EMPLOYMENT AGREEMENT
Exhibit
10.1
This
EMPLOYMENT AGREEMENT, dated as of February 9, 2007 (this “Agreement”),
is
entered into by and between Reliant Partners LLC, a California limited liability
company (the “Company”),
and
Xxxxx X. Xxxxxxx (the “Executive”).
WHEREAS,
the Company and the Executive desire to enter into an agreement to provide
for
the terms and conditions of the Executive’s employment with the Company;
and
WHEREAS,
the success of the business of the Company is dependent on the goodwill
established by the Executive with the Company’s customers and the public
generally.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Company and the
Executive hereby agree as follows:
Section 1 Duties;
Term of Employment.
(a) The
Company hereby employs the Executive, and the Executive hereby accepts
employment with the Company, upon the terms and conditions set forth in this
Agreement.
(b) During
the Employment Term (as defined below), the Executive shall render such
administrative, financial and other executive and managerial services to the
Company and Zone Mining Limited, a Nevada corporation and the parent of the
Company (the “Parent”),
as
may be directed from time to time by the Chief Executive Officer of the Parent.
The Executive shall have no authority to bind the Company or the Parent without
the prior approval of the Chief Executive Officer of the Parent.
(c) During
the Employment Term, the Executive shall report to the Chief Executive Officer
of the Parent and shall devote his full business time, attention, skill and
best
efforts to the performance of his duties under this Agreement (except for
permitted vacation periods and reasonable periods of illness or other
incapacity) and shall not engage in any other business or occupation while
employed by the Company. The Executive shall perform his duties,
responsibilities and functions to the Company to the best of his abilities
in a
diligent, trustworthy, professional and efficient manner and shall comply with
the policies and procedures of the Company in all material respects.
Notwithstanding the foregoing, nothing herein shall preclude the Executive
from:
(i) serving, with the prior written consent of the Parent’s board of directors
(the “Parent
Board”),
as a
member of the board of directors or advisory boards (or their equivalents in
the
case of a non-corporate entity) of non-competing businesses and charitable
organizations; (ii) engaging in charitable activities and community affairs;
and
(iii) managing his personal investments and affairs, including maintaining
the
Executive’s passive investment and ownership of minority interests in Mingle,
LLC and West East, LLC, provided the Executive may not increase the ownership
interests in such entities or actively participate in the management of such
entities, or any other entities constituting a competing business without the
prior written consent of the Parent’s board of directors, in any capacity;
provided,
however,
that
the activities set out in clauses (i), (ii) and (iii) shall be limited by the
Executive so as not to materially interfere, individually or in the aggregate,
with the performance of his duties and responsibilities hereunder.
1
(d) During
the Employment Term, and at all times during the Executive’s employment with the
Company, the Executive will be employed by the Company on an at-will basis,
which means that either the Executive or the Company can terminate the
employment relationship at any time, with or without notice, and for any reason,
with or without good cause, or for no reason.
(e) Unless
sooner terminated as provided in Section
3
hereof,
the Executive’s employment under this Agreement shall commence as of the
Effective Date (as defined below) and will end twelve (12) months from the
Effective Date (the “Employment
Term”).
The
Employment Term shall be renewable for additional twelve (12) month terms upon
the mutual written consent of the Company and the Executive.
Section 2 Compensation
and Benefits.
(a) Base
Salary.
During
the Employment Term, the Company shall pay to the Executive a base salary of
$200,000 per annum (the “Base
Salary”),
subject to applicable withholding, which shall be payable by the Company in
regular installments in accordance with the Company’s normal payroll practices
in effect from time to time.
(b) Benefits.
During
the Employment Term, the Executive shall be entitled to (i) participate in
all
benefits and benefit plans which are available from time to time to employees
of
the Company, subject in each case to the generally applicable terms and
conditions of the applicable plan or program and
(ii)
four (4) weeks of paid vacation each calendar year in accordance with the
Company’s policies in effect from time to time. Vacation must be taken at times
that will not be disruptive to the business of the Company and in accordance
with the Company’s vacation policy in effect from time to time.
