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Exhibit 10.13
SERVICES AGREEMENT
This AGREEMENT (this "Agreement") is made, entered into and executed as of this
1st day of February, 1995, between CEDAR GROUP, INC., a Delaware corporation
(the "Company"), and XXXXXX X. XXXXXXXXX, an individual resident in the
Province of Quebec, or companies controlled by him, (referred to herein as the
"Executive").
WHEREAS, the Company considers it essential and in the best interest of its
stockholders to retain the services of Executive on the terms and conditions
provided in this Agreement;
AND WHEREAS, Executive desires to render services to the Company on the terms
and conditions provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and agreements herein contained, the Company and Executive hereby agree as
follows:
1. Engagement
1.1 Engagement. The Company hereby agrees to engage Executive for
the Term (as hereinafter defined) as Chairman of the Board and Chief Executive
Officer, subject to the direction of the Company's Board of Directors (the
"Board") and in connection therewith, to perform such duties as he shall
reasonably be directed by the Board to perform. In performing such duties
hereunder, Executive shall comply with the policies and procedures as adopted
from time to time by the Board, shall give the Company the benefit of his
special knowledge, skills, contacts and business experience and shall be just
and faithful in the performance of his duties. One of these policies shall be
the availability of the Executive during the preparation and finalization
period for any quarterly financial statement (Form 10-Q)" or year end financial
statement (Form 10-K).
Notwithstanding any provision to the contrary herein, the
Executive agrees that if he is not available during these periods for the
finalization of the quarterly or annual financial statements then the Board or
the CEO may, in its (or his) sole discretion, reduce the annual base
compensation, bonuses and stock options that may be exercised by the Executive
pursuant to the terms of this Agreement.
1.2 Other Office. The Executive may, with the approval of the
Board, from time to time, serve, or continue to serve, and hold any other
offices or positions in, companies or organizations, which, in the Board's
judgment, will not present any conflict of interest with the Company or any of
its affiliates or divisions, or adversely affect the performance of Executive's
duties pursuant to this Agreement.
1.3 Location. The principal location for performance of
Executive's services hereunder shall be in Montreal, Quebec, subject to
reasonable travel requirements during the course of such performance. The
Company will provide accommodations for the Executive during his business
travel on behalf of the Company and pay for the Executive's reasonable travel
and incidental expenses.
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2. Engagement Term
2.1 Term. The Term of the Executive's engagement hereunder (the
"Term") shall commence on the date hereof and shall end on the third
anniversary hereof (the "Initial Term"), unless sooner terminated as provided
herein; provided, however that the Term shall be extended and this Agreement
shall be automatically renewed for successive three-year periods unless: (i)
this Agreement is terminated as otherwise provided herein; or (ii) Executive
provides written notice to the Company of his desire not to extend this
Agreement at least ninety (90) days prior to the expiration date of the Term of
this Agreement pursuant to this Section 2.1. Notwithstanding any other
provision to the contrary, if the Company does not renew this Agreement after
the Initial Term, the Executive shall be entitled to receive an additional
minimum amount equal to 12 months of the aggregate base compensation or such
greater amount as may be required by law.
3. Compensation
3.1 Cash Compensation
(a) Base Compensation. During the first year of the
Term, the Company shall pay Executive an aggregate base compensation of U.S.
$360,000.00 payable in equal monthly instalments of U.S. $30,000, inclusive of
any Goods and Services Tax ("GST"). For each annual period after the first
year of the date of this Agreement, the Base Compensation shall be adjusted by
the Compensation Committee of the Board by an amount as the Company and the
Executive may agree upon.
(b) Bonuses. During the Initial Term, Executive will be
eligible to receive a cash bonus ("Bonus") in accordance with, and for each
period (each, a "Payment Year") specified in the Corporate Management Incentive
Plan (the "Plan"). The payment of a Bonus for each Payment Year during the
Initial Term shall be conditioned upon the Company meeting or exceeding the
financial results criteria (the "Targets") as determined by the Board or the
Compensation Committee for its senior executives.
