EXHIBIT 10.10
Execution Copy
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of December 29,
2005 (the "Effective Date"), by and between AVETA INC., a Delaware corporation
(the "Company"), and XXXXXX X. XXXX ("Executive").
WHEREAS, the Company desires to employ Executive and to enter into an
agreement embodying the terms of such employment and considers it essential to
its best interests and the best interests of its stockholders to xxxxxx the
employment of Executive by the Company during the term of this Agreement;
WHEREAS, Executive desires to accept such employment with and
participation in the ownership of the Company and to enter into this Agreement;
and
WHEREAS, Executive is willing to accept employment on the terms
hereinafter set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties hereby agree
as follows:
1. Term Employment. Subject to the provisions of Section 7 of this
Agreement, this Agreement shall be effective for a period (such term of
employment, as it may be extended or terminated, is herein referred to as the
"Employment Term") commencing on the Effective Date and ending on December 31,
2008 (the "Original Employment Term"), provided that the Employment Term shall
be automatically extended, subject to earlier termination as provided in Section
7 hereof, for successive additional one year periods (the "Additional Terms"),
unless, at least 365 days prior to the end of the Original Employment Term or
the then Additional Term, the Company or Executive has notified the other in
writing that the Employment Term shall terminate at the end of the then current
term.
2. Position.
(a) Executive shall serve as the Chairman of the Executive
Committee of the Board of Directors of the Company (the "Board"). In such
position, Executive shall have the right to exercise general supervision and
oversight over the business and affairs of the Company and, in addition, shall
have the right to exercise such additional powers and authority of a senior
executive in a similar position as shall be determined from time to time by the
Board (the "Board"). Executive shall report to the Chairman of the Board.
(b) The Company recognizes that Executive is engaged in other
business and undertakings outside his employment with the Company that will
require a substantial part of his business time. During the Employment Term,
Executive will devote that part of his business time necessary for the
performance of his duties hereunder. Notwithstanding the foregoing, Executive
may only participate in such other business and undertakings so long as such
business and undertakings do not materially interfere with the performance of
his duties hereunder.
3. Base Salary. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of $250,000 for
the first 12 months of the Employment Term, $275,000 for the second 12 months
thereof, and $300,000 for the third 12 months of the Employment Term, payable in
regular installments in accordance with the Company's usual payroll practices.
Thereafter, Executive's Base Salary shall be subject to annual review by the
Board (or a committee thereof) and may be increased, but not decreased, from
time to time by the Board (or such committee).
4. Bonus. During the Employment Term, Executive shall be afforded the
opportunity to earn such annual bonuses as may be approved by the Board (or a
committee thereof) based on goals determined by the Board (or a committee
thereof) and communicated to Executive in writing (each year's award granted
pursuant to this Section 4 shall hereinafter be referred to as the "Bonus").
Executive shall have the opportunity to earn an annual target Bonus measured
against objective financial criteria to be determined by the Board (or a
committee thereof) of at least 100% of Base Salary.
5. Employee Benefits.
(a) During the Employment Term, Executive shall be entitled on
terms comparable to the other senior executives of the Company to participate in
any employee health, insurance, 401 (k), pension or other benefit plan that the
Company has adopted or may adopt, maintain or contribute to for the benefit of
its employees, subject to satisfying the applicable eligibility requirements.
(b) Executive shall be entitled to four weeks of annual paid
vacation, which vacation shall be taken in accordance with the Company's
vacation policy for the Company's senior executives. Executive shall also be
entitled to all paid holidays that the Company makes available to its employees.
(c) Unless the following are then provided by Aveta Health, Inc,
to the executive, the Company shall provide Executive with (or reimburse
Executive for) (i) an automobile (make and model to be selected by Executive)
and gasoline, tolls, insurance, repairs and maintenance therefore and (ii) an
office (as designated by Executive) and full-time administrative assistant.
6. Business Expenses. During the Employment Term, all business
expenses incurred by Executive in the performance of his duties hereunder shall
be reimbursed by the Company, including all travel expenses (as such travel is
determined by Executive).