(c) Reimbursement
of Expenses.
During
the Employment Term, the Company shall reimburse the Executive for all
reasonable business expenses incurred by him in the course of performing his
duties under this Agreement which are consistent with the Company’s policies in
effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company’s requirements with respect to
reporting and documenting of such expenses.
Section 3 Payments
Upon Termination.
(a) This
Section
3
provides
for certain payments to the Executive in the event of termination. The
provisions of this Section
3
do not
in any way affect the Executive’s at-will status as provided in Section
1(e).
The
Executive is entitled to no other payments or benefits upon termination except
as expressly stated in this Section
3.
The
Executive acknowledges and agrees that he will have no claim for any payments,
compensation, benefits or damages, with respect to any additional amounts other
than as provided in this Section
3.
(b) Termination
by the Company for Cause.
(1)
If
the
Company terminates the Executive’s employment for “Cause”
as
defined below, the Executive is entitled to, and the Company will pay to
Executive, the following only: (a) the Executive’s Base Salary earned and
accrued through the date of termination; (b) all accrued and unused vacation
time through the date of termination, and any other form of unused and accrued
benefits through the date of termination which under Company policy and/or
applicable law must be paid to the Executive upon termination, if any; and
(c)
upon submission of proper proof, any reimbursement for expenses incurred, but
not yet paid to the Executive, if any. The foregoing items listed in this
Section
3(b)(1)(a)-(c)
shall be
referred to herein as the “Accrued
Benefits.”
2
(2)
The
term
“Cause”
shall
mean, as determined by the Parent Board: (i) the commission by the Executive
of
an act of theft, fraud, embezzlement, falsification of the Company or customer
documents, misappropriation of funds or other assets of the Company, or other
acts of dishonesty or misconduct involving the property or affairs of the
Company or the carrying out of the Executive’s duties; (ii) the conviction of
the Executive (by trial, upon a plea or otherwise) or the admission of guilt
by
the Executive, of any felony or criminal act of moral turpitude; (iii) the
failure by the Executive to substantially perform his duties or responsibilities
under this Agreement or follow a reasonable instruction of the Parent or the
Parent Board, provided that if such failure is capable of cure, the Executive
is
given written notice of any such failure and fails to remedy the same within
ten
(10) days of receipt of such notice; (iv) if the Executive commits a material
breach or material non-observance of any of the terms or conditions of this
Agreement or any Exhibit hereto, provided that if such breach or non-observance
is capable of cure, the Executive is given written notice of any such breach
or
non-observance and fails to remedy the same within ten (10) days of receipt
of
such notice; (v) if the Executive breaches any fiduciary duty to the Company
or
violates any other contractual, statutory, common law or other legal duty to
the
Company, in a manner that has a material adverse effect on the Company and/or
its subsidiaries or their respective properties or assets; or (vi) gross
negligence or willful misconduct by the Executive in the performance of his
duties.
(3)
In
the
event of termination by the Company for Cause, which may occur with or without
notice, the Company will inform the Executive in writing that the termination
is
or was for Cause.
(c) Termination
by the Company Without Cause.
If the
Company terminates the Executive’s employment without Cause, as defined above,
the Executive is entitled to, and the Company will pay to Executive, the
following only:
(1)
The
Accrued Benefits.
(2)
Payments
equal to the Executive’s Base Salary for the remainder of the Employment Term,
paid in accordance with the Company’s normal payroll practices over the
remainder of the Employment Term.
(3)
Through
the remainder of the Employment Term or until the date upon which the Executive
accepts new employment with health care coverage, whichever is earlier, monthly
reimbursements for any payments actually made by the Executive for health
insurance, which reimbursements are not to exceed the amount that the Executive
would be required to pay under Consolidated Omnibus Budget Reconciliation Act
(“COBRA”)
if he
were to elect to obtain health insurance under COBRA (with the understanding
that, during such period, the Executive is free to purchase health insurance
under COBRA, to the extent available, or otherwise, or not at all, but that
he
is entitled only to reimbursement for amounts actually paid by him for health
insurance, within the limits stated above) (referred to herein as the
“Health
Severance”).
