EXHIBIT 10.8
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of April 15, 2003 between
CHAAS Acquisitions, LLC, a Delaware limited liability company (the "Company")
and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the parties wish to establish the terms of Executive's future
employment with the Company; and
WHEREAS, for purposes of this Agreement, the term "Company" shall
include subsidiaries of the Company and the Company may direct that one or more
of such subsidiaries fulfill the Company's obligations under this Agreement,
including, but not limited to, any applicable obligations under Section 3 or 4
hereof.
Accordingly, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY THE COMPANY. The Company shall employ the
Executive effective as of the "Closing Date" as defined in the Securities
Purchase Agreement, dated as of April 15, 2003, among Advanced Accessory
Systems, LLC, each of the individuals and entities identified under the heading
"Sellers' on Annex A attached thereto and CHAAS Acquisitions, LLC (the
"Securities Purchase Agreement") (the "Effective Date") to render exclusive,
subject to the last sentence of this Section 1.1, and full-time services to the
Company. The Executive will serve in the capacity of President and Chief
Operating Officer of Sportrack, LLC and such other positions of the Company or
its subsidiaries as designated by the Company and shall report to the President
and Chief Executive Officer of the Company. The Executive will perform such
lawful duties related to the business of the Company as are imposed on the
holder of that office by the By-laws of the Company and such other lawful duties
related to the business of the Company as are customarily performed by one
holding such positions in the same or similar businesses or enterprises as those
of the Company. The Executive will perform such other lawful duties related to
the business of the Company as may be assigned to him from time to time by the
President and Chief Executive Officer of the Company or the Board of Managers of
the Company, either directly or indirectly through its Chairman. The Executive
will devote all his full working-time and attention to the performance of such
duties and to the promotion of the business and interests of the Company. This
provision, however, will not prevent the Executive from investing his funds or
assets in any form or manner, or from acting as an advisor to or a member of,
the board of directors of any companies, businesses, or charitable
organizations, so long as such actions do not violate the provisions of Section
5 of this Agreement or interfere with the Executive's performance of his duties
hereunder.
1.2 ACCEPTANCE OF EMPLOYMENT BY THE EXECUTIVE. The Executive
accepts such employment and shall render the services described above.
2. DURATION OF EMPLOYMENT.
Subject to Section 4 of this Agreement, this Agreement and the
employment relationship hereunder will continue in effect for one (1) year from
the Effective Date (the "Initial Term"), and the terms of this Agreement shall
continue beyond the Initial Term in the following manner: the Initial Term shall
be automatically extended by one (1) day to always be not less than one (1) year
(the "Extended Term"); provided, however, that this extension shall cease upon
the earlier of (i) the date of termination of employment or (ii) notice of
termination of employment in the case of any termination under Section 4 hereof.
The Initial Term and the Extended Term are sometimes referred to in this
Agreement as the "Term." In the event of the Executive's termination of
employment during the Term, the Company's obligation to continue to pay all base
salary, as adjusted, bonus and other benefits then accrued shall terminate
except as may be provided for in Section 4 of this Agreement.
3. COMPENSATION BY THE COMPANY.
3.1 BASE SALARY. As compensation for all services rendered
pursuant to this Agreement, the Company will pay to the Executive an annual base
salary of Two Hundred Sixty Thousand Dollars ($260,000), subject to an upward
adjustment by the Board of Managers of the Company, in its sole discretion, and
payable in accordance with the payroll practices of the Company ("Base Salary").
The Base Salary may not be reduced during the Term.
3.2. BONUSES. The Executive shall be eligible to receive from the
Company an annual cash bonus in a range of thirty percent (30%) to fifty percent
(50%) of Base Salary, subject, in any event, to the achievement by the Company
of performance goals established by the Board of Managers of the Company, in its
sole discretion. This bonus shall be determined by the Compensation Committee of
the Board of Managers of the Company. For 2003, such bonus shall be pro rated,
based on the period from the Effective Date to December 31, 2003; provided that
the Executive shall be entitled to any bonus for the period of 2003 prior to the
Effective Date, accrued and reflected in "Final Adjusted Working Capital", as a
current liability in the "Final Closing Statement," each as defined in the
Securities Purchase Agreement.
