EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT
(this
“Agreement”)
effective as of the 1st
day of
January, 2008 between YTB
INTERNATIONAL, INC., a
Delaware corporation with principal executive offices located at 0000 Xxxx
Xxxxxxxxxxxx Xxxx, Xxxx Xxxxx, XX 00000 (the “Corporation”),
and
J. Xxxxx Xxxxx, with an office at 0000 Xxxx Xxxxxxxxxxxx Xxxx, Xxxx Xxxxx,
XX
00000 (the “Executive”).
WITNESETH:
WHEREAS,
the
Corporation and the Executive desire to provide for the employment of the
Executive as the Chairman of the Board of Directors of the Corporation, to
engage in such activities and to render such services under the terms and
conditions hereof;
WHEREAS,
the
Corporation has authorized and approved the execution of this Agreement and
the
Executive desires to be employed by the Corporation under the terms and
conditions hereinafter provided; and
WHEREAS,
this
Agreement constitutes the entire understanding and agreement between the Company
and the Executive regarding its subject matter and supersedes all prior or
contemporaneous negotiations and agreements, whether oral or written, between
them with respect to such subject matter.
NOW,
THEREFORE,
in
consideration of the mutual covenants and undertakings herein contained, the
parties agree as follows:
1. Employment,
Duties and Acceptance.
1.1 Services.
The
Corporation hereby employs Executive, for the Term (as hereinafter defined
in
Section 2 hereof), to render services to the business and affairs of the
Corporation in the office referenced in the recitals hereof and, in connection
therewith, shall perform such duties as directed by the Board of Directors
of
the Corporation (the “Board
of Directors”)
from
time to time, in its reasonable discretion, and shall perform such other duties
as shall be consistent with the responsibilities of such office (collectively,
the “Services”).
Executive shall perform activities related to such office as he shall reasonably
be directed or requested to so perform by the Board of Directors, to whom he
shall report. Executive shall use his best efforts, skill and abilities to
promote the interests of the Corporation and its subsidiaries.
1.2 Acceptance.
Executive hereby accepts such employment and agrees to render the Services.
Executive shall not engage in any other business activity or serve in any
industry, trade, professional, governmental or academic position during the
term
of this Agreement. The Executive may request permission from the Board of
Directors to engage in business activity unrelated to the business activity
of
the Corporation and may only do so if the Board of Directors expressly approves
the request in advance in writing.
1.3 Representations
of the Executive.
The
Executive represents and warrants to the Corporation that his execution and
delivery of this Agreement, his performance of the Services hereunder and the
observance of his other obligations contemplated hereby will not (i) violate
any
provisions of or require the consent or approval of any party to any agreement,
letter of intent or other document to which he is a party or (ii) violate or
conflict with any arbitration award, judgment or decree or other restriction
of
any kind to or by which he is subject or bound.
2. Term
of Employment.
The
term
of Executive’s employment under this Agreement (the “Term”)
shall
commence on January 1, 2008 (the “Commencement
Date”)
and
shall terminate on December 31, 2012 unless sooner terminated pursuant to
Sections 9 or 5 of this Agreement; provided,
however,
if
either party shall fail to give written notice of non-renewal not less than
90
days prior to the scheduled expiration or any extension of the Term hereof,
the
Term shall automatically be extended for an additional one (1) year period,
at
the then current Base Salary (as hereinafter defined). Notwithstanding anything
to the contrary contained herein, the provisions of this Agreement governing
the
protection of confidential information shall continue in effect as specified
in
Section 10 hereof.
3. Base
Salary and Expense Reimbursement.
3.1 Base
Salary.
During
the Term, as full compensation for the Services, the Corporation agrees to
pay
Executive a base salary (“Base
Salary”)
at the
annual rate of $325,000 for the period from January 1, 2008 to December 31,
2008, increasing annually thereafter on the anniversary date of the Commencement
Date in the amount of $25,000 per year of the then current Base Salary. Base
Salary is subject to withholding and other applicable taxes, payable during
the
term of this Agreement in accordance with the Corporation’s customary payment
practices, but not less frequently than monthly.
3.2 Business
Expense Reimbursement.
