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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT, effective this 1st day of October, 1996 by and between Xxxxxx
Industries, Inc., a Delaware Company (together with its successors and assigns
permitted under this Agreement, the "Company"), and Xxxxxxx X. Xxxxxxxx (the
"Executive").
W I T N E S S E T H
WHEREAS, Company and Executive entered into a certain employment
agreement, last amended October 1, 1994 (the "Amended Employment Agreement");
and
WHEREAS, Company and Executive desire to amend and restate the Amended
Employment Agreement to extend the term of employment so as to make available
to the Company the Executive's unique and special skills, and to reward the
Executive for his leadership of the Company as demonstrated by the Company's
growth and success.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. Definitions.
(a) "Affiliate" of a person or other entity shall mean a
person or other entity that directly or indirectly controls, is controlled by,
or is under common control, with the person or other entity specified. Fifty
percent of the Voting Stock or fifty percent of the equity ownership shall
conclusively establish control.
(b) "Annual Cash Bonus" shall mean the amount calculated as
set forth in Section 5(a).
(c) "Auditors" shall mean an independent nationally recognized
accounting firm jointly selected by Executive and the Company. The Auditors
shall not, during the two years preceding the date of its selection, have acted
in any way on behalf of the Company or any Affiliate thereof. If the Executive
and the Company cannot agree on the firm to serve as the Auditors, then the
Executive and the Company shall each select one accounting firm and those two
firms shall jointly select a single accounting firm to serve as the Auditors.
(d) "Average Stockholder's Equity" for any fiscal year shall
be defined as the average of the stockholders' equity on a consolidated basis
of the Company and its Affiliates (including all Affiliates of any successor-
in-interest to the Company in the event of a merger or consolidation of the
Company with another entity or a Change in Control) for each of the thirteen
(13) month ends, commencing with the month ending on the
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September 30th of the fiscal year prior to the fiscal year in question and
ending with the month ending on the September 30th of the fiscal year in
question, as determined in accordance with generally accepted accounting
principles.
(e) "Base Salary" shall mean the salary provided for in
Section 4 below or any increased salary granted to the Executive pursuant to
Section 4.
(f) "Board" shall mean the Board of Directors of the Company.
(g) "Cash Flow" shall mean income or loss of the Company and
its Affiliates (including all Affiliates of any successor-in-interest to
Company in the event of a merger or consolidation of Company with another
entity or a Change in Control) on a consolidated basis determined in accordance
with generally accepted accounting principles before income taxes, plus each of
the following: depreciation, any non-cash amortization, deferred interest, any
asset write-downs and shall be adjusted for any non-cash charges or credits
which have been used in the calculation of net income. Equitable adjustments
shall be made to reflect properly the timing of transactions that take place at
or near the end of any fiscal year to assure that the cash flow resulting
therefrom is properly reflected in that appropriate fiscal year.
(h) "Cause" shall mean the Executive is convicted of a felony
involving moral turpitude, which conviction has become final and non-
appealable.
(i) A "Change in Control" shall mean the occurrence of any one
of the following events:
(i) any "person," as such term is used in Sections
3(a)(9), 13(d) and 14d(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), becomes a "beneficial owner," as such term
is used in Rule 13d-3 promulgated under the Exchange Act, of 20% or more
of the Voting Stock of the Company;
(ii) the Board of Directors or the shareholders of Company
adopt any plan or proposal which would result directly or indirectly in
the liquidation, transfer, sale or other disposal of all or
substantially all of the assets of the Company;;
(iii) all or substantially all of the assets or business
of the Company are disposed of pursuant to a merger, consolidation or
other transaction (unless the shareholders of the Company immediately
prior to such merger, consolidation or other transaction beneficially
own, directly or indirectly, in substantially the same proportion as
they owned the Voting Stock of the Company, all of the Voting Stock or
other ownership interests of the entity or entities, if any, that
succeed to the business of the Company);
(iv) the Company or a direct or indirect subsidiary of the
Company combines with another company (regardless of which entity is the
surviving one) or the Company or a direct or indirect subsidiary of the
Company acquires stock or assets in a corporate transaction, but, in any
of the preceding circumstances, immediately after the transaction, the
shareholders of the Company immediately
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prior to the combination hold, directly or indirectly, 66-2/3% or less
of the Voting Stock of the resulting company;
(v) a recapitalization of the Company occurs which results
in either a decrease by 33% or more in the aggregate percentage
ownership of Voting Securities held by Independent Shareholders (on a
primary basis or on a fully diluted basis after giving effect to the
exercise of stock options and warrants) or an increase in the aggregate
percentage ownership of Voting Securities held by non-Independent
Shareholders (on a primary basis or on a fully diluted basis after
giving effect to the exercise of stock options and warrants) to greater
than 50%. For purposes of this subsection, the term "Independent
Shareholder" shall mean any shareholder of the Company except any
executive officers or directors(s) of the Company or any employee
benefit plan(s) sponsored or maintained by the Company or any subsidiary
thereof;
(vi) a change in the composition of the Board such that
the "Continuing Directors" cease for any reason to constitute at least a
seventy percent (70%) majority of the Board. The "Continuing Directors"
shall mean those members of the Board who either: (x) were directors at
the Effective Date of this Agreement; or (y) were elected by, or on the
nomination or recommendation of, at least a three-quarters (3/4)
majority (consisting of at least four directors) of the then existing
Board; or
(vii) at any time an individual is elected to the Board
who was not nominated by the Board to stand for election or if Xxxxxx X.
Xxxxxxxx ceases to be either the Chief Executive Officer or the Chairman
of the Board, and Executive does not assume the position on mutually
agreeable terms;
(viii) an event that would be required to be reported in
response to Item 1 of Form 8-K, Current Report pursuant to Section 13 or
15(d) of the Exchange Act whether or not (i) such event is so reported
on such Form or (ii) the Company is then subject to such reporting
requirement.