(c) Stock Options. Upon execution and delivery of this
Agreement by the Company and Executive, Executive shall receive an option to
purchase 500,000 shares of Common Stock of the Company. The purchase price for
the shares of Common Stock subject to such option shall be U.S. $4.125 per
share, or such other price as may be agreed upon in writing by the Company and
the Executive. The Executive's options may be transferable to a family trust
and are excercisable at any time during the term.
(d) As a result of an understanding reached between the
Company and the Executive in October, 1993 and in consideration of the
Executive agreeing not to receive any compensation during the fiscal year ended
September 30, 1994, the Company agrees that upon execution and delivery of this
Agreement by the Company and Executive, the Executive shall receive as a bonus
75,000 shares of Common Stock duly registered in the name of the Executive or
as the Executive directs at a deemed price of Cdn.$2.25.
(e) At any time during twelve months from the date of
this agreement, the Executive may acquire an additional up to 75,000 shares of
Common Stock at a price of U.S. $3.25
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per share along with share purchase warrants entitling the Executive to
purchase up to a further 75,000 shares of Common Stock at a price of U.S. $3.75
until March 31, 1995 and U.S. $4.00 at any time after March 31, 1995 and up to
September 30, 1996.
3.2 Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, including all of the
Executive's travel, hotel, meal and other incidental expenses during the
Executive's travel on behalf of the Company. Executive shall keep detailed and
accurate records of expenses incurred in connection with the performance of his
duties hereunder and reimbursement therefor shall be in accordance with
policies and procedures to be established from time to time by the Board.
3.3 Equipment. The Company at its expense will provide Executive
with exclusive use of a mobile telephone, telecopier and photocopier and the
Company will pay all operating and ownership expenses attendant thereto.
3.4 Car Allowance. The Company at its expense, upon approval by
the Compensation Committee, may provide the Executive with a car allowance of
up to CDN $650 per month and reimburse the Executive for his mileage charges at
a maximum of U.S. 25c. per kilometre.
3.5 Fiscal Services. The Company will reimburse the Executive for
fiscal advice and for tax and accounting assistance in filing yearly returns
for himself, up to a maximum yearly amount of U.S. $5,000.
3.6 Insurance. In addition, the Company will maintain in force
and at its expense a life insurance policy of no less than Cdn.$10 million,
with a double indemnity for accidental death, the beneficiary of that life
insurance policy to be the Company for $8 million and the estate of the
Executive for $2 million.
The Company will also maintain in force and at its expense a
Disability Insurance Policy where the proceeds payable to the Executive in case
of disability shall be equal to three quarter of his base compensation as
stipulated in 3.1(a) at the time of the occurrence of the Executive's
disability, and which shall be paid to the Executive on a monthly basis for the
duration of the disability.
3.7 Pension Plan, Benefits. The Executive may avail himself of
the benefits of a Pension Plan and/or Medical and Dental benefits as are
available in the Company or in a subsidiary of Company.
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4. Termination
4.1 General. In addition to the right by the Executive to
terminate this Agreement pursuant to Section 2 hereof, the Company or the
Executive shall have the right to terminate the engagement of Executive as set
forth in this Section 4.
4.2 Termination for Cause. In addition to any other remedies
which the Company may have at law or in equity, the Company may terminate the
Executive's engagement under this Agreement by giving Executive written notice
of such termination upon or at any time following the occurrence of any of the
following events, and each such termination shall constitute a termination for
"cause", provided, however, that Executive has first been given written notice
of the facts or circumstances constituting the determination of "cause" and a
reasonable opportunity (in no event less than 30 days) to cure, rectify or
reverse such facts or circumstances and Executive shall have failed to do so:
(i) any act or failure to act (or
series or combination thereof)
by Executive done with the
intent to harm in any material
respect the interests of the
Company or any affiliate
thereof;
(ii) the commission by Executive of
a felony;
(iii) the perpetration by Executive
of a dishonest act or common
law fraud against the Company
or any affiliate thereof; or
(iv) a grossly negligent act,
insubordination, or failure to
act (or series or combination
thereof) by Executive
detrimental in any material
respect to the interests of the
Company or any affiliate
thereof.
