EMPLOYMENT AGREEMENT
Exhibit
10.5
This
Employment Agreement (this “Agreement”) by and between Employers Holdings, Inc.,
a Nevada corporation (the “Company”) and Xxxxxxx X. Xxxxx (the “Employee”) is
entered into as of the 17th day of December, 2008, effective as of January
1, 2009 (the “Effective Date”).
RECITALS
A. The Employee has knowledge and
experience applicable to the position of Executive Vice President and Chief
Financial Officer.
B. The Company desires to continue to
employ the Employee to perform certain services for the Company, its parent, if
any, and their respective subsidiaries and affiliates (the “Company
Affiliates”), as may be required or requested of the Employee in his position as
Executive Vice President and Chief Financial Officer, and the Employee desires
to continue to be so employed by the Company and to perform such services for
the Company and the Company Affiliates.
In
consideration of the premises above and mutual covenants and promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are mutually acknowledged, the parties agree as follows:
TERMS
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1.
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Employment.
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The Company agrees to continue to
employ the Employee and the Employee accepts such continued employment upon the
terms and conditions specified herein. The Employee agrees to continue to devote
substantially all of his time and effort during working hours in the performance
of the duties called for herein and agrees that any other non-employment related
duties (i.e., industry related groups, service on boards, etc.) will not be
allowed to materially interfere with the performance of the duties called for
herein.
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2.
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Term.
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The term of this Agreement shall
commence on the Effective Date, and continue for three (3) years (the “Initial
Term”), until December 31, 2011, and, thereafter, shall automatically renew for
successive two (2) year periods (each, an “Additional Term;” the Initial Term
and any Additional Terms, collectively the “Term”), unless either party gives
written notice to the other no later than six (6) months prior to expiration of
the Initial Term or any Additional Term, as applicable, of an intent not to
renew this Agreement; subject, however to earlier termination of the Employee's
employment with the Company in accordance with this Agreement (the “Termination
Date”). The expiration of this Agreement at the end of the Term, in
and of itself, shall not constitute, nor be construed or interpreted as, a
termination of the Employee's employment that would make him eligible for
benefits or payments under Section 7 below. This Agreement shall
expire upon the termination of the Employee's employment for any reason, subject
to the provisions of subsection 10(h) below.
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3.
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Services and
Duties.
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The Employee shall continue to serve as
Executive Vice President and Chief Financial Officer and shall perform such
duties as may be assigned by the Chief Executive Officer from time to
time. At the request of the Board of Directors of the Company (the
“Board”), the Employee shall also serve as a director of the Company and/or one
or more of the Company Affiliates at no additional compensation. The
Employee agrees that upon the termination of his employment with the Company, he
shall resign from the Board and any and all boards of the Company Affiliates
effective on the Termination Date.
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4.
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Compensation and
Benefits.
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(a)
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During the term of this Agreement,
the Company shall pay to the Employee an annual salary of not less than
$365,000 (“Base Salary”), which amount shall be paid
according to the Company’s regular payroll practices. The
Company agrees to review the Base Salary on an annual basis and adjust the
salary to comply with the executive compensation policy in effect at the
time of the review. Any increase made to the annual salary will
establish the new Base Salary for the
Employee. All payments made pursuant to this Agreement,
including but not limited to this subsection 4(a), shall be reduced by and
subject to withholding for all federal, state, and local taxes and any
other withholding required by applicable laws and
regulations.
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(b)
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The Company will provide an annual incentive (the
“Annual
Incentive”) to the
Employee during the Term based on the Employee’s and the Company’s performance, as determined by
the Board (or a committee thereof) in its sole
discretion. In this regard, the Board (or a committee thereof)
shall set
an annual
incentive target of
not less than fifty-five percent (55%) of Base Salary, and the Annual Incentive shall be paid in
accordance with the Company’s regular practice for
its senior officers,
as in effect from time to time. To the extent not duplicative of
the specific benefits provided herein, the Employee shall be eligible to
participate in all incentive compensation, retirement, supplemental
retirement, and deferred compensation plans, policies and
arrangements that are provided generally to other senior officers of the
Company at a level (in terms of the amount and types of benefits and
incentive compensation that the Employee has the opportunity to receive
and the terms thereof) determined in the sole
discretion of the Board (or a committee
thereof).
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(c)
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The Employee agrees that the
amounts payable and benefits provided under this Agreement, including but
not limited to any amounts payable or benefits provided under this Section 4 and Section 7 constitute good,
valuable and separate consideration for the non-competition, assignment
and release of liability provisions contained herein. The Employee
acknowledges that he is aware of the effect of the non-competition,
assignment and
release of liability provisions
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contained herein. The Employee
acknowledges that he is aware of the effect of the non-competition,
assignment and
release of liability provisions contained herein and agrees that the
amounts payable and benefits provided under this Agreement, including but
not limited to the amounts payable and benefits provided under
this Section 4 and
Section 7, if
any,
constitute sufficient
consideration for his agreement to these
provisions.