(j) "Change in Control Price" shall mean the higher of (x) the
highest reported sales price of a share of Common Stock in any transaction
reported on the principal exchange on which such shares are listed during the
60 business day period prior to the Change in Control, or (y) the highest price
to be paid per share of common stock in any transaction or series of
transactions pursuant to which a Change in Control is effectuated. To the
extent that the consideration paid in any transaction described in (y) consists
of all or in part of securities or other non-cash consideration, the value of
such securities or non-cash consideration shall be determined by a mutually
agreed upon investment bank, or if no such investment bank can be agreed upon,
each party will choose an investment bank and the two investment banks chosen
shall select the investment bank.
(k) "Code" or "Internal Revenue Code" shall mean the Internal
Revenue Code of 1986, as amended, final regulations thereunder and any
subsequent Internal Revenue Code.
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(l) "Constructive Termination Without Cause" shall mean
termination of the Executive's employment at his election as provided in
Section 12 below following the occurrence, without the Executive's written
consent, of one or more of the following events:
(i) a reduction in the Executive's then current Base
Salary or the termination or material reduction of any Executive benefit
or perquisite enjoyed by him;
(ii) the failure to elect or reelect the Executive to any
of the positions described in Section 3 below or the removal of him from
any such position;
(iii) a diminution in the Executive's duties or the
assignment to the Executive of duties which are materially inconsistent
with his duties or which impair the Executive's ability to function as
the President and Chief Operating Officer of the Company;
(iv) the failure to continue the Executive's participation
in any incentive compensation plan unless a plan providing a
substantially similar compensation is substituted;
(v) the relocation of the Company's principal office to a
location more than 50 miles from Houston, Texas, or the relocation of
the Executive's own office location to a location other than as
determined by the Executive;
(vi) the failure of the Company to obtain the assumption
in writing of its obligation to perform this Agreement by any successor
(or, the ultimate parent of any successor where applicable) to all or
substantially all of the assets of the Company within 15 days after a
merger, consolidation, sale or similar transaction;
(vii) any act or failure to act by the Board of Directors
of the Company which would cause Executive (A) not to be reelected or to
be removed from the position of Chief Operating Officer or position of
the President or (B) not to be elected or reelected as a director by
the shareholders of the Company at any meeting held for that purpose or
by written ballot of shareholders of the Company;
(viii) upon written election by Executive, the failure of
the Company (or by any successor-in-interest) to perform or otherwise
breach any of its obligations under this Agreement. Such election may
be made by Executive at any time within six (6) months after the last
occurrence of the act or commission which Executive deems to be a breach
of this Agreement; or
(ix) upon written election by Executive within one year
after the date an event constituting a Change in Control shall have
occurred.
(m) "Disability" shall mean the Executive's physical or mental
inability to perform substantially his duties and responsibilities under this
Agreement for a period of 180 consecutive days as determined by an approved
medical doctor. For this purpose an approved
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medical doctor shall mean a medical doctor selected by the Company and the
Executive. If the Parties cannot agree on a medical doctor, each Party shall
select a medical doctor and the two doctors shall select another medical doctor
who shall be the sole medical doctor for this purpose.
(n) "Stock" shall mean the Common Stock of the Company
(o) "Subsidiary" of the Company shall mean any corporation or
other entity of which the Company owns, directly or indirectly, 50% or more of
the Voting Stock.
(p) "Tax Counsel" for purposes of this subsection 12(d) shall
refer to an independent law firm that is nationally recognized and that is
selected by the Auditors.
(q) "Term of Employment" shall mean the period specified in
Section 2 below.
(r) "Trading Day" is a day on which the Stock is traded on the
American Stock Exchange or any successor principal national securities exchange
or the over the counter market on which the Company's shares are traded.
(s) "Voting Stock" shall mean capital stock of any class or
classes having the power to vote under ordinary circumstances, in the absence
of contingencies, in the election of directors.
2. Term of Employment.
The Company hereby employs the Executive, and the Executive hereby
accepts such employment, for the period commencing October 1, 1996 and ending
at the close of business on September 30, 2001 (the "Expiration Date"),
provided that on each October 1st of every succeeding year after October 1,
1996, the then Expiration Date shall be extended automatically for an
additional one year term unless ten (10) days prior to such October 1st, a
notarized written notice of expiration is given by Company in writing to
Executive and delivered personally to him and by certified mail to his place of
notice set forth in Article 31 hereof. The term specified in the first
sentence of this Section 2 is subject to earlier termination in accordance with
Section 12 of this Agreement.
3. Position, Duties and Responsibilities.
(a) During the Term of Employment, the Executive shall be
employed as the President and Chief Operating Officer of the Company and be
responsible for the general management of the affairs of the Company. The
Executive shall also be a member of the Executive Committee of the Board of
Directors. The Executive, in carrying out his duties under this Agreement,
shall report to the Board.
(b) The Executive shall devote such time as is, in his
opinion, reasonably necessary for the performance of his responsibilities and
duties hereunder. Anything herein to the contrary notwithstanding, nothing
shall preclude the Executive from (i) serving on the boards of directors of a
reasonable number of other corporations or the boards of a
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reasonable number of trade associations and/or charitable organizations, (ii)
engaging in charitable activities and community affairs, and (iii) managing his
personal investments and affairs.
4. Base Salary.
The Executive shall be paid an annualized Base Salary, payable in
accordance with the regular payroll practices of the Company, of $275,000.00.
Effective October 1, 1997, the Base Salary shall be increased to $525,000.00.
The Base Salary shall be reviewed no less frequently than annually for increase
in the discretion of the Board and its Compensation Committee.
