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EXHIBIT 10.7
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the ____ day of ________, 1997, by and between Xxxxxxxx X. Xxxxx, a
resident of the State of Georgia ("Executive"), and INDUSTRIAL DISTRIBUTION
GROUP, INC., a Delaware corporation ("IDG").
W I T N E S S E T H:
WHEREAS, IDG is engaged in the business of providing flexible
procurement solutions for industrial users and certain other users that have
maintenance, repair, operating, and production supplies requirements; and
WHEREAS, IDG desires to induce Executive to enter into employment with
IDG for the period provided in this Agreement, and Executive is willing to
accept such employment with IDG on a full-time basis, all in accordance with
the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereby covenant and agree as follows:
1. DUTIES AND EXTENT OF SERVICES
1.1 POSITION AND DUTIES. IDG hereby enters into this Agreement to
evidence and provide for the employment of Executive as President and Chief
Operating Officer of IDG. Consistent with the policies, guidelines, and
directives adopted or established by the Board of Directors of IDG, acting
pursuant to and in accordance with lawful authority, Executive shall be in
charge of directing, supervising, and coordinating the activities of all
operating subsidiaries and other business units of IDG, and, together with the
Chief Executive Officer of IDG, shall be directly involved in the development,
establishment, and implementation of policy and strategic initiatives for IDG,
with authority and responsibility consistent with his position as the principal
operating officer of IDG. Executive shall be entitled to serve as a member of
IDG's Board of Directors at all times during the term of this Agreement.
Executive shall report to the Chief Executive Officer of IDG. Executive agrees
to serve, without additional compensation, in a similar executive capacity with
subsidiaries of IDG and in such other executive capacities as may be designated
by the Board of Directors of IDG, consistent with the positions,
responsibilities, and authority of Executive hereunder. Neither Executive's
employment hereunder nor any other position referred to in the preceding
sentence shall require Executive to relocate his primary residence from his
current location, and Executive may perform his duties at such geographic
locations as he may determine in his reasonable discretion, giving due regard
to the location of his primary residence, the location of IDG's principal
offices, and the best interest of IDG. IDG hereby confirms to Executive that
its principal offices are located in the Xxxxxxx, Xxxxxxx
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xxxxxxxxxxxx xxxx and shall continue to be so located during the Term hereof
(as defined below) unless otherwise determined by a two-thirds (2/3) majority
vote of the Board of Directors of IDG. Each of the immediately preceding two
sentences represents a material and substantial part of this Agreement.
1.2 EXTENT OF SERVICES. Executive agrees to devote his full
working time, energy, and skill to the business of IDG and its affiliates and
to the promotion of IDG's interests and to discharge Executive's duties in good
faith and in a professional manner. Executive affirms and represents that he is
under no obligation to any former employer or other party that is in any way
inconsistent with, or that imposes any restriction upon, his acceptance of
employment hereunder with IDG, the employment of Executive by IDG, or
Executive's undertakings under this Agreement.
2. TERM
The term of this Agreement (the "Term") shall commence on ___________,
1997 (the "Effective Date") and shall continue for a three-year period, unless
and until this Agreement has been terminated in accordance with Section 7
hereto.
3. COMPENSATION
3.1 BASE SALARY. IDG shall pay to Executive a base annual salary
(the "Base Salary") of Two Hundred Fifty Thousand Dollars ($250,000) for each
fiscal year during the Term (prorated for any partial fiscal year) subject,
however, to being increased for each fiscal year beginning January 1, 1998, to
such higher amount as may be approved by the Board of Directors of IDG. All
Base Salary shall be paid in equal periodic installments in accordance with
IDG's normal payroll policies, as may be in effect or modified during the Term.
3.2 GENERAL INCENTIVE COMPENSATION AND SAVINGS PROGRAMS. IDG
hereby agrees that, from the Effective Date, Executive shall be entitled to
participate, to an extent consistent with Executive's title and Base Salary, in
the incentive compensation program established by IDG, and in all savings
programs, including stock option or other stock-based
compensation plans or profit sharing plans, 401(k) plans, or other savings
programs, as may be established in general by IDG for similarly situated
officers, other key employees, or employees as a group.
Nothing contained herein and no action taken in respect of
any bonus (or otherwise in respect of this Section 3.2) shall create or be
construed to create a trust of any kind. Executive's right to receive any bonus
pursuant to this Section 3.2 shall be no greater than the right of an unsecured
general creditor of IDG to receive payment from IDG. Any bonus paid under this
Section 3.2 or otherwise shall be paid from the general funds of IDG, and no
special or separate fund shall be established, and no segregation of assets
shall be made, to assure payment of any bonus hereunder.