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(d)
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In addition to the compensation
called for in this Agreement, the Employee shall be entitled to
receive any and all employee benefits and perquisites generally
provided from time to time to other similarly situated officers
of the Company as well as the benefits and
perquisites listed on “Exhibit A” attached hereto and incorporated
herein by this reference.
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5.
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Insurance.
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The Employee agrees to submit to a
physical examination at a reasonable time as requested by the Company for the
purpose of the Company’s obtaining life insurance on the life of the Employee
for the benefit of the Company; provided, however, that the Company shall bear
the costs for such examinations and shall pay all premiums on any life insurance
obtained as a result of such examinations. The Employee further
agrees to submit to drug testing in accordance with the Company's policies and
procedures.
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6.
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Termination.
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(a)
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The Company, at any time, may
terminate this Agreement and the Employee's employment immediately for “Cause”. Cause is defined
as:
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(i)
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A material breach of this
Agreement by the
Employee;
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(ii)
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Failure or inability of
the Employee to obtain or maintain any
required licenses or
certificates;
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(iii)
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Willful violation by the Employee of any law, rule or regulation,
including but not
limited to any
material insurance law or regulation, which violation may, as determined
by the Company, adversely affect the ability of the Employee to perform his duties
hereunder or may subject the Company to liability or negative publicity; or
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(iv)
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Conviction or commission of or the entry of a guilty plea or plea of no
contest to
any felony or
to any other crime involving moral
turpitude.
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(b)
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The Employee may terminate this
Agreement and his
employment with the Company immediately for “Good Reason,” which shall mean the occurrence
of any of the following
events with respect
to which the Employee has notified the Company of the existence thereof
within no more than ninety (90) days of the initial existence
thereof
and which is not cured by the Company
within thirty (30) days of the Company’s receipt of written notice from the
Employee of the events alleged to constitute such Good Reason:
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(i)
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A material diminution in the
Employee’s base compensation;
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(ii)
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A material diminution in the Employee’s authority, duties or
responsibilities;
or
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(iii)
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Any other action or inaction that
constitutes a material breach by the Company of this Agreement (as may be amended
from time to time).
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(c)
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The Company may also terminate
this Agreement and
the Employee's
employment upon the
occurrence of one or more of the following events or reasons, subject to applicable
law (or, in the case
of subsection 6(c)(i) below, termination of this Agreement and the
Employee's employment will be automatic):
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(i)
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Death of the Employee;
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(ii)
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The Employee is deemed to be disabled
in accordance with the policies of the Company or the law or if the Employee is unable to perform the
essential job functions of the Employee’s position with the Company, with
or without reasonable accommodation, for a period of more than
100 business days in any 120 consecutive business day period. The Employee is entitled to any and
all short term or long term disability programs, like any other employee,
in accordance with the terms of such programs and
the policies of the
Company;
or
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(iii)
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At any time for any other reason or no reason in the sole and absolute
discretion of the Company.
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7.
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Payments Upon
Termination.
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(a)
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Qualifying
Termination and Severance Pay. If the Company terminates the Employee's employment prior to the expiration of the Term but other than during the CIC Period (as defined
below) for any reason
other than as
specified above
in
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subsection 6(a) for Cause, subsection 6(c)(i) by reason of the death of the Employee, or subsection 6(c)(ii) for disability, or if the Employee terminates his employment for
Good Reason pursuant
to subsection
6(b), the Employee shall receive
the following severance pay (the “Severance Pay”):
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(i)
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In lieu of any further salary
payments to the Employee for periods subsequent to the Termination Date and in lieu of any severance
benefit otherwise payable to the Employee, an amount equal to one and one half (1 ½) times Base Salary, payable in equal bi-weekly installments on
the Company’s regular payroll
dates as in effect on
such Termination
Date, for eighteen (18) months following the Termination Date, commencing with the payroll date applicable to the first full payroll period
following the Termination Date; provided, however, that such
payments shall be delayed to the extent required under Section 25 below. The payments shall be subject to normal
payroll deductions.
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(ii)
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Continuation of the medical, dental and
vision insurance
coverage in effect on the Termination Date for a period of eighteen (18) months following the Termination Date
with the Company
paying the employer portion of the premium and the Employee paying the
employee portion, including dependents if applicable, of the premium during
such eighteen (18)
month period, provided that the Employee elects to continue such
insurance coverage
under the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended (“COBRA”). The Employee is solely responsible for
taking the actions necessary to exercise his rights under COBRA for the
insurance coverage the Employee has in
effect,
including coverage
for dependents if
applicable, on the Termination Date.
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(b)
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Severance
Pay as Liquidated Damages. The parties agree, in the event of
a material
breach of this
Agreement by the Company with respect to which the Employee
has given notice and that is not cured, in either case, in accordance with subsection 6(b), following which the Employee
terminates his employment for Good Reason, that actual damages are
speculative and that the amount of the Severance Pay or, if applicable, the CIC
Severance Pay (as
defined below) set
forth herein is liquidated damages and is a reasonable estimate of what
damages would be for a material breach of this
Agreement.