Upon the early termination of Executive's engagement under this
Agreement by the Company for "cause", the Company shall pay to Executive (i) an
amount equal to Executive's Base Compensation accrued through the effective
date of termination at the rate in effect at the time notice of termination is
given, payable at the time such payment is due; (ii) the sum of U.S. $1.00; and
(iii) at the time such payments are due, all other amounts to which Executive
is entitled hereunder (including expense reimbursement amounts to which
Executive is entitled hereunder or amounts under any benefit plan of the
Company, but expressly excluding any Bonus (or portion thereof) in respect of
the fiscal year in which this Agreement is so terminated or any fiscal year of
the Company thereafter).
4.3 Incapacity of Executive. Subject to applicable law, if
Executive shall become ill or be injured or otherwise become incapacitated such
that, in the opinion of the Board, he cannot fully carry out and perform his
duties hereunder, and such incapacity shall continue for a period of 45
consecutive days, the Board may, at any time thereafter, by giving Executive
20-days' prior written notice, fully and finally terminate his engagement under
this Agreement. Termination under this Section 4.3 shall be effective as of
the date provided in such notice, which date shall not be fewer than 180 days
after such notice is delivered to Executive or his representative, and the
Company shall pay Executive his Base Compensation accrued to the effective date
of termination at the rate in effect at the time of such notice, payable at the
time such payment is due. Upon payment of (i)
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such accrued Base Compensation; and (ii) all other amounts to which Executive
may be entitled hereunder including, without limitation, (A) any Bonus to which
the Executive would have been entitled pursuant to Section 3.1(b) hereof
(prorated for the period up to the effective date of termination), provided the
Company meets or exceeds the Targets set forth on Exhibit "A" hereto, (B) any
expense reimbursement amounts accrued to the effective date of termination, (C)
a sum to be determined by the Compensation Committee, and (D) any amounts under
any other benefit plan of the Company, in each case at the time such payments
are due.
4.4 Death of Executive. This Agreement shall automatically
terminate upon the death of Executive. Upon the early termination of this
Agreement as a result of death, the Company shall pay Executive's estate: (i)
an amount equal to Executive's Base Compensation accrued through the effective
date of termination at the rate in effect at the effective date of termination,
payable at the time such payment is due; and (ii) all other amounts to which
Executive is entitled hereunder, including, without limitation, (A) any Bonus
to which the Executive would have been entitled pursuant to Section 3.1(b)
hereof (prorated for the period up to the effective date of termination),
provided the Company meets or exceeds the Targets set forth on Exhibit "A"
hereto, (B) any expense reimbursement amounts accrued to the effective date of
termination, (C) sum to be determined by the Compensation Committee (D) any
amounts under any other benefit plan of the Company, in each case at the time
such payments are due. The executor(s) of the Executive shall have one year
from the date of deat of the Executive to exercise the stock options outlined
in section 3.1 (c) of this Agreement.
4.5 Termination by Executive. Executive may, with or without
cause, terminate his engagement under this Agreement by giving the Company at
least 60 days' prior written notice of such termination (which may be waived by
the Company).
