Exhibit 10.1
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EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 25,
2004, by and between XXXXXXXX'X INC., a Delaware corporation (the "Company"),
and XXXXXXX X. XXXXXXXXXX, an individual residing in the State of California
(the "Executive").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company desires to secure the services and employment
of the Executive on behalf of the Company and its subsidiaries and affiliates,
and the Executive desires to enter into such employment with the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto, each intending to be
legally bound hereby, agree as follows:
1. Employment. On the terms and subject to the conditions set forth
herein, the Company hereby agrees to employ the Executive as the Chief
Financial Officer of the Company, and the Executive hereby agrees to accept
such employment, for the Employment Term (as defined in Section 3). During the
Employment Term, the Executive shall serve as the Chief Financial Officer of
the Company and shall report to the Chief Executive Officer of the Company and
the Board of Directors of the Company (the "Board"), and shall have such
responsibilities, duties and authority as are generally consistent and
customary with the position of Chief Financial Officer, subject to the
oversight of the Chief Executive Officer and the Board, and shall have such
other powers and perform such other duties as may from time to time be assigned
to him by the Chief Executive Officer and the Board. If requested, the
Executive shall serve as an executive, officer and/or director of the Company's
subsidiaries without additional compensation.
2. Performance; Place of Employment. The Executive will serve the
Company faithfully and to the best of his ability and will devote his full
business time, energy, experience and talents to the business of the Company
and its subsidiaries and affiliates; provided, however, that it shall not be a
violation of this Agreement for the Executive to (a) manage his personal
investments, (b) with the prior consent of the Board (not to be unreasonably
withheld or conditioned) serve on for-profit corporate boards, other than those
of the Company and its subsidiaries, or, (c) with prior notice to the Board, to
serve on industry, civic, community, charitable, educational, or religious
boards so long, in the case of clause (b) and (c), as such service does not
interfere with the Executive's performance of his duties hereunder. The
Executive will maintain his principal office, and his principal place of work
shall be, at the Company's primary executive offices in Savannah, Georgia.
3. Employment Term. Subject to earlier termination pursuant to
Section 6, the term of employment of the Executive hereunder shall begin on
November 2, 2004 (the "Commencement Date"), and shall continue through the date
which is two (2) years following the Commencement Date (the "Initial Term");
provided, however, that upon the failure of the Company to give timely notice
of non-renewal, such term of employment shall be automatically extended by an
additional one (1) year beyond the end of the then-current term, unless, at
least one hundred twenty (120) days before the expiration of the Initial Term,
or one hundred twenty (120) days before any such subsequent anniversary
thereof, as the case may be, the Company gives notice to the Executive that the
Company does not desire to extend the term of this Agreement, in which case the
term of employment hereunder shall terminate as of the end of the Initial Term
or the end of the then-current one-year extension term, as applicable (the term
of employment hereunder, including any extensions, in accordance with this
Section 3, shall be referred to herein as the "Employment Term").
4. Compensation and Benefits.
(a) Base Salary. As compensation for his services hereunder and
in consideration of the Executive's other agreements hereunder, during the
Employment Term, the Company shall pay the Executive a base salary, payable in
equal installments in accordance with the Company's payroll procedures, at an
annual rate of Three Hundred Thousand Dollars ($300,000), subject to annual
review by the Board (which amount shall not be decreased except upon mutual
consent of the Executive and the Company).
(b) Signing Bonus. In consideration of the Executive's
agreements hereunder, the Company shall pay the Executive a signing bonus of
One Hundred Thousand Dollars ($100,000), payable as follows: Twenty Thousand
Dollars ($20,000) on the date of execution of this Agreement, and Twenty
Thousand Dollars ($20,000) on each of November 30, 2004, December 31, 2004,
January 30, 2005, and February 29, 2005.