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(c)
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Conditions
to Severance Pay or CIC Severance Pay. The Employee agrees and acknowledges
that the following
must be satisfied by the Employee before he is entitled to the Severance
Pay or, if applicable, the CIC Severance
Pay provided for
herein:
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(i)
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That the Employee returns any and all equipment, software,
data, property and information of the Company and the Company
Affiliates, including
documents and records or copies thereof relating in any way to any
proprietary information of the Company or any of the Company
Affiliates whether prepared by the Employee
or any other person or entity. That the Employee further agrees that he shall not
retain any proprietary information of the Company or any of the Company
Affiliates after the
Termination
Date;
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(ii)
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That the Employee executes a Global Release of Liability, in
a form to be
determined by the Company in its sole discretion, which releases the Company and the Company
Affiliates from liability for any and all
claims, complaints and causes of
action, whether based in law or equity,
arising from, related
to or associated with
the Employee’s employment by the Company or under this Agreement and that such release has become
effective and non-revocable. That the Employee further acknowledges and
agrees that he has not made and will not make any assignment of any claim,
cause or right of action, or any right of any kind whatsoever, arising
from, related
to or associated with
the employment of the
Employee by the
Company;
and
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(iii)
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That the Employee reaffirms the covenants contained herein,
in writing, including, but not limited to, the covenants set forth in Section 10.
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Notwithstanding anything in this Agreement
to the contrary, in any
case where the first and last days of the applicable release and nonrevocability periods provided for in the Global Release of
Liability (the “Applicable Release Period”) are in two separate taxable years, any payments required to
be made to the
Employee under this Agreement that are treated as deferred
compensation for purposes of Section 409A (as defined below) shall be made in the later taxable year,
as soon as practicable, but
in no event later than
thirty (30) days following
the conclusion of the Applicable Release Period.
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(d)
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Voluntary
Termination by the Employee. The Employee may terminate
his employment and
this Agreement for
reasons other than those identified in subsection 6(b) upon not less than sixty (60) days prior written notice.
If the Employee terminates
his employment and
this Agreement
pursuant to this subsection 7(d), he shall be entitled
only to the
following:
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(i)
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Any unpaid salary through the
Termination
Date;
and
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(ii)
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Payment for any accrued and unused
vacation as of the
Termination Date.
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(e)
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Qualifying
Change in Control Termination. If, before the expiration of the
Term, the Company terminates the
Employee's employment within the period commencing six (6) months prior
to and ending eighteen (18) months following a Change in
Control (as defined
below), such period referred to herein as
the “CIC
Period,” for any reason other than as specified above in subsection
6(a) for Cause, subsection 6(c)(i) for the death of the Employee, or subsection 6(c)(ii) for disability, or if the
Employee terminates his employment and this
Agreement for
Good
Reason pursuant to
subsection
6(b), the Employee shall receive
the severance pay set
forth in subsections (i) and (ii) below (the “CIC Severance Pay”), provided that if the Employee’s employment is
terminated during the
six (6) month period
prior to a Change in
Control, the Employee
shall be entitled to
CIC Severance Pay only if such termination (x) was by the Company other than for Cause but
at the request or direction of any person that has entered into an agreement
with the Company the consummation of which would constitute a Change in
Control, (y) was by the Employee for Good Reason and the circumstance or event
that constitutes Good
Reason occurred at the request or direction of such
person or (z) was by the Company without Cause and
the Employee reasonably demonstrates that such termination
was otherwise in
connection with or in anticipation of a Change in Control; and if the Employee is not
entitled to CIC
Severance Pay hereunder, then the Employee's termination of employment will not be deemed to
have occurred during the CIC Period for purposes of subsection
7(a):
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(i)
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In lieu of any further salary
payments to the Employee for periods subsequent to the Termination Date and in lieu of any severance
benefit otherwise payable to the Employee, a lump sum cash payment equal to two (2) times the sum of (A) Base Salary
and (B) the average
of the annual bonus
amounts earned by the Employee for the three (3) years preceding the year in which the Change in Control occurs; provided, however, that if the
Termination Date occurs prior to January 1, 2010, then (B)
shall instead
be the average of the
annual bonus amounts earned by the Employee in 2007 and 2008. Such payment shall be made as soon as
practicable (but in
no event later than sixty (60) days) following the Termination Date; provided, however, that such
payments shall be delayed to the extent required under Section
25 below;
and
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(ii)
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Continuation of the medical, dental and vision insurance coverage in effect on
the Employee's
Termination Date for a period of
eighteen (18) months following the Termination Date
with the Company
paying the employer portion of the premium and the Employee paying the
employee portion, including dependents if
applicable, of the
premium during such
eighteen (18)-month period, provided that the
Employee elects to continue such insurance coverage under COBRA. The
Employee is solely responsible for taking the actions necessary to
exercise his rights
under COBRA for the insurance coverage the Employee has in effect,
including coverage
for dependents if
applicable, on the Termination
Date.
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(f)
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Definition
of Change in Control.
