EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
September 18, 1998, by and between INSIGNIA/ESG HOLDINGS, INC., a Delaware
corporation with an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company"), and XXXX X. XXXXXXX, an individual residing at 00 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (the "Executive").
WHEREAS, it is contemplated that the Company will be "spun-off" from its
parent company, Insignia Financial Group, Inc. ("Insignia"), sometime during the
third calendar quarter of 1998 (the actual date such spin-off occurs being
referred to herein as the "Spin-Off Date"); and
WHEREAS, the Company desires to assure itself of the services of the
Executive from and after the Spin-Off Date for the period provided in this
Agreement, and the Executive is willing to serve in the employ of the Company
for such period upon the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Employment. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts such employment, in each case upon the terms
and conditions set forth herein, for a period commencing on the Spin-Off Date
(the "Commencement Date") and ending on December 31, 2001 (the "Expiration
Date"), subject to earlier termination as set forth herein (such period, as it
may be so terminated, being referred to herein as the "Employment Period").
Section 2. Duties and Services.
(a) Offices. During the Employment Period, the Executive shall serve as
Executive Vice President-Legal, Secretary and General Counsel of the Company,
with principal responsibility for the Company's legal affairs. In addition, at
the request of the Company, the Executive shall serve as an officer and/or
director of one or more subsidiaries of the Company. In the performance of his
duties hereunder, the Executive shall report to and shall be responsible to the
Chief Executive Officer and the Board of Directors of the Company. The Executive
agrees to his employment as described in this Section 2, and agrees to devote
substantially all of his working time and efforts to the performance of his
duties hereunder. The Executive shall be available to travel as the needs of the
business of the Company reasonably require.
(b) Location of Office. During the Employment Period, the Executive's
office shall be located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or at such other
location in New York, New York as the Company may reasonably request. The
Company shall provide the Executive with an appropriate office, an executive
secretary reasonably acceptable to him and other reasonable support appropriate
to his duties hereunder.
(c) Primary Responsibilities. During the Employment Period, the Executive
shall (i) have such appropriate and lawful responsibilities assigned to him by
the Chief Executive Officer and/or the Board of Directors of the Company, and
(ii) comply with all lawful written policies and procedures of the Company.
(d) Other Activities. The Executive may (i) devote reasonable time to the
management of his personal financial affairs and (ii) to the extent that he may
do so without unduly interfering with his duties at the Company, participate on
boards of directors of other enterprises which do not directly or indirectly
compete with the Company; provided, however, that (x) the Executive shall not
join the board of directors of any public company without first obtaining the
approval of the Chief Executive Officer of the Company and (y) the Executive
shall give prompt notice of his election or appointment to any other board of
directors, whether of a private for-profit company or any not-for-profit
company, to the Chief Executive Officer of the Company. The Executive may retain
any compensation paid to him for such service.
Section 3. Compensation. Except as otherwise provided herein, as full
compensation for the Executive's services under this Agreement, the Company
shall pay, grant, issue or give, as the case may be, to the Executive the
following compensation and benefits:
(a) Base Salary. Subject to the provisions of Section 6, an annual base
salary ("Base Salary") at the rate of $360,000 per annum, payable in cash in
accordance with the customary executive payroll policy of the Company as in
effect from time to time; provided, however, that the Base Salary may be
increased by action of the Board of Directors of the Company or the Compensation
Committee thereof (the "Compensation Committee").
(b) Annual Bonus. An annual discretionary bonus ("Bonus"), the amount, if
any, of which shall be determined by the Board of Directors of the Company or
the Compensation Committee, and which shall be paid to the Executive, with
respect to any given fiscal year of the Company, before the expiration of 74
days after the end of such fiscal year.
(c) Fringe Benefit Programs. In addition to the other benefits provided to
the Executive hereunder and to the extent he satisfies the eligibility
requirements thereof and to the extent permitted by law, participation in fringe
benefit programs made available generally to employees and/or to senior
executives of the Company, including without limitation pension, profit sharing,
stock purchase, savings, bonus, disability, life insurance, health insurance,
hospitalization, dental, deferred compensation and other plans and policies
authorized on the date hereof or in the future.