(c) Annual Incentive Bonus; Stock Options. (1) During the
Employment Term, the Executive shall be entitled to participate in the
Company's incentive bonus plan (comprised of a cash and stock component), the
terms and conditions of which shall be determined by the Board or a committee
thereof. Such incentive bonus will have a target amount of forty percent (40%)
of the Executive's annual base salary and may be up to seventy-five percent
(75%) of the Executive's annual base salary, at the rate of base salary in
effect in accordance with Section 4(a) during the period with respect to which
such bonus is payable, if all performance targets are fully satisfied at the
highest level.
(2) The Executive shall also be entitled to participate in the
stock option plan established by the Company, pursuant to which the Executive
shall receive options, granted on the date of execution of this Agreement at
the market price of the Company's stock at the close of business on the date
immediately preceding execution of this Agreement, to purchase an aggregate of
one hundred thousand (100,000) shares of Class A Common Stock of the Company,
with twenty thousand (20,000) shares vesting immediately and twenty thousand
(20,000) vesting annually, on the anniversary date of this Agreement, over the
next four years. All such options shall be accelerated and vest immediately
upon a Change of Control (as defined below), upon the Executive's death or
disability, upon termination of employment by the Company for other than Cause,
as hereinafter defined, or upon termination by the Executive for Good Reason,
as hereinafter defined. Upon such cessation of the Executive's employment, the
Executive shall have not less than one hundred twenty (120) days to exercise or
forfeit such fully vested option shares; provided, however, that the Executive
shall have not less than one (1) year in the event such cessation is as a
result of the Executive's death or disability.
(d) Retirement, Medical, Dental and Other Benefits. During the
Employment Term, the Executive shall, in accordance with the terms and
conditions of the applicable plan documents and all applicable laws, be
eligible to participate in the various retirement, medical, dental and other
employee benefit plans made available by the Company, from time to time, for
its senior executive officers.
(e) Vacation; Sick Leave. During the Employment Term, the
Executive shall be entitled to four (4) weeks of vacation per year, and to sick
leave in accordance with the Company's policies and practices with respect to
its senior executive officers.
(f) Expenses. The Executive shall be reimbursed by the Company
for all reasonable business expenses, including travel costs, actually incurred
by him in connection with the performance of his duties hereunder in accordance
with policies established by the Company from time to time and upon receipt by
the Company of appropriate documentation. In addition, the Company shall
reimburse the Executive for reasonable housing expenses and travel to and from
Savannah, Georgia and the Executive's primary residence in Newbury Park,
California. The Company further agrees that reasonable moving and relocation
expenses as incurred by the Executive will be paid by the Company.
(g) Indemnification; D&O Insurance. The Company shall indemnify
the Executive for any liability he incurs arising from his actions within the
scope and course of his employment hereunder in accordance with the form of
Indemnity Agreement to be executed herewith and to be applicable during the
term hereof and the Company's Certificate of Incorporation and By-laws,
provided that (i) the Executive conducted himself in good faith, and (ii) the
Executive reasonably believed that his actions were in the best interests of
the Company. During the Employment Term, the Company shall maintain a
directors' and officers' liability insurance policy covering the Executive in
an amount and on terms customary for similarly situated companies and with
coverage and on other terms reasonably determined by the Board.
(h) Automobile. The Company shall pay to the Executive a car
allowance of Five Hundred Dollars ($500) per month and shall promptly reimburse
the Executive for any expenses incurred by the Executive to maintain the car.
(i) Services Furnished. The Company shall furnish the Executive
with office space, secretarial and/or administrative assistance, office
supplies, support services and such other facilities and services as shall be
suitable to the Executive's position and adequate for the performance of his
duties hereunder.
5. Covenants of the Executive. The Executive acknowledges that
in the course of his employment with the Company he has and will become
familiar with the Company's and its subsidiaries' and affiliates' trade secrets
and with other confidential information concerning the Company and its
subsidiaries and affiliates, and that his services are of special, unique and
extraordinary value to the Company and its subsidiaries and affiliates.