3
(4)
To
the
extent permissible under the Company’s then current benefit plans, as in effect
on the date of such termination, the Company shall provide or arrange to provide
the Executive continuation of the Executive’s benefits under those benefit plans
for the remainder of the Employment Term.
(5)
The
Executive shall only be entitled to receive the severance payments and benefits
listed in Section
3(c)(2)-(4)
if the
Executive executes, delivers and does not revoke a general release of claims
against the Company in the form and substance acceptable to the Company, and
continues to adhere to and not breach the provisions of Sections
4
and
5
of this
Agreement.
(d) Termination
by the Company upon Death or Disability.
(1)
If
the
Executive’s employment terminates due to his death, or the Company terminates
the Executive’s employment due to “Disability” as defined below, the Executive
(or his Estate or personal representative, as applicable) is entitled to receive
only the Accrued Benefits.
(2)
The
term
“Disability”
shall
mean the Executive, due to physical or mental disability, is unable to perform
the essential functions of his position with the Company, with or without
reasonable accommodation for either (a) the immediately preceding ninety (90)
days or (b) one hundred and fifty days in any one year period, in accordance
with the Americans with Disabilities Act, the California Fair Employment and
Housing Act, and any other disability laws.
(3)
In
the
event of termination by the Company due to Disability, which may occur with
or
without notice, the Company will inform the Executive in writing that the
termination was due to Disability as defined in this Agreement.
(e) Voluntary
Termination by the Executive or Expiration.
If the
Executive terminates his employment for any reason, or if the Agreement
terminates pursuant to Section
1(e),
the
Executive is entitled to receive only the Accrued Benefits.
Section 4 Confidentiality;
Exclusive Property.
(a) Confidentiality.
The
Executive recognizes that the services to be performed by him hereunder are
special, unique and extraordinary in that, by reason of his employment hereunder
and his past employment with the Company, he may acquire or has acquired
Confidential Information (as defined below) concerning the operations of the
Company, the Parent, their respective subsidiaries or affiliates, the use or
disclosure of which could cause the Company, the Parent, their respective
subsidiaries or affiliates substantial loss and damages which could not be
readily calculated and for which no remedy at law would be adequate.
Accordingly, the Executive covenants and agrees with the Company that he will
not at any time, except in performance of his obligations to the Company
hereunder or with the prior written consent of the Parent Board, directly or
indirectly, disclose any secret or Confidential Information, or any Trade Secret
(as defined below), that he may learn or has learned by reason of his
association with the Company, the Parent or any of their respective subsidiaries
or any predecessors to the Business (as defined below), or use any such
information to the detriment of the Company or any of its subsidiaries or any
of
its affiliates. The term “Confidential
Information”
includes, without limitation, information not previously disclosed to the public
or to the trade by the management of the Company or the Parent with respect
to
the Company, the Parent or their respective subsidiaries’ or affiliates’
business plans, prospects and opportunities, the identity of customers, vendors,
suppliers, distributors or other trade related business relations of the
Company, the Parent or any of their respective subsidiaries or affiliates
(whether past, present or prospective), information regarding operational
strengths and weaknesses, trade secrets, know-how and other intellectual
property, systems, procedures, manuals, confidential reports, product price
lists, marketing plans or strategies, and financial information. The Executive
understands and agrees that the rights and obligations set forth in this
Section
4(a)
are
perpetual and, in any case, shall extend beyond the Executive’s employment
hereunder.
4
(b) Exclusive
Property.
The
Executive confirms that all Confidential Information is and shall remain the
exclusive property of the Company, the Parent and their respective subsidiaries.
All business records, papers and documents kept or made by the Executive
relating to the business of the Company, the Parent and their respective
subsidiaries shall be and remain the property of the Company or the Parent.