7. Termination. Notwithstanding any other provision of this Agreement:
(a) For Cause by the Company. The Employment Term, and Executive's
employment hereunder, may be terminated at any time by the Company for "Cause"
upon delivery of a "Notice of Termination" by the Company to Executive. For
purposes of this Agreement, "Cause" shall mean: (i) conviction of, or entry of a
pleading of guilty or no contest by, Executive with respect to a felony or other
crime involving moral turpitude, (ii) Executive's fraud or intentional
misapplication or misappropriation of Company funds, (iii) the willful or
continued failure of Executive to perform Executive's material duties hereunder
(other than as a
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result of physical or mental illness), after reasonable advance written notice
from the Board specifying such failure by the Executive and the Executive's not
having cured such failure, or (iv) in carrying out the Executive's duties,
hereunder, Executive having engaged in conduct that constitutes gross negligence
or willful misconduct, unless Executive believed in good faith that such conduct
was in, or not opposed to, the best interests of the Company. If Executive is
terminated for Cause pursuant to this Section 7(a), he shall be entitled to
receive only his Base Salary through the date of termination and any earned but
unpaid Bonus for any calendar year preceding termination. All other benefits, if
any, due Executive following Executive's termination of employment for Cause
pursuant to this Section 7(a) shall be determined in accordance with the plans,
policies and practices of the Company.
(b) Disability or Death. The Employment Term, and Executive's
employment hereunder, shall terminate immediately upon his death or following
delivery of a Notice of Termination by the Company to Executive if Executive
becomes physically or mentally incapacitated and is therefore unable for a
period of 90 consecutive days or 120 days during any consecutive six month
period to perform his duties with substantially the same level of quality as
immediately prior to such incapacity (such incapacity is hereinafter referred to
as "Disability"). Upon termination of Executive's employment hereunder for
either Disability or death, Executive or Executive's estate (as the case may be)
shall be entitled to receive (a) any earned but unpaid Bonus for any calendar
year preceding the year in which the termination occurs, and (b) his Base Salary
through the date of termination. All other benefits, if any, due Executive
following Executive's termination for Disability or death pursuant to this
Section 7(b) shall be determined in accordance with the plans, policies and
practices of the Company.
(c) Without Cause by the Company; Non-Renewal by the Company. The
Employment Term, and Executive's employment hereunder, may be terminated at any
time by (1) the Company without Cause, for any reason or no reason upon delivery
of a "Notice of Termination" by the Company to Executive or (2) Executive for
"Good Reason" upon delivery of a "Notice of Termination" by Executive to the
Company. If Executive is terminated without Cause pursuant to this Section 7(c)
or if the Company delivers a notice of non-renewal pursuant to Section 1 or if
Executive terminates this Agreement for Good Reason, he shall be entitled to
receive (x) any earned but unpaid Bonus for any calendar year preceding the year
in which the termination occurs, (y) a pro rata amount of the target Bonus for
the year in which termination occurs (such Bonus on a prorated annual basis not
to be less than the amount of Bonus paid in the prior year) for such elapsed
period of the calendar year up until the date of termination on the proposed
termination date specified in the Notice of Termination, and (z) his Base Salary
until the later of (i) the then scheduled expiration of the Employment Term or
(ii) the date that is six months after the proposed termination date specified
in the Notice of Termination; provided that any unpaid amounts shall be paid in
a lump sum no later than two and one-half months after the end of the later of
the fiscal or calendar year in which the termination occurs. All other benefits,
if any, due Executive following Executive's termination without Cause or for
Good Reason pursuant to this Section 7(c) shall be determined in accordance with
the plans, policies and practices of the Company.
(d) Voluntary Resignation. The Employment Term, and Executive's
employment hereunder, may be terminated at any time by Executive for any reason
upon delivering a "Notice of Termination" by Executive to the Company. Upon
termination of
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Executive's employment hereunder by voluntary resignation, Executive shall be
entitled to receive (i) any earned but unpaid Bonus for any calendar year
preceding the year in which the termination occurs, and (ii) his Base Salary
through the date of termination. All other benefits, if any, due Executive
following termination of Executive's employment by voluntary resignation
pursuant to this Section 7(d) shall be determined in accordance with the plans,
policies and practices of the Company.