For purposes of this Agreement,
a “Change in Control” shall be deemed to have
occurred if the event
set forth in any one of the following paragraphs shall have
occurred:
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(i)
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Any one person, or more than one
person acting as a group, acquires ownership of stock of the Company that, together with stock held by
such person or group, constitutes more than 50% of the total
fair market value or total voting power of the stock of the Company;
or
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(ii)
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Any one person, or more than one person
acting as a group, acquires (or has acquired during the twelve (12)-month period ending on the date
of the most recent
acquisition by such person or persons) ownership of stock of the
Company possessing 35% or more of the total voting
power of the stock of the Company;
or
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(iii)
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A majority of members of the
Board is replaced during any
twelve (12)-month period by
directors whose
appointment or election is not endorsed by a majority of the members of
the Board before the date of the
appointment or election;
or
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(iv)
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Any one person or group acquires (or has
acquired during the immediately preceding twelve (12)-month period ending
on the date of the
most recent acquisition) assets of the Company with an aggregate gross
fair market value of not less than forty percent (40%) of the aggregate
gross fair market value of the assets of the Company immediately prior to
such acquisition. For this purpose, gross fair market
value shall mean the fair value of the affected assets determined without
regard to any liabilities associated with such
assets.
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Notwithstanding the foregoing, (1) a
“Change in Control” shall not be deemed to have
occurred by virtue of the
consummation of any transaction or series of integrated transactions immediately
following which the holders of the common stock of the Company immediately prior
to such transaction or series of transactions continue to have
substantially the same proportionate ownership in
an entity that owns all or substantially all of the
assets of the Company immediately following such transaction or series of
transactions, and (2) a “Change in Control” shall not be deemed to have occurred as
result of any secondary offering of Company common
stock to the general public through a registration statement filed with the
Securities and Exchange Commission. The Board
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shall determine whether a Change in
Control has occurred hereunder in a manner consistent with the provisions of Section
409A.
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(g)
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No
Duplication of Payments or Benefits. Notwithstanding any
provision of this
Agreement to the
contrary, the
Employee shall not be eligible to receive any payments or benefits under
both subsections 7(a) and 7(e); but rather, to the extent the
conditions set forth in subsection 7(a) and subsection 7(e) are satisfied, the Employee
shall be eligible to receive benefits under only subsection 7(e).
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(h)
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Golden
Parachute (Section
280G) Excise
Taxes.
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(i)
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Subject to subsection 7(h)(ii) below, if it is determined that any payment or benefit received or
to be received by the Employee, whether pursuant to this
Agreement or otherwise (the “Severance Payments”), is a “parachute payment” within the meaning of
section 280G of the Internal Revenue Code (the “Code”) (all such payments and benefits,
including the Severance Payments as applicable, but excluding the Gross-Up
Payment (as defined below) being hereinafter called
“Total Payments”) that will be subject (in whole or part)
to the tax imposed under section 4999 of the Code (the
“Excise Tax”), then the Company shall pay to
the Employee on or as soon as practicable
following the day on which the Excise Tax is remitted by the Employee (but not later than the end of
the taxable year following the year in which the Excise Tax is
incurred and subject
to the provisions set forth in Section 25 below, including if applicable,
the Six Month Delay (as defined in such section)) an additional amount (the
“Gross-Up Payment”) such that the net amount
retained by the
Employee, after deduction of any Excise
Tax on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up
Payment, shall be equal to the Total
Payments.
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(ii)
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In the event that the amount of
the Total Payments
does not exceed 110% of the largest amount that would result in no portion
of the Total Payments being subject to the Excise Tax (the “Safe Harbor”), the non-cash portion of the Total Payments
shall first be
reduced (if necessary, to zero), and the cash portion of the Total Payments shall thereafter be reduced (if
necessary, to zero) so that the amount of the Total Payments is equal to
the Safe Harbor.
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(iii)
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For purposes of determining
whether any of the Total Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (A) no portion of the Total Payments
shall be taken into account which, in the opinion of tax counsel
(“Tax
Counsel”) selected by the Board in existence immediately prior to
the Change in Control, does not constitute
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a “parachute payment” within the meaning of section
280G(b)(2) of the
Code, including by reason of section 280G(b)(4)(A) of the Code, (B) the Severance Payments shall be
reduced only to the extent necessary so that the Total Payments (other
than those referred
to in clause (A)) in their entirety constitute
reasonable compensation for services actually rendered within the meaning
of section 280G(b)(4)(B) of the Code
or are otherwise not subject to disallowance as deductions by reason of
section 280G of the Code, in the opinion of Tax
Counsel, and
(C) the value of any non-cash benefit or any deferred
payment or benefit included in the Total Payments shall be determined by
the Company's
independent auditor
in accordance with
the principles of sections 280G(d)(3) and (4) of the
Code. If the Employee disputes the Company's
calculations (in whole or in part), the reasonable opinion of Tax Counsel
with respect to the matter in dispute shall
prevail.
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(iv)
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If the Excise Tax is finally
determined to be less than the amount taken into account hereunder
in calculating the Gross-Up Payment, the Employee shall repay to the
Company, at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to
such reduction (plus that portion of the
Gross-Up Payment attributable to the Excise Tax and federal, state and
local income and employment taxes imposed on the Gross-Up Payment being
repaid by the Employee to the extent that such repayment results in a
reduction in Excise Tax and/or a federal,
state or local income or employment tax deduction) plus interest on the
amount of such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code. If the Excise Tax is determined to
exceed the amount taken into account hereunder in
calculating the Gross-Up Payment (including by reason of any payment the
existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up Payment
in respect of such excess (plus any interest,
penalties or additions payable by the Employee with respect to such
excess) at the time that the amount of such excess is finally
determined.