3.3 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Executive shall
be permitted, during the Term, if and to the extent eligible, to participate in
any group life, hospitalization or disability insurance plan, health program,
pension plan or similar benefit plan of the Company, which may be available to
other executives of the Company generally, on the same terms as such other
executives.
3.4 CAR ALLOWANCE. The Executive shall be entitled to a monthly
car allowance equal to One Thousand Two Hundred Fifty Dollars ($1,250).
3.5 VACATION. The Executive shall be entitled to twenty (20)
days of vacation per year.
3.6 EXPENSE REIMBURSEMENT. During the Term, the Executive shall
be entitled to receive prompt reimbursement of all reasonable out-of-pocket
expenses properly incurred by him in connection with his duties under this
Agreement, including reasonable expenses of entertainment and travel, provided
that such expenses are documented and reported
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in accordance with the policies and procedures of the Company or the Board of
Managers, as applicable, at the time the expenses are incurred.
3.7 LIFE INSURANCE AND DISABILITY. Unless otherwise provided
through the general life insurance and disability plan or policy for the
Company's employees, the Company shall pay the costs of a separate or
complimentary plan or policy on behalf of the Executive during the Term (i) with
respect to the annual premiums for a term life insurance policy (the "Insurance
Policy") on the life of the Executive providing for a payment of 300% of the
Executive's Base Salary to the beneficiaries of such policy and (ii) with
respect to appropriate disability insurance (the "Disability Policy") for the
Executive providing for a payment of 60-70% of the Executive's Base Salary to
the beneficiaries of such policy for the period of the disability as set forth
in the policy; PROVIDED, HOWEVER, that the Company shall not be required to
spend more than $9,000 in the aggregate for the annual premiums with respect to
the Insurance Policy and the Disability Policy.
4. TERMINATION.
4.1 TERMINATION UPON DEATH. If the Executive dies during the
Term, the Executive's legal representatives shall be entitled to receive the
Executive's Base Salary and accrued bonus for the period ending on the last day
of the month in which the death of the Executive occurs.
4.2 TERMINATION UPON DISABILITY. If during the Term the
Executive's employment with the Company is terminated as a result of a
"Disability" (as defined in the Disability Policy), the Executive (or his legal
representatives) shall be entitled to receive the benefits set forth in Section
3.7 hereof applicable to a Disability.
4.3 TERMINATION FOR CAUSE. The Executive's employment hereunder
may be terminated by the Board of Managers of the Company for "Cause" (as herein
defined) at any time. "Cause" shall mean with respect to the Executive, (a) the
Executive's continued failure to substantially perform the Executive's duties,
(b) failure to follow the lawful directions of the President and Chief Executive
Officer of the Company or the Board of Managers of the Company, either directly
or indirectly through its Chairman, (c) material, willful acts of dishonesty,
theft or fraud resulting or intending to result in personal gain or enrichment
at the expense of the Company, (d) commission of a felony, (e) a violation of
any written policy of the Company including, but not limited to, the Company's
employment manuals, rules and regulations which materially and adversely affects
the Company or could reasonably be expected to materially and adversely affect
the Company, or (f) the Executive engaging in any act that is intended, or may
reasonably be expected to materially harm the reputation, business or operations
of the Company or any member of its Board of Managers or (g) any other material
breach of this Agreement or any other agreement with the Company that the
Executive signs in his personal capacity, including, but not limited to, any
non-competition and confidentiality agreement, but excluding the Securities
Purchase Agreement. Prior to a termination for "Cause, the Executive shall be
entitled to written notice from the Company and ten (10) business days to cure
the deficiency leading to the Cause determination, if such deficiency is
curable. Notwithstanding the foregoing and without limiting the foregoing in any
way, for the avoidance of doubt, the Executive shall receive written notice and
ten (10) business days to cure a deficiency under Section 4.3(a) or (b) hereof.
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Upon termination for Cause hereunder, the Executive shall be
entitled to receive the Executive's Base Salary through the date of termination.