Upon
submission to, and approval by an officer of the Corporation designated by
the
Board of Directors of the Corporation, of a statement of expenses, reports,
vouchers or other supporting information, which approval shall be granted or
withheld based on the Corporation’s policies in effect at such time, the
Corporation shall promptly reimburse Executive for all reasonable business
expenses actually incurred or paid by him during the Term or renewals thereof
in
the performance of the Services, including, but not limited to, expenses for
entertainment, travel and similar items.
3.3 XxxxXxxxxxXxx.xxx
Override. The
Corporation acknowledges that Executive owns an override on the RTA sales and
monthly fees generated by Representative position #1 of the Corporation’s
XxxxXxxxxxXxx.xxx subsidiary’s sales organization equal to 100% of the monthly
commissions and overrides earned by said position #1, paid on a
monthly
basis.
The
compensation described in this Section 3.3 is fully vested to the Executive
and
its continuing receipt by Executive shall survive the termination of this
Agreement.
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4. Bonuses.
4.1 Bonus
Amount.
In order
to provide performance-based incentive compensation to the Executive, the
Corporation hereby agrees to pay the Executive, in addition to the Base Salary
set forth in Section 3 hereof, a minimum cash bonus in respect of each fiscal
year during the Executive’s employment hereunder (the “Bonus”)
equal
to the Applicable Percentage (as defined below) of the Net Pre-Tax Income (as
defined below) of the Corporation. For purposes hereof, the Applicable
Percentage shall equal (a) 2.0% if the Net Pre-Tax Income of the
Corporation is at least $500,000, but less than $1,500,000 (b) 2.25% if the
Net Pre-Tax Income of the Corporation is at least $1,500,000 but less than
$
3,000,000 and (c) 2.5% if the Net Pre-Tax Income of the Corporation is at
least $ 3,000,000.
4.2 Net
Pre-Tax Income of the Corporation. For
purposes hereof, the Net Pre-Tax Income of the Corporation shall be the amount
determined by the Compensation
Committee of the Board of Directors (the “Compensation
Committee”),
after
consultation with the Corporation’s independent accountants and the Audit
Committee of the Board of Directors, to be the Net Pre-Tax Income of the
Corporation with respect to a given fiscal year, which amount shall be
determined based on the financial statements of the Corporation (a) in a manner
consistent with generally accepted accounting principles, (b) with regard solely
to the Corporation and its subsidiaries, (c) so as to exclude the effect of
any
elimination of inter-company transfers applied with respect to any entity which
is not a subsidiary of the Corporation, (d) having regard to such other matters,
if any, as the Compensation Committee may determine to be equitable to consider
and (e) without giving effect to any Bonus paid pursuant to this Section 4.2.
The determination of the Compensation Committee of the Corporation shall be
final, conclusive and binding for all purposes, absent manifest error.
4.3 Determination
and Payment.
The
determination of the amount of Net Pre-Tax Income and the extent to which any
Bonus under this Section 4 may be payable (the “Final
Determination”)
shall
be
determined by the Compensation Committee in accordance with the terms hereof
based on the audited financial statements of the Corporation and the criteria
set forth herein with respect to each fiscal year. Such Final Determination
with
respect to any fiscal year shall be made promptly, and in any event within
15
days, after the Corporation has filed its Annual Report on Form 10-K for each
year with the Securities and Exchange Commission.
The
Bonus
shall be
payable to the Executive in cash
no
later
than the date of the Final Determination in each year of this
Agreement.
In any
event, all matters pertaining to the Bonus and to the payment of any Bonus
to
the Executive hereunder, shall be administered and determined by the
Compensation Committee in its reasonable discretion consistent with the terms
hereof, the determination of which shall be final, conclusive and binding for
all purposes, absent manifest error.
4.4 Partial
Years.
Notwithstanding anything contained herein to the contrary, no Bonus under this
Section 4 shall be deemed earned or payable with respect to any fiscal year
during which this Agreement or the Executive’s employment is terminated by the
Corporation for Cause (as such term is hereinafter defined).
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4.5 No
Additional Rights. Nothing
in this Section 4 shall be construed as conferring upon the Executive any right
(i) normally associated with the ownership of capital stock; (ii) to
continue in the employ of the Corporation or any affiliate of the Corporation;
or (iii) to interfere in any way with the right of the Corporation to
terminate this Agreement in accordance with the provisions hereof. Nothing
in
this Agreement shall be construed to imply that any specific assets of the
Corporation have been set aside to provide for payments under this Agreement.