Therefore, the Company and the Executive mutually agree that it is in the
interest of both parties for the Executive to enter into the restrictive
covenants set forth in this Section 5 and that such restrictions and covenants
are reasonable given the nature of the Executive's duties and the nature of the
Company's business.
(a) Noncompetition. During the Employment Term and for eighteen
(18) months thereafter following termination of the Employment Term, the
Executive shall not, within any jurisdiction or marketing area in which the
Company or any of its subsidiaries or affiliates is doing business during the
Executive's employment or as of the date of termination (as applicable),
directly or indirectly, own, manage, operate, control, be employed by or
participate in the ownership, management, operation or control of, or be
connected in any manner with, any business substantially of the type and
character engaged in or competitive with that conducted by the Company or any
of its subsidiaries or affiliates; provided, that the Executive's ownership of
securities of up to two percent (2%) or less of any class of securities of a
public company shall not, by itself, be considered to be competition with the
Company or any of its subsidiaries or affiliates.
(b) Nonsolicitation. During the Employment Term and for twelve
(12) months following termination of the Employment Term, the Executive shall
not, directly or indirectly, (i) employ, solicit for employment or otherwise
contract for the services of any individual who is or was (within one hundred
eighty (180) days of the termination date) an employee of the Company or any of
its subsidiaries or affiliates; (ii) otherwise induce or attempt to induce any
employee of the Company or its subsidiaries or affiliates to leave the employ
of the Company or such subsidiary or affiliate, or in any way knowingly
interfere with the relationship between the Company or any such subsidiary or
affiliate and any employee respectively thereof; or (iii) solicit or attempt to
solicit any client, customer, supplier, licensee or other business relation of
the Company or any subsidiary or affiliate of the Company or induce any such
client, customer, supplier, licensee or business relation to cease doing
business with the Company or such subsidiary or affiliate, or interfere in any
way with the relationship between any such client, customer, supplier, licensee
or business relation and the Company or any subsidiary or affiliate thereof.
(c) Nondisclosure; Inventions. For the Employment Term and
thereafter, (i) the Executive shall not divulge, transmit or otherwise disclose
(except as legally compelled by court order, and then only to the extent
required, after prompt notice to the Board of any such order), directly or
indirectly, other than in the regular and proper course of business of the
Company and its subsidiaries, any customer lists, trade secrets or other
confidential knowledge or information with respect to the operations or
finances of the Company or any of its subsidiaries or affiliates or with
respect to confidential or secret processes, services, techniques, customers or
plans with respect to the Company or its subsidiaries or affiliates (all of the
foregoing collectively hereinafter referred to as, "Confidential Information"),
and (ii) the Executive will not use, directly or indirectly, any Confidential
Information for the benefit of anyone other than the Company and its
subsidiaries or affiliates; provided, however, that the Executive has no
obligation, express or implied, to refrain from using or disclosing to others
any such knowledge or information which is or hereafter shall become available
to the general public other than through disclosure by the Executive. All
Confidential Information, new processes, techniques, know-how, methods,
inventions, plans, products, patents and devices developed, made or invented by
the Executive, alone or with others, while an employee of the Company which are
related to the business of the Company and its subsidiaries and affiliates
shall be and become the sole property of the Company, unless released in
writing by the Board, and the Executive hereby assigns any and all rights
therein or thereto to the Company.
(d) Nondisparagement. During the Employment Term and thereafter,
neither the Company nor the Executive shall take any action to disparage or
publicly criticize one another (including their respective affiliates,
employees, officers, directors or owners). Nothing contained in this Section
5(d) shall preclude the Executive from enforcing his rights under this
Agreement.
(e) Return of Company Property. All Confidential Information,
files, records, correspondence, memoranda, notes or other documents (including,
without limitation, those in computer-readable form) or property relating or
belonging to the Company or its subsidiaries or affiliates, whether prepared by
the Executive or otherwise coming into his possession in the course of the
performance of his services under this Agreement, shall be the exclusive
property of the Company and shall be delivered to the Company, and not retained
by the Executive (including, without limitation, any copies thereof), promptly
upon request by the Company and, in any event, promptly upon termination of the
Employment Term.