3.3 WITHHOLDINGS, PAYROLL TAXES AND OTHER DEDUCTIONS. The payment
of Base Salary and any other compensation hereunder shall be subject to
withholdings and payroll taxes
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required by applicable law, and such other deductions as may be required under
IDG's employee benefit plans in which Executive has elected to participate.
4. BENEFITS.
During Executive's employment hereunder, Executive shall:
(a) be eligible to participate in employee fringe benefits and
any pension or profit sharing plans that may be provided by IDG for its
executive employees in general in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
(b) be eligible to participate in any medical and health plans or
other employee welfare benefit plans that may be provided by IDG for its
executive employees in general in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
(c) be entitled to annual paid vacation in accordance with IDG
policy that may be applicable to executive employees from time to time;
(d) be entitled to sick leave, sick pay, and disability benefits in
accordance with any IDG policy that may be applicable to executive
employees from time to time; and
(e) be entitled, without limitation of the foregoing, to the
continuation by IDG on terms acceptable to Executive of (and IDG hereby
agrees to so continue) the life and disability insurance policies and
related program described on Schedule A hereto that are currently being
maintained for Executive by the predecessor business to which IDG is
succeeding by merger on the Effective Date.
5. CONFIDENTIAL INFORMATION
5.1 DEFINITION. For purposes of this Agreement, "Confidential
Information" shall mean any and all trade secrets and other information
considered by IDG as being confidential and concerning the business and affairs
of IDG, including but not limited to (a) product specifications, discoveries,
improvements, processes, marketing and service methods or techniques, formulae,
designs, styles, specifications, data bases, computer programs (whether in
source code or object code), know-how, strategies, data, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, and any other information, however documented, that is a trade
secret of IDG, or any of its affiliates within the meaning set forth in
O.C.G.A. ss. 10-1-761; (b) information concerning the business and affairs of
IDG (which includes, but is not limited to, historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, business plans, the names and background of key
personnel, personnel training and techniques and materials, and sales
techniques and materials of IDG), however documented; and (c) notes, analyses,
compilations,
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studies, summaries, and other material prepared by or for IDG containing or
based, in whole or in part, on any information included in the foregoing;
provided, however, Confidential Information shall not include any information
that Executive demonstrates was or became generally known or available to the
public other than as a result of an unauthorized or unlawful disclosure
directly or indirectly by Executive.
5.2 ACKNOWLEDGMENTS AND AGREEMENTS BY EXECUTIVE. Executive hereby
acknowledges, agrees, and covenants as follows:
(a) Executive's employment hereunder creates a relationship of
confidence and trust between Executive and IDG and its affiliates with
respect to the Confidential Information of IDG and its affiliates and
other information pertaining to the businesses of any client or customer
of IDG or its affiliates that may be made known to Executive by IDG or any
of its affiliates, or by any client or customer of IDG or any of its
affiliates, or learned by Executive during the period of Executive's
employment under this Agreement.
(b) Executive possesses or will possess Confidential Information that
has been, or will be, created, discovered, or developed by, or otherwise
becomes known or disclosed to Executive (including, without limitation,
information created, discovered, or developed by, or made known to,
Executive during the period of Executive's employment hereunder or during
discussions with or investigations of IDG in contemplation of such
employment), which information Executive acknowledges has or may have
commercial value to IDG or its affiliates in the businesses in which they
are or proposed to be engaged.
(c) Executive hereby agrees that Executive will keep confidential
and will hold for IDG's sole benefit all Confidential Information, which
Executive acknowledges is, or shall be, proprietary to IDG or its
affiliates.
(d) Executive also agrees that Executive will not, without the prior
approval of the Board of Directors of IDG, use for Executive's benefit or
disclose at any time during Executive's employment by IDG, or thereafter,
except to the extent required for the performance by Executive of
Executive's duties as an employee of IDG, any information obtained or
developed by Executive while in the employ of IDG with respect to the
products, employees, financial affairs, or methods of design,
distribution, marketing, service, or procurement of any customer, client,
or supplier of IDG or any of its affiliates, or any confidential matter
with respect thereto, except information that at the time is generally
known to the public other than as a result of disclosure by Executive not
permitted hereunder.