Any payments under this Agreement shall be made solely from general assets
of
the Corporation existing at the time such payments are due.
5. Severance.
5.1 Termination
Without Cause. In
the
event that Executive’s employment hereunder shall be terminated by the
Corporation without Cause (as defined in Section 9.3 hereof) at any time prior
to the end of the Term, the Executive shall be entitled to receive from the
Corporation, in addition to any Base Salary earned to the date of termination,
severance pay in an amount equal to the Executive’s
Base
Salary, payable for the remainder of the Term as if this Agreement had not
been
terminated, in accordance with the provisions of the last sentence of Section
3.1 hereof. In
the
event of such termination, the amounts due hereunder shall be payable without
offset or defense or any obligation of the Executive to mitigate damages.
6. Additional
Benefits.
6.1 In
General.
In
addition to the compensation, bonuses, expenses and other benefits to be paid
under Sections 3, 4 and 5 hereof, Executive will be entitled to all rights
and
benefits for which he shall be eligible under any insurance, health and medical
(including health and medical plans offered exclusively to the management of
the
Corporation), incentive, bonus, profit-sharing, pension
or other extra compensation or “fringe” benefit plan of the Corporation or any
of its subsidiaries now existing or hereafter adopted for the benefit of the
executives or employees generally of the Corporation. The provisions of this
Agreement which incorporate employee benefit packages shall change as and when
such employee benefit packages change.
5.2 Automobile.
The
Corporation shall pay the executive a monthly automobile payment in the amount
of $1,000 which is to be utilized in the sole discretion of the Executive.
In
addition, the Corporation shall be responsible for all reasonable costs of
operating, repairing, maintaining and insuring such automobile.
5.3 Benefits
Upon Death or Disability.
In the
event the Executive’s employment terminates due to the death of the Executive or
the Executive becoming disabled (as defined in Section 9.2), the Executive’s
estate shall receive a one time grant of the Corporation’s Class A Common Stock,
$0.001 par value per share (“Common
Stock”),
within fifteen (15) days of the termination of the Executive’s employment, for
such number of shares as calculated as follows:
-4-
z
=
y/x;
z
=
number of shares of Common Stock to be received by the Executive’s
estate.
y
= then
current Base Salary.
|
x
=
the closing trading price of the Common Stock on the date of termination
of Executive’s employment due to death or disability of the Executive as
reported on the Over-the-Counter Bulletin Board or similar public
market,
or, in the event there is no public market for the Common Stock,
it shall
be the fair market value of the Common Stock as determined by an
independent valuation expert who has experience in valuing companies
in
the same industry as the
Corporation.
|
7. Vacation.
7.1
In
General. The
Executive shall be entitled each year during the Term of this Agreement to
a
vacation period of six (6) weeks, during which all salary, compensation,
benefits and other rights to which the Executive is entitled to hereunder shall
be provided in full. Such vacation may be taken in the Executive’s discretion,
and such time or times as are not inconsistent with the reasonable business
needs of the Corporation.
8. Right
to Insure.
In the
event that Executive is insurable, Executive agrees that the Corporation shall
have the right during the Term to insure the life of Executive by a policy
or
policies of insurance in such amount or amounts as it may deem necessary or
desirable, and the Corporation shall be the beneficiary of any such policy
or
policies and shall pay the premiums or other costs thereof. The Corporation
shall have the right, from time to time, to modify any such policy or policies
of insurance or to take out new insurance on the life of Executive. Executive
agrees, upon request, at any time or times prior to the commencement of or
during the Term to sign and deliver any and all documents and to submit to
any
physical or other reasonable examinations which may be required in connection
with any such policy or policies of insurance or modifications
thereof.
9. Termination.
9.1 Death.
If
Executive dies during the Term of this Agreement, Executive's employment
hereunder shall terminate upon his death and all obligations of the Corporation
hereunder shall terminate on such date, except that Executive's estate or his
designated beneficiary shall be entitled to: (i) the issuance of the securities
set forth in Section 6.3 and (ii) payment of any unpaid accrued Base Salary
through the date of his death. In addition, any accrued and unpaid Bonus shall
be paid in accordance with Section 4 hereof.
