EXHIBIT 10(f)
Exhibit B
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EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement"), dated August 13
, 1998 (the "Effective Date"), is by and among STAT-LAND Burglar Alarm Systems &
Devices, Inc., a New York corporation (the "Employer"), Mutual Central Alarm
Services, Inc., a New York corporation and an affiliate of the Employer
("Mutual"), Guardian International, Inc., a Nevada corporation and the parent of
Employer and Mutual ("Parent"), and Xxxx Xxxxxxx, an individual ("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Board of Directors of Employer (the "Board")
recognizes that Executive will contribute to the future growth and success of
the security business of Employer and its affiliates (including Mutual and
Parent), consisting of burglar and fire alarm, closed circuit television and
electronic access and control, and central station monitoring services to
residential and commercial customers (the "Business"), and the Board therefore
desires to assure Employer of Executive's services as an employee of, and for
the benefit of, Employer; and
WHEREAS, effective as of the date hereof, Parent acquired all
of the issued and outstanding capital stock of Employer from Executive under the
terms of that certain Stock Purchase Agreement, dated as of the date hereof, by
and between Parent and Employer (the "Purchase Agreement"); and
WHEREAS, prior to consummating the transactions contemplated
by the Purchase Agreement, Executive was employed by and served as the President
of Employer; and
WHEREAS, Employer desires to continue to retain the services
of Executive, and the Executive desires to accept such employment, in each case
subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the receipt and sufficiency of
which are mutually acknowledged, the parties hereto hereby agree as follows:
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1. Employment Employer hereby employs Executive, and
Executive hereby accepts such employment, upon the terms and conditions set
forth in this Agreement.
2. Term. Subject to the termination provisions of Section 11
hereof, the employment of Executive hereunder shall commence on the date hereof
shall continue for a three-year period ending on August 13, 2001. Thereafter,
this Agreement shall renew automatically for one-year terms unless six (6)
months advance written notice of termination is given by either party. The
actual term of this Agreement, with renewals, if any, is hereinafter referred to
as the "Term".
3. Duties During the Term, Executive shall serve as the
President of Employer and/or the Branch Manager of Mutual or Parent. In such
capacity, Executive shall (i) supervise and administer the day to day
operations, business and affairs of Employer, (ii) have the power and authority
to do and to perform any and all other acts and things which he shall reasonably
consider to be necessary, desirable, convenient or appropriate and in the best
interests of Employer, in the ordinary and usual course of its business, (iii)
regularly (not less than weekly) report to the President of Mutual as to the
current business activities of the Employer and as to any other matters
requested from time to time by the President of Mutual, and (iv) perform such
other duties as reasonably requested by the President of Mutual or the Board of
Employer, or as are usual and customary for the President and/or Branch Manager
of Employer under the Bylaws of Employer as amended from time to time. The place
of employment shall be New York City, New York. Executive will travel from time
to time as may be necessary in furtherance of the business of Employer and the
Business generally.
4. Exclusivity of Services. Executive shall devote his full
business time, energy, ability and attention exclusively to the business,
affairs and interests of Employer and matters related thereto, shall use
Executive's best efforts and abilities to promote Employer's interests, and
shall perform the services contemplated by this Agreement in accordance with
policies established by and under the direction of the Board. During the Term
hereof, Executive shall not serve as an officer, director, employee, consultant
or advisor to any other business, and shall not engage in any other business
activities other than the Permitted Activities (as herein defined). Executive
may (i) make and manage personal business investments of his choice provided
that Executive shall hold no investment in any entity which competes in any way
with the business of Employer or the business of Mutual, Parent and/or any of
their respective affiliates, other than an investment representing less than a
5% interest in any publicly held entity; and (ii) serve in any capacity with any
civic, educational or charitable organization without seeking or obtaining
approval by the Board, provided that the activities and services described in
clauses (i) (ii) (collectively, the "Permitted Activities") do not interfere or
conflict with, or detract from, the performance of Executives duties hereunder
or create any conflict of
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interest with such duties. Executive hereby confirms he is under no contractual
commitments inconsistent with his obligations as set forth in this Agreement.