(e) Notice of Termination. Any purported termination of
employment by the Company or Executive shall be communicated by a written Notice
of Termination to Executive or the Company, respectively, delivered in
accordance with Section 10(g) hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, the date of termination,
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of employment under the provision so indicated.
The date of termination of Executive's employment shall be the date so stated in
the Notice of Termination.
(f) Release. Any and all amounts payable and benefits or
additional rights provided to Executive upon termination of employment shall
only be payable if Executive delivers to the Company and does not revoke a
general release of claims reasonably acceptable to the Company and to the
Executive.
(g) Good Reason. "Good Reason" means, without Executive's express
written consent, the occurrence of any of the following events, which is not
cured to Executive's satisfaction within ten days after written notice from
Executive to the Company:
(1) any refusal by the Company to continue to permit
Executive to engage in activities not directly related to the business of the
Company which Executive is permitted to engage in hereunder;
(2) any purported termination of Executive's employment
which is not effectuated pursuant the express terms and provisions hereof; or
(3) the failure of the Company to obtain the assumption of
this Agreement from any successor, whether by merger, consolidation or
otherwise, and including any purchaser of all or substantially all of the
Company's assets.
An isolated, insubstantial and inadvertent action taken in good faith and
which is remedied by the Company within ten (10) days after receipt of notice
thereof given by Executive shall not constitute Good Reason. Executive's right
to terminate employment for Good Reason shall not be affected by Executive's
incapacity due to mental or physical illness and Executive's continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any event or condition constituting Good Reason; provided, however, that
Executive must provide notice of termination of employment within ninety (90)
days following Executive's knowledge of an event constituting Good Reason or
such event shall not constitute Good Reason under this Agreement.
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8. Restrictive Covenants. (a) Executive will be a key representative
of the Company, or any of its subsidiaries or successors (collectively, the
"Company Group") and will possess unique knowledge of the Company Group and its
operations. The future prospects of the Company Group are dependent in
significant part on Executive's knowledge, contacts and efforts and in the
course of Executive's employment relationship Executive will represent the
Company Group in its dealings with payors, providers, customers, suppliers and
employees, and the competitive survival and goodwill of the Company Group will
be dependent upon its maintaining favorable relations with payors, providers,
customers, suppliers and employees. The provisions contained in this Section 8
are required to preserve such future prospects. Except as provided below, during
the Employment Term and for a period of six months thereafter (the "Restricted
Period"), Executive shall not without the prior written consent of the Board,
either directly, indirectly, separately or in association with others:
(i) engage in the operation of or have any financial interest in
(whether as an officer, employee, partner, owner, lender,
shareholder, member, operator, consultant or otherwise) any
person, firm, corporation or business that itself engages in, or
through a subsidiary or affiliate engages in, any element of the
Business; or
(ii) solicit, accept, or conduct, or cause or encourage others to
solicit, accept or conduct Business with any person who, during
the Employment Term or the one year period prior to the date
hereof was a customer or with or to whom the Company or any other
member of the Company Group made a proposal or offer as a
potential provider to, customer of, or payor to, the Company or
any other member of the Company Group; or
(iii) employ, attempt to employ, or cause or encourage others to
employ or interfere, or otherwise interfere or attempt to
interfere, with the employment, contractual or other business
relationships between the Company or any other member of the
Company Group, on the one hand, and any of its officers,
managers, partners, directors, employees, customers, providers,
payors, suppliers or agents, on the other hand; or
(iv) directly or indirectly advise or encourage any director, officer,
manager, employee, agent, consultant or representative or client
of, or vendor or supplier to the Company or any other member of
the Company Group to terminate his, her or its relationship with
the Company or any other member of the Company Group or to reduce
the amount of business it does with the Company or any other or
any other member of the Company Group.
(b) Miscellaneous.
(i) Nothing in this Agreement shall prohibit Executive from owning
five percent (5%) or less of the issued and outstanding
securities of a company which is engaged in the Business whose
securities are listed on a national securities exchange or listed
on the NASDAQ National Market System.
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(ii) If any portion of the covenants set forth in this Section 8 above
shall be held unreasonable because of the term, geographic zones,
activities or services, or other matters covered thereby, the
covenants shall nevertheless be enforced in such reduced scope or
form as may be determined by an arbitrator.