5. Annual Incentive Awards.
The Executive shall participate in all annual incentive award programs,
including, without limitation, the following:
(a) Annual Cash Bonus. The Company shall pay to Executive an
Annual Cash Bonus each fiscal year equal to the following: the greater of (i)
$700,000 or (ii) two (2) percent of the quantity which is the excess of the
Cash Flow of the Company and its Affiliates in that fiscal year above fifteen
(15) percent of the Average Stockholder's Equity in that fiscal year. The
Annual Cash Bonus shall be paid no later than 135 calendar days following the
end of the respective fiscal year.
(b) Stock Options and Stock Grant Awards. The Company may
award stock options and stock grants from time to time as it deems appropriate.
(c) General. The Executive shall be eligible to participate in
other annual or long-term incentive programs of the Company on the same basis
as other senior-level executives of the Company.
(d) Special Bonus. The Company may from time to time provide a
special non-recurring cash or stock-based bonus for certain extraordinary
specific developments that materially enhance the value of the Company.
(e) Confirmation. The Company acknowledges that Executive has
previously been awarded stock options and stock grants that are fully vested as
identified in Schedule 5.1 and Company reaffirms herein its contractual
commitments in those agreements. The terms of the stock option agreements in
Schedule 5.1 shall continue to apply and be construed so as not to change or
modify any rights of Executive set forth therein. The Company acknowledges
that Executive also has previously been awarded stock options that are not
fully vested as identified in Schedule 5.1 and Company reaffirms herein its
contractual commitments in those agreements. Notwithstanding any provision in
any stock option agreement or plan to the contrary, Company agrees that all
outstanding stock options granted or to be granted Executive may be assigned by
Executive to any third party, subject only to whatever requirements or
restrictions that may be relevant under the applicable
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securities laws. Company agrees to undertake all steps (including registration
with the SEC), if necessary to permit Executive to make such assignments if so
desired.
6. Executive Benefit Programs.
Executive shall be entitled to participate in all Executive pension and
welfare benefit plans and programs made available to the Company's senior level
executives or to its executives generally, as such plans or programs may be in
effect from time to time, including, without limitation, pension, profit
sharing, savings and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance plans,
accidental death and dismemberment protection, travel accident insurance, and
any other pension or retirement plans or programs and any other Executive
welfare benefit plans or programs that may be sponsored by the Company from
time to time, including any plans that supplement the above-listed types of
plans or programs, whether funded or unfunded. The Executive shall be entitled
to participate in all such programs and plans on a basis that is no less
favorable than any other person. With respect to any post-retirement welfare
benefits, Executive shall be entitled to participate on a basis no less
favorable than that of any other person provided that for this purpose the
Executive's period of employment shall be deemed to be the period necessary to
obtain the maximum level of such benefits.
7. Life Insurance and Benefits.
The Company shall provide life insurance coverage for the benefit of
Executive as set forth in Schedule 7.1 hereto.
8. Disability Benefits
The Company shall provide disability insurance coverage for the benefit
of Executive as set forth in Schedule 8 hereto.
9. Reimbursement of Business and Other Expenses; Perquisites.
(a) The Executive is authorized to incur reasonable expenses
as determined in his judgment in carrying out his duties and responsibilities
under this Agreement and the Company shall promptly reimburse him for all
business expenses incurred in connection with carrying out the business of the
Company. All expenses reimbursed shall be subject to documentation and review
in accordance with the Company's policy; the Company shall have one (1) year
from the close of the fiscal year in which the expenses were reimbursed to
review such expenses and, thereafter, expenses reimbursed will be presumed
conclusively to be reimbursable. In no event will the review of expenses
result in an adjustment unless the aggregate amount of adjustment in a fiscal
year exceeds $15,000. Company's sole and exclusive remedy with respect to any
act or omission relating to the reimbursement of expenses shall be an
accounting under the provisions of this paragraph and in no way may Company
seek any other remedy (including, but not limited to, termination).
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(b) Executive shall be entitled to participate in any of the
Company's executive fringe benefits in accordance with the terms and conditions
of such arrangements as are made available from time to time for the Company's
executives on a basis no less favorable than any other executive.
(c) The Corporation shall provide reimbursement of reasonable
expenses incurred by Executive and his spouse to locate and purchase housing
accommodations in Houston. Those expenses shall include the cost of reasonable
accommodations and travel expense in Houston until Executive purchases a home
in the Houston area. In addition, Executive shall be entitled to the benefits
set forth in Schedule 9(c).
(d) In all events, the Company shall:
(i) pay for any club membership fees (including any bond
requirement) and luncheon clubs as the Executive determines are
appropriate to his carrying out his duties hereunder;
(ii) provide the Executive with a car (including
insurance, repair and maintenance) and driver trained in security
techniques if needed for his use;
(iii) provide the Executive with personal financial
(including tax) counseling by a firm to be chosen by the Executive; and
(iv) provide the Executive with a security system or
security coverage at the job location, at his residence or otherwise if
reasonably requested by Executive.
(v) The Company shall provide the Executive with a
personal Umbrella policy in the amount of $5,000,000.
(vii) Items (i) thru (v) shall be reviewed annually with
the Chairman of the Compensation Committee
(e) It is the intention of the Company that the Executive
shall, after taking into account any taxes on reimbursements or other benefits
under this Section 9, be kept whole with respect to such reimbursement or other
benefit. Accordingly, to the extent the Executive is taxable on any such
reimbursements or benefits, the Company shall pay the Executive in connection
therewith an amount which after all taxes incurred by the Executive on such
amount shall equal the amount of the reimbursement or benefit being provided
10. Vacation.
The Executive shall be entitled to six weeks paid vacation per year.
Vacation shall be taken each fiscal year and, if not taken within six (6)
months after the end of the fiscal year, shall not be carried forward
thereafter without Board approval.
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11. Life Insurance for Company's Benefit.