5. Compensation.
a) During the Term, Executive shall receive a base
salary of Eighty-five Thousand Dollars ($85,000) per year (the "Salary"),
payable in equal installments no less frequently than semi-monthly.
b) Subject to the terms and conditions of Parent's
Stock Option Plan, Parent shall grant to Executive options to purchase 25,000
shares (the "Options") of Parent's Class A Common stock, par value $.001 per
share (the "Common Stock"), with an exercise price equal to the five-day average
closing price of the Common Stock for the five days prior to the grant thereof.
The options will vest at the rate of one-third per year commencing with the date
hereof and will, subject to the provisions of this Section 5(b), be fully vested
on August 13, 2001. Vested Options shall be exercisable on each anniversary of
the execution of this Agreement. If the Executive does not exercise all vested
Options in any given year, such vested Options may be exercised in subsequent
years but in no event later than August 13, 2008. In the event that Executive's
employment hereunder is terminated pursuant to Section 11(a) prior to the
vesting of all Options, any such unvested Options shall be forfeited. In the
event that Executive's employment hereunder is terminated pursuant to Sections
11(b) or (c) prior to the vesting of all Options, any such unvested Options
shall vest automatically as of the date of termination, provided that Executive
has been employed with Employer at least thirty (30) consecutive months from the
date of execution of this Agreement. In the event that Executive's employment
hereunder is terminated pursuant to Sections 11(d) prior to the vesting of all
Options, any such unvested Options shall vest automatically as of the date of
termination.
6. Incentive Bonus Plan. During the Term, Executive shall be
eligible to receive additional incentive bonus compensation in accordance with
and subject to the terms and conditions set forth on Schedule A annexed hereto
and made a part hereof.
7. Automobile. During the Term, the Employer shall lease an
automobile for Executive's use. The Company shall be responsible for all lease
payments (not to exceed $500.00 per month), maintenance costs and insurance
premiums on the automobile during the Term.
8. Expense Reimbursement. During the Term, Employer, upon the
submission of proper proof by Executive, shall promptly reimburse Executive for
reasonable business expenses actually and necessarily paid or incurred by him in
connection with the discharge of Executive's duties hereunder.
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9. Vacation. During each full twelve month period of the Term
commencing on the date hereof, Executive shall be entitled to three (3) weeks of
vacation time as selected in consecutive or non consecutive periods or any
combination thereof by Executive in his reasonable discretion consistent with
his duties and responsibilities hereunder, during which vacation time Executive
shall be paid the applicable portion of his Salary; provided, however, Executive
shall not take a vacation for longer than two weeks without the prior consent of
the Board. Vacation shall not accumulate or carry over from year to year and
Employee shall not be entitled to payment for unused vacation.
10. Medical and Other Insurance. During the Term, Employer
shall at all times pay the reasonable premiums of medical insurance policies for
Executive and his immediate family and shall further provide and pay the
premiums of, group life insurance, group disability insurance and such other
insurance as is from time to time provided to Executives of Mutual.
11. Termination.
a) Notwithstanding anything contained in this
Agreement, Employer by written notice to Executive shall at all times in its
sole discretion have the right to terminate this Agreement, and Executive's
employment hereunder, "for cause" effective upon delivery of notice to
Executive. For purposes for this Agreement, "for cause" shall mean: (i) any
conviction of Executive of a felony or any conduct which if proved would support
conviction of a felony; (ii) conduct amounting to a material act of fraud, gross
misconduct or dishonesty involving Employer; (iii) a material act of fraud or
dishonesty not involving Employer which has a material adverse effect upon the
Business or reputation of Employer; (iv) continuing material violation by
Executive of his obligations under this Agreement after written notice thereof
to Executive and failure to cure such violation within fifteen (15) days
following such notice; (v) misuse of alcohol or controlled substance that
materially impairs Executive's ability to perform the duties of his Employment
as determined by a physician retained by Employer or, if Executive refuses to
submit to appropriate examinations by such physician at the request of the Board
of Directors, then by at least three members of the Board of Directors; or (vi)
the unlawful use of drugs or other controlled substances.
b) Employer, by written notice to Executive, shall
have the right to terminate this Agreement and Executive's employment upon
Executive's lack of capacity to perform the essential functions of duties under
this Agreement, with or without reasonable accommodation, because of physical or
mental disability ("Disability") of Executive, for a period of one hundred
twenty (120) or more days, either consecutively or in the aggregate during any
six-month period, as determined by an impartial reputable physician agreed upon
by the Board and Executive or his representative, as the case may be).