(f) Enforcement. The Executive acknowledges that a breach of his
covenants contained in this Section 5 may cause irreparable damage to the
Company and its subsidiaries and affiliates, the exact amount of which would be
difficult to ascertain, and that the remedies at law for any such breach or
threatened breach would be inadequate. Accordingly, the Executive agrees that
if he breaches or threatens to breach any of the covenants contained in this
Section 5, in addition to any other remedy which may be available at law, the
Company and its subsidiaries and affiliates shall be entitled to specific
performance and injunctive relief to prevent the breach or any threatened
breach thereof without bond or other security or a showing that monetary
damages will not provide an adequate remedy.
(g) Scope of Covenants. The Company and the Executive further
acknowledge that the time, scope, geographic area and other provisions of this
Section 5 have been specifically negotiated by sophisticated commercial parties
and agree that they consider the restrictions and covenants contained in this
Section 5 to be reasonable and necessary for the protection of the interests of
the Company and its subsidiaries and affiliates, but if any such restriction or
covenant shall be held by any court of competent jurisdiction to be void but
would be valid if deleted in part or reduced in application, such restriction
or covenant shall apply with such deletion or modification as may be necessary
to make it valid and enforceable. The restrictions and covenants contained in
each paragraph of this Section 5 shall be construed as separate and individual
restrictions and covenants and shall each be capable of being severed without
prejudice to the other restrictions and covenants or to the remaining
provisions of this Agreement.
6. Termination. The employment of the Executive hereunder shall
automatically terminate at the end of the Employment Term. The employment of
the Executive hereunder and the Employment Term may also be terminated at any
time by the Company with or without Cause. For purposes of this Agreement,
"Cause" shall mean: (i) embezzlement, theft or misappropriation by the
Executive of any property of the Company or its subsidiaries or affiliates;
(ii) any breach by the Executive of the Executive's covenants under Section 5;
(iii) any breach by the Executive of any other material provision of this
Agreement which breach is not cured, to the extent susceptible to cure, within
fourteen (14) days after the Company has given notice to the Executive
describing such breach; (iv) misconduct in the discharge of the Executive's
duties (after receiving written notice from the Board specifying the manner in
which he is alleged to have failed properly to discharge his duties and having
had the opportunity to cure such failure within thirty (30) days from receipt
of such notice); (v) any act by the Executive constituting a felony or
otherwise involving theft, fraud, dishonesty or misrepresentation; (vi) the
Executive's breach of his fiduciary obligations to the Company or its parent or
subsidiaries; or (vii) any chemical or alcohol dependence by the Executive
which adversely affects the performance of his duties and responsibilities to
the Company or its parent or subsidiaries. If, after the expiration of any
applicable cure period, the Company asserts that grounds exist for termination
with Cause, it shall so notify the Executive and within fifteen (15) days shall
afford the Executive a hearing before the Board regarding any disputed facts.
The Board shall make a determination regarding the existence of "Cause" upon
completion of such hearing; provided, however, that any determination that
Cause exists shall require the affirmative vote of two-thirds of the Directors
other than the Executive. If any such determination remains pending after such
fifteen (15) day period, the Company shall be entitled to suspend (with pay and
benefits) the Executive's duties pending determination of the existence of
Cause. Any determination or decision as to "Cause" must be made in good faith
and must be reasonable given the relevant facts and circumstances. The
employment of the Executive may also be terminated at any time by the Executive
by notice of resignation delivered to the Company not less than ninety (90)
days prior to the effective date of such resignation.