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9.2 Disability.
Subject
to the provisions of Section 6.1, if Executive shall be unable to perform a
significant part of his duties and responsibilities in connection with the
conduct of the business and affairs of the Corporation and such inability lasts
for (i) a period of at least one hundred twenty (120) consecutive days, or
(ii)
periods aggregating at least one hundred eighty (180) days during any three
hundred sixty five (365) consecutive days, by reason of Executive's physical
or
mental disability, whether by reason of injury, illness or similar cause,
Executive shall be deemed disabled, and the Corporation any time thereafter
may
terminate Executive's employment hereunder by reason of the disability. Upon
delivery to Executive of such notice, all obligations of the Corporation
hereunder shall terminate, except that Executive shall be entitled to: (a)
the
issuance of the securities set forth in Section 6.3 and (b) the payment of
any
unpaid accrued Base Salary through the date of termination. In addition, any
accrued and unpaid Bonus shall be paid in accordance with Section 4 hereof.
The
obligations of Executive under Section 10 hereof shall continue notwithstanding
termination of Executive's employment pursuant to this Section 9.2.
9.3 Termination
for Cause.
The
Corporation may at any time during the Term, without any prior notice, terminate
this Agreement and discharge Executive for Cause, whereupon the Corporation’s
obligation to pay compensation or other amounts payable hereunder to or for
the
benefit of Executive shall terminate on the date of such discharge. As used
herein the term “Cause” shall mean: (i) a willful and material breach by
Executive of the terms of this Agreement, (ii) willful violation of specific
and
lawful written direction from the Board of Directors; provided such direction
is
not inconsistent with the Executive’s duties and responsibilities the Executive
is holding at the time of the directive; (iii) fraud, embezzlement or other
material dishonesty by the Executive with respect to the Corporation or any
of
its affiliates; (iv) conviction of the Executive of a felony by a federal or
state court of competent jurisdiction; (v) Executive’s willful failure to
perform (other than by reason of disability), or gross negligence in the
performance of the Services; or (vi) Executive’s excessive absenteeism,
alcoholism or drug abuse. The obligations of the Executive under Section 10
shall continue notwithstanding termination of the Executive’s employment
pursuant to this Section 9.3.
9.4 Termination
Without Cause.
The
Corporation shall have the option to terminate this Agreement without Cause
upon
ninety (90) days written notice to the Executive. In the event the Corporation
terminates this Agreement without Cause as defined above, the Corporation shall
pay the Executive upon termination, the amount required pursuant to Section
5.1.
The obligations of the Executive under Section 10 hereof shall continue
notwithstanding termination of the Executive’s employment pursuant to this
Section 9.4.
9.5 Post
Agreement Employment.
In the
event Executive remains in the employ of the Corporation following termination
of this Agreement, by the expiration of the Term or otherwise, then such
employment shall be at will.
10.
Protection
of Confidential Information; Intellectual Property.
In
view
of the fact that Executive’s work for the Corporation will bring him into close
contact with confidential information and plans for future developments,
Executive agrees to the following:
10.1 Secrecy.
To keep
secret and retain in the strictest confidence all confidential matters of the
Corporation, including, without limitation, trade “know how” and trade secrets,
customer lists, pricing policies, marketing plans, technical processes,
formulae, inventions and research projects, and other business affairs of the
Corporation, learned by him heretofore or hereafter, and not to disclose them
to
anyone inside or outside of the Corporation, except in the course of performing
the Services hereunder or with the express written consent of the Chief
Executive Officer or Board of Directors of the Corporation and except to the
extent such information is already known to the general public.
-6-
10.2 Return
Memoranda, etc.
To
deliver promptly to the Corporation on termination of his employment, or at
any
other time as the Chief Executive Officer or the Board of Directors of the
Corporation may so request, all memoranda, notes, records, reports, manuals,
drawings, blueprints and other documents (and all copies thereof) relating
to
the Corporation’s business and all property associated therewith, which he may
then possess or have under his control.