(e) Executive acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 5 would be
inadequate and, therefore, agrees that IDG shall be entitled to injunctive
relief in addition to any other available rights and remedies in case of
any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting IDG or any of its
affiliates
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from pursuing any other rights and remedies available for any such
breach or threatened breach.
(f) Executive agrees that upon termination of Executive's employment
by IDG for any reason, Executive shall forthwith return to IDG, or destroy
to the satisfaction of IDG, all Confidential Information in whatever form
such information is in the possession of Executive or under Executive's
control, and shall additionally return all documents and other property
that is in Executive's possession or under Executive's control and
belonging to IDG or any of its affiliates that Executive does not
otherwise have a valid independent right to possess or control.
6. NO RECRUITMENT; NON-COMPETITION
6.1 PROHIBITED ACTIVITIES. During Executive's employment hereunder and
for one (1) year after the termination of Executive's employment hereunder,
Executive will not, directly or indirectly, for any reason, for his own
account, or on behalf of or together with any other person:
(a) solicit, induce, or conspire with, or attempt to solicit,
induce, or conspire with, any of the officers or employees of IDG or any
of its affiliates (IDG and its affiliates collectively being "IDG" for
purposes of this Section 6) to terminate their employment or relationship
with, or to compete against, IDG;
(b) solicit or induce, or attempt to solicit or induce, any of the
customers or suppliers of IDG, with whom Executive has dealt with or
otherwise has or had direct dealings with during the twenty-four (24)
month period prior to such attempted solicitation or inducement, to
terminate their business relationship with IDG;
(c) divert or attempt to divert any or all of such customers' or
suppliers' business with them from them in violation of this Agreement or
applicable law (including the violation of any trade secrets law); or
(d) be engaged as an officer or director or in any other managerial
or sales capacity or as an owner, co-owner, or other investor of or in,
whether as an employee, independent contractor, consultant or advisor, or
sales representative or distributor of any kind, in a business that sells
any products or provides any services in competition with IDG within a
radius of 100 miles of each location in which IDG was engaged in business
on the date hereof or, to the extent permitted by and enforceable under
applicable law, in which IDG is so engaged on the date of Executive's
termination.
Notwithstanding the foregoing, Executive may own and hold as a passive
investment up to one percent (1%) of the outstanding capital stock of a
competing entity if that class of capital stock is listed for trading or
quotation on a national or regional stock exchange registered with the SEC or
on The Nasdaq Stock Market.
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6.2 DAMAGES. Because of the difficulty in measuring the economic
losses that may be incurred by IDG as a result of any breach by Executive of
the covenants in Section 6.1, and because of the immediate and irreparable
damage that could be caused to IDG for which it would have no other adequate
remedy, Executive agrees that IDG may enforce the provisions of Section 6.1 by
any equitable or legal means, including seeking an appropriate injunction or
restraining order against Executive if a breach of any of those provisions
occurs.
6.3 REASONABLE RESTRAINT. The parties hereto each agree that
Sections 6.1 and 6.2 impose a reasonable restraint on Executive in light of the
position of Executive with IDG, the activities and business of IDG on the date
hereof, and the current business plans of IDG (of which Executive acknowledges
that he is aware).
6.4 SEVERABILITY; REFORMATION. The covenants in this Section 6 are
severable and separate, and the unenforceability of any specific covenant in
this Section 6 is not intended by any party hereto to, and shall not, affect
the provisions of any other covenant in this Section 6. If any court of
competent jurisdiction shall determine that the scope, time, or territorial
restrictions set forth in Section 6.1 are unreasonable as applied to Executive,
the parties hereto acknowledge their mutual intention and agreement that those
restrictions be enforced to the fullest extent the court deems reasonable, and
thereby shall be reformed to that extent as applied to Executive.
6.5 INDEPENDENT COVENANT. All of the covenants in this Section 6 are
intended by each party hereto to be, and shall be construed as, an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of Executive against IDG, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by
IDG of any covenant in this Section 6. It is specifically agreed that the
period specified in Section 6.1 shall be computed by excluding from that
computation any time during which Executive is in violation of any provision of
Section 6.1.
6.6 MATERIALITY. IDG and Executive hereby agree that this Section 6
is a material and substantial part of this Agreement.