4.6 Termination by Executive for Good Reason. Executive may
terminate his engagement under this Agreement for "good reason" (as hereinafter
defined) at any time from the date hereof or within 12 months of the date of a
"change in control" (as hereinafter defined) of the Company. For purposes of
this Agreement, "good reason" shall mean, unless Executive shall have consented
in writing thereto, to any of the following:
(i) A reduction in Executive's title, duties, responsibilities
or status, as compared to such title, duties, responsibilities
or status immediately prior to the change in control or as
the same may be increased after the change in control;
(ii) The assignment to Executive of duties inconsistent with
Executive's office on the date of the change in control or as
the same may be increased after the change in control;
(iii) A reduction by the Company in Executive's Base
Compensation or other benefits, including stock options, as in
effect immediately prior to the change in control or as the
same may be increased after the change in control;
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(iv) A requirement that Executive relocate anywhere not
acceptable to Executive or the imposition on Executive of
business travel obligations substantially greater than those
contemplated under this Agreement;
(v) The failure by the Company to continue in effect any
compensation or benefit plan or program in which Executive is
participating at the time of the change in control (or plans
providing Executive with substantially similar benefits), or
the taking of any action by the Company which would adversely
affect Executive's participation in or materially reduce his
benefits under any of such plans or deprive him of any
material fringe benefit enjoyed by him at the time of the
change in control;
(vi) The adoption or pursuit by the Company or the Board or
its Chairman of one or more policies or practices which, in
the opinion of Executive, are contrary to the ethics,
traditions, policies or practices of the Company; or
(vii) The material breach by the Company of its agreements or
obligations under this Agreement; or
(viii) A change in the Board of the Company or in its
executives or senior officers as would result in the Executive
being instructed as to his duties by someone other than the
present Board of Directors of the Company, namely, Xxxxxx X.
Xxxxxxxxx, Xxxx Xxxxx and Xxxxxxxxx Prud'homme and any other
directors that the Executive may consent to constituting a
majority of the Board.
Upon such termination by Executive of his engagement for "good reason"
following a change in control of the Company, or as otherwise stipulated above
or if the Executive's engagement under this Agreement is terminated without
cause by the Company, the Company shall pay to executive: (i) an amount equal
to Executive's Base Compensation payable for the remainder of the Term at the
time such payments are due at the rate in effect on the date of termination;
and (ii) all other amounts to which Executive is entitled, including (A) any
Bonus to which Executive would have been entitled for the remainder of the Term
pursuant to Section 3.1(b) hereof, (B) any expense reimbursement amounts
accrued to the effective date of termination, and (C) any amounts under any
other benefit plan of the Company, in each case at the time such payments are
due; and (iii) within ten days after the date of termination an amount equal to
three times Executive's annual Base Compensation in effect at the date of
termination. Moreover, for three years following the date of termination, the
Company shall continue to provide Executive with all fringe benefits (other
than payment of mobile telephone and gasoline expense) he was receiving as of
the date of termination, including, without limitation, all health, life and
disability insurance and automobile benefits he was receiving immediately prior
to the date of termination. In addition, the Executive shall be entitled to
exercise the Stock Options granted pursuant to Section 3.1 (c) herein at any
time during the remainder of the term or, at the option of the Company, at any
time during the term, to purchase the options at a price per share equal to the
difference between the excercise price of such stock options and the closing
price of the Company's shares of Common stock on NASDAQ on the date of
termination
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or deemed termination of the Executive's engagement. If the Executive requests
the Company to purchase such options, the Company shall make payment within ten
(10) days of such request.
For purposes of this Agreement, a "change in control" shall mean a
change in control of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A, as in effect on the date
hereof, promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); provided, however that, without limitation, such a change in
control shall be deemed to have occurred if (A) any "Person" (as such term is
used in Section 13(d) and Section 14(d) of the Exchange Act), except for Xxxxxx
X. Xxxxxxxxx, or a company controlled by him, is or becomes the beneficial
owner, directly or indirectly, of securities of the Company representing 19% or
more of the combined voting power of the Company's then outstanding securities;
(B) there occurs a contested proxy solicitation of the Company's shareholders
that results in the contesting party obtaining the ability to vote securities
representing 20% or more of the combined voting power of the Company's then
outstanding securities; (C) there occurs a sale, exchange, transfer or other
disposition of substantially all of the assets of the Company to another
entity, except to an entity controlled directly or indirectly by the Company,
or a merger, consolidation or other reorganization of the Company in which the
Company is not the surviving entity, or a plan of liquidation or dissolution of
the Company other than pursuant to bankruptcy or insolvency laws is adopted; or
(D) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by the Company shareholders, of each new director was approved by
a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period. Notwithstanding the foregoing, a
"change in control" shall not be deemed to have occurred for purposes of this
Agreement (i) in the event of a sale, exchange, transfer or other disposition
of substantially all of the assets of the Company to, or a merger,
consolidation or other reorganization involving the Company and Executive,
alone or with other officers of the Company, or any entity in which Executive
(alone or with other officers) has, directly or indirectly, at least a 25%
equity or ownership interest or (ii) in a transaction otherwise commonly
referred to as a "management leveraged buy-out".