7. Severance. (a) If the Executive's employment hereunder is
terminated during the Employment Term (1) by the Company other than for Cause
and not due to disability (as determined in good faith and consistent with the
Company's long term disability policy) or death, (2) by the Executive for Good
Reason (as defined in paragraph (b) of this Section 7), or (3) upon non-renewal
by the Company, the Executive shall be entitled to receive as severance, and
the Company shall pay, an amount equal to two (2) times the sum of (x) the
Executive's then current annual salary and (y) the greater of (i) the
Executive's most recent annual incentive bonuses and (ii) the arithmetic mean
of the Executive's annual incentive bonuses for the two (2) most recent years,
payable in a lump sum on the eighth day after the date the Executive signs the
release referenced below in favor of the Company and its subsidiaries. In
addition, in the event that the Executive's employment is terminated other than
for Cause or death, or in the event that the Executive terminates his
employment for Good Reason, as defined herein, the Executive shall be entitled
to continued healthcare coverage equivalent to the coverage received while
employed by the Company, for a period of one (1) year from the date of
termination or until the Executive receives coverage from a subsequent
employer, whichever event occurs sooner; provided, however, that, thereafter,
he shall be entitled to elect to continue his health benefits pursuant to
Section 4980B of the Internal Revenue Code of 1986, as amended ("COBRA"). If
the Executive's employment is terminated otherwise than as described in this
Section 7, the Executive shall not be entitled to any severance, termination
pay or similar compensation or benefits. As a condition of receiving any
severance for which he otherwise qualifies under this Section 7, the Executive
agrees to execute, deliver and not revoke (within the time period permitted by
applicable law) a general release of the Company and its subsidiaries and
affiliates and their respective officers, directors, employees and owners from
any and all claims, obligations and liabilities of any kind whatsoever arising
from or in connection with the Executive's employment or termination of
employment with the Company or this Agreement (including, without limitation,
civil rights claims), in such form as is attached hereto as Exhibit A. The
Executive acknowledges and agrees that, except as specifically described in
this Section 7, all of the Executive's rights to any compensation (other than
base salary earned through the date of termination of employment), benefits,
bonuses or severance from the Company or its subsidiaries or affiliates after
termination of the Employment Term shall cease upon such termination.
(b) For purposes of this Agreement, "Good Reason" shall mean the
occurrence, without the Executive's consent, of any of the following events
(without the Executive's express written consent): (i) a reduction by the
Company in the Executive's base salary stated in Section 4(a) or a reduction in
the target bonus stated in Section 4(c), (ii) a diminution in the Executive's
duties with respect to the Company, or (iii) any material breach of this
Agreement by the Company. For the avoidance of doubt, termination by the
Executive for Good Reason is conditioned on the Executive's delivery of a
written notice of resignation delivered to the Company not less than thirty
(30) days prior to the effective date of such resignation, as set forth in
Section 6.
8. Change In Control. (a) Within twelve (12) months after a
Change in Control (as defined in paragraph (b) of this Section 8), the Company
may, on ninety (90) business days' prior notice to the Executive, terminate the
Employment Term. In such circumstances, except where the Company has previously
issued a notice of termination for Cause pursuant to Section 7 or the
Employment Term is terminated by reason of the Executive's death or disability,
the Company shall: (i) pay to the Executive an amount equal to three hundred
percent (300%) of the Executive's last year's base salary and annual incentive
bonus as in effect on the date of the Executive's termination of employment
(payable, at the Company's option, in a lump-sum). The payments set forth in
this Section 8 are hereinafter referred to as the "Change in Control
Severance". Payment of the Change in Control Severance shall be subject to the
following conditions: (i) as a condition precedent to any such Change in
Control Severance, the Executive agrees to execute, deliver and not revoke
(within the time period permitted by applicable law) a general release of the
Company and its subsidiaries and affiliates and their respective officers,
directors, employees and owners in the form of Exhibit A hereto.