(iii) Executive acknowledge that the Company would not enter into this
employment relationship without the assurance that Executive will
not engage in any of the activities prohibited by this Sections 8
or 9 for the periods set forth herein.
(iv) Executive agree to restrict his actions as provided for in this
Section 8 and further acknowledge that the scope and duration of
the restrictions set forth in this Section 8 are reasonable in
light of the specific nature and duration of the employment
relationship and the payments Executive are receiving pursuant to
the terms of this Agreement, which payments benefit Executive
directly.
(v) For purposes of any provision of this Section 8, "directly or
indirectly" means in Executive's individual capacity for
Executive's own benefit or for the benefit of any other person,
or as a shareholder, partner, member or other principal, officer,
director, trustee, manager, employee, agent or consultant of or
to any person whatsoever.
(vi) Executive acknowledges and agrees that, by virtue of Executive's
position, services and access to and use of Confidential
Information (defined below), any violation by Executive of any of
the undertakings contained in this Section 8 or Section 9 would
cause the Company and other members of the Company Group
immediate, substantial and irreparable injury for which they have
no adequate remedy at law. Accordingly, Executive agree that in
the event of Executive's breach or threatened breach of any said
undertakings, the Company and other members of the Company Group
will be entitled to temporary and permanent injunctive relief in
any court of competent jurisdiction (without the need to post
bond and without proving that damages would be inadequate).
(vii) The rights and remedies provided for in this Section 8 are
cumulative and shall be in addition to rights and remedies
otherwise available to the parties hereunder or under any other
agreement or applicable law. If the final judgment of an
arbitrator declares that any provision of this Section 8 is
invalid or unenforceable, the parties hereto agree that the
arbitrator making the determination of invalidity or
unenforceability shall have the power, and is hereby directed, to
reduce the scope, duration or area of the provision, to delete
specific words or phrases and to replace any invalid or
unenforceable provision with a provision that is valid and
enforceable and that comes closest to expressing the intention of
the invalid or
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unenforceable provision, and the provisions of this Section 8
shall be enforceable as so modified.
(viii) Executive understands that the provisions of this Section 8 may
limit Executive's ability to earn a livelihood in a business
similar to the Business but nevertheless agree and hereby
acknowledge that the consideration provided under this Agreement
is sufficient to justify the restrictions contained in such
provisions. In consideration thereof and in light of Executive's
education, skills and abilities, Executive agrees that Executive
will not assert in any forum that such provisions prevents
Executive from earning a living or otherwise are void or
unenforceable or should be held void or unenforceable.
(c) For purposes of this Section 8, "Business" shall mean any
business that operates in any of the following businesses in the Commonwealth of
Puerto Rico or in any county in which a member of the Company Group operates or
has applied to operate during the Employment Term: (i) a health plan (a "Health
Plan") authorized pursuant to the Medicare Advantage program or (ii) a business
that (x) operates or manages Health Plan(s), (y) performs or arranges for
medical services for Health Plans (either on a capitated, risk sharing or fee
for service basis) and/or (z) provides services to or on behalf of Health Plans
in the areas of medical management, risk adjustment, medical network operations
or administration; plan design, pricing, utilization or quality control.
"Business" shall expressly not include the ownership, operation, leasing,
management, financing, developing or otherwise dealing with skilled nursing
facilities, assisted living facilities and all businesses and enterprises
ancillary or incidental thereto.