7. TERMINATION OF EMPLOYMENT
7.1 BY IDG. (a) Executive's employment under this Agreement may be
terminated by IDG at any time for good cause. For the purposes of this Section
7.1, "good cause" shall mean: (i) Executive's breach of a material provision of
this Agreement; (ii) the conviction or indictment (or its procedural
equivalent) of, or the entering of a plea of guilty or no contest by, Executive
with respect to an act or acts involving moral turpitude that constitutes a
felony under applicable law; (iii) the commission by Executive of an act or
acts of dishonesty that subjects IDG or any of its affiliates to material loss
or detriment, including the misappropriation (or attempted misappropriation) of
any of IDG or any of its affiliate's funds, as determined by the Board of
Directors of IDG; or (iv) Executive's habitual neglect of, or refusal to
perform, Executive's duties under this Agreement, or deliberate and intentional
disregard of lawful instructions from the Board of Directors of IDG; provided,
however, that with respect to clauses (i) and (iv) above, Executive shall have
received written notice of such alleged breach, neglect,
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refusal, or disregard, as the case may be, from the Board of Directors of IDG
and shall have failed within thirty (30) days after the receipt of such notice
to cure and correct such alleged breach, neglect, refusal, or disregard (or to
begin in good faith to effect such cure and correction if such cure or
correction cannot practically be completed within such 30-day period).
(b) If Executive's employment is terminated under this Section 7.1,
IDG shall have no further obligation to Executive hereunder except to pay to
Executive, in cash on the effective date of such termination, any amount
accrued but unpaid hereunder as of the termination date, and except for the
provisions contained in Sections 5, 6, and 8, which shall specifically survive
such termination.
7.2 BY DEATH. If Executive dies, this Agreement shall terminate on the
date of Executive's death. In such event, IDG shall pay promptly to Executive's
designated beneficiary or, if no designated beneficiary, to Executive's estate,
any compensation or other amount earned or accrued as of the date of
Executive's death but not yet paid and any other payments to which Executive is
entitled pursuant to Section 3 or Section 4 hereof. Executive shall also be
entitled to receive the bonus payment provided for in Section 3.2 hereof for
the fiscal year in which the termination occurred. Further, all stock options
theretofore granted to Executive by IDG shall remain in force and effect and
shall be exercisable until their expiration date, provided that any such
options otherwise subject to vesting based solely on the lapse of time shall be
immediately vested in full.
7.3 BY DISABILITY. If Executive becomes unable to perform his normal
duties hereunder as a result of his incapacity due to physical or mental
illness for a period of at least one hundred eighty (180) consecutive days, IDG
shall have the option to terminate this Agreement upon the expiration of such
period (the "Disability Date"). In such an event, IDG shall pay to Executive
(within thirty (30) days thereof) all amounts accrued but unpaid as of the
Disability Date and, in the manner and at the times set forth in Section 3.1
above, an amount equal to the difference between (a) the Base Salary payable
for the remainder of the Term and (b) the monthly payments made to Executive
under any disability insurance coverage provided to Executive pursuant to
Section 4 hereof. Executive shall also be entitled to receive the bonus payment
provided for in Section 3.2 hereof for the fiscal year in which the termination
occurred. Further, all stock options theretofore granted to Executive by IDG
shall remain in force and effect and shall be exercisable until their
expiration date, provided that any such options otherwise subject to vesting
based solely on the lapse of time shall be immediately vested in full. If
Executive's employment is terminated by IDG as a result of a disability, as
provided in this Section 7.3, this Agreement shall terminate and neither party
shall have any further obligation to the other, except as provided above, and
except for the provisions contained in Sections 5, 6, and 8, which shall
specifically survive such termination.
7.4 BY DISCHARGE. If Executive's employment under the terms of this
Agreement is terminated by IDG for any reason other than cause, death, or
disability (in any such case a "Discharge"), then IDG shall pay to Executive,
on the date of Discharge, a lump sum cash amount equal to the present value of
the sum of (a) the greater of (i) twelve (12) months Base Salary, and (ii) the
amount of Base Salary that otherwise would have been payable to Executive
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for the remainder of the Term plus (b) the bonus payment provided for in
Section 3.2 hereof for the fiscal year in which the termination occurs. For
purposes of the present value calculation required by the preceding sentence,
the parties shall use as a rate IDG's then current cost of borrowing. Such
payment shall be in addition to other payments, if any, to which Executive is
entitled pursuant to Section 3 or Section 4 hereof. In addition, all stock
options theretofore granted to Executive shall remain in force and effect and
shall be exercisable until their expiration date, provided that any such
options otherwise subject to vesting based solely on the lapse of time shall be
immediately vested in full. The provisions of Sections 5, 6, and 8 shall
continue without regard to such Discharge or termination of this Agreement.