4.4 VOLUNTARY TERMINATION WITHOUT EMPLOYEE GOOD REASON. The
Executive may upon at least sixty (60) but not more than ninety (90) days prior
written notice to the Company terminate employment hereunder without Employee
Good Reason, as defined in Section 4.6. Upon a voluntary termination without
Employee Good Reason, the Executive shall be entitled to receive the Executive's
Base Salary through the date of termination; provided, however, that if the
Company shall waive part or all of such sixty (60) but not more than ninety (90)
day notice period, the Executive shall only receive Base Salary to the date of
termination specified in such waiver.
4.5 TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE.
(a) The Company may terminate the Executive's employment at
any time other than for Cause. If, prior to the expiration of this Agreement,
the Company terminates the Executive's employment for any reason other than
Cause, then in lieu of additional salary payments to the Executive for periods
subsequent to the date of such termination, the Company shall pay to the
Executive (i) his Base Salary for the remaining duration of the Term plus (ii) a
pro rata portion of the bonus that is determined under the terms of Section 3.2,
if any, such bonus to be determined at year end, based on the period from
January 1 of the year of termination of employment to the date of termination of
employment and (iii) the Company shall reimburse the Executive for the
applicable premiums under COBRA to receive insurance coverage from the Company
commencing on the date of termination through the date which is the earlier to
occur of (1) expiration of the applicable Term and (2) the day on which the
Executive shall be included in any insurance program provided by any other
employer.
(b) Nothing contained in this Section 4.5 shall prevent the
Executive from receiving any and all benefits payable under any severance
benefit plan or program maintained by the Company to which the Executive is
entitled.
4.6 VOLUNTARY TERMINATION WITH EMPLOYEE GOOD REASON. (a)
The Executive may upon at least sixty (60) days prior written notice to the
Company terminate employment hereunder with Employee Good Reason (as herein
defined). Upon a termination with Employee Good Reason, in lieu of additional
salary payments to the Executive for periods subsequent to the date of such
termination, the Company shall pay to the Executive (i) his Base Salary for a
period of twelve (12) months after such termination plus (ii) a pro rata portion
of the bonus that is determined under the terms of Section 3.2, if any, such
bonus to be determined at year end, based on the period from January 1 of the
year of termination of employment to the date of termination of employment and
(iii) the Company shall reimburse the Executive for the applicable premiums
under COBRA to receive insurance coverage from the Company commencing on the
date of termination through the date which is the earlier to occur of (1) the
expiration of twelve (12) months after termination of employment and (2) the day
on which the Executive shall be included in any insurance program provided by
any other employer; provided, however, that if the Company shall waive part or
all of such sixty (60) day notice period, the items listed in (i), (ii) and
(iii) shall run from the date of termination contained in such waiver.
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(b) The term "Employee Good Reason" shall mean, without the
consent of the Executive (i) a reduction in Base Salary or any agreed upon
benefit under this Agreement; provided that the Company may at any time or from
time to time amend, modify, suspend or terminate any bonus, incentive
compensation or other benefit plan or program (in each case, other than Base
Salary) provided to the Executive for any reason and without the Executive's
consent if such modification, suspension or termination is consistent with
modifications, suspensions or terminations for other senior executive employees
of the Company, (ii) a material reduction in the Executive's responsibilities or
duties (other than a change in the number or identity of persons reporting to
the Executive) or the title of the Executive as President and Chief Operating
Officer of Sportrack, LLC or (iii) the requirement by the Board of Managers of
the Company that the Executive relocate his residence from the Sterling Heights,
Michigan area; PROVIDED, that, the Company shall have thirty (30) days after
receipt of notice from the Executive pursuant to this Section 4.6 to cure the
deficiency resulting in the termination with Employee Good Reason.
4.7 CHANGE OF CONTROL. In the event that the Company
terminates the Executive's employment without Cause or the Executive terminates
his employment with Employee Good Reason within six (6) months after the
Effective Date of this Agreement, the applicable periods in Section 4.5(a)(i)
and (a)(iii) and Section 4.6(a)(i) and (a)(iii) shall be increased by six (6)
months.
