Exhibit 10.1
Execution Version
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of December
23, 2004 by and between GMH Holding Company, a Delaware corporation (the
"Company"), and Xxx XxXxxxxx ("Executive").
WHEREAS, Executive entered into an Employment Agreement dated June 28,
2002 by and between Gallarus Media, Inc., a Delaware corporation, Gallarus Media
Holdings, Inc., a Delaware corporation and Executive.
WHEREAS, this Agreement is being entered into in connection with the
consummation of the transactions contemplated by the Agreement and Plan of
Merger dated as of the date hereof (as amended from time to time, the "Merger
Agreement") by and between Gallarus Media Holdings, Inc. ("Gallarus"), the
Company, GMH Acquisition Corp., and solely for certain limited purposes, ABRY
Partners, LLC. Capitalized terms used herein and not otherwise defined have, the
meanings assigned to such terms in Section 14 hereof.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company will employ Executive, and Executive
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement, for the period beginning on the date of the closing of the
merger contemplated by the Merger Agreement and ending as provided in Section 5
(the "Employment Period").
2. Position and Duties. During the Employment Period, Executive will
serve as Chairman of the Board of Directors of the Company (the "Board") and as
the Chief Executive Officer of the Company and its Subsidiaries, and render such
managerial, supervisory and other executive services to the Company and its
Subsidiaries as are from time to time necessary in connection with the
management and affairs of the Company and its Subsidiaries, in each case subject
to the authority of the Board. Executive will devote his best efforts and
substantially all of his business time and attention (except for permitted
vacation periods and reasonable periods of illness or other incapacity) to the
business and affairs of the Company and its Subsidiaries. Executive will report
directly to the Board. All other employees of the Company and its Subsidiaries
will report, directly or indirectly, to Executive. Executive will perform his
duties and responsibilities to the best of his abilities in a trustworthy and
businesslike manner. The Company acknowledges that Executive will maintain his
home in New York so as to have a residence in proximity to his children and will
commute to New York to spend most weekends with his children. Notwithstanding
the preceding sentence, Executive acknowledges that the time and attention
required of him under this Section 2 shall be no less than a "normal" work week
and shall otherwise be as directed by the Board from time to time in writing.
3. Salary and Benefits.
(a) Salary. During the Employment Period, the Company will pay
Executive an amount equal to $375,000 per annum (as in effect from time to time,
the "Salary") as
compensation for services. The Salary will increase per annum by an amount equal
to 5% of the annual amount of the Salary in effect prior to such increase,
effective on the first day of January of each year, starting on January 1, 2006.
The Salary will be payable in regular installments in accordance with the
general payroll practices of the Company and its Subsidiaries.
(b) Benefits. During the Employment Period, the Company shall provide
Executive with family health and dental, life, long-term disability and
Directors' and Officers' liability insurance and other benefits offered under
such plans as the Board may establish or maintain from time to time for senior
executive officers of the Company and its Subsidiaries (collectively, the
"Benefits"). Executive shall be entitled to four (4) weeks of paid vacation each
year.
(c) Reimbursement of Expenses. During the Employment Period, the
Company will reimburse Executive for (i) all reasonable out-of-pocket expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, and (ii)
commuting expenses, and the expense of maintaining an apartment in the Atlanta,
Georgia metropolitan area, which commuting and apartment maintenance expenses
shall not in the aggregate exceed $3,000 per month. Reimbursement by the Company
for the expenses set forth in each of clause (i) and (ii) above will be subject
to the Company's requirements with respect to reporting and documentation of
such expenses. In addition, the Company shall reimburse Executive for all
reasonable third-party professional fees incurred by Executive in connection
with the review of this Agreement, the Merger Agreement and the Selling
Stockholders Agreement up to an aggregate amount equal to $10,000.