7.5 BY EXECUTIVE. If (a) IDG significantly reduces Executive's authority
or duties as provided for in this Agreement or Executive's standing within IDG
as a function of Executive's relationships with the Board or with other members
of management of IDG, or Executive's responsibilities for or control over the
direction or operation of IDG's business and personnel, (b) a change of control
of IDG occurs that is not consented to by Executive, (c) Executive is not
elected or retained as President and Chief Operating Officer and as a director
of IDG, or (d) Executive is required by IDG, without his consent, to relocate
his primary residence from his current location, or IDG changes its principal
offices other than in accordance with Section 1.1, then, in any such event,
Executive may terminate this Agreement and such termination shall be treated as
if it were a Discharge under Section 7.4; provided that the Board of Directors
of IDG shall have received written notice from Executive of any reduction
described in clause (a) above upon which Executive proposes to base a
termination and IDG shall have failed within thirty (30) days thereafter to
reverse or cure the situation giving rise to the grounds asserted by Executive.
For purposes hereof, "change of control" shall mean (e) the acquisition by a
person or entity other than Executive or an affiliate of Executive, whether in
one or several transactions, by exchange, merger, consolidation, assignment,
stock spin-off, stock split-up, or other transaction (other than pursuant to a
registered underwritten public offering of voting stock by IDG), of an amount
of the voting stock of IDG, or of the right to vote or to direct the voting of
such amount of voting stock, sufficient to elect a majority of the Board of
Directors of IDG, or (f) a change in the membership of the Board of Directors
of IDG such that a majority of the members are persons who are not Continuing
Directors. For purposes of this Agreement, a "Continuing Director" is a person
who is a member of the Board of Directors of IDG on the date hereof or a person
who is elected as a director of IDG upon the nomination by or approval of a
majority of the Continuing Directors in office. If Executive terminates this
Agreement due to a change of control, then in lieu of the payment provided for
in Section 7.4(a), Executive shall receive a cash payment equal to the present
value (based on IDG's then current cost of borrowing) of Executive's Base
Salary for the remainder of the Term, or for a period of two years, whichever
period is longer, payable within thirty (30) days of the date of the occurrence
of such event.
7.6 BY MUTUAL CONSENT. Nothing contained in this Agreement shall prevent
the parties from acting by mutual consent with respect to any matter, including
the terms or conditions for a termination of this Agreement, provided that
evidence thereof is in a writing signed by the party to be bound thereby.
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8. LEGAL EXPENSE REIMBURSEMENTS
8.1 INDEMNIFICATION LEGAL EXPENSES. Without limiting the scope of any
indemnification to which Executive is or may be entitled under applicable law
or pursuant to IDG's Certificate of Incorporation, Bylaws, or contract for
indemnification of officers or directors of IDG, IDG shall indemnify and hold
Executive harmless from and against the costs and expenses (including
attorneys' fees and costs) of Executive's defense with respect to any suit,
investigation, or other action or proceeding instituted or threatened against
Executive by any person, agency, body, or other entity that is based on, arises
out of, or is related to any position that Executive has after the date hereof
with IDG or any of its subsidiaries or other affiliates or otherwise related to
the performance by Executive of any duty or responsibility under this
Agreement. To the maximum extent permitted by applicable law, IDG agrees to
advance to Executive the amount of such costs and expenses as they are incurred
by Executive (upon written request by Executive therefor, accompanied by
reasonably detailed explanation of the basis for such advance(s)), and
Executive agrees, to the extent that such agreement may be required by
applicable law to permit such advances, to account to IDG for such advance(s),
including to refund to IDG any such amount that it may ultimately be determined
(according to applicable law) that Executive is not entitled to receive as
indemnification or reimbursement for such costs and expenses as a result of the
final disposition of the underlying suit, investigation, or other action or
proceeding in respect of which such costs or expenses were incurred. IDG agrees
to take such corporate action as may be necessary or advisable, if requested by
Executive, to authorize, approve, or effectuate and implement the rights
conferred upon Executive in this Section 8.1.
8.2 ATTORNEY'S FEES. If either Executive or IDG institutes an action
against the other in order to enforce the terms of this Agreement, whether in
court or by arbitration, the prevailing party shall receive its reasonable
attorney's fees from the non-prevailing party. Both parties agree to submit to
the court or arbitrator(s), as the case may be, the issue of deciding which
party, if either, is the prevailing party for purposes of this Section 8.2, and
in such case to decide the amount of attorney's fees that is reasonable in the
circumstances.