4.8 REMOVAL FROM ANY BOARDS AND POSITIONS. If the
Executive's employment is terminated for any reason under this Agreement, he
shall be deemed to resign (i) if a member, from the Board of Managers of the
Company or board of managers or board of directors of any subsidiary of the
Company or any other board to which he has been appointed or nominated by or on
behalf of the Company and (ii) from any position with the Company or any
subsidiary of the Company, including, but not limited to, as an officer of the
Company or any of its subsidiaries.
5. RESTRICTIONS AND OBLIGATIONS OF THE EXECUTIVE.
5.1 CONFIDENTIALITY. (a) During the course of the Executive's
employment by the Company, the Executive will have access to certain trade
secrets and confidential information relating to the Company which is not
readily available from sources outside the Company. The confidential and
proprietary information and, in any material respect, trade secrets of the
Company are among its most valuable assets, including but not limited to, its
customer and vendor lists, database, engineering, computer programs, frameworks,
models, its marketing programs, its sales, financial, marketing, training and
technical information, and any other information, whether communicated orally,
electronically, in writing or in other tangible forms concerning how the Company
creates, develops, acquires or maintains its products and marketing plans,
targets its potential customers and operates its retail and other businesses.
The Company invested, and continues to invest, considerable amounts of time and
money in its process, technology, know-how, obtaining and developing the
goodwill of its customers, its other external relationships, its data systems
and data bases, and all the information described above (hereinafter
collectively referred to as "Confidential Information"), and any
misappropriation or unauthorized disclosure of Confidential Information in any
form would irreparably harm the Company. The Executive acknowledges that such
Confidential Information constitutes valuable,
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highly confidential, special and unique property of the Company. The Executive
shall hold in a fiduciary capacity for the benefit of the Company all
Confidential Information relating to the Company and its business, which shall
have been obtained by the Executive during the Executive's employment by the
Company or predecessor of the Company and which shall not be or become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). Except as required by law or an order
of a court or governmental agency with jurisdiction, the Executive shall not,
during the period the Executive is employed by the Company or at any time
thereafter, disclose any Confidential Information, directly or indirectly, to
any person or entity for any reason or purpose whatsoever, nor shall the
Executive use it in any way, except in the course of the Executive's employment
with, and for the benefit of, the Company or to enforce any rights or defend any
claims hereunder or under any other agreement to which the Executive is a party,
provided that such disclosure is relevant to the enforcement of such rights or
defense of such claims and is only disclosed in the formal proceedings related
thereto. The Executive shall take all reasonable steps to safeguard the
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft. The Executive understands and agrees that the
Executive shall acquire no rights to any such Confidential Information.
(b) All files, records, documents, drawings, specifications,
data, computer programs, evaluation mechanisms and analytics and similar items
relating thereto or to the Business (for the purposes of this Agreement,
"Business" shall be as defined in Section 5.3 hereof), as well as all customer
lists, specific customer information, compilations of product research and
marketing techniques of the Company, whether prepared by the Executive or
otherwise coming into the Executive's possession, shall remain the exclusive
property of the Company, and the Executive shall not remove any such items from
the premises of the Company, except in furtherance of the Executive's duties
under any employment agreement.
(c) It is understood that while employed by the Company the
Executive will promptly disclose to it, and assign to it the Executive's
interest in any invention, improvement or discovery made or conceived by the
Executive, either alone or jointly with others, which arises out of the
Executive's employment. At the Company's request and expense, the Executive will
assist the Company during the period of the Executive's employment by the
Company and thereafter in connection with any controversy or legal proceeding
relating to such invention, improvement or discovery and in obtaining domestic
and foreign patent or other protection covering the same.
(d) As requested by the Company and at the Company's expense,
from time to time and upon the termination of the Executive's employment with
the Company for any reason, the Executive will promptly deliver to the Company
all copies and embodiments, in whatever form, of all Confidential Information in
the Executive's possession or within his control (including, but not limited to,
memoranda, records, notes, plans, photographs, manuals, notebooks,
documentation, program listings, flow charts, magnetic media, disks, diskettes,
tapes and all other materials containing any Confidential Information)
irrespective of the location or form of such material. If requested by the
Company, the Executive will provide the Company with written confirmation that
all such materials have been delivered to the Company as provided herein.