(d) Expense Reimbursement. Reimbursement of the Executive for all
out-of-pocket expenses reasonably incurred by him in connection with the
performance of his duties hereunder, including without limitation (i)
professional activities and membership fees and dues relating to professional
organizations of which the Executive currently is a member or is directed in
writing to be a member by the Board of Directors, Chief Executive Officer or
President of the Company, (ii) expenses required for licensing of the Executive,
and (iii) business-related cellular phone expenses, all upon the presentation of
appropriate documentation therefor in accordance with the then regular
procedures of the Company. (e) Vacations, etc. Twenty (20) paid vacation days
per year on a non-cumulative basis; and leaves-of-absence in accordance with the
regular procedures of the Company governing senior officers in existence from
time to time.
Section 4. Extraordinary Event.
(a) Defined. As used herein, "Extraordinary Event" shall mean the cessation
of Xxxxxx X. Xxxxxx to serve as either the Chairman of the Board of Directors of
the Company or an executive officer of the Company for any reason effective
simultaneously with or within one year following a merger, consolidation, asset
sale or other similar transaction involving the Company or a subsidiary of the
Company which requires approval by the stockholders of the Company.
(b) Extraordinary Event Bonus. Within ten business days after the
occurrence of an Extraordinary Event, the Company shall, regardless of whether
the Executive elects to convert this Agreement into a consulting agreement
pursuant to Section 4(c), pay to the Executive an amount in cash equal to 100%
of the Base Salary then in effect. In addition, if the Executive elects to
convert this Agreement into a consulting agreement pursuant to Section 4(c),
then: (i) within ten business days after the effective date of such election,
the Company shall pay to the Executive an amount in cash equal to the product of
(x) the number of days that have elapsed from and including the first day of the
fiscal year in which such Extraordinary Event occurred, multiplied by (y) the
amount of Bonus paid to the Executive by the Company (or bonus paid by Insignia,
if applicable) in respect of the fiscal year immediately preceding the fiscal
year in which such Extraordinary Event occurred, multiplied by (z) 0.00274; and
(ii) upon the effective date of such election, all stock options, shares of
restricted stock and other awards granted under or otherwise subject to the 1998
Stock Incentive Plan of the Company (the "Company Stock Plan") then held by the
Executive will fully, immediately and automatically vest and be exercisable as
and to the extent permitted by the Company Stock Plan.
(c) Conversion to Consulting Agreement. During the 120-day period following
the occurrence of an Extraordinary Event, the Executive shall have the right, in
his sole discretion, to elect in writing to convert this Agreement into a
consulting agreement, whereupon: (i) the Executive will cease to be an employee
of the Company and shall resign all officer and other positions with the Company
and its subsidiaries; (ii) the Executive shall be required, through the
Expiration Date, to consult with respect to the assets, liabilities and
transactions of the Company as they existed immediately before such
Extraordinary Transaction, such consultation to be at the reasonable times
convenient to the Executive on no less than five business days' notice, but in
no event for more than five days or portions of a day in any calendar month, the
parties recognizing that the Executive during the consulting period likely will
have significant other business interests; and (iii) the terms of this Agreement
(including all rights hereunder of the Executive as to salary, bonus, payments
and benefits) shall continue unabridged through the Expiration Date, except that
(1) Section 2 hereof will be superseded by this Section 4(c) and (2) references
herein to the "employment" of the Executive shall be deemed to be references to
the consultancy by the Executive.
Section 5. Representations and Warranties of the Executive and the Company;
Key Person Insurance.
(a) The Executive represents and warrants to the Company as follows:
(i) He is under no contractual or other restriction or obligation which is
inconsistent with the execution of this Agreement, the performance of his duties
hereunder, or the other rights of the Company hereunder; and
(ii) He is under no physical or mental disability that would hinder his
performance of duties under this Agreement.
(b) The Company represents and warrants to the Executive that the execution
and delivery of this Agreement by the Company has been duly approved by the
Board of Directors of the Company or the Compensation Committee.
(c) The Executive agrees to cooperate with the Company, upon request, in
connection with the obtaining by the Company of a key person insurance policy
upon the life of Executive. The Executive is not aware of any fact or
circumstance which would preclude the Company from obtaining such insurance, and
the Executive has not heretofore been declined by an insurance company or
provider for life insurance.
Section 6. Non-Competition and Non-Solicitation; Confidentiality.
(a) Non-Competition and Non-Solicitation.