8.3 SURVIVAL. The provisions of this Section 8 shall survive any
termination of Executive's employment or of this Agreement.
9. MISCELLANEOUS AND GENERAL
9.1 NON-ASSIGNABILITY. (a) Neither this Agreement nor any right or
interest hereunder may be assigned by Executive, Executive's beneficiaries, or
legal representatives without IDG's prior written consent; provided, however,
that nothing in this Section 9.1 will preclude Executive from designating a
beneficiary to receive any benefits payable hereunder upon Executive's death or
incapacity. Notwithstanding the foregoing, this Agreement and any right or
interest of IDG hereunder may be assigned by IDG to any of its affiliates
without the consent of Executive; provided, however, that in the event of such
an assignment without the consent of Executive, IDG will remain liable for the
payment of all amounts payable to Executive hereunder.
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(b) Except as required by law, no right to receive payments under
this Agreement will be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action will be null, void
and of no effect.
9.2 WAIVER. The waiver by any party to this Agreement of a breach by the
other party of any of the provisions of this Agreement shall not operate as or
be construed as a waiver of any different or subsequent breach.
9.3 ENTIRE AGREEMENT. This Agreement constitutes and expresses the entire
agreement of the parties with respect to the subject matter hereof.
9.4 GOVERNING LAW; CHOICE OF FORUM; ETC. (a) This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Georgia (without regard to its rules of conflicts of laws); and the
laws of that state shall govern all of the rights, remedies, liabilities,
powers, and duties of the parties under this Agreement and of any arbitrator or
arbitrators to whom any matter hereunder may be submitted for resolution by the
parties hereto.
(b) Any legal action or proceeding with respect to this Agreement
that alleges a breach of Sections 5, 6, or 8 shall be brought exclusively in
the federal or state courts located in the State of Georgia, assuming subject
matter jurisdiction thereof (which each party agrees not to challenge), and by
execution and delivery of this Agreement, Executive and IDG irrevocably consent
to the personal jurisdiction of such courts for the adjudication of such
matters; provided, however, that upon agreement of both parties, any such
matter may be submitted to arbitration pursuant to Section 9.4(c). Executive
and IDG irrevocably waive any objection, including any objection to the laying
of venue or based on the grounds of forum non conveniens, that either may now
or hereafter have to the bringing of any action or proceeding in such
jurisdiction for adjudication of such matter.
(c) Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, other than an allegation of a breach of
Sections 5, 6, or 8 hereof, shall be settled by arbitration in Atlanta, Georgia
in accordance with the applicable rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
9.5 SEVERABILITY. Should any clause or any other portion of this
Agreement be determined to be void or unenforceable for any reason, such
determination shall not affect the validity or enforceability of any other
clause or portion of this Agreement, all of which shall remain in full force
and effect, unless the result of any such invalidity or unenforceability shall
be to cause a material failure of consideration to the party seeking to sustain
the validity or enforceability of the subject provision.
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9.6 NOTICES. All notices and other communications hereunder shall be
deemed to have been duly given on (a) the date of receipt if delivered
personally or (b) the third business day after deposit in the United States
Mail, if sent certified mail, postage prepaid, to IDG at its address provided
following its signature to this Agreement (Attention: Chief Executive Officer),
or to Executive at the address provided following Executive's signature to this
Agreement, as the case may be, or to such other address as one party shall have
given to the other in accordance with this provision.
9.7 EFFECT OF CAPTIONS AND HEADINGS. The captions and headings contained
herein are for convenience only, do not constitute a part of this Agreement,
and shall not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement, as an
instrument under seal, as of the day and year first written above.
[SEAL] "IDG"
Attest: INDUSTRIAL DISTRIBUTION GROUP, INC.
By:
-------------------------------- ------------------------------------
Secretary or Assistant Secretary Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
Address: 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
"EXECUTIVE"
----------------------------------- (SEAL)
XXXXXXXX X. XXXXX
Address: 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
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XXXXXXXX X. XXXXX
EMPLOYMENT AGREEMENT
SCHEDULE "A"
Xxxx Xxxxxx Insurance Group Disability Income 0279465803
The Guardian Disability Income G 606173-8
Commercial Union Life Insurance Company Universal Life PT 259937
General American Life Insurance Company Whole Life 1970694