Upon
the termination of his employment with the Company or upon the request of the
Company at any time, the Executive shall promptly deliver to the Company, and
shall not, without the consent of the Company, retain copies of any written
materials not previously made available to the public, including but not limited
to records and documents made by the Executive or coming into his possession
concerning the past or present business or affairs of the Company or its
subsidiaries or its affiliates. The Executive may retain records relating
exclusively to the terms and conditions of his employment relationship with
the
Company. The Executive understands and agrees that the rights and obligations
set forth in this Section
4(b)
are
perpetual and, in any case, shall extend beyond the Executive’s employment
hereunder.
Section 5 Trade
Secret Protection; Non-Solicitation.
(a) Non-Solicitation
of Customers Using Any Trade Secret.
Executive hereby acknowledges that, during the course of his employment with
the
Company, he has had and will have access to the Company’s trade secrets (as
defined under the California Uniform Trade Secrets Act, including any customer
lists and the rates charged to the Company’s customers (the “Trade
Secrets”)
which
information Executive understands the Company spends and has spent considerable
time, expense and effort to develop and keep confidential. In order to protect
such Trade Secrets, Executive hereby agrees that during the Employment Term
and
following the termination of the Executive’s employment, whether initiated by
the Executive or the Company, the Executive shall not, either directly or
indirectly on behalf of himself or any third party, (i) call on or solicit
any
present or former customers, clients or other persons from whom the Company,
the
Parent or any of their respective subsidiaries derived any revenue in the course
of conducting its business (the “Business”)
prior
to the date hereof for the purpose of competing with the Business, using any
Trade Secret; (ii) solicit any present or future customers, clients or other
persons from whom the Company, the Parent, the Business or any person deriving
title to the goodwill thereof (a “Protected
Entity”)
derives any revenue, with respect to the Business as conducted by the Company
or
any Protected Entity on or after the date hereof for the purpose of competing
with the Business, using any Trade Secret; (iii) persuade or attempt to
persuade, or induce or attempt to induce, any present or future customer,
client, vendor, service provider, supplier, contractor or any other person
having business dealings with the Company or any Protected Entity to cease
doing
business or otherwise transacting with the Company or any Protected Entity
or to
reduce the amount of business or such other transactions it conducts or will
conduct with the Company or any Protected Entity, using any Trade Secret; (iv)
or otherwise disrupt, damage or interfere in any manner with the business of
the
Company or any Protected Entity. For purposes of this Section
5(a),
any
Trade Secret will cease being a Trade Secret if the information is or becomes
publicly known through lawful means, or the information is disclosed to the
Executive without confidential or proprietary restriction by a third party
which
third party rightfully possesses the information and which third party did
not
learn of it directly from the Company.
5
(b) Non-Solicitation
of Employees.
During
the Employment Term and for a period of one (1) year thereafter, the Executive
agrees that he shall not, directly or indirectly through another Person,
solicit, induce or attempt to solicit or induce any employee or independent
contractor of the Company or any Protected Entity to leave the employ, or
terminate his or her relationship with the Company or any Protected Entity,
or
in any way interfere with the relationship between the Company or any Protected
Entity, on the one hand, and any employee or independent contractor thereof,
on
the other hand.
Xxxxxxx 0 Xxxxxxxxxx
Xxxxxx.
The
Executive hereby agrees that a violation or attempted or threatened violation
of
the covenants or other provisions contained in Section
4,
Section
5,
or any
part thereof, will cause irreparable injury to the Company or any Protected
Entity and the prospective business of the Company or any Protected Entity
for
which money damages would be inadequate, and that the Company and such Protected
Entities shall be entitled, in addition to any other rights or remedies they
may
have, whether in law or in equity, to obtain an injunction enjoining and
restraining the Executive, as applicable, from violating or attempting or
threatening to violate any provision of this Agreement, including the covenants
contained in Section
4
and
Section
5.
Section 7 Non-Disparagement.
The
Executive agrees that following the Employment Term he will not make any
statement that is likely to come to the attention of any (a) customer, vendor,
supplier, distributor or other trade related business relation of the Company
or
any of its subsidiaries or affiliates (whether past, present or prospective),
(b) employee of the Company or any of its subsidiaries or affiliates, or (c)
any
member of the media, which statement is disparaging about the Company, the
Parent or any of their respective subsidiaries or affiliates or their respective
officers, directors or employees. Nothing herein will prevent the Executive
from
responding truthfully to any inquiry from a governmental entity.