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(v)
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The Employee and the Company shall
each reasonably cooperate with the other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for
Excise Tax with respect to the Total Payments. The Company also
shall pay to the Employee all legal fees and expenses incurred by the
Employee in connection with any tax audit or
proceeding to the extent attributable to the application of section 4999
of the Code to any payment or benefit provided hereunder. Such payments
shall be made within sixty (60) business days after delivery of the
Employee's written request for payment
accompanied with such evidence of fees and expenses incurred as the
Company reasonably may require (but in no event shall any such payment be
made after the end
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of the calendar year following the
calendar year in which the expenses were incurred), provided that
no such payment shall be made in respect of fees or expenses incurred by
the Employee after the later of the tenth (10th) anniversary of the
effective date of the Employee's termination with the Company or the
Employee's death and, provided further, that,
upon the Employee’s “separation from
service” (as such
term is defined under Section 409A) with the Company, in no event shall
any additional such payments be made prior to the date that is six (6)
months after the date of the Employee’s “separation from
service” to the
extent such payment delay is required under section 409A(a)(2)(B) of the
Code.
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8.
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Licensing.
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The Employee has obtained and
possesses, or will obtain and possess, and will maintain throughout the Term
hereof, all licenses, approvals, permits, and authorization (the “Licenses”)
necessary to perform the Employee’s duties hereunder (if any). Any
costs, attorneys’ fees, investigation fees or other expenses incurred in
connection with obtaining or maintaining such Licenses shall be borne by the
Company, provided that payment of such fees or costs by the Company shall be
made no later than the end of the year following the year in which the expenses
were incurred. The Employee warrants that the Employee is fully
eligible, under all standards and requirements, to obtain, possess, and maintain
such Licenses and that the Employee will commit no acts during the Term hereof
that would jeopardize or eliminate the Employee’s ability to possess or maintain
such Licenses.
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9.
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Rules and
Regulations.
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The Employee shall observe, enforce,
and comply with the policies, philosophies, strategies, rules, and regulations
of the Company, as they may be promulgated and/or modified from time to time,
and shall carry out and perform the orders, directions, and policies of the
Company, as they may be stated and/or amended from time to time, either orally
or in writing. A violation of this Section 9 by the Employee is a
material breach of this Agreement.
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10.
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Restrictive
Covenants.
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In consideration of the amounts payable
and benefits provided under Section 4, and, if applicable, Section 7 and
subsection 10(a), the other compensation paid hereunder, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
the parties, the parties agree to the following provisions of this Section
10:
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(a)
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Non-Competition. The Employee understands and agrees that the
Company and the
Company Affiliates do
business throughout the State of Nevada and other states. The Employee further understands and agrees that he
is a high ranking officer of the Company and will have access to
confidential and trade secret information and goodwill of the Company and the Company Affiliates
that will
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allow the Employee to unfairly compete with the
Company and the Company Affiliates
justifying this
restriction. If the Employee's
employment is
terminated (by either
the Employee or the Company), during the Term, for any reason other than
as specified above in subsection 6(c)(i) by reason of the death of the Employee, or subsection
6(c)(ii) for disability, then for a period of eighteen (18) months commencing on the Termination Date, the Employee agrees that, without the written
permission of the Company, he will not engage (whether as owner, partner,
controlling
stockholder, controlling investor, employee, adviser, consultant, or
otherwise) in any business that is in direct competition with the
business being conducted by the Company or
any of the
Company
Affiliates as of the Termination
Date, in Nevada
or in any other state in which the
Company is conducting such business (the “Non-Compete Area”) as of the Termination Date.
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(b)
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Non-Solicitation. Without limiting the generality
of the foregoing, the
Employee agrees that
for a period of eighteen (18) months following the Employee's termination of
employment (for any
reason, by either the Employee or the Employer), he will not, without the prior
written consent of the Company, directly or indirectly solicit or attempt
to solicit, within the Non-Compete Area, any business from any person or
entity that the Company or any of the Company Affiliates
called upon,
solicited, or conducted business with as of such termination date, any persons or entities that
have been customers of the Company or any of the Company
Affiliates
or recruit any person
who has been or is an employee of the Company or any of the Company
Affiliates, during
the preceding one
(1)-year period from
such termination date. In addition, the Employee agrees that he shall not directly
or indirectly solicit
or encourage any employee of the Company or any of the Company
Affiliates to go to
work for or with the
Employee for a period
of one
(1)-year following
such termination date.
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(c)
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In the event the Employee violates subsection 10(a) or 10(b), the applicable period of time during which the respective restriction
applies will automatically be extended for
the period of time from which the Employee began such violation until he
permanently ceases such violation. If any provision of this covenant
is invalid in whole
or in part, it will be limited, whether as to time, area covered, or
otherwise as and to the extent required for its validity under the
applicable law and as so limited, will be
enforceable.