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c) If Executive dies during the term of his
employment hereunder, this Agreement shall terminate automatically upon the date
of Executive's death.
d) Employer, by written notice to Executive, shall
have the right to terminate this Agreement, and Executive's employment
hereunder, "without cause", effective upon delivery of notice to Executive. For
purposes for this Agreement, termination "without cause" shall mean termination
by Employer other than pursuant to Sections 2, 11(a), 11(b) or 11(c). Executive
shall have the right to terminate his employment with Employer as a result of a
material breach by Employer of the terms hereof, which breach is not cured
within fifteen (15) days following notice in writing from executive to Employer
specifying the nature of such breach
12. Termination.
a) In the event that this Agreement, and Executive's
employment hereunder, is terminated for cause pursuant to Section 11(a) hereof,
or by Executive (other than pursuant to Section 11(d) hereof, then, in such
event: (i) Employer shall have no obligation whatsoever to make any payment,
including, without limitation, any payment of Salary, incentive bonus
compensation, automobile expense reimbursement or any insurance premium, to or
on behalf of Executive for any period subsequent to the date of such
termination; (ii) Employer may, subject to the terms of such plans and
applicable law, remove Executive from coverage under any medical or other
insurance plans or programs made available to Executive by Employer; and (iii)
Executive shall, upon such termination, return the automobile provided pursuant
to Section 7.
b) In the event that this Agreement, and Executive's
employment hereunder, is terminated for death or Disability of Executive
pursuant to Section 11(b) or l1(c) hereof, then, any such event, Employer shall
have no obligation whatsoever to make any payment, including without limitation,
any payment of Salary, incentive bonus compensation, automobile expense
reimbursement or any such insurance premium, to or on behalf of Executive for
any period subsequent to the date of such termination or expiration and
Executive shall, upon such termination, return the automobile provided pursuant
to Section 7. Notwithstanding the above, in the event this Agreement is
terminated for Disability of Executive pursuant to Section 11(b) hereof,
Executive shall have the right at Employer's expense through the remaining term
of this Agreement to continue such disability insurance as Employer was
providing as of the date of termination, and, that Executive's own expense, to
continue any group medical insurance then provided to Executive and to such
other benefits as he is then entitled under such insurance and any disability
plan or program of Employer.
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c) In the event that this Agreement, and Executive's
employment hereunder, is terminated by Employer or Executive pursuant to Section
11(d) during the Term, then, in such event, any unvested Options shall vest
automatically as of the date of termination, and, in addition to such amounts as
have accrued prior to the date of termination and have not previously been paid
including any accrued vacation benefits, Employer shall pay to Executive,
payable at such time as such payments would otherwise be payable hereunder,
Executive's Salary and benefits that would have accrued to him for the remaining
Term of this Agreement, and any bonus pursuant to Schedule A prorated to the
date of termination, in addition to any other rights to which Executive may be
entitled at law or in equity.
13. Confidentiality.
a) For good consideration and as an inducement for
Employer to employ Executive, Executive agrees that, both during the Term and
after the termination of this Agreement for any reason or no reason, Executive
will hold in a fiduciary capacity for the benefit of Employer, and shall not,
directly or indirectly, use or disclose, except as authorized by Employer in
connection with the performance of his duties hereunder, any Confidential
Information (as defined below) that Executive may have or acquire (whether or
not developed or compiled by Executive or whether or not Executive has been
authorized to have access to such Confidential information) prior to or during
the Term. As used in this Agreement, the term "Confidential Information" means
and includes any and all information, data and know-how specific to the Business
of Employer and not generally known in the industry that is disclosed to
Executive by Employer or known by him as a result of his relationship with
Employer (or a company acquired by Employer) and not generally within the public
domain (whether or not constituting a Trade Secret), including without
limitation, the following: financial information, supply and service
information, marketing information, personnel information, customer information
and information with respect to any corporate affairs that Employer treats as
confidential.
The term "Confidential Information" does not include
information that has become generally available to the public by the act of
Employer or by the act of one who has the right to disclose such information
without violating any right of confidentiality to Employer or the customer to
which such information pertains.