(b) For purposes of this Agreement, "Change in Control" shall
mean: (i) the acquisition by any person or group of persons (as such term is
defined in Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of
1934, as amended to date) of shares carrying more than fifty percent (50%) of
the voting rights at general meetings of the Company, (ii) the shareholders of
the Company approve a merger or consolidation of the Company with any other
company, other than (x) a merger or consolidation which actually results in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than fifty percent (50%)
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(y) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person or group of persons
acquires more than fifty percent (50%) of the combined voting power of the
Company's then outstanding securities, or (iii) the shareholders of the Company
approve a plan of complete liquidation of the Company or an arrangement for the
sale or disposition of the Company or all or substantially all of the Company's
overall assets or any transaction having a similar effect; provided, that no
Change of Control shall be deemed to result from any corporate changes to the
Company's certificate of incorporation or by-laws at the Company not resulting
from one of the events specified above or from any change in the relative
rights and powers of one or more classes of the Company's capital stock whether
effected by contract or otherwise, in each case to the extent that they result
from or are related to the settlement of any criminal or civil litigation or do
not result in the occurrence of any of the events specified in clauses (i)
through (iii) of this definition.
(c) The amounts payable pursuant to this Section 8 shall be in
lieu of any other severance payments (including, but not limited to that
provided for in Section 7 above) to which the Executive may be entitled on
termination of the Employment Term, and the Executive acknowledges that he
shall not, thereupon, be entitled to payment of severance pursuant to the
Company's severance plans, policies or practices in effect on the date of this
Agreement or in effect from time to time. Notwithstanding the foregoing, all
unvested options shall vest and any restrictions on restricted stock, if
applicable, shall lapse upon a Change of Control.
(d) To the extent that the amount of any payments under this
Section 8, or any other payment in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
(the "Code")), to or for the benefit of the Executive, whether paid or payable
pursuant to this Agreement or otherwise by the Company (the "Payments"), are
subject to the excise tax provisions of Section 4999 of the Code, the Company
shall pay the Executive a tax equalization payment ("Tax Equalization Payment")
in accordance with this Section 8(d), in addition to the payments otherwise
payable under this Section 8. The Tax Equalization Payment shall be in an
amount that when added to the Payments will place the Executive in the same
after-tax (including, without limitation, income taxes, excise taxes, and any
interest and penalties imposed with respect thereto) position as if the excise
tax penalty of Section 4999 of the Code, did not apply to any of the Payments.
The amount of this Tax Equalization Payment shall be determined by the
Company's independent accountants and shall be remitted to the applicable
United States federal, state and local tax jurisdictions. All fees of the
accounting firm for such determination shall be borne by the Company. The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of a Tax Equalization Payment (as an additional Tax Equalization Payment). The
Executive shall cooperate with the Company to determine whether, and how, to
contest such claim. The Company shall bear and pay directly all costs and
expenses (including additional taxes, interest and penalties) incurred in
connection with such claim and/or contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for excise tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such claim and/or contest and payment of costs and expenses.
9. Notice. Any notices required or permitted hereunder shall be
in writing and shall be deemed to have been given when personally delivered or
when mailed, certified or registered mail, or sent by reputable overnight
courier, postage prepaid, to the addresses set forth as follows:
If to the Company: Xxxxxxxx'x Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
If to the Executive: Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
or to such other address as shall be furnished in writing by either party to
the other party; provided that such notice or change in address shall be
effective only when actually received by the other party.
10. General.
(a) Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
New York applicable to contracts executed and to be performed entirely within
said State.
(b) Jurisdiction. Any judicial proceeding brought against the
Executive regarding any dispute arising out of this Agreement or any matter
related hereto may be brought in the courts of the State of Georgia, or in any
United States District Court sitting in Georgia, and, by execution and delivery
of this Agreement, the Executive accepts the exclusive jurisdiction of such
courts. The Executive hereby agrees that service of any process, summons,
notice or document by U.S. registered mail addressed to the Executive shall be
effective service of process for any action, suit or proceeding brought against
the Executive in any such court. The Executive hereby irrevocably and
unconditionally waives any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. The Executive agrees that a final judgment in any such
suit, action or proceeding brought in any such court shall be conclusive and
binding upon the Executive and may be enforced in any other courts to whose
jurisdiction the Executive is or may be subject, by suit upon such judgment.