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(d)
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Confidential
Information.
The
Employee acknowledges
that he has had or
will have access to the confidential information of the Company and the
Company
Affiliates
(including, but not limited to, records regarding sales, price and cost
information, marketing plans, customer names, customer lists, sales
techniques,
distribution plans or procedures, and other material relating to the
business conducted by
the Company and the Company Affiliates), proprietary, or trade secret
information (the “Confidential
Information”), and
agrees never to use the Confidential Information other than for the sole
benefit of the Company and the
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12
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Company Affiliates and further agrees to never
disclose such Confidential Information (except as may be required by
regulatory authorities or as may be required by law) to any entity or
person that is not an
officer or employee
of the Company or a
Company Affiliate at
the time of such disclosure (unless at such time such
Confidential Information is subject to a policy of the Company or a Company
Affiliate restricting
disclosure to non-officers), in which case disclosure shall be
limited solely to officers of the Company or the applicable Company
Affiliate at the time
of such disclosure, without the prior written consent of the Company.
The Employee further acknowledges that this
covenant to maintain
Confidential Information is necessary to protect the goodwill and
proprietary interests of the Company and the Company
Affiliates and the
restriction against the disclosure of Confidential Information is
reasonable in light of the consideration and other value the Employee has
received or will receive pursuant to this Agreement and otherwise pursuant to his
employment by the Company.
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(e)
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From and following the Employee's termination of employment, the Employee agrees to cooperate with the
Company and the
Company Affiliates
in any litigation,
administrative proceeding, investigation or audit involving any matters
with which the
Employee has
knowledge of from his employment with the Company. The Company shall reimburse
the
Employee for
reasonable expenses, including reasonable compensation for services
rendered at his
hourly rate of compensation as of such termination date, incurred in providing such
assistance and approved by the Company. The Company shall reimburse the
Employee for such expenses incurred in accordance with the policies
and procedures of the Company, but in no event no later than the end of the year
following the year in which the expenses were incurred.
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(f)
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In the event of a violation of
this Section 10, the Company and the Company
Affiliates shall be entitled to any form of
relief at law or equity, and the parties agree and acknowledge that
injunctive relief is an appropriate, but not exclusive, remedy to enforce
the provisions hereof. The existence of any claim or
cause of action of the Employee against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense
of the Company’s enforcement of the covenants set
forth in this Section 10. The Employee hereby submits to the
jurisdiction of the courts of the State of Nevada and federal courts
therein for the purposes of any actions or proceedings instituted by the
Company to enforce its rights under this Agreement, to seek money damages
or seek injunctive relief. The Employee further acknowledges and agrees
(i) that the obligations contained in
Section 10 of this Agreement are necessary to protect the
interests of the Company and the Company
Affiliates,
(ii) that the restrictions contained herein
are fair, do not
unreasonably restrict the Employee's further employment and business
opportunities, and are commensurate with the compensation arrangements set
out in this Agreement
and (iii) that such compensation arrangements
constitute separate consideration for the obligations set forth in this
Section 10.
The covenants contained in Section 10
shall each be
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13
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construed as an agreement independent of any other
provisions of this Agreement. Both parties intend to make the
covenants of Section 10 binding only to the extent that it may be lawfully
done under existing applicable laws. If a court of competent
jurisdiction decides any part of any covenant is overly broad, thereby
making the covenant unenforceable, the parties agree that such court shall
substitute a reasonable, judicially enforceable limitation in place
of the offensive part
of the covenant and as so modified the covenant shall be as fully
enforceable as set forth herein by the parties themselves in the modified
form.
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(g)
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The Employee acknowledges that it is possible
that the corporate structure of the Company could change during the term of
this Agreement. The Employee hereby acknowledges and affirms
that the Company may assign its rights under this Agreement, including but not limited to its
rights to enforce the covenants set forth in subsections 10(a), 10(b) and 10(c), to a third-party without the
approval of or additional consideration to the Employee. The Employee acknowledges and agrees that the
consideration called for herein is good and sufficient consideration for
the Company's right to assign its rights under this
Agreement.
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(h)
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Subsections 10(a) through
(g), inclusive, of this Agreement
shall survive either termination of the employment relationship
and/or termination of this Agreement
for the full period set forth in subsections 10(a) through
(g), inclusive.
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11.
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Work for
Hire.
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The Employee agrees that any work,
invention, idea or report that he produces or that results from or is suggested
by the work the Employee does on behalf of the Company or any of the Company
Affiliates is “work for hire” (hereinafter referred to as “Work”) and will be
the sole property of the Company. The Employee agrees to sign any
documents, during or after employment that the Company deems necessary to
confirm its ownership of the Work, and the Employee agrees to cooperate with the
Company to allow the Company to take advantage of its ownership of such
Work.
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12.
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Assignment of
Agreement.
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The Employee agrees that his services
are unique and personal and that, accordingly, the Employee may not assign his
rights or delegate his duties or obligations under this Agreement. The Company
may assign its rights, duties, and obligations under this Agreement to any
successor to its business. This Agreement shall inure to the benefit
of and be binding upon the Company’s successors and assigns.