Nothing in this Section 13 shall prevent Executive from
disclosing any Confidential Information to the extent such disclosure is
required by law or any order of a court or government authority with
jurisdiction; provided, however, that Executive agrees to give Employer advance
written notice as soon as possible of the Confidential Information required to
be disclosed, and at Employer's request, to use his best efforts to obtain
assurances that the Confidential Information required to be disclosed will be
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maintained on a confidential basis and will not be disclosed to a greater degree
than required by law.
b) The covenant contained in this Section 13 shall
survive the termination of Executive's employment with Employer for any reason
or no reason for a period of two (2) years; provided, however, that with respect
to those items of Confidential Information which constitute trade secrets under
applicable law, Executive's obligations of confidentiality and non-disclosure as
set forth in this Section 13 shall continue to survive after said two (2) year
period to the greatest extent permitted by applicable law. These rights of
Employer are in addition to those rights Employer has under the common law or
applicable statutes for the protection of trade secrets.
14. Covenant Not to Compete. For good consideration and as an
inducement for Employer to employ Executive, Executive agrees that he will not
engage or participate, directly or indirectly, in any business that competes
with the Business, whether as employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director, or other representative
capacity, at any time during Executive's employment with Employer, and the
longer of (i) three (3) years from the date hereof or (ii) one (1) year from the
date of termination (for any reason or no reason) or expiration of this
Agreement (the "Non-Compete Period"), in the states of New York, New Jersey and
Connecticut. Nothing in this Section 14 shall prevent Executive from owning less
than 5% of the shares of any company which has shares registered on any stock
exchange or with shares traded in the OTC market. In the event any court shall
refuse to enforce any portion of the covenant set forth in this Section 14, then
such unenforceable portion shall be deemed eliminated and severed from said
contract for the purposes of said court's proceedings to the extent necessary to
permit the remaining portions of the covenant to be enforced.
15. Covenants Against Other Actions Damaging Employer.
Executive agrees that he shall not, at any time during the Non-Compete Period,
for himself or on behalf of or in conjunction with any third party, solicit any
employee of Employer its affiliates or subsidiaries to leave such employment.
Executive further agrees that during his employment with Employer and for the
period set forth in Section 14 as applicable, he will not directly or
indirectly, on his own behalf or in the service of or on behalf of others,
solicit, divert or appropriate, or attempt to solicit, divert or appropriate, to
any competing business, any customers of Employer who are customers as of the
date of termination. If, during the Term, Executive is engaged in or associated
with the planning or implementing of any project, program or venture involving
Employer and a third party or parties (a "Venture"), or any discussions,
analysis or negotiations with respect to an investment in, merger, acquisition
or purchase, directly or indirectly, of the stock, assets, or business of any
entity (an "Acquisition"), rights in the Venture and the Acquisition and any
opportunity to make any investment in the entity to be so acquired (the
"Target") shall belong to Employer and shall constitute a corporate opportunity
belonging exclusively to
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Employer. Except as approved by the Board or contemplated on Schedule A annexed
hereto, Executive shall not be entitled to any interest in any such Venture or
to invest or solicit any third party to invest in the Target or consummate the
Acquisition, or to any commission, finder's fee or other compensation in
connection therewith other than any Salary paid to Executive for performance of
his duties in the ordinary course of business. In the event any court shall
refuse to enforce any portion of the covenants set forth in this Section 15,
then such unenforceable portion shall be deemed eliminated and severed from said
contract for the purposes of said court's proceedings to the extent necessary to
permit the remaining portions of the covenant to be enforced.
16. Arbitration. All disputes or controversies between the
parties arising from or related to any matter that pertains to this Agreement,
to the employment of Executive by Employer, or to the termination of Executive's
employment that otherwise would allow or require resort to a court,
administrative, or other governmental dispute resolution forum (whether the
claim is legal or equitable in nature, whether it is based on any tort,
contract, or common law theory of recovery, or whether it is based on any
federal, state, or local employment discrimination or civil rights statute,
executive order, law, regulation, or ordinance, including without limitation the
Age Discrimination in Employment Act of 1967, the Americans with Disabilities
Act, Title VII of the Civil Rights Act of 1964, the New York State Human Rights
Law, and the New York City Humans Rights Law) shall be referred to binding,
non-appealable arbitration in accordance with the procedures set forth in
Exhibit A annexed hereto and without recourse any litigation except as set forth
in Exhibit A. Each party hereby submits to personal jurisdiction in New York,
New York for the purpose of such arbitration proceedings, and/or any suits to
confirm same. Pending completion of any arbitration proceedings, payments not in
dispute shall continue to be made and obligations not in dispute shall continue
to be performed.