4. Performance Bonus and Other Bonus.
(a) For the fiscal year ended March 31, 2005, Executive shall be
eligible to receive (i) a bonus (the "2005 Performance Bonus I") in an amount
not to exceed 17.5% of the average Salary in effect during such fiscal year
based on the degree to which the Company's EBITDA for such fiscal year meets
$26,741,000 ("Target I") and (ii) a bonus (the "2005 Performance Bonus II") in
an amount not to exceed 17.5% of the average Salary in effect during such fiscal
year based on the degree to which the Company's EBITDA for such fiscal year
meets Budget Target (as defined in Section 4(c) below), in each case as follows:
AMOUNT OF 2005 PERFORMANCE BONUS I OR II
PERCENTAGE OF TARGET I OR BUDGET TARGET (AS APPLICABLE) (AS A % OF THE AVERAGE SALARY
(AS APPLICABLE) ACTUALLY ACHIEVED IN EFFECT DURING SUCH FISCAL YEAR)
--------------------------------------- ---------------------------------------------
Less than 90% 0%
At least 90% but no more than 100% (% of Target I or Budget Target
(as applicable) Actually Achieved- 90%)
Greater than 100% but no more than 120% 12.5% + (% of Target I or Budget Target
(as applicable) Actually Achieved-100%)/4
Greater than 120% 17.5%
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(b) For each fiscal year of the Employment Period, other than the
fiscal year ended March 31, 2005, Executive shall be eligible to receive a bonus
("Performance Bonus") in an amount not to exceed 75% of the average Salary in
effect during such fiscal year based on the degree to which the Company's EBITDA
for such fiscal year meets the Performance Bonus Target (as defined in Section
4(c) below) as follows:
AMOUNT OF PERFORMANCE BONUS (AS A % OF
PERCENTAGE OF PERFORMANCE BONUS THE AVERAGE SALARY IN EFFECT DURING SUCH
TARGET ACTUALLY ACHIEVED FISCAL YEAR)
------------------------------- ----------------------------------------
Less than 90% 0%
At least 90% but less than 100% 10%
At least 100% but less than 110% 25%
At least 110% but less than 120% 50%
At least 120% or greater 75%
In calculating EBITDA for purposes of this subsection (b), any businesses
acquired during the relevant period will be given effect as though such
acquisition had occurred at the beginning of the relevant period.
(c) Any 2005 Performance Bonus I, 2005 Performance Bonus II, or
Performance Bonus earned by Executive shall be paid promptly after delivery to
the Board of the audited financial statements for the fiscal year in question.
As used herein, the term "Budget Target" shall mean EBITDA in the amount set
forth in the annual budget adopted by the Board for the fiscal year ended March
31, 2005. As used herein, the term "Performance Bonus Target" shall mean EBITDA
in the amount set forth in the annual budget adopted by the Board after
consultation with Executive for the fiscal year in question.
5. Termination.
(a) The Employment Period will commence upon consummation of the
merger contemplated by the Merger Agreement and will continue until the earlier
of: (i) the fifth anniversary of the date hereof; (ii) Executive's resignation,
death or disability or other incapacity (as reasonably determined by the Board
in good faith, such determination being based upon the report of a physician
selected by the Board and reasonably acceptable to Executive if Executive so
requests. In such event, Executive agrees to make himself reasonably available
for examination by the physician selected by the Board); or (iii) the giving of
notice of termination by the Company or a majority of the members of the Board
(A) for Cause or (B) for any other reason or for no reason (a termination
described in this clause (iii) (B) being a termination by the Company "Without
Cause"); provided, however, that, notwithstanding anything to the contrary
contained herein, in the event the Merger Agreement is terminated without
consummation of the merger thereunder, this Agreement will automatically
terminate without any liability or obligation on the part of either party
hereunder. For the purposes of this Agreement, "Cause" shall mean (a) conviction
of, or a plea of guilty or no-contest or similar plea with respect to, a felony
or the commission of any act or omission involving actual fraud or embezzlement
with respect to the Company or any of its Subsidiaries, (b) conduct bringing the
Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (c) willful misconduct or breach of fiduciary duty with respect to
the Company or any of its Subsidiaries or (d) material breach of
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Section 2, 7 or 8 of this Agreement (provided, that to the extent a material
breach of Section 2 of this Agreement may be cured, Executive shall have 20
business days to cure such breach from the date on which the Board delivers
written notice to Executive reasonably identifying such breach).