14
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13.
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Indemnification of the
Employee.
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The Company shall indemnify the
Employee and hold him harmless for acts or decisions made by him in good faith
while performing services for the Company or any of the Company Affiliates to
the maximum extent allowed by law. The Company shall also use its
reasonable efforts to obtain coverage for him under any insurance policy now in
force or hereinafter obtained during Term covering the officers and directors of
the Company against lawsuits, subject to the business judgment of the
Board. The Company shall pay all expenses, including attorneys’ fees
of an attorney selected and retained by the Company to represent the Employee,
actually and necessarily incurred by the Employee in connection with the defense
of such act, suit, or proceeding and in connection with any related appeal,
including the cost of court settlements, provided that, to the extent required
by Section 409A, any such payment by the Company shall be made no later than the
end of the year following the year in which the expenses were
incurred.
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14.
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Notices.
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Any notice, document, or other
communication (hereinafter “Notice”) which either party may be required or may
desire to give to the other party shall be in writing, and any such notice may
be given or delivered personally or by mail or facsimile. Any such
notices given or delivered personally shall be given or delivered by hand to an
officer of the entity to which they are being given or delivered or the
individual, as the case may be, and shall be deemed given or delivered when so
given or delivered by hand. Any such notices given or delivered by
facsimile will be deemed given or delivered upon receipt by the sender of a
successful facsimile transmission to the facsimile number below, and any such
notices given or delivered by mail shall be deemed given or delivered three (3)
days after it is deposited in the U.S. mail, certified or registered mail,
return receipt requested, with all postage and fees prepaid, addressed to the
person or entity in question as follows:
If
to the Employee:
Xxxxxxx
X. Xxxxx
To
the address (or facsimile number, if applicable) on record with the
Company
If
to the Company:
Chief
Executive Officer
00000
Xxxxxxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000-0000
Fax: (000)
000-0000
15
or,
in either case, to such other address as either party may have previously
notified the other pursuant to the provisions of this Section 14.
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15.
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Severability.
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In the event that any provision hereof
shall be declared by a court of competent jurisdiction to be void or voidable as
contrary to law or public policy, such declaration shall not affect the
continuing validity or enforceability of any other provisions hereof insofar as
it may be reasonable and practicable to continue to enforce such other provision
in the absence of the provision which shall have been declared to be void and
voidable.
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16.
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Remedy for
Breach.
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Both parties recognize that the
services to be performed by the Employee are special and unique. The
Company will have the right to seek and obtain damages and any available
equitable remedies for the Employee’s breach of this Agreement. The
Employee's remedy for any breach of this Agreement is strictly limited to the
Severance Pay or CIC Severance Pay, as the case may be, called for
herein.
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17.
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Mitigation of
Damages.
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The Employee shall not be required to
mitigate damages or the amount of any payment provided under this Agreement by
obtaining other employment or otherwise after the termination of employment
hereunder, and any amounts earned by the Employee, whether from self-employment
or other employment shall not reduce the amount of any Severance Pay or CIC
Severance Pay, as the case may be, called for herein.
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18.
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Attorneys' Fees and
Costs.
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In any claim or dispute between the
parties arising out of or associated with this Agreement or the breach hereof or
otherwise arising out of or associated with the Employee’s employment by the
Company, the prevailing party shall be entitled to recover all reasonable
attorneys' fees, expenses, and costs thereof or associated therewith, provided
that, to the extent required by Section 409A, any such payment by the Company
shall be made no later than the end of the year following the year in which such
fees, expenses and costs were incurred. The term “prevailing party”
means the party obtaining substantially the relief sought via litigation or
through an action in arbitration.
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19.
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Integration, Amendment, and
Waiver.
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This Agreement and such other written
agreements referenced in this Agreement, constitute the entire agreement between
the parties pertaining to the subject matter contained in it except as expressly
provided herein, and supersedes all prior agreements, representations,
assurances, and understandings of the parties, including any prior employment
agreements. No
16
amendment
of, addition to, or modification of this Agreement shall be binding unless
executed in writing by the parties. Any term or provision of this
Agreement may be waived in a signed writing at any time by the party that is
entitled to the benefit thereof, provided, however, that any waiver shall apply
only to the specific event or omission waived and shall not constitute a
continuing waiver. Any term or provision of this Agreement may be
amended or supplemented at any time by a written instrument executed by all the
parties hereto.
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20.
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Captions.
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The captions and section headings of
this Agreement are for convenience and reference only, and shall have no effect
on the interpretation or construction of this Agreement.
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21.
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Applicable
Law.
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The substantive laws of the State of
Nevada shall govern the validity, construction, interpretation, performance, and
effect of this Agreement.
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22.
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Arbitration.