(c) Construction and Severability. If any provision of this
Agreement shall be held invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired, and the parties undertake
to implement all efforts which are necessary, desirable and sufficient to
amend, supplement or substitute all and any such invalid, illegal or
unenforceable provisions with enforceable and valid provisions which would
produce as nearly as may be possible the result previously intended by the
parties without renegotiation of any material terms and conditions stipulated
herein.
(d) Assignability. The Executive may not assign his interest in
or delegate his duties under this Agreement. This Agreement is for the
employment of the Executive, personally, and the services to be rendered by him
under this Agreement must be rendered by him and no other person. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the Company and its successors and assigns. Without limiting the foregoing
and notwithstanding anything else in this Agreement to the contrary, the
Company may assign this Agreement to, and all rights hereunder shall inure to
the benefit of, any subsidiary of the Company or any person, firm or
corporation resulting from the reorganization of the Company or succeeding to
the business or assets of the Company by purchase, merger, consolidation or
otherwise.
(e) Warranty by the Executive. The Executive represents and
warrants to the Company that the Executive is not subject to any contract,
agreement, judgment, order or decree of any kind, or any restrictive agreement
of any character, that restricts the Executive's ability to perform his
obligations under this Agreement or that would be breached by the Executive
upon his performance of his duties pursuant to this Agreement.
(f) Compliance with Rules and Policies. The Executive shall
perform all services in accordance with the policies, procedures and rules
established by the Company and the Board. In addition, the Executive shall
comply with all laws, rules and regulations that are generally applicable to
the Company or its subsidiaries and their respective employees, directors and
officers.
(g) Withholding Taxes. All amounts payable hereunder shall be
subject to the withholding of all applicable taxes and deductions required by
any applicable law.
(h) Entire Agreement; Modification. This Agreement constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof, supersedes all prior agreements and undertakings, both written and
oral, and may not be modified or amended in any way except in writing by the
parties hereto.
(i) Duration. Notwithstanding the Employment Term hereunder,
this Agreement shall continue for so long as any obligations remain under this
Agreement.
(j) Survival. The covenants set forth in Section 5 of this
Agreement shall survive and shall continue to be binding upon the Executive
notwithstanding the termination of this Agreement for any reason whatsoever.
(k) Waiver. No waiver by either party hereto of any of the
requirements imposed by this Agreement on, or any breach of any condition or
provision of this Agreement to be performed by, the other party shall be deemed
a waiver of a similar or dissimilar requirement, provision or condition of this
Agreement at the same or any prior or subsequent time. Any such waiver shall be
express and in writing, and there shall be no waiver by conduct. Pursuit by
either party of any available remedy, either in law or equity, or any action of
any kind, does not constitute waiver of any other remedy or action. Such
remedies are cumulative and not exclusive.
(l) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
(m) Section References. The words Section and paragraph herein
shall refer to provisions of this Agreement unless expressly indicated
otherwise.
* * *
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have hereunto executed this Agreement as of the day and year
first written above.
XXXXXXXX'X INC.