(b) In the event of Executive's resignation (other than within 30 days
of a Good Reason Event), death, disability or other incapacity or the
termination of the Employment Period for Cause or in connection with a Sale of
the Company, Executive will not be entitled to receive his Salary or any fringe
benefits or Performance Bonus for periods after the termination of the
Employment Period but, in the case of death, disability or other incapacity,
Executive will be entitled to receive a pro rata portion of his Performance
Bonus for the period during which Executive was employed by the Company at the
time the Performance Bonus would normally be paid and based upon the Company's
actual performance for the relevant fiscal year. In the event the Employment
Period is terminated by the Company Without Cause, or by Executive within 30
days after a Good Reason Event, then so long as Executive continues to comply
with Sections 7, 8 and 9, Executive shall be entitled to receive (i) severance
payments in an aggregate amount equal to two year's Salary based on the Salary
in effect at the time the Employment Period is terminated and (ii) Benefits at
the same level and on the same terms as they are provided from time to time to
the Company's senior management employees, for a period equal to two years from
the date of such termination. Any such severance payments paid to Executive by
the Company will be paid in equal monthly installments; provided, that Executive
shall be required to sign a release of all past, present and future claims
against CVC and the NCI Companies as a condition to receiving such payments and
benefits.
6. Resignation as Officer or Director. Upon the termination of the
Employment Period, Executive will resign each position (if any) that he then
holds as an officer or director of the Company or any of its Subsidiaries
(including his membership on the Board).
7. Confidential Information. Executive acknowledges that the
information, observations and data that have been or may be obtained by him
during his employment relationship with, or through his involvement as a
stockholder or director of, the Company or any Subsidiary or predecessor thereof
(each of the Company, any Subsidiary or affiliate or any such affiliate
predecessor being an "NCI Company"), prior to and after the date of this
Agreement concerning the business or affairs of the NCI Companies (collectively,
"Confidential Information") are and will be the property of the NCI Companies.
Therefore, Executive agrees that he will not disclose to any unauthorized Person
or use for the account of himself or any other Person any Confidential
Information without the prior written consent of the Company (by the action of
the Board), unless and to the extent that such Confidential Information has
become generally known to and available for use by the public other than as a
result of Executive's improper acts or omissions to act, or is required to be
disclosed by law. Executive will deliver or cause to be delivered to the Company
at the termination of the Employment Period, or at any other time the Company or
any of its predecessors or Subsidiaries may request, all memoranda, notes,
plans, records, reports, computer tapes and software and other documents and
data (and copies thereof) containing or relating to Confidential Information or
the business of any NCI Company which he may then possess or have under his
control.
8. Non-Compete, Non-Solicitation.
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(a) Non-Compete. Executive acknowledges that during his employment
relationship with, or through his involvement as a stockholder or director of,
any NCI Company he has and will become familiar with trade secrets and other
Confidential Information concerning such NCI Companies, and with investment
opportunities relating to the Business, and that his services have been and will
be of special, unique and extraordinary value to the foregoing entities.
Therefore, Executive agrees that, during the Employment Period and for a period
of two years thereafter (the "Noncompete Period"), he will not directly or
indirectly own, manage, control, participate in, consult with, render services
for, or in any other manner engage in any business, or as an investor in or
lender to any business (in each case including on his own behalf or on behalf of
another Person) which constitutes or is competitive with the Business (as and
where the same is conducted or proposed to be conducted (if actions have been
taken by any NCI Company to implement the proposed business) by the NCI
Companies during the Employment Period, or as of the end of the Employment
Period if the Employment Period has then ended). Nothing in this Section 8 will
prohibit Executive from being a passive owner of less than 5% of the outstanding
stock of a corporation of any class which is publicly traded, so long as
Executive has no direct or indirect participation in the business of such
corporation. By initialing in the space provided below, Executive acknowledges
that he has read carefully and had the opportunity to consult with legal counsel
regarding the provisions of this Section 8(a). _____________[INITIAL].