Clauses (A) and (B) in the preceding paragraph to the contrary
notwithstanding, the Board may, by resolution adopted by at least two-thirds of
the directors who were in office at the date a change in control occurred,
declare that a change in control described in clause (A) or (B) has become
ineffective for purposes of this Agreement if all of the following conditions
then exist: (i) the declaration is made prior to the death, disability or
termination of engagement of Executive and within 120 days of the change in
control; and (ii) no Person, except for Xxxxxx X. Xxxxxxxxx, either is the
beneficial owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
outstanding securities or has the ability or power to vote securities
representing 10% or more of the combined voting power of the Company's then
outstanding securities. If such a declaration shall be properly made, no
benefits shall be payable hereunder as a result of such prior but now
ineffective change in control, but benefits shall remain payable and this
Agreement shall remain enforceable as a result of any other change in control
unless it is similarly declared to be ineffective.
4.7 Notwithstanding the termination of the Executive for any
reason pursuant to Subsections 4.2, 4.3, 4.4, 4.5 or 4.6 of this Agreement, the
Executive will, in addition to all other
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benefits conferred hereunder, be able to exercise any of the share purchase
warrants referred to in Subsection 3.1(e) at any time up to their expiry on
March 31, 1996.
5. Covenants
5.1 Covenant Not to Compete. Executive recognizes and
acknowledges that the Company is placing its confidence and trust in Executive.
Executive, therefore, covenants and agrees that during the applicable
Non-Compete Period (as defined below) Executive shall not, either directly or
indirectly, without the prior written consent of the Board:
A. Engage in or carry on any business or in any way
become associated with any business which is similar
to or is in competition with the Business of the
Company (as such term is used and defined herein).
As used in this Section 5, the term "Business of the
Company" shall include all business activities in
which the Company is now engaged, including but not
limited to, infrastructure engineering and shall
further include any business in which the Company is
engaged at any time during the Term;
B. Solicit the business of any person or entity, on
behalf of himself or any other person or entity,
which is or has been at any time during the term of
this Agreement a customer or supplier of the Company
including, but not limited to, former or present
customers or suppliers with whom Executive has had
personal contact during, or by reason of, his
relationship with the Company;
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C. Be or become an employee, agent, consultant,
representative, director or officer of, or be
otherwise in any manner associated with, any person,
firm, corporation, association or other entity which
is engaged in or is carrying on any business which is
similar to or in competition with the Business of the
Company;
D. Solicit for engagement or employ any person employed
by the Company at any time during the 12-month period
immediately preceding such solicitation or
engagement; or
E. Be or become a shareholder, joint venturer, owner (in
whole or in part), partner, or be or become
associated with or have any proprietary or financial
interest in or of any firm, corporation, association
or other entity which is engaged in or is carrying on
any business which is similar to or in competition
with the Business of the Company. Notwithstanding
the preceding sentence above, passive equity
investments by Executive of 5% or less of an equity
interest (on a fully diluted basis) in any entity or
affiliated group of any entity which is engaged in or
is carrying on any business which is similar to or in
competition with the Business of the Company shall
not be deemed to violate this Section 5.1.
Executive hereby recognizes and acknowledges that the existing
Business of the Company extends throughout Canada and the United States of
America, and therefore agrees that the covenants not to compete contained in
this Section 5.1 shall be applicable in and throughout such states, as well as
throughout such additional areas or states in which the Company may be (or has
prepared written plans to be) doing business as of the date of termination of
Executive's engagement. Executive further warrants and represents that,
because of his varied skill and abilities, he does not need to compete with the
Business of the Company and that this Agreement will not prevent him from
earning a livelihood and acknowledges that the restrictions contained in this
Section 5.1 constitute reasonable protections for the Company.