(i) In view of the unique and valuable services it is expected the
Executive will render to the Company and its Subsidiaries (as hereinafter
defined), the Executive's knowledge of the customers, trade secrets and other
proprietary information relating to the business of the Company and its
customers and suppliers, and similar knowledge regarding Subsidiaries of the
Company it is expected the Executive will obtain, the Executive agrees that,
through and including the Expiration Date plus any additional period during
which the Executive is employed by the Company, he will not compete with or be
engaged in the same business as, or "Participate In" (as hereinafter defined)
any other business or organization which competes with or is engaged in the same
business as the Company or any of its Subsidiaries, with respect to any product
or service sold or activity engaged in by the Company or any Subsidiary of the
Company in any geographical area in which, at the time of such expiration or
cessation, such product or service is sold or activity is engaged in by the
Company or any Subsidiary of the Company; provided, however, that the provisions
of this Section 6(a)(i) shall not be interpreted to preclude the Executive, at
any time and from time to time, from (1) Participating In any other organization
if approved by the Board of Directors of the Company, or (2) owning not more
than five percent (5%) of the outstanding capital stock of any publicly-traded
entity. The terms "Participate In" and "Participating In" mean "directly or
indirectly, for his own benefit or for, with or through any other person, own or
owning, manage or managing, operate or operating, control or controlling, loan
money to or lending money to, or participate in or participating in, as the case
may be, the ownership, management, operation or control of, or be connected or
being connected, as the case may be, as a director, officer, employee, partner,
consultant, agent, independent contractor or otherwise, or acquiesce or
acquiescing, as the case may be, in the use of his name in." The term
"Subsidiary" means "any entity actually directly or indirectly controlled by the
Company or of which the Company directly or indirectly owns (in the aggregate)
in excess of 20% of the outstanding voting or economic interests."
(ii) In recognition of the close personal contact the Executive will have
with the Company's and its Subsidiaries' trade secrets, confidential
information, records and business relationships, and the position of trust in
which the Company will hold the Executive, the Executive covenants and agrees
that for so long as the Executive is employed by the Company, and for a period
lasting for two (2) years following the later of the date on which the
Executive's employment with the Company ceases for any reason or the Expiration
Date, the Executive will not, either for himself or as an officer, director,
employee, agent, representative, independent contractor or in any other
relationship to any person, partnership, corporation or other entity (other than
the Company and its Subsidiaries), (A) directly or indirectly interfere with or
disturb, or seek to interfere with or disturb, any contractual relation in favor
of the Company or any of its Subsidiaries or (B) solicit, directly or
indirectly, including by assisting others, business from any customer or client
of the Company of any of its Subsidiaries with whom the Executive has had
Material Contact (as defined below) during the twelve (12) month period
preceding the date of cessation of the Executive's employment with the Company
for the purpose of providing goods or services to such customer or client. For
purposes of this Agreement, the Executive shall be deemed to have had "Material
Contact" with a customer or client of the Company or a Subsidiary (x) with whom
the Executive actually dealt, or (y) whose dealings with the Company or
Subsidiary were handled, coordinated or supervised by the Executive, or (z)
about whom the Executive obtained confidential information in the ordinary
course of business through the Executive's association with the Company or the
Subsidiary.
(iii) The Executive covenants and agrees that, for a period of two (2)
years following the later of the Commencement Date or the date on which the
Executive's employment with the Company ceases, the Executive will not solicit,
employ, engage or in any manner encourage any employee, broker or sales person
of the Company or of any of its Subsidiaries (other than the Executive's
personal secretary), to leave his or her employ for the employ of a person or
entity which directly or indirectly competes with the Company or of any of its
Subsidiaries unless and until he or she (A) has been terminated by the Company
or a Subsidiary other than for cause or (B) has not been employed by the Company
or any of its Subsidiaries for a period of two (2) years.
(iv) The Executive acknowledges that the foregoing provisions are intended
to protect the Company's and its Subsidiaries business and customer contacts,
and not to prevent the Executive from pursuing a livelihood in the general area
of his previous training, and that such provisions should be interpreted
accordingly.