(b) Non-Solicitation. During the Noncompete Period, Executive will not
directly or indirectly (i) induce or attempt to induce any employee, any
individual who has agreed to be or within one year of such solicitation,
employment, offer, retention, interference or enticement has been, employed or
retained by any NCI Company, or any independent contractor (including, without
limitation, any independent distributor or associate publisher) of any NCI
Company to leave the employ or contracting relationship with such entity, or in
any way interfere with the relationship between any such entity and any employee
or full-time independent contractor thereof, or (ii) induce or attempt to induce
any customer, supplier or other business relation of any NCI Company to cease
doing business with such entity or in any way interfere with the relationship
between any such customer, supplier or other business relation and such entity.
So long as Executive complies with Sections 7 and 8(a), nothing in this Section
8(b) is intended to prohibit the Executive or any Person with which he becomes
affiliated after the Employment Period from doing business with customers,
suppliers, independent contractors and other business relations of any NCI
Company. By initialing in the space provided below, Executive acknowledges that
he has read carefully and had the opportunity to consult with legal counsel
regarding the provisions of this Section 8(b). ____________[INITIAL].
9. Enforcement. The Company and Executive agree that if, at the time
of enforcement of Section 7 or 8, a court holds that any restriction stated in
any such Section is unreasonable under circumstances then existing, then the
maximum period, scope or geographical area reasonable under such circumstances
will be substituted for the stated period, scope or area. Because Executive's
services are unique and because Executive has access to information of the type
described in Sections 7 and 8, the Company and Executive agree that money
damages would be an inadequate remedy for any breach of Section 7 or 8.
Therefore, in the event of a breach of Section 7 or 8, any NCI Company may, in
addition to other rights and remedies existing in their favor, apply to any
court of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the
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provisions of Section 7 or 8. The provisions of Sections 7, 8 and 9 are intended
to be for the benefit of each NCI Company and their respective successors and
assigns, each of which may enforce such provisions and each of which (other than
the Company) is an express third-party beneficiary of such provisions and this
Agreement generally. Sections 7, 8 and 9 will survive and continue in full force
in accordance with their terms notwithstanding any termination of the Employment
Period. By initialing in the space provided below, Executive acknowledges that
he has read carefully and had the opportunity to consult with legal counsel
regarding the provisions of this Section 9. ______________[INITIAL].
10. Management Equity.
(a) Executive will be given the opportunity to acquire 3.0% of the
Company's fully-diluted common equity (calculated based on the shares
outstanding at the time of the closing under the Merger Agreement and giving
effect to the dilution resulting from the full 7.5% pool expected to be granted)
in the form of Class A Common Stock of the Company from a pool of 7.5% of the
Company's fully-diluted common equity that is expected to be available to the
management team pursuant to a plan approved by the Board, which equity will vest
over time so long as the Executive remains employed by the Company.
(b) Executive will also be given the opportunity to acquire an
additional 1.5% of the Company's fully-diluted common equity (calculated based
on the shares outstanding at the time of the closing under the Merger Agreement
and giving effect to the dilution resulting from the full 7.5% pool expected to
be granted as described in subparagraph (a) above and giving effect to dilution
resulting from the full 2.5% pool expected to be granted as described in this
subparagraph (b)) in the form of Class A Common Stock from a pool of 2.5% of the
Company's fully-diluted common equity that is expected to be available to the
senior management pursuant to a plan approved by the Board, which equity
Executive will become entitled to receive at such time as Citigroup Venture
Capital Equity Partners, L.P. ("CVC") actually realizes an agreed upon return
for its equity invested (0.75% at a gross IRR of 20%, 0.3% at a gross IRR of 25%
and 0.45% at a gross IRR of 35%) or is deemed to have received such return based
on the price to the public of the Company's equity at the time of its initial
public offering.