17. Assignment. This Agreement is personal to Executive and
Executive may not assign or transfer any of its benefits or obligations
hereunder. Upon written notice by Employer to Executive, Employer may assign its
rights under this Agreement to any entity (i) that controls or acquires control
of Employer, (ii) that is controlled by, is under common control with, or
acquires an interest in Employer, or (iii) in which Employer acquires a
financial interest, provided that such entity assumes Employer's obligations
under this Agreement or that Employer remains liable for its obligations under
the Agreement. Upon written notice by Employer to Executive, Employer may assign
its rights to any entity that acquires substantially all of Employer's assets
provided that such entity assumes Employer's obligations under this Agreement.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to the conflicts of laws principles thereof.
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19. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings and arrangements, both oral and written, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
modified in any way unless in writing signed by both Employer and Executive.
20. Notices. Any notices required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered by hand and receipted or when received or refused if
delivered by United States mail, by registered or certified mail, return receipt
requested, postage prepaid, as follows:
If to Employer:
Mutual Central Alarm Services, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Guardian International, Inc.
0000 X. 00xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
and with a copy to:
Xxxxxxxx & Xxxxxxxx
Four Stamford Plaza
000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
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If to Executive:
Xxxx Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: n/a
with a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx & Xxxxx, P.C.
Xxx Xxxx Xxxxx - Xxxxx 0000
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
21. Benefits; Binding Effect. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective legal
representatives, successors and, where applicable, assigns.
22. Severability. The invalidity of any one or more of the
words, phrases, sentences, clauses or sections contained in this Agreement shall
not affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally their being valid in law,
and, in the event that anyone or more of the words, phrases, sentences, clauses
or sections contained in this Agreement declared invalid, this Agreement shall
be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted.
23. Waivers. The waiver by either party hereto of a breach of
any provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
24. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
25. Equitable Remedies. Executive acknowledges that Employer
would not have an adequate remedy at law for money damages if Executive breaches
Sections 13, 14 or 15. Therefore, in addition to all other remedies to which
Employer may be entitled for a breach or threatened breach of this Agreement,
Employer will be entitled to specific enforcement of this Agreement and to
injunctive or other equitable relief as a remedy for a breach or threatened
breach. In the event of legal proceedings in connection with this Agreement, the
non-prevailing entity shall pay all reasonable attorneys' fees and costs of the
prevailing party at trial and on appeal.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the day and year first above written.
EMPLOYER:
STAT-LAND BURGLAR ALARM SYSTEMS & DEVICES, INC.
a New York corporation
By: /s/XXXX X. XXXXX
----------------
Name: Xxxx X. Xxxxx
Title: Vice President
MUTUAL:
MUTUAL CENTRAL ALARM SERVICES, INC.
a New York corporation
By: /s/XXXX X. XXXXX
----------------
Name: Xxxx X. Xxxxx
Title: President
GUARDIAN:
GUARDIAN INTERNATIONAL, INC.
a Nevada corporation
By: /s/XXXXXX X. XXXXX
------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
EXECUTIVE:
/s/XXXX XXXXXXX
---------------
Xxxx Xxxxxxx
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Schedule A
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Incentive Bonus Plan
--------------------
ALL BASE AMOUNTS WILL BE ADJUSTED EACH YEAR
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ATTRITION
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Total MRI (adjusted for acquisitions) canceled during each one year period
(January 1 - December 31) divided by the Average MRI for each such one year
period. Average MRI is equal to the quotient of:
(MRI as of 12/31 of the performance year + MRI as of 12/31 of the prior year)/2
Overall Performance Goal - maintain or reduce attrition
------------------------
Attrition for calendar year 1996 __________*
Attrition for calendar year 1997 __________*
MRI as of December 31, 1996 __________*
MRI as of December 31, 1997 __________*
Attrition % for calendar year 1996 5.0%*
Attrition % for calendar year 1997 5.50%*
Base Line
---------
Base Line Attrition % - Avg. '96-'97 5.25%*
*If numbers are given, they are for example only. Actual #'s will
be inserted post-closing subsequent to receipt of the Audit Report
required under Section 1.7 of the Purchase Agreement.