(b) Confidentiality. The Executive covenants and agrees that he shall not
publish, disclose or make accessible by him to any other person, either during
or after the cessation of his employment, or use except during his employment
with the Company in the business and for the benefit of the Company and its
Subsidiaries, any confidential information which the Executive may now possess,
may obtain during or after his employment with Company, or may create prior to
the end of his employment with the Company relating to the business of the
Company or any of its Subsidiaries or of any customer or supplier of any of
them. In the event that the Executive becomes legally compelled to disclose any
of the confidential information, the Executive will provide the Company with
prompt written notice so that the Company may seek a protective order or other
appropriate remedy and/or waive in writing compliance with the provisions of
this Section 6(b), and in the event that such protective order or other remedy
is not obtained, or should the Company waive in writing compliance with the
provisions of this Section 6(b), the Executive will furnish only that portion of
the confidential information which is so legally required. Upon demand therefor,
the Executive shall return all tangible evidence of such confidential
information to the Chief Executive Officer of the Company (or his designee)
prior to or at the cessation of his employment.
(c) Interpretation and Enforcement. The Executive acknowledges and agrees
that a breach of the provisions of this Section 6 could not adequately be
compensated by money damages, and, therefore, the Company shall be entitled, in
addition to any other right and remedy available to it, to an injunction
restraining such breach, and the Company shall not be required to post a bond in
any proceeding brought for such purpose. The Executive further acknowledges and
agrees that the provisions of this Section 6 are necessary and reasonable to
protect the Company and its Subsidiaries in the conduct of their businesses. If
any restriction contained in this Section 6 shall be deemed to be invalid,
illegal or unenforceable by reason of the extent, duration or geographical scope
thereof or otherwise, then the court making such determination shall have the
right to reduce such extent, duration, geographical scope or other provision
hereof, and in its reduced form such restriction or other provision shall then
be enforceable in the manner contemplated hereby. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies, at law or
in equity, for any such breach or threatened breach.
Section 7. Termination.
(a) Definitions.
(i) Death Termination Event. As used herein, "Death Termination Event"
shall mean the death of the Executive.
(ii) Disability Termination Event. As used herein, "Disability Termination
Event" shall mean a circumstance where the Executive is physically or mentally
incapacitated or disabled or otherwise unable to fully discharge his duties
hereunder as a result of a single or related series of illnesses or conditions
for a period of 100 consecutive days.
(iii) Estate. As used herein, the term "Estate" shall mean (A) in the event
that the last will and testament of the Executive has not been probated at the
time of determination, the estate of the Executive, and (B) in the event that
the last will and testament of the Executive has been probated at the time of
determination, the legatees or the Executor who are entitled under such will to
the assets or payments at issue.
(iv) Termination For Cause. As used herein, the term "Termination For
Cause" shall mean (A) the termination by the Company of the Executive's
employment hereunder upon a good faith determination by a majority vote of the
members of the Board of Directors of the Company (after notice to the Executive
and an opportunity for the Executive and/or his representative to appear before
the Board of Directors of the Company) that termination of this Agreement is
necessary by reason of (1) the conviction of the Executive of a felony under
state or federal law, or the commission by the Executive an act of employment
discrimination or sexual harassment under state or federal law, or the failure
by the Executive to observe any policy of the Company set forth in a written
policy manual or handbook, as amended from time to time, (2) the continued
breach by the Executive of any provision of this Agreement for a period of
thirty (30) days after written notice of such breach is given to the Executive
by the Company, including gross negligence in the performance by the Executive
of his duties or responsibilities hereunder, (3) the failure by the Executive to
comply with any lawful directive of the Board of Directors or the Chief
Executive Officer of the Company, which failure continues for ten (10) days
after written notice thereof is given to the Executive, (4) a material violation
of any provision of Section 5 of this Agreement by the Executive, (5) the taking
by the Executive of any action on behalf of the Company or any of its
Subsidiaries without the possession by the Executive of the appropriate
authority to take such action (other than as a result of innocent error), (6)
the taking by the Executive of any action that the Executive knows to be in
conflict of interest with the Company or any of its Subsidiaries given the
Executive's position with the Company and its Subsidiaries, or (7) the
usurpation by the Executive of an opportunity that the Executive knows to be a
corporate opportunity of the Company or any of its Subsidiaries; or (B) the
voluntary cessation of employment by the Executive prior to the Expiration Date.
(v) Termination Without Cause. As used herein, "Termination Without Cause"
shall mean any termination of the Executive's employment by the Company
hereunder other than as a result of a Termination For Cause, a Death Termination
Event or a Disability Termination Event.