The Company in its discretion may apply for and procure as owner and for
its own benefit, insurance on the life of the Executive, in such amount and in
such forms as the Company may choose. The Executive shall have no interest
whatsoever in any such policy or policies, but, at the request of the Company,
shall submit to medical examinations and supply such information and execute
such documents as may reasonably be required by the insurance company or
companies to which the Company has applied for insurance.
12. Termination of Employment.
(a) This Agreement may be terminated prior to the Expiration
Date provided that the amounts and obligations set forth in this Section are
paid and performed by Company and only in the following events:
(i) Executive's death;
(ii) Executive's Disability;
(iii) By Company, for "Cause" as defined in Section 1 of
this Agreement;
(iv) By Executive, for Constructive Termination Without
Cause as defined in Section 1, or by Company for any reason other than
that specified in (iii) above; and
(v) By Executive, upon written voluntary resignation by a
notarized instrument signed personally by Executive to be delivered to
the Chief Executive Officer, provided thirty (30) day written notice is
given;
provided, however, that any termination shall not be effective unless the
amounts and obligations of Company are paid and performed as required by the
provisions of this Section 12.
(b) In the event that Executive's employment is terminated on
the basis of events in Section 12(a)(i), (ii) or (iv), Executive (or his estate
or his beneficiaries as the case may be) shall be entitled to receive within
thirty (30) days, upon occurrence of such event, the following:
(i) The greater of (x) all Base Salary which would have
been payable through the Expiration Date as if such date were the
termination date, or (y) three (3) times the then current Base Salary.
(ii) The greater of (w) all Annual Cash Bonus calculated
under Section 5(a) which would have been payable through the Expiration
Date as if such date were the termination date, or (x) three (3) times
the highest "bonus" paid during the last three fiscal years prior to
termination (for this purpose, "bonus" shall include any Annual Cash
Bonus and other cash bonus, and shall also include the fair market value
of any
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grants of stock awards or stock options valued on a Black-Scholes basis
at a 40% volatility without regard to any vesting or other restrictions)
or (y) three (3) times the highest Annual Cash Bonus calculated under
Section 5(a) for each of the three previous fiscal years prior to
termination, regardless of whether that amount was in fact paid. For
purposes of making the lump sum calculation required in the preceding
sentence, the future amounts of the Annual Cash Bonus shall be based on
the Annual Cash Bonus which would have been payable based on the last
fiscal year's results and the amount due in the case of (w) under the
preceding sentence shall be adjusted each year to reflect the Annual
Cash Bonus based on actual results that would have been payable, all
such calculations to be made by the Auditors. Any additional amounts
due in future years shall be paid in cash within ninety (90) days of the
respective fiscal year-end.
(iii) Any restricted stock outstanding, whether or not
vested, shall become immediately and fully vested and transferable to
the full extent possible at the time of termination.
(iv) Any outstanding stock option (including any reload
rights contained therein) of any kind whatsoever shall become
immediately and fully vested and transferable to the full extent
possible at the time of termination without regard to any contingencies
or conditions specified therein, for the remainder of the original term
of the option.
(v) Any amounts earned, accrued or owing to Executive but
not yet paid, including any and all obligations to be performed
following termination under Sections 6-9. Executive, or his designee,
shall be entitled to continue to receive all the benefits set forth in
Section 6-9 through the later of: (1) Expiration Date as if no
termination occurred, or (2) three-years from the date of termination
(vi) Continued participation in medical, dental and life
insurance coverage until Executive receives equivalent coverage and
benefits under the plans and programs of a subsequent employer (such
coverage and benefits to be determined on a coverage-by-coverage or
benefit-by-benefit basis) or death of the later of Executive or his
spouse; provided that (x) if the Executive is precluded from continuing
his participation in any Executive benefit plan or program as provided
in this clause (vi) of this Section 12(b), he shall be provided with the
after-tax economic equivalent of the benefits provided under the plan or
program in which he is unable to participate for the period specified in
this clause, (y) the economic equivalent of any benefit foregone shall
be deemed to be the lowest cost that would be incurred by the Executive
in obtaining such benefit himself on an individual basis, and (z)
payment of such after-tax economic equivalent shall be made quarterly in
advance;
(vii) Other or additional benefits in accordance with
applicable plans or programs of the Company.
(viii) In the event that the termination is related to a
Change in
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Control (or there is some other basis for termination as well as a basis
related to a Change in Control), then, in addition to the items listed
in (i) through (vii) above, Executive shall be entitled, upon his
election to terminate because of a Change in Control, to receive in lieu
of the exercise of any such number of outstanding options as selected by
Executive an amount of cash in exchange therefor in an amount equal to
(x) the excess of the Change in Control Price over the exercise price of
the options per share of common stock, multiplied by (y) the number of
options selected by Executive. If Executive is entitled to reload
options, his right to reload options shall be preserved and the number
of such reload options in the continuing entity shall be adjusted to
represent in the continuing entity the same percentage of the total
shares and options of the Company outstanding immediately prior to the
Change of Control. In lieu of retaining all or a portion of any reload
options, Executive shall, upon his election to terminate because of a
Change in Control, be entitled to monetize such reload options as he
selects and receive in lieu thereof an amount of cash equal to the value
of the selected reload options computed on a Black Scholes basis using
the following assumptions: (i) a 40% volatility, (ii) a 10 year option
term, (iii) a stock price equal to the greater of the Change in Control
Price or the closing stock price on the date the election is made to
terminate because of a Change in Control and (iv) and no other
restrictions on exercise. Notwithstanding anything to the contrary, in
addition, Executive shall be entitled to an amount of cash equal to one
dollar less than the amount that would constitute an "excess parachute
payment" as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Section 280 Amount") in lieu of the amounts that
would be payable to Executive under 12(b)(i) and 12(b)(ii) of this
Section 12 if such Section 280 Amount is greater than the sum of the
amounts under 12(b)(i) and 12(b)(ii). In addition, Executive shall be
entitled to be granted additional options immediately exercisable for
five years to acquire a number of shares of common stock equal to the
highest number of options granted during any fiscal year during the
period comprising the then current fiscal year, and the three fiscal
years preceding such termination at an exercise price per share equal to
the average closing price per share of Stock during the twenty trading
days prior to the event which resulted in the triggering of the Change
in Control.