Date: 10/27/04 By: /s/ C. Xxxxxx Xxxxx
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Name:
Title:
Date: 10/25/04 /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Exhibit A
GENERAL RELEASE
I, XXXXXXX X. XXXXXXXXXX, for myself, my successors, administrators,
heirs and assigns, hereby fully release, waive and forever discharge XXXXXXXX'X
INC. and each of its predecessors, successors, subsidiaries and affiliated and
parent companies (collectively, the "Company"), and, in such capacities, all of
the shareholders, directors, officers, attorneys, employees, assigns and
owners, whether past, present or future, respectively, of, and any other person
or entity connected with, any of the foregoing (the "Released Parties") from
any and all administrative claims, actions, suits, debts, demands, damages,
claims, judgments, and/or liabilities of any nature, including costs,
attorneys' fees and expenses, whether known or unknown, arising out of my
employment with or separation from the Company, such as (by way of example
only) any claims for compensation, bonus, severance, or other benefits, claims
for breach of contract, wrongful discharge, workers' compensation benefits,
tort claims (e.g., infliction of emotional distress, defamation, negligence,
privacy, fraud, misrepresentation), claims under federal, state, and local wage
and hour laws and wage payment laws, claims for reimbursements; and/or claims
under the following, in each case as amended: (1) Title VII of the Civil Rights
Act of 1964 (race, color, religion, sex and national origin discrimination);
(2) 42 U.S.C. ss. 1981 (discrimination); (3) 29 U.S.C. ss. 206(d)(1) (equal
pay); (4) Executive Order 11246 (race, color, religion, sex and national origin
discrimination); (5) Age Discrimination in Employment Act ("ADEA") and
Executive Order 11141 (age discrimination); (6) the Americans with Disabilities
Act of 1990, 42 U.S.C. ss. 12101, et seq.; (7) the Family and Medical Leave
Act; (8) the Immigration Reform and Control Act; (9) the Employee Retirement
Income Security Act of 1974, 29 U.S.C. ss. 1001 et seq.; (10) the Vietnam Era
Veterans Readjustment Assistance Act; (11) xx.xx. 503-504 of the Rehabilitation
Act of 1973 (handicap discrimination); and/or (12) any other claims under any
other state, federal, local, non-U.S. law, statute, regulation, or common law
or claims at equity relating to conduct or events occurring prior to the date
on which this General Release is fully executed, with regard to my employment
with the Company and the termination thereof.
This General Release shall not extend to or include any matter,
occurrence or event occurring after the execution of this General Release or
the following: (a) any rights or obligations under applicable law which cannot
be waived or released pursuant to an agreement, (b) any rights to payments or
benefits under Sections 7 and 8 of the Employment Agreement, dated as of
October [_], 2004, by and between the Company and myself (as amended or
supplemented through the date hereof, the "Agreement") to which I am entitled,
(c) my rights of indemnification and directors and officers liability insurance
coverage to which I may be entitled with regard to my service as an officer or
director of the Company, including, without limitation, as set forth in Section
4(g) of the Agreement and in my Indemnification Agreement with the Company; (d)
my rights with regard to accrued benefits under any employee benefit plan,
policy or arrangement maintained by the Company or under COBRA; (e) my rights
under the provisions of the Agreement that are intended to survive my
termination of employment; and (f) my rights as a stockholder. I represent and
warrant that, as of the date of my execution of this General Release, I have
not assigned or transferred any claims of any nature I would otherwise have
against the Company, its successors or assigns.
By signing this General Release, I acknowledge that:
(i) I have read and fully understand the terms of this
General Release and have had the opportunity to negotiate its terms;
(ii) I have been advised and urged to consult with my
attorneys concerning the terms of this General Release, and that I
have done so to the extent I deem necessary;
(iii) I have agreed to this General Release knowingly and
voluntarily;
(iv) I have been given twenty-one (21) days to consider this
General Release, and acknowledge that in the event that I execute this
General Release prior to the expiration of the twenty-one (21) day
period, I hereby waive the balance of said period;
(v) I will have seven (7) days following the execution of
this General Release to revoke this General Release and this General
Release shall not become effective or enforceable until the revocation
period has expired. Any revocation within this seven (7) day period
must be submitted in writing and personally delivered, or mailed to
[Name, Address] and postmarked, within seven (7) days of my execution
of this General Release. No payments or benefits provided for in
Sections 7 and 8 of the Agreement shall be paid or provided until
after the seven (7) day period has expired and the General Release has
become effective. If this General Release is revoked by me then I
shall forfeit the payments and benefits set forth in Sections 7 and 8
of the Agreement, and the Company shall not be required to provide any
such payment or other consideration; and
(vi) I have agreed that no provision of this General Release
may be modified, changed, waived or discharged unless such waiver,
modification, change or discharge is agreed to in writing and signed
by the Company and me.
____________________________
XXXXXXX X. XXXXXXXXXX
Dated: _____________________
Sworn to before me this
day of , 20__.
___________________________
Notary Public