10.3 Covenants.
10.3.1 Non-competition.
Executive agrees that at all times while he is employed by the Corporation
and,
regardless of the reason for termination of his employment or this Agreement,
for a period of two (2) years thereafter, he will not, as a principal, agent,
employee, employer, consultant, stockholder, investor, director or co-partner
of
any person, firm, corporation or business entity other than the Corporation,
or
in any individual or representative capacity whatsoever, directly or indirectly,
without the express prior written consent of the Corporation:
(i) engage
or
participate in any business whose products or services are competitive with
that
of the Corporation, which business is the sale of travel and sale support
services to the travel industry, and which conducts or solicits business, or
transacts with supplier or customers located within the United States or Puerto
Rico;
(ii) aid
or
counsel any other person, firm, corporation or business entity to do any of
the
above;
(iii) become
employed by a firm, corporation, partnership or joint venture which competes
with the business of the Corporation within the United States or Puerto Rico;
or
(iv) approach,
solicit business from, or otherwise do business or deal with any customer of
the
Corporation in connection with any product or service competitive to any
provided by the Corporation.
10.3.2 Anti-Raiding.
Executive agrees that during the term of his employment hereunder, and,
thereafter for a period of two (2) years, he will not, as a principal, agent,
employee, employer, consultant, director or partner of any person, firm,
corporation or business entity other than the Corporation, or in any individual
or representative capacity whatsoever, directly or indirectly, without the
prior
express written consent of the Corporation approach, counsel or attempt to
induce any person who is then in the employ of the Corporation to leave the
employ of the Corporation or employ or attempt to employ any such person or
persons who at any time during the preceding six months was in the employ of
the
Corporation.
-7-
10.3.3 Executive’s
Acknowledgements.
Executive acknowledges (i) that his position with the Corporation requires
the
performance of services which are special, unique, and extraordinary in
character and places him in a position of confidence and trust with the
customers and employees of the Corporation, through which, among other things,
he shall obtain knowledge of the Corporation’s “technical information” and
“knowhow” and become acquainted with its customers, in which matters the
Corporation has substantial proprietary interests; (ii) that the restrictive
covenants set forth above are necessary in order to protect and maintain such
proprietary interests and the other legitimate business interests of the
Corporation; and (iii) that the Corporation would not have entered into this
Agreement unless such covenants were included herein. Executive also
acknowledges that the business of the Corporation presently will extend
throughout the United States and Puerto Rico, and that he will personally
supervise and engage in such business on behalf of Corporation and, accordingly,
it is reasonable that the restrictive covenants set forth above are not more
limited as to geographic area then is set forth therein. Executive also
represents to the Corporation that the enforcement of such covenants will not
prevent Executive from earning a livelihood or impose an undue hardship on
the
Executive.
10.3.4 Assignment
of Rights to Intellectual Property.
Executive shall promptly and fully disclose all Intellectual Property to the
Corporation. Executive hereby assigns and agrees to assign to the Corporation
(or as otherwise directed by the Corporation) Executive’s full right, title and
interest in and to all Intellectual Property. Executive agrees to execute any
and all applications for domestic and foreign patents, copyrights or other
proprietary rights and to do such other acts (including without limitation
the
execution and delivery of instruments of further assurance or confirmation)
requested by the Corporation to assign the Intellectual Property to the
Corporation and to permit the Corporation to enforce any patents, copyrights
or
other proprietary rights to the Intellectual Property. Executive will not charge
the Corporation for time spent, although the Corporation will reimburse
Executive for any expenses Executive reasonably incurs, in complying with these
obligations. All copyrightable works that Executive creates shall be considered
“work made for hire”. “Intellectual Property” means inventions, discoveries,
developments, methods, processes, compositions, works, concepts and ideas
(whether or not patentable or copyrightable or constituting trade secrets)
conceived, made, created, developed or reduced to practice by Executive (whether
alone or with others, whether or not during normal business hours or on or
off
Corporation premises) during Executive’s employment that relate to either the
Products or any prospective activity of the Corporation under active
consideration. “Products” means all products planned, researched, developed,
tested, manufactured, sold, licensed, leased or otherwise distributed or put
into use by the Corporation or any of its affiliates, together with all services
provided or planned by the Corporation, during Executive’s
employment.
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10.4 Severability.