(c) In the event Executive's employment is terminated on the
basis of events in Sections 12(a)(iii) or (v), Executive shall be entitled to
receive within (60) days, upon occurrence of such event, the following:
(i) Base Salary through the date of the termination.
(ii) All Annual Cash Bonus calculated under Section 5(a)
(and pro-rated for the relevant part of the fiscal year) which would
have been payable through the date of termination; such amount shall be
estimated based on the last fiscal year's results and adjusted later
based on actual results, all such calculations to be performed by the
Auditors. Any additional amounts to be paid shall be paid within ninety
(90) days of the end of the respective fiscal year-end.
(iii) All restricted stock that has vested on or prior to
the date of termination.
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(iv) Any outstanding stock option (including any reload
rights contained therein) of any kind whatsoever vested on or prior to
the date of termination, for the remainder of the original term of the
option.
(v) Any amounts earned, accrued or owing to the Executive
but not yet paid, including any and all obligations to be performed
following termination under Sections 6-9.
(vi) Other or additional benefits in accordance with
applicable plans of programs of the Company.
(d) In the event that Executive becomes entitled to any
payments provided under Section 12 (the "Agreement Payments") and in the event
that any of the Agreement Payments are subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Code (or any similar tax that may hereafter be
imposed), the Company shall pay or cause to be paid to Executive at the time
specified in this subsection an additional amount ( the "Gross-up Payment")
such that the net amount retained by Executive, after deduction of any Excise
Tax on the Total Payments (as hereinafter defined) and any federal, state and
local income tax and Excise Tax upon the Gross-up Payment provided for this
subsection, but before deduction for any federal, state or local income tax on
the Agreement Payments, shall be equal to the Total Payments. To the extent
that the Excise Tax is amended or modified, or any similar tax is hereinafter
imposed, the provisions of this subsection shall be applied mutatis mutandis to
effect the same desired result of providing Executive net of such additional
taxes the benefits of the payments in Section 12.
For purposes of determining whether any of the Agreement Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) any other
payments or benefits received or to be received by Executive in connection with
a Change in Control of the Company or the Executive's termination of employment
(whether pursuant to the terms of this Agreement or any other plan, arrangement
or agreement with the Company, or with any person whose actions result in a
Change in Control of the Company or any person affiliated with the Company or
such person) (which, together with the Agreement Payments, shall constitute the
"Total Payments") shall be treated as "parachute payments" within the meaning
of Section 280G(b)(2) of the Code, and all "excess parachute payments" within
the meaning of Section 280G(b)(1) of the Code shall be treated as subject to
the Excise Tax, unless in the opinion of Tax Counsel selected by the Auditors
such other payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code in excess of the base amount within
the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to
the Excise Tax, (ii) the amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (1) the total amount
of the Total Payments or (2) the amount of excess parachute payments within the
meaning of Section 280G(b)(1) of the Code (after applying clause (i), above),
and (ii) the value of any non-cash benefits or any deferred payment or benefit
shall be determined by the Auditors in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
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For purposes of determining the amount of the Gross-up payment,
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation for the calendar year in which the Gross-up
Payment is to be made and the applicable state and local income taxes at the
highest marginal rate of taxation for the calendar year in which the Gross-up
Payment is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes. . In
the event that the Excise Tax is determined to exceed the amount taken into
account hereunder at the time the Gross-up Payment is made (including by reason
of any payment the existence or amount of which cannot be determined at the
time of the Gross-up Payment), the Company shall make or cause to be made an
additional Gross-up Payment in respect of such excess (plus any interest
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
The Gross-up Payment or portion thereof provided for above shall be paid
not later than the thirtieth (30) day following payment of any amounts under
Section 12; provided, however, that if the amount of such Gross-up payment or
portion thereof cannot be finally determined on or before such day, the Company
shall pay or cause to be paid to Executive on such day an estimate, as
determined by the Auditors, of the minimum amount of such payments and shall
pay or cause to be paid the remainder of such payments (together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the
amount thereof can be determined, but in no event later than the forty-fifth
day after payment of any amounts under Section 12. In the event that the
amount of the estimated payments exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan to Executive, repayable on
the fifth day after demand by the Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code).
(e) No Mitigation: No Offset. In the event of any termination
of employment under this Section 12, the Executive shall be under no obligation
to seek other employment and there shall be no offset against amounts due the
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that he may obtain except as specifically provided in
this Section 12.
(f) Nature of Payments. Any amounts due under this Section 12
are in the nature of severance payments considered to be reasonable by the
Company and are not in the nature of a penalty.
13. Confidentiality.
(a) During the Term of Employment and thereafter, the
Executive shall not disclose to anyone or make use of any trade secret or
proprietary or confidential information of the Company, including such trade
secret or proprietary or confidential information of any customer or other
entity to which the Company owes an obligation not to disclose such
information, which he acquires during the Term of Employment, including but not
limited to records kept in the ordinary course of business, except (i) as such
disclosure or use may be required or appropriate in connection with his work as
an Executive of the Company or (ii) when required to do so by a court of law,
by any governmental agency having supervisory authority over the business of
the Company or by any administrative or legislative body
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(including a committee thereof) with apparent jurisdiction to order him to
divulge, disclose or make accessible such information; provided, however, that
no trade secret or proprietary or confidential information shall be required to
be treated as such to the extent such portions of such information are or
become generally available to the public other than as a result of a disclosure
by Executive or other Company representative bound by an agreement or duty of
confidentiality.