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5.2 NON-SOLICITATION OR HIRE. During the Term and (i) for a
three (3) year period following a termination of the Executive's employment by
the Company for Cause or a voluntary termination by the Executive without
Employee Good Reason or (ii) for eighteen (18) months following the termination
of the Executive's employment by the Executive with Employee Good Reason or by
the Company without Cause, the Executive shall not, (a) solicit, directly or
indirectly, any party who is a customer of the Company or its subsidiaries, or
who was a customer of the Company or its subsidiaries at any time during the
twelve (12) month period immediately prior to the relevant date, for the purpose
of marketing, selling or providing to any such party any services or products
offered by or available from the Company or its subsidiaries and relating to the
Business (provided that if the Executive intends to solicit any such party for
any other purpose, he shall notify the Company of such intention) or (b) employ
or solicit, directly or indirectly, for employment any person who is an employee
of the Company or any of its subsidiaries at the time of termination or who was
an employee of the Company or any of its subsidiaries at any time during the six
(6) month period immediately prior to any such solicitation or employment.
5.3 NON-COMPETITION. During the Term and (i) for a three (3)
year period following a termination of the Executive's employment by the Company
for Cause or a voluntary termination by the Executive without Employee Good
Reason or (ii) for eighteen (18) months following the termination of the
Executive's employment by the Executive with Employee Good Reason or by the
Company without Cause, the Executive shall not directly or indirectly, whether
individually, as a director, manager, member, stockholder, partner, owner,
employee, consultant or agent of any business, or in any other capacity, other
than on behalf of the Company or an affiliate or successor of the Company,
organize, establish, own, operate, manage, control, engage in, participate in,
invest in, permit his name to be used by, act as a consultant or advisor to,
render services for (alone or in association with any person, firm, corporation
or business organization), or otherwise assist any person or entity that engages
in or owns, invests in, operates, manages or controls any venture or enterprise
which directly or indirectly, engages or proposes to engage in (A) designing,
engineering, manufacturing, selling or distributing (x) towing systems and roof
rack systems and related accessories or (y) any other product which the Company
designs, engineers, manufactures, sells or distributes on or prior to the
termination of the Executive's employment (the "Business") or (B) in providing
services that are similar to, may be used as substitutes for or are in
competition with the Business, anywhere in the world in which the Company or any
of its subsidiaries engages or proposes to engage in such Business.
Notwithstanding the foregoing, nothing in this Agreement shall prevent the
Executive from owning for passive investment purposes not intended to circumvent
this Agreement, less than five percent (5%) of the publicly traded equity
securities of any competing enterprise (so long as the Executive has no power to
manage, operate, advise, consult with or control the competing enterprise and no
power, alone or in conjunction with other affiliated parties, to select a
director, manager, general partner, or similar governing official of the
competing enterprise other than in connection with the normal and customary
voting powers afforded the Executive in connection with any permissible equity
ownership).
5.4 REPUTATION. The Company agrees to instruct its officers,
directors and Board of Managers not to engage in any act that is intended, or
may reasonably be expected to materially harm the reputation of the Executive
and the Executive agrees not to engage in any act that is intended, or may
reasonably be expected to materially harm the reputation, business,
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prospects or operations of the Company, any member of its Board of Managers,
Xxxxxx Xxxxxx, Inc. or Xxxxxx Xxxxxx, Partners IV, L.P., in either case, unless
as required by law or an order of a court or governmental agency with
jurisdiction
5.5 PROPERTY. The Executive acknowledges that all originals and
copies of materials, records and documents generated by him or coming into his
possession during his employment by the Company are the sole property of the
Company ("Company Property"). During the Term, and at all times thereafter, the
Executive shall not remove, or cause to be removed, from the premises of the
Company, copies of any record, file, memorandum, document, computer related
information or equipment, or any other item relating to the business of the
Company, or any affiliate, except in furtherance of his duties under the
Agreement. When the Executive terminates his employment with the Company, or
upon request of the Company at any time, the Executive shall promptly deliver to
the Company all copies of Company Property in his possession or control.