11. Co-Investment Right. Executive will exchange securities in
Gallarus immediately prior to the consummation of the merger contemplated by the
Merger Agreement with a value (as determined based on the implied value for such
securities under the Merger Agreement) for (i) $1.7 million of Class L Common
Stock of the Company at the same per share price as that being acquired by CVC
and (ii) approximately $570,000 of Class A Common Stock of the Company at a per
share price of $1 per share. Executive agrees to enter into a Securities
Purchase and Holders Agreement substantially in the form previously presented to
Executive which agreement will govern certain of Executive's rights,
restrictions and obligations with respect to Executive's ownership of common
stock of the Company.
12. Representations and Warranties of Executive. Executive represents
and warrants to the Company and its Subsidiaries as follows:
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(a) Other Agreements. Executive is not a party to or bound by any
employment, noncompete, nonsolicitation, nondisclosure, confidentiality or
similar agreement with any other Person which would materially affect his
performance under this Agreement.
(b) Authorization. This Agreement when executed and delivered shall
constitute a valid and legally binding obligation of Executive, enforceable
against Executive in accordance with its terms.
13. Survival of Representations and Warranties. All representations
and warranties contained herein shall survive the execution and delivery of this
Agreement.
14. Certain Definitions. When used herein, the following terms shall
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more of its intermediaries,
controls, is controlled by or is under common control with such
Person.
"Business" means (i) the publishing and distributing of printed and
online residential and commercial real estate advertising and related
information and all logical and reasonable extensions of such
business; (ii) any business into which any NCI Company enters during
the Employment Period pursuant to any acquisition, joint venture,
other strategic partnership or otherwise; and (iii) any other business
in which the Company or its Subsidiaries engage as of the date on
which Executive ceases to be employed by the Company or its
Subsidiaries.
"EBITDA" means "EBITDA" as defined in, and calculated in accordance
with, the Loan Agreement.
"Good Reason Event" means, during the Employment Period, a substantial
diminution in Executive's professional responsibilities or a
significant reduction in the Salary or in the aggregate of the
Benefits, services, perquisites, and amenities which Executive was
theretofore receiving.
"Loan Agreement" means the Loan Agreement, dated as June 24, 2004,
among the Network Communications, Inc., Gallarus, Toronto Dominion
(Texas), Inc., as administrative agent, and other financial
institutions signatory thereto, as in effect as amended, restated,
renewed, extended, restructured, supplemented, modified, refinanced or
replaced from time to time.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a
trust, a joint venture, an unincorporated organization or any other
entity (including any governmental entity or any department, agency or
political subdivision thereof).
"Sale of the Company" means a transaction or series of related
transactions as a result of which a Person or group of Persons
directly or indirectly acquire (i) equity securities of the Company
constituting a majority (by voting power) of the
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equity securities of the Company on a fully-diluted basis (whether by
merger, consolidation, sale or transfer of any or all of the Company's
outstanding securities) or (ii) all or substantially all of the
Company's assets determined on a consolidated basis.
"Selling Stockholders Agreement" means the Selling Stockholders
Agreement, dated as of the date hereof, by and among Gallarus and
certain of its stockholders, as in effect from time to time.
"Subsidiaries" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business
entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of
such Person or a combination thereof, or (ii) if a limited liability
company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or
one or more Subsidiaries of such Person or entity or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or
Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or
shall be or control any managing director, managing member, or general
partner of such limited liability company, partnership, association or
other business entity. Unless stated to the contrary, as used in this
Agreement the term Subsidiary means a Subsidiary of the Company.