14. Indemnification.
(a) Defined Terms. For purposes of Sections 14 through 19
inclusive, the following terms shall have the meaning given here:
(i) "Corporate Status" shall mean the status of a person
who is or was a director, officer or fiduciary of the Company or of any
other corporation, partnership, joint venture, trust, executive benefit
plan or other enterprise which such person is or was serving at the
express written request of the Company.
(ii) "Disinterested Director" shall mean a director of the
Company who is not and was not a party to the Proceeding in respect of
which indemnification is sought by the Executive.
(iii) "Enterprise" shall mean the Company and any other
corporation, partnership, joint venture, trust, executive benefit plan
or other enterprise which the Executive is or was serving as a director,
officer or fiduciary at the express written request of the Corporation.
(iv) "Expenses" shall include all reasonable attorneys'
fees and costs, retainers, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees, and
all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, appealing, settling, investigating or being or preparing to be a
witness in a Proceeding.
(v) "Good Faith" shall mean the Executive's having acted
in good faith and in a manner the Executive reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and, with
respect to any criminal Proceeding, having had no reasonable cause to
believe his conduct was unlawful.
(vi) "Independent Counsel" means a law firm, or a member
of a law firm, that is experienced in matters of corporate law and
neither presently is, and has not in the past five (5) years has been,
retained to represent: (i) the Company or Executive in any matter
material to either party, or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term "Independent Counsel" shall not include any
person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in
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representing either the Company or the Executive in an action to
determine the Executive's rights under this Agreement.
(vii) "Proceeding" includes any action, suit arbitration,
alternate dispute resolution mechanism, investigation, administrative
hearing or any other actual, threatened or completed proceeding, whether
civil, criminal, administrative or investigative, other than one
initiated by the Executive.
(b) In General. In connection with any Proceeding involving
acts or omissions occurring on or subsequent to January 6, 1987, the Company
shall indemnify and advance Expenses to the Executive as provided in this
Agreement to the fullest extent permitted by applicable law in effect on the
Effective Date and to such greater extent as applicable law may thereafter from
time to time permit.
(c) Proceedings Other Than Proceedings by or in the Right of
Company. If, by reason of the Executive's Corporate Status, the Executive is or
is threatened to be made a party to any Proceeding other than a Proceeding by
or in the right of the Company, the Company shall indemnify the Executive
against Expenses, judgments, penalties, fines and amounts paid in settlement or
actually and reasonably incurred by the Executive or on the Executive's behalf
in connection with such Proceeding or any claim, issue or matter therein if the
Executive acted in Good Faith.
(d) Proceedings by or in the Right of Company. If, by reason
of the Executive's Corporate Status, the Executive is, or is threatened to be
made a party to any Proceeding brought by or in the right of the Company to
procure a judgment in its favor, the Executive shall be indemnified against
Expenses, judgments, penalties, fines and amounts paid in settlement, or
actually and reasonably incurred by the Executive or on the Executive's behalf
in connection with such Proceeding or any claim, issue or matter therein if the
Executive acted in Good Faith. Notwithstanding the foregoing, no such
indemnification shall be made in respect of any claim, issue or matter in such
Proceeding as to which the Executive shall have been adjudged to be liable to
the Company if applicable law prohibits such indemnification; provided,
however, that if applicable law so permits, indemnification shall nevertheless
be made by the Company in such event if and only to the extent that the Court
of Chancery of the State of Delaware or the court in which such Proceeding
shall have been brought or is pending shall determine.
(e) Indemnification of a Party who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, to the
extent that the Executive is, by reason of the Executive's Corporate Status, a
party to and is successful on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding the Company shall
indemnify the Executive against all Expenses, judgments, penalties, fines and
amounts paid in settlement, or actually and reasonably incurred by the
Executive or on the Executive's behalf in connection with each successfully
resolved claim, issue or matter, except as permitted by law. For purposes of
this paragraph (e) and without limitation, the termination of any claim, issue
or matter, in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such claim, issue or matter, so long
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as there has been no finding (either adjudicated or pursuant to this Section
14) that the Executive did not act in Good Faith.
(f) Indemnification for Expenses of a Witness. Notwithstanding
any other provision of this Agreement, to the extent that the Executive is, by
reason of the Executive's Corporate Status, a witness in any Proceeding, the
Executive shall be indemnified against all Expenses actually and reasonably
incurred by the Executive or on the Executive's behalf in connection therewith.
(g) Successors. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Agreement shall continue as
to the Executive and shall inure to the benefit of the heirs, executors and
administrators of the Executive.
15. Advancement of Expenses.
Notwithstanding any provision to the contrary in this Agreement, the
Company shall advance all reasonable Expenses, which, by reason of the
Executive's Corporate Status, were incurred by or on behalf of the Executive in
connection with any Proceeding, within twenty (20) days after the receipt by
the Company of a statement or statements from the Executive requesting such
advance or advances, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by the Executive and shall include or be preceded or accompanied by an
undertaking by or on behalf of the Executive to repay any Expenses if it shall
ultimately be determined that the Executive is not entitled to be indemnified
against such Expenses. Any advance and undertakings to repay pursuant to this
Section 15 shall be unsecured and interest-free.
16. Procedures for Determination of Entitlement to Indemnification.
(a) Initial Request. To obtain indemnification under this
Agreement, the Executive shall submit to the Company a written request,
including therein or therewith such documentation and information as is
reasonably available to the Executive and which is reasonably necessary to
determine whether and to what extent the Executive is entitled to
indemnification. The Secretary of the Company shall promptly advise the Board
in writing that the Executive has requested indemnification .