As used in this Section 5.1, "Applicable Non-Compete Period" shall
mean:
(i) unless and until the Executive's engagement under this
Agreement is terminated prior to the scheduled end of the Term, the period
beginning on the date hereof and ending on the date which is 365 days after the
scheduled end of the Term (as such Term may be extended from time to time
pursuant to Section 2.1 hereof);
(ii) if the Executive's engagement under this Agreement is
terminated pursuant to Section 4.2 hereof or Section 4.3 hereof or for any
other reason (other than as set forth in clause (iii) below), the period
beginning on the date hereof and ending on the date which is 365 days after the
scheduled end of the Term (as such Term may be extended from time to time
pursuant to Section 2.1 hereof);
(iii) if the Executive's engagement under this Agreement is
terminated without "cause", the period beginning on the date hereof and ending
on the date of the scheduled end of the Term (as such Term may be extended from
time to time pursuant to Section 2.1 hereof);
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(iv) if on or prior to the date of the scheduled end of
the Term (as such Term may be extended from time to time pursuant to Section 2.1
hereof), the Executive rejects an offer by the Company to extend this Agreement
pursuant to Section 2.1 hereof on reasonable terms, the period beginning on the
date hereof and ending on the date which is 365 days after the scheduled end of
the Term (as such Term may be extended from time to time pursuant to Section
2.1 hereof); and
(v) if the Company elects not to extend this Agreement
pursuant to Section 2.1 hereof, the period beginning on the date hereof and
ending on the date of the scheduled end of the Term (as such Term may be
extended from time to time pursuant to Section 2.1 hereof).
5.2 Trade Secrets and Confidential Information. Executive
recognizes and acknowledges that certain information including, without
limitation, information pertaining to the financial condition of the Company,
its systems, methods of doing business, agreements with customers or suppliers
or other aspects of the Business of the Company or which is sufficiently secret
to derive economic value from not being disclosed ("Confidential Information")
may be made available or otherwise come into the possession of Executive by
reason of his engagement with the Company. Accordingly, Executive agrees that
he will not (either during or after the term of his engagement with the
Company) disclose any Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
or make use to his personal advantage or to the advantage of any third party,
of any Confidential Information, without the prior written consent of the
Board. Executive shall, upon termination of engagement, return to the Company
all documents which reflect Confidential Information (including copies
thereof). Notwithstanding anything heretofore stated in this Section 5.2,
Executive's obligations under this Section 5.2 shall not, after termination of
Executive's engagement with the Company, apply to information which has become
generally available to the public without any action or omission of Executive
(except that any Confidential Information which is disclosed to any third party
by an employee or representative of the Company who is not authorized to make
such disclosure shall be deemed to remain confidential and protectable by
Executive under this Section 5.2).
5.3 Records. All files, records, memoranda and other documents
regarding former, existing or prospective customers of the Company or relating
in any manner whatsoever to Confidential Information or the Business of the
Company (collectively, "Records"), whether prepared by Executive or otherwise
coming into his possession, shall be the exclusive property of the Company.
All Records shall be immediately placed in the physical possession of the
Company upon the termination of Executive's engagement with the Company, or at
any other time specified by the Board. The retention and use by Executive of
duplicates in any form of Records is prohibited after the termination of
Executive's engagement with the Company.
5.4 Breach. Executive hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by Executive of any of the terms of provisions of
this Section 5, and Executive therefore agrees that the Company shall be
entitled to an injunction restraining Executive from engaging in any activity
constituting such breach or threatened breach. Nothing contained herein shall
be construed as prohibiting the Company from pursuing any other remedies
available to the Company at law or in equity for such breach or threatened
breach, including but not limited to, the recovery of damages from Executive
and, if Executive is an employee of the Company, the termination of his
engagement with the Company in accordance with the terms and provisions of this
Agreement.
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5.5 Survival. Notwithstanding the termination of the engagement
of Executive or the termination of this Agreement, the provisions of this
Section 5 shall survive and be binding upon Executive unless a written
agreement which specifically refers to the termination of the obligations and
covenants of this Section 5 is executed by the Company.