(b) Death Termination Event. Subject to the provisions of Section 9, this
Agreement shall terminate automatically upon the occurrence of a Death
Termination Event, whereupon (i) the Company will continue to pay to the Estate
the Base Salary, as then in effect, through the Expiration Date, and (ii) all
stock options, shares of restricted stock and other awards granted under or
otherwise subject to the Company Stock Plan then held by the Executive will
fully, immediately and automatically vest and be exercisable as and to the
extent permitted by the Company Stock Plan. In addition, if (i) an Extraordinary
Event occurs within one year after the occurrence of such Death Termination
Event and (ii) a definitive agreement relating to the specific merger,
consolidation, asset sale or other similar transaction (or relating another
substantially similar transaction) which gave rise to such Extraordinary Event
had been executed and delivered by all parties thereto and was in effect at the
time such Death Termination Event occurred, then the Company shall pay to the
Estate, within ten business days after the occurrence of such Extraordinary
Event, all amounts (without duplication) to which the Executive would have been
entitled pursuant to Section 4(b) assuming the Executive had made the election
to convert this Agreement to a consulting agreement pursuant to Section 4(c)
immediately after the occurrence of such Extraordinary Event.
(c) Disability Termination Event. Subject to the provisions of Section 9,
this Agreement shall terminate automatically upon the occurrence of a Disability
Termination Event, whereupon (i) the Company will continue to pay to the
Executive the Base Salary, as then in effect, through the Expiration Date, and
(ii) all stock options, shares of restricted stock and other awards granted
under or otherwise subject to the Company Stock Plan then held by the Executive
will fully, immediately and automatically vest and be exercisable as and to the
extent permitted by the Company Stock Plan. In addition, if (i) an Extraordinary
Event occurs within one year after the occurrence of such Disability Termination
Event and (ii) a definitive agreement relating to the specific merger,
consolidation, asset sale or other similar transaction (or relating another
substantially similar transaction) which gave rise to such Extraordinary Event
had been executed and delivered by all parties thereto and was in effect at the
time such Disability Termination Event occurred, then the Company shall pay to
the Executive, within ten business days after the occurrence of such
Extraordinary Event, all amounts (without duplication) to which the Executive
would have been entitled pursuant to Section 4(b) assuming the Executive had
made the election to convert this Agreement to a consulting agreement pursuant
to Section 4(c) immediately after the occurrence of such Extraordinary Event.
(d) Termination For Cause.
(i) The Executive acknowledges and agrees that the Company shall have the
absolute right to terminate the Executive for any of the reasons enumerated in
Section 6(a)(iii)(A).
(ii) Subject to the provisions of Section 9, this Agreement shall terminate
automatically upon the occurrence of a Termination For Cause, whereupon (A) the
Executive shall not be entitled to receive any additional payments hereunder
other than the Base Salary, as then in effect, to and including the date that
such Termination For Cause occurs, and (B) the Company shall be entitled to any
and all remedies and damages available to it.
(e) Termination Without Cause. Subject to the provisions of Section 9, this
Agreement shall terminate automatically upon the occurrence of a Termination
Without Cause, whereupon (i) the Company shall: (1) continue to pay the Base
Salary, as then in effect, to the Executive until the Expiration Date, in the
same manner and at the same times as such Base Salary would have otherwise been
payable to the Executive had this Agreement not been terminated; (2) within 90
days of the occurrence of such Termination Without Cause, pay to the Executive
an amount in cash equal to two times the amount of Bonus paid to the Executive
in respect of the fiscal year of the Company immediately preceding the year in
which such Termination Without Cause occurs; and (3) continue to provide health,
life and, to the extent permissible under the applicable plans, disability
insurance benefits to the Executive until the Expiration Date, which benefits
shall not at any time be less favorable than those which the Executive would
have received had he continued to be employed by the Company at such time
pursuant to this Agreement; provided, however, that if the Executive should
subsequently obtain employment from any source which provides such insurance
benefits to Executive at no out-of-pocket cost to him, then the benefits to be
provided to the Executive under this clause (3) shall be appropriately reduced
for so long as such subsequent employment continues and the Executive continues
to receive such benefits from such subsequent employer; and (ii) all stock
options, shares of restricted stock and other awards granted under or otherwise
subject to the Company Stock Plan then held by the Executive will fully,
immediately and automatically vest and be exercisable as and to the extent
permitted by the Company Stock Plan. In addition, if (i) an Extraordinary Event
occurs within one year after the occurrence of such Termination Without Cause
and (ii) a definitive agreement relating to the specific merger, consolidation,
asset sale or other similar transaction (or relating another substantially
similar transaction) which gave rise to such Extraordinary Event had been
executed and delivered by all parties thereto and was in effect at the time such
Termination Without Cause, then the Company shall pay to the Executive, within
ten business days after the occurrence of such Extraordinary Event, all amounts
(without duplication) to which the Executive would have been entitled pursuant
to Section 4(b) assuming the Executive had made the election to convert this
Agreement to a consulting agreement pursuant to Section 4(c) immediately after
the occurrence of such Extraordinary Event.