6
Section 8 Inventions
Assignment.
(a) The
Executive acknowledges that all discoveries, concepts, ideas, inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, patent applications, copyrightable work and mask work (whether or
not
including any Confidential Information) and all registrations or applications
related thereto, all other proprietary information and all similar or related
information (whether or not patentable) which relate to the Company’s, the
Parent’s or any of their respective subsidiaries’ or affiliates’ actual or
anticipated business, research and development or existing or future products
or
services and which are conceived, developed or made by the Executive (whether
alone or jointly with others) while employed by the Company, the Parent and
their respective subsidiaries, whether before or after the date of this
Agreement (“Work
Product”),
belong to the Company, the Parent or such subsidiary. The Executive shall
promptly disclose such Work Product to the Parent Board and, at the Company’s
expense, perform all actions reasonably requested by the Parent Board (whether
during or after the Employment Term) to establish and confirm such ownership
(including assignments, consents, powers of attorney and other instruments).
The
Executive acknowledges that all Work Product shall be deemed to constitute
“works made for hire” under the U.S. Copyright Act of 1976, as amended. The
Executive has identified all Work Product that is or was owned by him or was
written, discovered, made, conceived or first reduced to practice by him alone
or jointly with another person prior to his employment under this Agreement.
If
no such Work Product is identified, the Executive represents to the Company
that
he does not now nor has he ever owned, nor has he made, any such Work
Product.
(b) The
Executive understands that the provisions of this Agreement requiring assignment
of intellectual property to the Company as provided in this Section
8
do not
apply to any invention which qualifies fully under the provisions of California
Labor Code Section 2870. The Executive will advise the Company promptly in
writing of any inventions that he believes meet the criteria in California
Labor
Code Section 2870. The Executive understands that Section 2870
provides:
“Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his
or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer’s equipment,
supplies, facilities, or trade secret information except for those inventions
that either: (1) relate at the time of conception or reduction to practice
of
the invention to the employer’s business, or actual or demonstrably anticipated
research or development of the employer; or (2) result from any work performed
by the employee for the employer.”
Section 9 Withholding
Tax.
The
Company shall be entitled to deduct or withhold from any payment made hereunder
all federal, state and local taxes which the Company is required by law to
deduct or withhold therefrom.
7
Section 10 Notices.
All
notices, requests, demands or other communications required by or otherwise
with
respect to this Agreement shall be in writing and shall be deemed to have been
duly given to any party on the date delivered when delivered personally (by
courier service or otherwise), when delivered by facsimile during regular
business hours or on the next business day or on the date receipt is
acknowledged if sent by first-class registered or certified mail, postage
prepaid and return receipt requested, in each case to the applicable addresses
set forth below; provided
that
delivery shall be deemed complete when delivered to the address designated
below
(or such other address as such party may indicate in writing to the other
party):
If
to the
Company:
Reliant
Partners LLC
c/o
Zone
Mining Limited
000
Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Attention:
Chief Executive Officer
Telephone:
(000) 000-0000
With
a
copy to:
Zone
Mining Limited
000
Xxxxxxxxxxxx Xxxx., Xxxxx 000
Xxxx
Xxxxxx, XX 00000
Attention:
Chief Executive Officer
Telephone:
(000) 000-0000
If
to the
Executive:
Xxxxx
X.
Xxxxxxx
00000
Xxxxxxxx Xxxxxx Xx. #X0
Xxx
Xxxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Section 11 Warranties
and Covenants.
The
Executive warrants, represents and covenants to the Company as
follows:
(a) the
Executive is free to enter into this Agreement and to perform the services
contemplated herein.