(b) Method of Determination. If required by applicable law, a
determination with respect to the Executive's entitlement to indemnification
shall be made as follows;
(i) if a Change in Control has occurred, unless the
Executive shall request in writing that such determination be made in
accordance with paragraph (b) (ii) of this Section 16, the determination
shall be made by Independent Counsel in a written opinion to the Board,
a copy of which shall be delivered to the Executive;
(ii) if a Change in Control has not occurred the
determination shall be made by the Board by a majority vote of a quorum
consisting of Disinterested Directors. In the event that a quorum of the
Board consisting of Disinterested Directors is not obtainable or, even
if obtainable, such quorum of Disinterested Directors so directs,
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the determination shall be made by Independent Counsel in a written
opinion to the Board, a copy of which shall be delivered to the
Executive.
(c) Selection. Payment and Discharge of Independent Counsel.
In the event the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Section 16(b) of this Agreement, the
Independent Counsel shall be selected, paid and discharged in the following
manner:
(i) If a Change in Control has not occurred the
Independent Counsel shall be selected by the Board and the Company shall
give written notice to the Executive advising the Executive of the
identity of the Independent Counsel so selected.
(ii) If a Change in Control has occurred, the Independent
Counsel shall be selected by the Executive (unless the Executive shall
request that such selection be made by the Board, in which event clause
(i) of this Section shall apply), and the Executive shall give written
notice to the Company advising it of the identity of the Independent
Counsel so selected.
(iii) Following the initial selection described in clauses
(i) and (ii) of this Section 16(c), the Executive or the Corporation, as
the case may be, may, within seven (7) days after such written notice of
selection has been given, deliver to the other party a written objection
to such selection. Such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements
of "Independent Counsel" and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent
Counsel. If such written objection is made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until a court
has determined that such objection is without merit.
(iv) Either the Company or the Executive may petition the
Court of Chancery of the State of Delaware or other court of competent
jurisdiction if the parties have been unable to agree on the selection
of Independent Counsel within twenty (20) days after submission by the
Executive of a written request for indemnification pursuant to Section
16(a) of this Agreement. Such petition may request a determination
whether an objection to the party's selection is without merit and/or
seek the appointment as Independent Counsel of a person selected by the
Court shall designate. A person so appointed shall act as Independent
Counsel under Section 16(b) of this Agreement.
(v) The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to this Agreement, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this
Section 16(c), regardless of the manner in which such Independent
Counsel was selected or appointed.
(vi) Upon the due commencement of any judicial proceeding
or arbitration pursuant to Section 18(b) of this Agreement, Independent
Counsel shall be
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discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then
prevailing).
(d) Cooperation. The Executive shall cooperate with the
person, persons or entity making the determination with respect to the
Executive's entitlement to indemnification under this Agreement, including
providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from disclosure and which is reasonably available to the Executive and
reasonably necessary to, such determination. Any costs or expenses (including
attorneys' fees and disbursements) incurred by the Executive in so cooperating
with the person, persons or entity making such determination shall be borne by
the Company(irrespective of the determination as to the Executive's entitlement
to indemnification) and the Company hereby indemnifies and agrees to hold the
Executive harmless therefrom.
(e) Payment. If it is determined that the Executive is
entitled to indemnification, payment to the Executive shall be made within ten
(10) days after such determination.
17. Presumption and Effect of Certain Proceedings.
(a) Burden of Proof. In making a determination with respect to
entitlement of indemnification hereunder, the person or persons or entity
making such determination shall presume that the Executive is entitled to
indemnification under this Agreement if the Executive has submitted a request
for indemnification in accordance with Section 16(a) of this Agreement, and the
Company shall have the burden of proof to overcome that presumption in
connection with the making of any person, persons or entity of any
determination contrary to that presumption.
(b) Effect of Other Proceedings. The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of the Executive to indemnification or create a
presumption that the Executive did not act in Good Faith.
(c) Reliance as Safe Harbor. For purposes of any determination
of Good Faith, the Executive shall be deemed to have acted in Good Faith if the
Executive's action is based on the records or books of account of the
Enterprise, including financial statements, or on information supplied to the
Executive by the officers of the Enterprise in the course of their duties, or
on information or records given or reports made to the Enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Enterprise. The provisions of this Section
17(c) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Executive may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(d) Actions of Others. The knowledge and/or actions, or
failure to act, of any director, officer, agent or Executive of the Enterprise
shall not be imputed to the Executive for purposes of determining the right to
indemnification under this Agreement.
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18. Remedies of the Executive.
(a) Application. This Section 18 shall apply in the event of a
dispute. For purposes of this Section, "Dispute" shall mean any of the
following events:
(i) a determination is made pursuant to Section 16 of this
Agreement that the Executive is not entitled to indemnification under
this Agreement;
(ii) advancement of Expenses is not timely made pursuant
to Section 15 of this Agreement;
(iii) the determination of entitlement to be made pursuant
to Section 16(b) of this Agreement has not been made within ninety (90)
days after receipt by the Company of the request for indemnification;
(iv) payment of indemnification is not made pursuant to
Section 14(f) of this Agreement within ten (10) days after receipt by
the Company of a written request therefor; or
(v) payment of indemnification is not made within ten (10)
days after a determination has been made that the Executive is entitled
to indemnification or such determination is deemed to have been made
pursuant to Section 16 of this Agreement.
(b) Adjudication. In the event of a Dispute, the Executive
shall be entitled to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of the Executive's
entitlement to such indemnification or advancement of Expenses. Alternatively,
the Executive at the Executive's option, may seek an award in arbitration to be
conducted by a three person arbitration panel pursuant to the rules then
obtaining of the American Arbitration Association. The Executive shall commence
such proceeding seeking an adjudication or an award in arbitration within one
hundred eighty (180) days following the date on which the Executive first has
the right to commence such proceeding pursuant to this Section 18(b). The
Company shall not oppose the Executive's right to seek any such adjudication or
award in arbitration.