9. Confidentiality. Executive shall not, without the prior written
consent of the Company, use, divulge, disclose or make accessible to any other
person, firm, partnership, corporation or other entity, any "Confidential
Information" (as defined below) except while employed by the Company, in
furtherance of the business of and for the benefit of the Company or its
affiliates, or any "Personal Information" (as defined below); provided that
Executive may disclose such information when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of the Company and/or its affiliates, as the case may be, or
by any administrative body or legislative body (including a committee thereof)
with jurisdiction to order Executive to divulge, disclose or make accessible
such information; provided, further, that in the event that Executive is ordered
by a court or other government agency to disclose any Confidential Information
or Personal Information, Executive shall (a) promptly notify the Company of such
order, (b) at the written request of the Company, diligently contest such order
at the sole expense of the Company as expenses occur, and (c) at the written
request of the Company, seek to obtain, at the sole expense of the Company, such
confidential treatment as may be available under applicable laws for any
information disclosed under such order. For purposes of this Section 9, (i)
"Confidential Information" shall mean non-public information concerning the
financial data, strategic business plans, product development (or other
proprietary product data), customer lists, marketing plans and other non-public,
proprietary and confidential information relating to the business of the Company
or its affiliates or customers, that, in any case, is not otherwise available to
the public (other than by Executive's breach of the terms hereof) and (ii)
"Personal Information" shall mean any information
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concerning the personal, social or business activities of the officers,
directors, principals, shareholders, agents and employees of the Company or its
affiliates. Upon termination of Executive's employment with the Company and its
affiliates, Executive shall return all Company property, including, without
limitation, files, records, disks and any media containing Confidential
Information or Personal Information. Notwithstanding the foregoing, Confidential
Information and Personal Information shall not include information which (a) at
the time of its disclosure is in the public domain or otherwise freely available
to Executive and other third parties without violation of this Agreement, (b)
after its disclosure is published or otherwise becomes part of the public domain
without violation by Executive of the terms of this Agreement (but only after,
and only to the extent that, it is published or otherwise has become part of the
public domain) or (c) after the date hereof becomes lawfully available to
Executive from any third party not then under any obligation of non-disclosure
to the Company.
10. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment, award, benefit or distribution
(or any acceleration of any payment, award, benefit or distribution) by the
Company (or any of its affiliated entities) to or for the benefit of Executive
(whether pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section ) (the
"Payments") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Company shall pay to Executive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the sum of
(x) the Excise Tax imposed upon the Payments and (y) the product of any
deductions disallowed because of the inclusion of the Gross-Up Payment in
Executive's adjusted gross income and the highest applicable marginal rate of
federal income taxation for the calendar year in which the Gross-Up Payment is
to be made. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to (I) pay federal income taxes at the highest
marginal rates of federal income taxation for the calendar year in which the
Gross-Up Payment is to be made, (ii) pay applicable state and local income taxes
at the highest marginal rate of taxation for the calendar year in which the
Gross-Up Payment is to be made, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes and
(iii) have otherwise allowable deductions for federal income tax purposes at
least equal to those which could be disallowed because of the inclusion of the
Gross-Up Payment in the Executive's adjusted gross income.
(b) Subject to the provisions herein, all determinations required to
be made under this Section, including whether and when a Gross-Up Payment is
required, the amount of such Gross-Up Payment and the assumptions to be utilized
in arriving at such determinations, shall be made by a public accounting firm
mutually acceptable to Executive and the Company (the "Accounting Firm") which
shall provide detailed supporting calculations both to the Company and Executive
within fifteen (15) business days of the receipt of notice from the Company or
the Executive that there has been a Payment, or such earlier time as is
requested by Executive or the
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Company (collectively, the "Determination"). All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with the
performance of the services hereunder. The Gross-Up Payment under this Section
with respect to any Payments shall be made no later than thirty (30) days
following such Payment. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall furnish Executive with a written opinion to such
effect, and to the effect that failure to report the Excise Tax, if any, on
Executive's applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. The Determination by the
Accounting Firm shall be binding upon the Company and Executive. The parties
recognize that as a result of the uncertainty in the application of Section 4999
of the Code at the time of the Determination, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made
("Underpayment") or Gross-Up Payments are made by the Company which should not
have been made ("Overpayment"), consistent with the calculations required to be
made hereunder. In the event that the Executive thereafter is required to make
payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the
benefit of Executive. In the event the amount of the Gross-Up Payment exceeds
the amount necessary to reimburse the Executive for his Excise Tax, the
Accounting Firm shall determine the amount of the Overpayment that has been made
and any such Overpayment (together with interest at the rate provided in Section
1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he
has received a refund if the applicable Excise Tax has been paid to the Internal
Revenue Service) to or for the benefit of the Company. Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
11. Reimbursement of Expenses.
(a) The Company shall reimburse Executive for all reasonable
legal fees and expenses incurred by him in connection with the execution and
delivery of this Agreement.