Specific Targets and Annual Bonus Amounts
-----------------------------------------
Attrition % Range Bonus
----------------- -----
5.25% - 4.75% $2500.00
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4.75% - 4.25% $5000.00
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4.25% - 3.75% $7500.00
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Payable - Annually by January 31st.
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ACQUISITIONS
------------
For those transactions introduced to the Company solely through the efforts of
Executive
Overall Performance Goal - Provide introductions to as many third party
companies as is feasible.
Base Line - N/A
Specific Target - Acquire additional MRI per quarter
Annual Bonus Amount - With respect to each transaction, the following formula
will be employed:
1.5% of the Net Acquisition Purchase Price (less third party charges)
Payable - In cash in the same proportions and at the same times as seller
receives consideration from the Company.
MRI
---
The method for calculating MRI each year shall be consistent with the method
used each of the prior years, including the year of initial baseline MRI.
Overall Performance Goal - Increase MRI (adjusted for acquisitions) more
rapidly than historically, yet prudently by maintaining paybacks on
customer premise equipment.
Base Line - July 1, 1998 MRI $76,000.
Specific Target - N/A
Annual Bonus Amount - 100% of the increase in MRI for each year commencing
December 31, 1998 and each year thereafter.
Payable - Annually by February 28th.
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EXHIBIT A
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Arbitration Procedures
----------------------
a. If a dispute or controversy arises, the parties hereto
shall attempt in good faith to resolve such dispute or controversy promptly by
negotiation. Any such dispute or controversy that has not been resolved by
negotiation within thirty (30) days after the initiation of discussions shall be
resolved by binding arbitration in accordance with the then current CPR Rules
for Non-Administered Arbitration of Business Disputes. Unless the parties agree
otherwise, the arbitration shall be conducted in New York, New York by a panel
of three arbitrators. The disputing parties shall each select one arbitrator,
and the arbitrators so selected shall select an attorney as the third
arbitrator. If the arbitrators selected by the disputing parties fail to agree
on the third arbitrator within thirty (30) days of the date this arbitration
provision becomes operative, any person involved may request CPR to make the
appointment in accordance with its applicable rules.
b. The arbitrators shall decide the issues submitted to them
in accordance with the provisions and commercial purposes of this Agreement;
provided that all substantive questions of law shall be determined under the
laws of the State of New York (without regard to its principles of conflicts of
laws).
c. The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. Section 1, et seq., and judgment upon the award
rendered by the arbitrators may be entered by any court having jurisdiction
thereof. The arbitrators may grant any remedy or relief which is just and
equitable, including injunctive relief or specific performance.
d. The parties hereto agree to facilitate the arbitration by:
(i) making available to one another and to the arbitrators for examination,
inspection and extraction all documents, books, records and personnel under
their control if determined by the arbitrators to be relevant to the dispute;
(ii) participating in reasonable discovery, including oral depositions; (iii)
conducting arbitration hearings to the greatest extent possible on successive
days; and (iv) observing strictly the time periods established by the Rules or
by the arbitrators for submission of evidence or briefs.
e. Initially, the disputing parties shall each pay one-half of
the costs (excluding attorneys' fees) of any arbitration; provided, however,
that the arbitrators shall divide all costs (excluding attorneys' fees) incurred
in conducting the arbitration in their final award in accordance with what they
deem just and equitable under the circumstances, and any party who is allocated
in excess of one-half of such costs shall reimburse the other for such excess
costs.
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f. Notwithstanding the exclusivity of the dispute resolution
procedures specified herein, a party hereto, without prejudice to such
procedures, may file a complaint or seek an injunction or other provisional
judicial relief if in its sole judgment such action is necessary to avoid
irreparable damage or to preserve the status quo. Despite any such action, the
parties shall continue to participate in good faith in the procedures specified
herein.
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