15. Key-Man Life Insurance. Executive agrees to submit to any
requested physical examination in connection with the Company's or any
Subsidiary's purchase of a "key-man" insurance policy. Executive agrees to
cooperate fully in connection with the underwriting, purchase and/or retention
of a key-man insurance policy by the Company or any of its Subsidiaries.
16. Miscellaneous.
(a) Notices. All communications or notices required or permitted by
this Agreement shall be in writing and shall be deemed to have been given (a) on
the date of personal delivery to the recipient or an officer of the recipient,
or (b) when sent by telecopy or facsimile machine to the number shown below on
the date of such confirmed facsimile or telecopy transmission (provided that a
confirming copy is sent via overnight mail), or (c) when properly deposited for
delivery by a nationally recognized commercial overnight delivery service,
prepaid, or by deposit in the United States mail, certified or registered mail,
postage prepaid, return receipt requested on the date set forth in the records
of such delivery service or on the third day after so deposited in the United
States mail, in each case, addressed as follows:
Notices to Executive, to:
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Xxx XxXxxxxx
000 Xxxx Xxx Xxx.
Xxxxxxxxx 0X
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice to Executive) to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telecopy: (000)000-0000
Notices to the Company to:
c/o Citicorp Venture Capital Equity Partners, L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx
Telecopy: (000) 000 0000
with a copy (which shall not constitute notice to the Company), to:
Dechert LLP
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000 2793
Attention: Xxxxxxxxx X. Xxxxxxx
Telecopy: (000)000 0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(b) Amendment and Waiver. No modification, amendment or waiver of any
provision of this Agreement will be effective unless such modification,
amendment or waiver is executed by the Company (with the approval of the Board)
and Executive. The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(c) Severability. Without limiting Section 9, whenever possible, each
provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect the validity, legality or enforceability of any
other provision of this Agreement in such jurisdiction or affect the validity,
legality or enforceability
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of any provision in any other jurisdiction, but this Agreement will be reformed,
construed and enforced in that jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained in this Agreement.
(d) Entire Agreement. Except as otherwise expressly set forth herein,
this agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supercedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way including, without limitation, that certain Employment Agreement, dated
June 28, 2002, by and between Executive and Gallarus. The terms pursuant to
which Executive acquires equity in the Company as referenced in Sections 10 and
11 and the rights and limitations with respect thereto will be governed by the
terms of a stock ownership plan approved by the Board and the forms of
acquisition agreement and option grants entered into in connection therewith.
(e) Successors and Assigns. This Agreement will bind and inure to the
benefit of and be enforceable by the Company, Executive and their respective
assigns; provided, that Executive may not assign his rights or delegate his
duties under this Agreement without the prior written consent of the Company.
(f) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
(g) Descriptive Headings: Interpretation; No Strict Construction. The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement. Whenever required by the
context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns, pronouns,
and verbs shall include the plural and vice versa. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof. The use of the words "include" or "including" in this
Agreement shall be by way of example rather than by limitation. The use of the
words "or," "either" or "any" shall not be exclusive. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement. The parties
agree that prior drafts of this Agreement shall be deemed not to provide any
evidence as to the meaning of any provision hereof or the intent of the parties
hereto with respect hereto.
(h) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR
RULE (WHETHER OF THE STATE OF NEW YORK OR
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ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN
THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER THAT JURISDICTION'S CHOICE OF LAW
OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY.
(i) Consent to Arbitration.
(A) Generally. The arbitration procedures described in this
Section 16(i) will be the sole and exclusive method of resolving and remedying
disputes arising out of this Agreement, other than disputes arising out of or
relating to Section 7 or 8 of this Agreement. Except as otherwise provided in
the JAMS' Comprehensive Arbitration Rules and Procedures as in effect from time
to time (the "JAMS Rules"), the arbitration procedures described in this Section
16(i) and any Final Arbitration Award (as defined below) will be governed by,
and will be enforceable pursuant to, the Uniform Arbitration Act as in effect in
the State of New York from time to time. Disputes that are subject to
arbitration under the first sentence of this Section 16(i)(A) are referred to
herein as "Eligible Disputes."