(b) If any contest or dispute shall arise under this Agreement
involving termination of Executive's employment with the Company or involving
the failure or refusal of the Company to perform fully in accordance with the
terms hereof, the Company shall reimburse Executive, on a current basis, for all
reasonable legal fees and expenses, if any, incurred by Executive in connection
with such contest or dispute (regardless of the result thereof), together with
interest in an amount equal to the Citibank, N.A. prime rate from time to time
in effect, but in no event higher than the maximum legal rate permissible under
applicable law, such interest to accrue from the date the Company receives
Executive's statement for such fees and expenses through the date of payment
thereof, regardless of whether or not Executive's claim is upheld by a court of
competent jurisdiction; provided, however, Executive shall be required to repay
any such amounts to the Company to the extent that a court issues a final order
from which no appeal can be taken, or with respect to which the time period to
appeal has expired, setting forth the determination that the position taken by
Executive was frivolous or advanced by Executive in bad faith.
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10. Miscellaneous.
(a) Acceptance. Executive hereby represents that his performance
and execution of this Agreement does not and will not constitute a breach of any
agreement or arrangement to which he is a party or is otherwise bound,
including, without limitation, any noncompetition or employment agreement.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
conflicts of laws provisions.
(c) Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Executive
by the Company and supersedes all other prior agreements and understandings,
both written and verbal, between the parties with respect to the subject matter
hereof (excluding the Employment Agreement by and among Aveta Health, Inc. and
Executive dated as of January 1, 2003). There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties with respect
to the subject matter herein other than those expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument
signed by the parties hereto (it being agreed that any amendment to this
Agreement must be approved by a majority of the members of the Board, excluding
Executive and/or Xxxxxx X. Xxxxxx if the same are then members of the Board).
Sections 8 and 9 survive the termination of Executive's employment with the
Company, except as otherwise specifically stated therein. Any provision in this
Agreement (or any agreement or arrangement referenced herein) that is
inconsistent with the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended (the "Code"), including the timing of any payment, shall be
deemed to be amended to comply with Section 409A of the Code in the manner most
favorable to the Executive.
(d) No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
(e) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
(f) Assignment. Executive shall not have the right to assign his
interest in this Agreement, any rights under this Agreement or any duties
imposed under this Agreement. This Agreement may be assigned by the Company to
any successor in interest to substantially all of the business operations of the
Company. Such assignment shall become effective when the Company notifies
Executive of such assignment or at such later date as may be specified in such
notice. Upon such assignment, the rights and obligations of the Company
hereunder shall become the rights and obligations of such successor company,
provided that any assignee expressly assumes the obligations, rights and
privileges of this Agreement.
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(g) Notice. For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, if delivered by
overnight courier service, if sent by facsimile transmission or if mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses or sent via facsimile to the respective
facsimile numbers, as the case may be, as set forth below, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt; provided, however, that (i) notices sent by personal delivery or
overnight courier shall be deemed given when delivered; (ii) notices sent by
facsimile transmission shall be deemed given upon the sender's receipt of
confirmation of complete transmission, and (iii) notices sent by United States
registered mail shall be deemed given two days after the date of deposit in the
United States mail.
If to Executive, to:
Xxxxxx X. Xxxx
c/o Aveta Inc.
000 Xxxxxx Xxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Facsimile Number: (000) 000-0000
If to the Company, to:
Aveta Inc.
000 Xxxxxx Xxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: General Counsel
(h) Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
(i) Arbitration. Any dispute, controversy or claim arising under
or in connection with this Agreement or Executive's employment with the Company,
other than injunctive relief under Section 8 hereof, shall be settled
exclusively by arbitration, conducted before a single arbitrator in New York,
New York in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association then in effect. The decision of
the arbitrator will be final and binding upon the parties hereto. Judgment may
be entered on the arbitrator's award in any court having jurisdiction. The
parties acknowledge and agree that in connection with any such arbitration and
regardless of outcome (a) each party shall pay all its own costs and expenses,
including without limitation its own legal fees and expenses, and (b) joint
expenses shall be borne equally among the parties. The arbitrator shall not have
the authority to award punitive or exemplary damages.
(j) Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
/s/ Xxxxxx X. Xxxx
----------------------------------------
XXXXXX X. XXXX
XXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, Chairman of Board
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