If any
of the provisions of this Section 10, or any part thereof, is hereinafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of such provision or provisions, which shall be given full effect,
without regard to the invalid portions. If any of the provisions of this Section
10, or any part thereof, is held to be unenforceable because of the duration
of
such provision, the area covered thereby or the type of conduct restricted
therein, the parties agree that the court making such determination shall have
the power to modify the duration, geographic area and/or other terms of such
provision and, as so modified, said provision(s) shall then be enforceable.
In
the event that the courts of any one or more jurisdictions shall hold such
provisions wholly or partially unenforceable by reason of the scope thereof
or
otherwise, it is the intention of the parties hereto that such determination
not
bar or in any way affect the Corporation’s right to the relief provided for
herein in the courts of any other jurisdictions as to breaches or threatened
breaches of such provisions in such other jurisdictions, the above provisions
as
they relate to each jurisdiction being, for this purpose, severable into diverse
and independent covenants.
10.5 Injunctive
Relief.
Executive acknowledges and agrees that, because of the unique and extraordinary
nature of his Services, any breach or threatened breach of the provisions of
Sections 10.1, 10.2, or 10.3 hereof will cause irreparable injury and
incalculable harm to the Corporation, and the Corporation shall, accordingly,
be
entitled to injunctive and other equitable relief for such breach or threatened
breach and that resort by the Corporation to such injunctive or other equitable
relief shall not be deemed to waive or to limit in any respect any right or
remedy which the Corporation may have with respect to such breach or threatened
breach. The Corporation and Executive agree that any such action for injunctive
or equitable relief shall be heard in a state or federal court situated in
New
York, New York and each of the parties hereto, hereby agrees to accept service
of process by registered mail and to otherwise consent to the jurisdiction
of
such courts.
10.6 Expenses
of Enforcement of Covenants.
In the
event that any action, suit or proceeding at law or in equity is brought to
enforce the covenants contained in Sections 10.1, 10.2, or 10.3 hereof or to
obtain money damages for the breach thereof, the party prevailing in any such
action, suit or other proceeding shall be entitled upon demand, to reimbursement
from the other party for all expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred in connection
therewith.
10.7 Section
16(a). Executive
acknowledges that he is an insider under Section 16(a) of the Exchange Act
of
1934, as amended (“Exchange
Act”)
due to
his status as an officer of the Corporation. Executive acknowledges he is aware
of and agrees to comply with the Exchange Act requirements pertaining to
insiders by reporting to the Securities and Exchange Commission (“SEC”)
on
Form 4 any transactions involving equity securities of the Corporation within
two business days following the day on which the transaction is
executed.
10.8 Separate
Agreement.
The
provisions of this Section 10 shall be construed as an agreement on the part
of
the Executive independent of any other part of this Agreement or any other
agreement, and the existence of any claim or cause of action of the Executive
against the Corporation, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Corporation of the
provisions of this Section 9.
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11.
Indemnification.
The
Corporation shall provide the Executive (including his heirs, executors and
administrators) with coverage under a standard directors and officer’s liability
insurance policy at the Corporation’s expense to the same extent as provided for
any other director, officer or trustee of the Corporation. In addition, the
Corporation shall indemnify the Executive (and his heirs, executors and
administrators) to the fullest extent permitted under the law of its state
of
incorporation against all expenses and liabilities reasonably incurred by him
in
connection with or arising out of any action, suit or proceeding in which the
Executive may be involved by reason of his having been a director or officer
of
the Corporation or any subsidiary thereof. Such expenses and liabilities shall
include, but not be limited to, judgments, court costs and attorneys’ fees and
the cost of reasonable settlements, such settlements to be approved by the
Board
if such action is brought against the Executive in his capacity as a director
or
officer of the Corporation or any subsidiary thereof. The Corporation shall,
upon the request of the Executive, advance to the Executive such amounts as
necessary to cover expenses, including without limitation legal fees and
expenses, incurred by the Executive in connection with any suit or proceeding
in
which the Executive may be involved by reason of his being or having been a
director or officer of the Corporation or of any subsidiary thereof. Such
indemnity and advance of expenses, however, shall not extend to matters as
to
which the Executive is finally adjudged to be liable for willful misconduct
in
the performance of his duties.
12.
Arbitration.
