive’s working conditions or status with the Company relative to
the most favorable working conditions or status in effect during the
180-day period prior to the Change in Control, including but not limited
to (A) a significant change in the nature or scope of the Executive’s
authority, powers, functions, duties or responsibilities, or (B) a
significant reduction in the level of support services, staff, secretarial
and other assistance, office space and accoutrements, but in each case
excluding for this purpose an isolated, insubstantial and inadvertent
event not occurring in bad faith that the Company remedies within ten (10)
days after receipt of notice thereof given by the Executive;
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(v) the
relocation of the Executive’s principal place of employment to a
location more than 50 miles from the Executive’s principal place of
employment on the date 180 days prior to the Change in Control; or
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(vi) the
Company requires the Executive to travel on Company business 20% in excess
of the average number of days per month the Executive was required to
travel during the 180-day period prior to the Change in Control.
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9. Severability.
Whenever possible, each portion, provision or section of this Agreement will be
interpreted in such a way as to be effective and valid under applicable law,
but if any portion, provision or section of this Agreement is held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability will not affect any other portions, provisions or sections.
Rather, this Agreement will be reformed, construed and enforced as if such
invalid, illegal or unenforceable portion, provision or section had never been
contained herein.
10.
Complete
Agreement. This Agreement, including Attachment A, contains the complete
agreement and understanding between the parties and supersedes and preempts any
prior understanding, agreement or representation by or between the parties,
written or oral.
11.
Additional
Rights and Causes of Action. This Agreement, including Attachment A, is in
addition to and does not in any way waive or detract from any rights or causes
of action the Company may have relating to Confidential Information or other
protectable information or interests under statutory or common law or under any
other agreement.
12.
Governing
Law. Notwithstanding principles of conflicts of law of any jurisdiction to
the contrary, all terms and provisions to this Agreement are to be construed
and governed by the laws of the State of New York without regard to the laws of
any other jurisdiction in which the Executive resides or performs any duties
hereunder or where any violation of this Agreement occurs.
13.
Successors
and Assigns. This Agreement will inure to the benefit of and be enforceable
by the Company and its successors and assigns. The Executive may not assign the
Executive’s rights or delegate the Executive’s obligations hereunder.
14.
Waivers.
The waiver by either the Executive or the Company of a breach by the other
party of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by the breaching party.
THE
COMPANY AND THE EXECUTIVE ACKNOWLEDGE THAT (A) EACH HAS CAREFULLY READ THIS AGREEMENT, (B)
EACH UNDERSTANDS ITS TERMS, (C) ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND
THE EXECUTIVE RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND
(D) EACH HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES
OR REPRESENTATIONS BY THE OTHER, OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement.
|
|
|
Xxxxxx Highland Group, Inc. |
/s/ Xxxx Xxxx Xxxxxxx |
By: /s/ Xxxxxxxxxx Xxxxxx |
| Signature of Executive |
Signature of Authorized Representative |
| Xxxx Xxxx Xxxxxxx |
Its: Executive Vice President, Chief Administrative Officer |
| Print Name |
Title of Representative |
October 26, 2005 |
October 26, 2005 |
| Date |
Date |
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