8
(b) the
Executive is not currently (and will not, to the best knowledge and ability
of
the Executive, at any time during the Employment Term be) subject to any
agreement, understanding, obligation, claim, litigation or condition from any
prior company or otherwise, which, with respect to any third party, obligates
the Executive to not (i) engage in (whether as an the Executive, consultant,
agent, proprietor, principal, partner, major shareholder, corporate officer,
director or otherwise) the management or control of any person, firm,
corporation or business that competes with such third party’s business; (ii)
directly or indirectly solicit, induce, attempt to hire, recruit, encourage,
take away or hire any then employee of such third party or cause any then
employee of such third party to leave his or her employment either for
employment with the Executive or with any other entity or person; (iii) directly
or indirectly, or by action in concert with others, call on, solicit or take
away, or attempt to call on, solicit or take away, any of the customers of
such
third party, either for the benefit of the Executive or any other person or
entity or (iv) disclose any confidential information of such third party or
use
such confidential information for any purpose adverse to such third
party.
(c) No
intellectual property written, composed, created or submitted by the Executive
at any time during the Executive’s employment by the Company shall, to the best
of the Executive’s knowledge violate the rights of privacy or publicity,
constitute a libel or slander or infringe upon the copyright, literary,
personal, private, civil, property or other rights of any person or the
Company.
Section 12 Executive’s
Cooperation
During
the Employment Term and thereafter, the Executive shall cooperate, at the
Company’s cost and expense (which shall consist solely of travel, lodging, meals
and a reasonable per diem for lost time if the Executive is not an employee
of
the Company, the Parent or any of their respective subsidiaries), with the
Company, the Parent and any of their respective subsidiaries in any internal
investigation, any administrative, regulatory or judicial investigation or
proceeding or any dispute with a third party as reasonably requested by the
Company (including Executive being available to the Company upon reasonable
notice for interviews and factual investigations, appearing at the Company’s
request to give testimony without requiring service of a subpoena or other
legal
process, volunteering to the Company all pertinent information and turning
over
to the Company all relevant documents which are or may come into Executive’s
possession, all at times and on schedules that are reasonably consistent with
Executive’s other permitted activities and commitments).
Section 13 Entire
Agreement.
This
Agreement represents the entire agreement and understanding between the Company
and the Executive concerning the Executive’s employment relationship with the
Company, and supersedes, terminates and nullifies all prior or contemporaneous
negotiations, commitments, agreements and writings with respect to the subject
matter hereof, including without limitation any prior agreement with the
Company. All such other negotiations, commitments, agreements and writings
will
have no further force or effect, and the parties to any such other negotiation,
commitment, agreement or writing will have no further rights or obligations
thereunder.
Section 14 Amendment
and Waiver.
No
provision of this Agreement may be amended, modified, waived, or discharged
unless agreed to in writing by both parties hereto. No course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect
the
validity, binding effect or enforceability of this Agreement or any provision
hereof. The failure of a party to insist upon strict adherence to any term,
condition or other provision of this Agreement shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence
to
that term or any other term, condition or other provision of this
Agreement.
9
Section 15 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF CALIFORNIA.
Section 16 Dispute
Resolution
Any
dispute between the Executive and the Company arising from or relating to this
Agreement (including but not limited to claims relating to the Executive’s
recruitment, termination or any claims regarding discrimination), other than
arising from or relating to Section
4
or
Section
5
hereof
to the extent permitted by applicable law, shall be finally resolved by
expedited binding arbitration, conducted in San Diego, California, in accordance
with the National Rules of the American Arbitration Association governing
employment disputes and applicable California law. The arbitration will take
place before a neutral arbitrator who will set forth a written arbitration
decision. The Company agrees to pay the fees and expenses relating to the
arbitration, except those related to the Executive’s legal fees and costs
associated therewith. However, if any party prevails on a statutory claim which
affords the prevailing party attorneys’ fees, the arbitrator may award
reasonable fees and costs to the prevailing party, under the standards for
an
award of fees provided by law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction over the matter.