(c) De Novo Review. In the event that a determination shall
have been made pursuant to Section 16 of this Agreement that the Executive is
not entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 18 shall be conducted in all respects as a
de novo trial, or arbitration, on the merits and the Executive shall not be
prejudiced by reason of that adverse determination. In any such proceeding or
arbitration, the Company shall have the burden of proving that the Executive is
not entitled to indemnification or advancement of Expenses, as the case may be.
(d) Company Bound. If a determination shall have been made or
deemed to have been made pursuant to Section 16 of this Agreement that the
Executive is entitled to indemnification, the Company shall be bound by such
determination in any judicial
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proceeding or arbitration absent (i) a misstatement by the Executive of a
material fact, or a failure to disclose facts which would make Executive's
statement not materially misleading, in connection with the request for
indemnification or (ii) a prohibition of such indemnification under applicable
law.
(e) Procedures Valid. The Company shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this
Section 18 that the procedures and presumptions of Sections 16 and 17 are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrators that the Company is bound by all the provisions of this
Agreement.
(f) Expenses of Adjudication. In the event that the Executive,
pursuant to this Section 18, seeks a judicial adjudication of or an award in
arbitration to enforce the Executive's rights under, or to recover damages for
breach of, this Agreement, the Executive shall be entitled to recover from the
Corporation, and shall be indemnified by the Company against, any and all
Expenses actually and reasonably incurred by the Executive in such adjudication
or arbitration, but only if and to the extent that the Executive prevails
therein.
19. Non-Exclusivity, Subrogation.
(a) Non-Exclusivity. The rights of Executive to be indemnified
and to receive advancement of Expenses as provided by this Agreement shall not
be deemed exclusive of any other rights to which the Executive may at any time
be entitled under applicable law, the Certificate of Incorporation, the By-
Laws, any agreement, a vote of stockholders, a resolution of directors or
otherwise. No amendment, alteration, rescission or replacement of this
Agreement or any provision hereof shall be effective as to the Executive with
respect to any action taken or omitted by such the Executive in the Executive's
Corporate Status prior to such amendment, alteration, rescission or
replacement.
(b) Subrogation. In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of the Executive, who shall execute all papers
required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring
suit to enforce such rights.
(c) No Duplicative Payment. The Company shall not be liable
under this Agreement to make any payment of amounts otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.
20. Director and Officer Insurance.
The Company agrees to continue and maintain a directors and officers'
liability insurance policy covering the Executive to the extent the Company
provides such coverage for its other executive officers.
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21. Effect of Agreement on Other Benefits.
Except as specifically provided in this Agreement, the existence of this
Agreement shall not prohibit or restrict the Executive's entitlement to full
participation in the executive benefit and other plans or programs in which
senior executives of the Company are eligible to participate, or restrict
Executive from the benefits of any other agreements.
22. Assignability: Binding Nature.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Executive)
and assigns. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or
obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the continuing entity, or the sale or
liquidation of all or substantially all of the assets of the Company, provided
that the assignee or transferee is the successor to all or substantially all of
the assets of the Company and such assignee or transferee assumes the
liabilities, obligations and duties of the Company, as contained in this
Agreement, by written contract. The Company further agrees that, in the event
of a sale of assets or liquidation as described in the preceding sentence, it
shall take whatever action it legally can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder. No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than his rights
to compensation and benefits.
23. Representation.
The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it or
and any other person, firm or organization. The Executive represents that he
knows of no agreement between him and any other person, firm or organization
that would be violated by the performance of his obligations under this
Agreement.
24. Entire Agreement.
This Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the Parties with respect thereto. This Agreement
hereby amends and replaces the Amended Employment Agreement effective October
1, 1996.
25. Amendment or Waiver.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Executive and an authorized officer of
the Company. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such
other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver
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must be in writing and signed by the Executive or an authorized officer of the
Company, as the case may be.
26. Severability.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect to the fullest extent permitted by law.
27. Survivorship.
The respective rights and obligations of the Parties hereunder shall
survive any termination of this Agreement.
28. Beneficiaries/References.
The Executive shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death
by giving the Company written notice thereof. In the event of the Executive's
death or a judicial determination of his incompetence, reference in this
Agreement to the Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
29. Governing Law/Jurisdiction.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Delaware without reference to principles of
conflict of laws.
30. Resolution of Disputes.
Any disputes arising under or in connection with this Agreement
(including any action by Executive to enforce compliance or specific
performance with respect to this Agreement), shall at the election of the
Executive or the Company, be resolved by binding arbitration, to be held in New
York, New York in accordance with the rules and procedures of the American
Arbitration Association before three arbitrators. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. Nothing herein shall preclude either party from seeking provisional
remedies in aid of arbitration, such as a preliminary injunction, from a court
of competent jurisdiction. Costs of the arbitration or litigation, including,
without limitation, reasonable attorneys' fees of both Parties, shall be borne
by the Company. Pending the resolution of any arbitration or court proceeding,
the Company shall continue payment of all amounts due the Executive under this
Agreement consistent with past practice and all benefits to which the Executive
is entitled at the time the dispute arises.
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31. Notices.
Any notice given to a Party shall be in writing and shall be deemed to
have been given when delivered personally or sent by certified or registered
mail, postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as such
Party may subsequently give such notice of:
If to the Company:
Xxxxxx Industries, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
If to the Executive:
Xx. Xxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
32. Headings.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
33. Counterparts.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
Xxxxxx Industries, Inc.
/s/ XXXX XXXXXX
-------------------------
Xxxx Xxxxxx
By: /s/ XXXXXX X. XXXXXXXX
-------------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXXXXX
-------------------------
Xxxxxxx X. Xxxxxxxx
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