6. Miscellaneous
6.1 Notices. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in writing, via facsimile
transmission or by mail, registered or certified, postage prepaid with return
receipt requested. Notices shall be addressed to the parties as follows:
If to the Company: Cedar Group, Inc.
000 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxxx X0X 0X0
If to the Executive: Xxxxxx X. Xxxxxxxxx
29 Montee du Golf
St-Dunctan du Lac Xxxxxxxx, Xxxxxx
X0X 0X0
Any party may change his or its address by written notice in
accordance with this Section 6.1. Notices delivered personally shall be deemed
communicated as of actual receipt; notices sent via facsimile transmission
shall be deemed communicated as of receipt by the sender of written
confirmation of transmission thereof; mailed notices shall be deemed
communicated as of three days after proper mailing.
6.2 Inclusion of Entire Agreement Herein. This Agreement
supersedes any and all other prior or contemporaneous agreements, either oral
or in writing, between the parties hereto with respect to the subject matter
hereof and contains all of the covenants and agreements between the parties
with respect to engagement of Executive by the Company.
6.3 Law Governing Agreement. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
6.4 Waivers. No waiver at any time of any term or provision of
this Agreement shall be construed as a waiver of any other term or provision of
this Agreement, and a waiver at any time of any term or provision of this
Agreement shall not be construed as a waiver at any subsequent time of the same
term or provision.
6.5 Amendments. Except as otherwise provided in Section 6.6
hereof, no amendment or modification of this Agreement shall be deemed
effective unless and until executed in writing by each party hereto.
6.6 Severability and Limitation. All agreements and covenants
contained herein are severable and in the event any of them shall be held to be
invalid by any competent court, this Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein. Should any court or
other legally constituted authority determine that for any such agreement or
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covenant to be effective that it must be modified to limit its duration or
scope, the parties hereto shall consider such agreement or covenant to be
amended or modified with respect to duration and/or scope so as to comply with
the orders of any such court or other legally constituted authority, and as to
all other portions of such agreement or covenants they shall remain in full
force and effect as originally written.
6.7 Headings. All headings set forth in this Agreement are
intended for convenience only and shall not control or affect the meaning,
construction or effect of this Agreement or of any of the provisions hereof.
6.8 Assignment. The Company shall have the right to assign this
Agreement and to delegate all of its rights, duties and obligations hereunder
to any entity which controls the Company, which the Company controls or which
may be the result of the merger, consolidation, acquisition or reorganization
of the Company and another entity. Executive agrees that this Agreement is
personal to him and his rights and interests hereunder may not be assigned, nor
may his obligations and duties hereunder be delegated (except as to delegation
in the normal course of operation of the Company), and any attempted assignment
or delegation in violation of this provision shall be void.
6.9 Arbitration. All controversies which may arise between the
parties hereto including, but not limited to, those arising out of or related
to this Agreement shall be determined by binding arbitration applying the laws
of the State of Delaware as set forth in Section 6.3 hereof. Any arbitration
pursuant to this Agreement shall be conducted in New York, New York before the
American Arbitration Association in accordance with its arbitration rules. The
arbitration shall be final and binding upon all the parties (so long as the
award was not procured by corruption, fraud or undue means) and the
arbitrator's award shall not be required to include factual findings or legal
reasoning. Nothing in this Section 6.9 will prevent either party from
resorting to judicial proceedings if interim injunctive relief under the laws
of the State of Delaware from a court is necessary to prevent serious and
irreparable injury to one of the parties.
6.10 Counterparts. This Agreement may be executed via facsimile
transmission signature and in counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the same
instrument.
6.11 Board of Director Determinations. All matters to be
determined by the Board pursuant to the terms of this Agreement shall be
determined by the members of the Board without the vote of Executive, if he is
then a member of the Board.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Consulting Agreement as of the day and year first
above written.
CEDAR GROUP, INC.
By:
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Name:
Title:
13
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EXECUTIVE
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