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Any controversy, cause of action or
claim related to or arising out of or in connection with the Employee’s
employment with the Company, including but not limited to termination of such
employment or under this Agreement, other than an action to enforce the
provisions of Section 10 herein or the breach thereof, shall be settled by
arbitration according to the rules of the American Arbitration Association
applicable to disputes arising in Nevada and under Nevada law. Any
party to the arbitration may enter judgment upon the award rendered by the
arbitrator in any court having jurisdiction thereof. The arbitrator
shall not be entitled to amend or alter the terms of this
Agreement. Notwithstanding this Section 22, the Company shall be
entitled to seek any available equitable remedy for enforcement of provisions of
this Agreement.
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23.
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Authorization.
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The Company and the Employee,
individually and severally, represent and warrant to the other party that it has
the authorization, power and right to deliver, execute and fully perform the
obligations under this Agreement in accordance with its terms. The Employee
represents and warrants to the Company that there is no restriction or
limitation, by reason of this Agreement or otherwise, upon the Employee’s right
or ability to enter into this Agreement and fulfill his obligations under this
Agreement.
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24.
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Acknowledgment.
|
The Employee acknowledges that he has
been given a reasonable period of time to study this Agreement before signing
it. The Employee certifies that he has fully read, has received an
explanation of, and completely understands the terms, nature, and effect of this
Agreement. The Employee further acknowledges that he is executing
this Agreement freely, knowingly, and
17
voluntarily
and that the Employee’s execution of this Agreement is not the result of any
fraud, duress, mistake, or undue influence whatsoever. In executing
this Agreement, the Employee does not rely on any inducements, promises, or
representations by the Company or any person other than the terms and conditions
of this Agreement.
25. Section 409A.
Notwithstanding
anything to the contrary in this Agreement, the payment of consideration,
compensation, and benefits pursuant to this Agreement shall be interpreted and
administered in a manner intended to avoid the imposition of additional taxes
under section 409A of the Code and the regulations and guidance promulgated
thereunder (“Section 409A”). Notwithstanding any provision to the contrary in
this Agreement or otherwise, no payment or distribution under this Agreement or
otherwise that constitutes an item of “deferred compensation” under Section 409A
and becomes payable by reason of the termination of the Employee’s employment
hereunder shall be made to the Employee unless and until the termination of the
Employee’s employment constitutes a “separation from service” (as such term is
defined in Section 409A).
In
addition, no such payment or distribution of deferred compensation shall be made
to the Employee prior to the earlier of (a) the expiration of the six (6) month
period (the “Six Month Period”) measured from the date of the Employee’s
“separation from service” (as such term is defined in Section 409A), and (b) the
date of the Employee’s death, if the Employee is deemed at the time of such
separation from service to be a “specified employee” within the meaning of that
term under Section 409A (the “Six Month Delay”) and if such delayed commencement
is otherwise required to avoid an “additional tax” under section 409A(a)(1)(B)
of the Code. All payments and benefits that are delayed pursuant to the
immediately preceding sentence shall be paid to the Employee in a lump sum upon
expiration of such six (6) month period (or if earlier, upon the Employee’s
death).
Notwithstanding
the foregoing provisions, to the extent permitted under Section 409A, any
separate payment or benefit under this Agreement or otherwise shall not be
“deferred compensation” subject to Section 409A and the Six Month Delay to the
extent provided in the exceptions in Treasury Regulation section 1.409A-1(b)(4)
and (b)(9) and any other applicable exception or provision under Section
409A. Further, each individual installment payment that becomes
payable under this Agreement and each payment of the Severance Pay or if
applicable, the CIC Severance Pay shall be a “separate payment” under Section
409A. Specifically, to the extent the provisions of Treasury
Regulation section 1.409A-1(b)(9) are applicable to the Severance Pay or if
applicable, the CIC Severance Pay, the portion of such severance pay set forth
in respectively, subsection 7(a)(i) or subsection 7(e)(i) above that is less
than the limit prescribed under Treasury Regulation section
1.409A-1(b)(9)(iii)(A) (or any successor provision) (the “Separation Pay
Amount”) shall be payable to the Employee in the manner prescribed in subsection
7(a)(i) or subsection 7(e)(i), as applicable, without regard to the Six Month
Delay. Following the Six Month Delay, (1) to the extent applicable,
the Employee shall receive a lump sum cash payment equal to the Severance Pay or
CIC Severance Pay, as applicable, he otherwise would have received during the
Six Month Period (absent the Six Month Delay) less the Separation Pay Amount and
(2) the Employee shall receive the remainder of his Severance Pay or CIC
Severance Pay, as applicable, in the manner prescribed by subsection 7(a) or
subsection 7(e), as applicable.
18
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
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COMPANY:
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EMPLOYEE:
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|||||
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By:
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By:
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|||||
| /s/ Xxxxxxx X. Xxxxx |
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/s/ Xxxxxxx X. Xxxxx |
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|||
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Name:
Xxxxxxx X. Xxxxx
Chief Executive
Officer
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Name:
Xxxxxxx X.
Xxxxx
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Appendix
A
Perquisites
1.
Automobile Allowance in the amount of $1,200.00 per month
2.
Annual Executive Physical Examination as a part of the Company’s executive
wellness program
3.
Life Insurance as a part of the Company’s group life insurance program in an
amount equal to three (3) times the Employee’s Base Salary
20