5.6 WORK PRODUCT. The Executive agrees that all inventions,
discoveries, systems, interfaces, protocols, concepts, formats, creations,
developments, designs, programs, products, processes, investment strategies,
materials, computer programs or software, data bases, improvements, or other
properties related to the business of the Company or any of its affiliates,
conceived, made or developed during the term of his employment with the Company,
whether conceived by the Executive alone or working with others, and whether
patentable or not (the "Work Product"), shall be owned by and belong exclusively
to the Company. The Executive hereby assigns to the Company his entire rights to
the Work Product and agrees to execute any documents and take any action
reasonably requested by the Company (at the Company's sole cost and expense) to
protect the rights of the Company in any Work Product. The Executive
acknowledges that any copyrightable subject matter created by the Executive
within the scope of his employment, whether containing or involving Confidential
Information or not, is deemed a work-made-for-hire under Chapter 17 of the
United States Code, entitled "Copyrights," as amended, and the Company shall be
deemed the sole author and owner thereof for any purposes whatsoever. In the
event of any unauthorized publication of any Confidential Information, the
Company shall automatically own the copyright in such publication. Further, the
Company shall automatically hold all patents and/or trademarks, if any, with
respect to any Work Product.
6. OTHER PROVISIONS.
6.1. NOTICES. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid, and shall be deemed given when so
delivered personally, telegraphed, telexed, or sent by facsimile transmission
or, if mailed, four (4) days after the date of mailing, as follows:
(a) If the Company, to:
CHAAS Acquisitions, LLC
00000 Xxxx Xxxx
Xxxxx 000
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Xxxxxxxx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx Partners IV, L.P.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
And a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) If the Executive, to his home address set forth in the
records of the Company.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
6.3 REPRESENTATIONS AND WARRANTIES BY EXECUTIVE. The Executive
represents and warrants that he is not a party to or subject to any restrictive
covenants, legal restrictions or other agreements in favor of any entity or
person which would in any way preclude, inhibit, impair or limit the Executive's
ability to perform his obligations under this Agreement, including, but not
limited to, non-competition agreements, non-solicitation agreements or
confidentiality agreements.
6.4 WAIVER AND AMENDMENTS. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may
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be waived, only by a written instrument signed by the parties or, in the case of
a waiver, by the party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or privilege
hereunder, preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder.
6.5 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, without regard
to conflicts of laws principles.
6.6 ASSIGNABILITY. This Agreement, and the Executive's rights
and obligations hereunder, may not be assigned by the Executive. The Company may
assign this Agreement and its rights, together with its obligations, to any
other entity which will substantially carry on the business of the Company.
6.7 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
6.8 HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of terms
contained herein.
6.9 REMEDIES; SPECIFIC PERFORMANCE. The parties hereto hereby
acknowledge that the provisions of Section 5 are reasonable and necessary for
the protection of the Company. In addition, the Executive further acknowledges
that the Company will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Company may be entitled, the Company will be
entitled to seek and obtain injunctive relief (without the requirement of any
bond) from a court of competent jurisdiction for the purposes of restraining the
Executive from any actual or threatened breach of such covenants. In addition,
without limiting the Company's remedies for any breach of any restriction on the
Executive set forth in Section 5, in the event of such breach, the Company will
have no obligation to pay any of the amounts that remain payable by the Company
under Section 4.
6.10 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated. The Executive acknowledges that the
restrictive covenants contained in Section 5 are a condition of this Agreement
and are reasonable and valid in geographical and temporal scope and in all other
respects.
6.11 JUDICIAL MODIFICATION. If any court or arbitrator determines
that any of the covenants in Section 5, or any part of any of them, is invalid
or unenforceable, the remainder
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of such covenants and parts thereof shall not thereby be affected and shall be
given full effect, without regard to the invalid portion. If any court or
arbitrator determines that any of such covenants, or any part thereof, is
invalid or unenforceable because of the geographic or temporal scope of such
provision, such court or arbitrator shall reduce such scope to the minimum
extent necessary to make such covenants valid and enforceable.
6.12 TAX WITHHOLDING. The Company or other payor is authorized to
withhold, from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary in the
opinion of the Board of Managers of the Company to satisfy all obligations for
the payment of such withholding taxes.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the day and year first above
mentioned.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
CHAAS ACQUISITIONS, LLC
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice-President
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