Section 8. Withholding. The Company shall be entitled to withhold from
amounts payable to the Executive hereunder such amounts as may be required by
applicable law to be so withheld.
Section 9. Survival. Notwithstanding anything in this Agreement to the
contrary, the provisions of Sections 3 through 18 (inclusive) of this Agreement
shall survive any termination of this Agreement or cessation of the Executive's
employment hereunder through the later of (i) the Expiration Date or (ii) the
applicable period stated therein.
Section 10. Entire Agreement; Modification; Waiver. This Agreement sets
forth the entire understanding of the parties hereto with respect to the subject
matter hereof and supersedes all existing agreements between the parties
concerning such subject matter. This Agreement may be modified (or the
application of any provision hereof waived) only by a written instrument duly
executed by the party charged therewith.
Section 11. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or otherwise delivered against
receipt, to the party to whom it is to be given, at the address of such party
set forth in the preamble to this Agreement (or to such other address as such
party shall have furnished in writing in accordance with the provisions of this
Section 11). Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
Section 12. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that provision or any other
provision of this Agreement. Any waiver must be in writing and signed by the
party charged therewith.
Section 13. Binding Effect. The Executive's rights and obligations under
this Agreement are not transferable by assignment or otherwise, such rights
shall not be subject to commutation, encumbrance or the claims of the
Executive's creditors, and any attempt to do any of the foregoing shall be void
and of no effect. The provisions of this Agreement shall be binding upon and
inure to the benefit of the Executive and his heirs and personal
representatives, and shall be binding upon and inure to the benefit of the
Company and its successors.
Section 14. Headings. The headings in this Agreement are solely for
convenience of reference, and shall be given no effect in the construction or
interpretation of this Agreement.
Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
reference to any otherwise applicable conflict of law provisions.
Section 16. Construction and Interpretation. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party which itself, or through its agent, prepared the same, and it is
expressly agreed and acknowledged that the Executive, the Company and their
respective attorneys and representatives have participated in the preparation
hereof. No provision of this Agreement shall be interpreted in favor of, or
against, any party hereto by reason of the extent to which such party or its
counsel participated in the drafting hereof or by reason of the extent to which
any such provision is inconsistent with any prior draft hereof.
Section 17. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ANY AND ALL RIGHTS IT
MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT OR ANY DEALING BETWEEN OR AMONG THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIPS HEREIN ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS
AGREEMENT, AND THAT EACH PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THE
RELATED FUTURE DEALINGS BETWEEN THE PARTIES. EACH PARTY HERETO FURTHER
REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
SUCH CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO THE TRIAL BY THE COURT.
Section 18. Available Remedies. The Executive acknowledges and agrees that
the Executive's employment hereunder was granted by the Company primarily in
reliance upon the covenants, agreements, duties, obligations and assurances of
the Executive contained herein, and in the event of a breach of any such
covenant, agreement, duty, obligation or assurance of the Executive, including a
voluntary cessation by Executive of his employment hereunder prior to the
Expiration Date, (i) the Company and its Subsidiaries, including their
respective businesses and properties, would suffer irreparable damage for which
money damages alone would not adequately compensate the Company, and (ii) the
Company shall be entitled, in addition to any other remedies and damages
available to it, to obtain injunctive relief in the form of a temporary
injunction, permanent injunction, restraining order or other comparable remedies
in order to prevent or cease the violation of such covenant, agreement, duty,
obligation or assurance.
Section 19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each party hereto, intending to be legally bound, has
duly executed this Agreement as of the date first written above.
INSIGNIA/ESG HOLDINGS, INC.
By: /s/Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chief Executive Officer
EXECUTIVE
Xxxx X. Xxxxxxx