Except
with respect to any proceeding brought under Section 10 hereof, any controversy,
claim, or dispute between the parties, directly or indirectly, concerning this
Agreement or the breach hereof, or the subject matter hereof, including
questions concerning the scope and applicability of this arbitration clause,
shall be finally settled by arbitration in Madison County, Illinois, pursuant
to
the rules then applying of the American Arbitration Association. The arbitrators
shall consist of one representative selected by the Corporation, one
representative selected by the Executive and one representative selected by
the
first two arbitrators. The parties agree to expedite the arbitration proceeding
in every way, so that the arbitration proceeding shall be commenced within
thirty (30) days after request therefore is made, and shall continue thereafter,
without interruption, and that the decision of the arbitrators shall be handed
down within thirty (30) days after the hearings in the arbitration proceedings
are closed. The arbitrators shall have the right and authority to assess the
cost of the arbitration proceedings and to determine how their decision or
determination as to each issue or matter in dispute may be implemented or
enforced. The decision in writing of any two of the arbitrators shall be binding
and conclusive on all of the parties to this Agreement. Should either the
Corporation or the Executive fail to appoint an arbitrator as required by this
Section 12 within thirty (30) days after receiving written notice from the
other
party to do so, the arbitrator appointed by the other party shall act for all
of
the parties and his decision in writing shall be binding and conclusive on
all
of the parties to this Agreement. Any decision or award of the arbitrators
shall
be final and conclusive on the parties to this Agreement; judgment upon such
decision or award may be entered in any competent Federal or state court located
in the United States of America; and the application may be made to such court
for confirmation of such decision or award for any order of enforcement and
for
any other legal remedies that may be necessary to effectuate such decision
or
award.
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13.
Notices.
All
notices, requests, consents and other communications required or permitted
to be
given hereunder, shall be in writing and shall be deemed to have been duly
given
if delivered personally or sent by prepaid telegram, telecopy or mailed first
class, postage prepaid, by registered or certified mail (notices sent by
telegram or mailed shall be deemed to have been given on the date sent), to
the
parties at their respective addresses hereinabove set forth or to such other
address as either party shall designate by notice in writing to the other in
accordance herewith.
14.
General.
14.1 Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
local laws of the State of Delaware.
14.2 Captions.
The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
14.3 Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either party
that is not embodied in this Agreement, and neither party shall be bound by
or
liable for any alleged representation, promise or inducement not so set
forth.
14.4 Severability.
If any
of the provisions of this Agreement shall be unlawful, void, or for any reason,
unenforceable, such provision shall be deemed severable from, and shall in
no
way affect the validity or enforceability of, the remaining portions of this
Agreement.
14.5 Waiver.
The
waiver by any party hereto of a breach of any provision of this Agreement by
any
other party shall not operate or be construed as a waiver of any subsequent
breach of the same provision or any other provision hereof.
14.6 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same Agreement.
14.7 Assignability.
This
Agreement, and Executive’s rights and obligations hereunder, may not be assigned
by Executive. The Corporation may assign its rights, together with its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets; in any event
the rights and obligations of the Corporation hereunder shall be binding on
its
successors or assigns, whether by merger, consolidation or acquisition of all
or
substantially all of its business or assets. This Agreement shall inure to
the
benefit of, and be binding upon, the Executive and his executors,
administrators, heirs and legal representatives.
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14.8 Amendment.
This
Agreement may be amended, modified, superseded, cancelled, renewed or extended
and the terms or covenants hereof may be waived, only by a written instrument
executed by both of the parties hereto, or in the case of a waiver, by the
party
waiving compliance. No superseding instrument, amendment, modification,
cancellation, renewal or extension hereof shall require the consent or approval
of any person other than the parties hereto. The failure of either party at
any
time or times to require performance of any provision hereof shall in no matter
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether
by
conduct or otherwise, in any one or more instances, shall be deemed to be,
or
construed as, a further or continuing waiver of any such breach, or a waiver
of
the breach of any other term or covenant contained in this
Agreement.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first above
written.
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ATTEST:
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By:
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By:
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J.
Xxxxx Xxxxx, Chief
Executive Officer
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ATTEST:
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EXECUTIVE
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J.
Xxxxx Xxxxx, Individually
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