(B) Procedures. If Executive and the Company do not amicably
resolve any Eligible Dispute within thirty (30) days after delivery of a written
notice by one such party to the other that an Eligible Dispute exists, then such
dispute will be submitted to binding arbitration. The arbitral proceeding will
take place in New York City, New York or such other location agreeable to
Executive and the Company, before an arbitration panel consisting of three
individuals experienced in matters of the type involved in the dispute (the
"Arbitration Panel"); provided, however, that Executive and the Company may
agree to choose a single arbitrator who is agreeable to them to act as the
Arbitration Panel. Executive will choose one such individual and the Company
will choose one such individual to serve as its representative on the
Arbitration Panel, and those two individuals jointly will choose a third such
individual within ten (10) business days thereafter; provided, that if those two
individuals cannot agree upon an acceptable third member of the Arbitration
Panel within such period, the third member will be chosen under the JAMS Rules.
Notwithstanding the foregoing, if either Executive or the Company fails to
choose an individual to serve as its representative on the Arbitration Panel
within such thirty-day period, the representative selected by the other party
shall resolve the Eligible Dispute individually.
(C) Conduct of Arbitration. The arbitration (including discovery)
will be conducted under the JAMS Rules, as the same may be modified by any
written agreement between Executive and the Company. The Arbitration Panel will
conduct the arbitration in a manner so that the final result, determination,
finding, judgment or award determined by the Arbitration Panel (the "Final
Arbitration Award") is made or rendered as soon as practicable, and Executive
and the Company will use reasonable efforts to cause a Final Arbitration Award
to occur within ninety (90) days after the Arbitration Panel is selected. Any
Final Arbitration Award will be final and binding upon Executive and the
Company, and there will be no appeal from or reexamination of any Final
Arbitration Award, except in the case of fraud or perjury or
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misconduct by the Arbitration Panel prejudicing the rights of Executive or the
Company or to correct manifest clerical errors.
(D) Enforcement. A Final Arbitration Award may be enforced in any
state or federal court having jurisdiction over the subject matter of the
related Eligible Dispute.
(E) Expenses. As part of the Final Arbitration Award, the
prevailing party in any arbitration proceeding described in this Section 16(i)
will be entitled to recover from the non-prevailing party its reasonable
attorneys' fees and disbursements and other out-of-pocket costs, and the
non-prevailing party also will be required to pay all other reasonable costs and
expenses associated with the arbitration; provided, that (1) if the Arbitration
Panel is unable to determine that a party is a prevailing party under JAMS Rules
in any such Arbitration proceeding, then such costs and expenses will be
equitably allocated by the Arbitration Panel upon the basis of the outcome of
such arbitration proceeding, and (2) if the Arbitration Panel is unable to
allocate such costs and expenses in such a manner, then the costs and expenses
of such arbitration will be paid one-half by Executive and one-half by the
Company, and each of Executive and the Company will pay the out-of-pocket
expenses incurred by it. As part of any Final Arbitration Award, the Arbitration
Panel may designate the prevailing party for purposes of this Section 16(i).
(j) WAIVER OF JURY TRIAL. NOTWITHSTANDING SECTION 16(I), EACH PARTY TO
THIS AGREEMENT HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL
BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR THE VALIDITY,
PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
(k) Actions by the Company. Any action, election or determination by
the Board or any committee of such boards pursuant to or relating to this
Agreement will be effective if, and only if, it is taken or made by (or with the
prior approval of) a majority of the members of the Board who are not at the
time employees of the Company or any of the Company's Subsidiaries.
*****
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first written above.
GMH HOLDING COMPANY
By: /s/ XXX X. XXXXXX
------------------------------------
Name:
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Title:
---------------------------------
/s/ Xxx XxXxxxxx
----------------------------------------
Xxx XxXxxxxx
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