The
parties agree to file any demand for arbitration within the time limit
established by the applicable statute of limitations for the asserted claims
or
within one year of the conduct that forms the basis of the claim if no statutory
limitation is applicable. Failure to demand arbitration within the prescribed
time period shall result in waiver of said claims. This Agreement expressly
does
not prohibit either party from seeking provisional injunctive relief, pursuant
to California Code of Civil Procedure Section 1281.8. The rights and remedies
provided in this Agreement are cumulative, and the exercise of any right or
remedy, whether pursuant hereto, to any other agreement, or to law, shall not
preclude or waive the right to exercise any or all other rights and remedies.
THE PARTIES UNDERSTAND AND AGREE THAT THEY ARE WAIVING THEIR RIGHTS TO BRING
SUCH CLAIMS TO COURT, INCLUDING THE RIGHT TO A JURY TRIAL.
Section 17 Severability.
It
is the
desire and intent of the parties that the provisions of this Agreement be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is sought. Accordingly, if
any
term or provision of this Agreement or the application thereof to any
circumstance shall, in any jurisdiction and to any extent, be adjudicated by
a
court of competent jurisdiction to be invalid, prohibited or unenforceable,
such
term or provision shall be ineffective as to such jurisdiction to the extent
of
such invalidity, prohibition or unenforceability without invalidating or
rendering unenforceable such term or provision in any other jurisdiction, the
remaining terms and provisions of this Agreement or the application of such
terms and provisions to circumstances other than those as to which it is held
invalid or enforceable. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or unenforceable
in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting
the
validity or enforceability of such provision in any other jurisdiction.
10
Section 18 Enforceability
in Jurisdictions.
Each
party intends to and does hereby confer jurisdiction to enforce the covenants
and other provisions contained in this Agreement upon the courts of any
jurisdiction within the geographic scope of such covenants or other provisions.
If the courts of any one or more of such jurisdictions holds such covenants
or
other provisions wholly unenforceable by reason of the breadth of such scope
or
otherwise, it is the intention of each party that such determination not bar
or
in any way affect the rights of the Company or the Protected Entities (if any)
to relief in the courts of any other jurisdiction within the geographic scope
of
such covenants or other provisions, as to breaches of such covenants or other
provisions in any such other jurisdiction, such covenants or other provisions
as
they relate to each jurisdiction and geographic location being, for this
purpose, severable into diverse and independent covenants and other
provisions.
Section 19 Survival
of Obligations.
All
continuing obligations of the Executive under this Agreement, including without
limitation, the provisions of Section
4,
Section
5,
Section
7
and
Section
8
of this
Agreement shall survive the termination of the Executive’s employment.
Section 20 Successors
and Assigns.
This
Agreement may not be assigned by the Executive, provided that the Executive’s
rights to payments hereunder shall, upon his death, inure to the benefit of
the
Executive’s personal or legal representatives, executors, administrators, heirs,
distributees, devisees and legatees. This Agreement shall inure to the benefit
of and be binding on the successors and assigns of the Company¸ and in the event
of any sale, transfer or other disposition of all or substantially all of the
Company’s assets or business, whether by merger, consolidation or otherwise, the
Company may assign this Agreement and its rights hereunder.
Section 21 Acknowledgment.
The
Executive acknowledges that he has had the opportunity to discuss this matter
and this Agreement with and obtain advice from his legal counsel, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
Section 22 Construction;
Interpretation.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. All
recital, section, schedule and party references are to this Agreement unless
otherwise stated. No party, nor its counsel, shall be deemed the drafter of
this
Agreement for purposes of construing the provisions of this Agreement, and
all
provisions of this Agreement shall be construed in accordance with their fair
meaning, and not strictly for or against any party.
Section 23 Execution
in Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same
instrument. Facsimile signatures shall be acceptable and binding.
11
IN
WITNESS WHEREOF, the undersigned have executed this Agreement on the date first
set forth above:
| RELIANT PARTNERS LLC | ||
| |
|
|
| By: | /s/ Xxx Xxxxxx | |
|
Name: Xxx Xxxxxx |
||
| Title: Chief Operating Officer | ||
| THE EXECUTIVE | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name: Xxxxx X. Xxxxxxx |
||
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