EMPLOYMENT AGREEMENT
Exhibit
10.11
Employment
Agreement, dated as of December 17, 2007, by and between Xxxxxxx Xxxxxxx, an
individual with an address at 000 Xxxx 00xx
Xxxxxx,
Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000 (“Executive”),
and United Benefits & Pension Services, Inc., a Delaware Corporation, with
its principal office located at 000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the “Company”).
RECITALS
A. The
Company desires to retain Executive as an executive officer of the Company
during the Term (as defined below).
B. Executive
desires to be employed by the Company during the Term, all upon the terms and
conditions set forth herein.
NOW,
THEREFORE, the Company and Executive agree as follows:
1. Engagement;
Duties.
Subject
to the terms and conditions set forth herein, the Company shall employ Executive
as Chief Financial Officer and Chief Operating Officer during the Term (as
defined in Section 2). Executive shall perform the duties and responsibilities
customarily performed by a person serving as Chief Financial Officer and Chief
Operating Officer of a corporation comparable to the Company that is engaged
in
a business similar to that of the Company and its present or future Affiliates,
including, without limitation, oversight and management of the Company’s
finances and accounting practices. During the Term, the Executive shall report
to, and be subject to the direction and control of, the Board of Directors
of
the Company (the “Board”) and Chief Executive Officer of the Company. In
addition, for so long as he is employed by the Company as Chief Financial
Officer and Chief Operating Officer, Executive may be elected to serve and,
if
so elected, shall serve as a member of the Board and may be elected to serve,
and, if so elected, shall serve, as a member of the board of directors of any
present or future Affiliate of the Company. During the Term, Executive shall
promote the interests of the Company and any present or future Affiliate of
the
Company, perform his duties faithfully and diligently, consistent with sound
business practices, and devote his full business time to the performance of
his
duties for the Company and its present and future Affiliates in accordance
with
the terms hereof. Provided that the activities listed below do not materially
interfere with Executive’s duties and responsibilities under this Agreement,
nothing in the Agreement shall preclude Executive from devoting reasonable
periods required for:
(A) Serving
as a member of any organization involving no conflict of interest with the
Company;
(B) Serving
as a consultant in his area of expertise to government, commercial and academic
panels where it does not conflict with the interests of the
Company;
(C) Managing
his personal investments or engaging in any other non-competing business
activity during his non-business time; and
(D) Serving
as a member of the Board of Directors or in an advisory capacity to government,
commercial and academic panels where it does not conflict with the interests
of
Executive.
2. Term. Unless
this Agreement is terminated pursuant to Section 5, the term of this Agreement
(the “Initial Term”) shall commence as of January 1, 2008 (the “Effective Date”)
and shall expire on the date immediately preceding the second anniversary of
the
Effective Date. The Initial Term shall automatically be extended thereafter
for
subsequent one year periods (each an “Extension Year” and, together with the
Initial Term, the “Term”), subject to earlier termination pursuant to Section 5,
unless at least ninety (90) days prior to the expiration of the then-current
Extension Year, as the case may be, the Company or Executive have notified
the
other party in writing that Employee’s employment hereunder shall terminate upon
the expiration of the then-current Term.
3. Compensation.
As
consideration for the performance by Executive of Executive’s obligations under
this Agreement, the Company shall compensate Executive as follows:
(A) During
the Initial Term, the Company shall pay Executive a base salary at the rate
of
Two Hundred Twenty-five Thousand ($225,000.00) Dollars per year (“Base Salary”),
which shall be prorated for periods that are less than one (1) year. The Chief
Executive Officer and the Board, or, if applicable, the compensation committee
appointed by the Board (the “Compensation Committee”), shall review Executive’s
performance at the end of the Initial Term and any Extension Year. Executive’s
base salary shall be subject to increase or decrease, at the discretion of
the
Board (or, if applicable, the Compensation Committee) effective as of the date
on which the applicable Extension Year shall have commenced, based on the
results of such review.
(B) In
addition to the Base Salary, the Company shall pay Executive, if and when earned
by Executive, a bonus (“Bonus”) based on Executive’s performance as determined
by performance criteria and objectives established by the Board or, if
applicable, the Compensation Committee, which bonus shall in no event exceed
fifty percent (50%) of the Base Salary in effect at the time of the
determination of such Bonus. The Board of Directors, or, if applicable, the
Compensation Committee, shall consult with Executive on the creation of
applicable performance criteria and objectives. Such criteria and objectives
shall be established within ninety (90) days after the Effective Date and,
if
the term is renewed, within sixty (60) days after the commencement of any
Extension Year.
(C) The
Base
Salary shall be payable in accordance with the Company’s usual and customary
payroll practices. The Bonus, if any, shall be paid within sixty (60) days
after
the end of each fiscal year of the Company. If the Bonus is based upon financial
results for the fiscal year and such results are not known within sixty (60)
days after the end of the fiscal year, then eighty (80%) of the projected Bonus
shall be paid within sixty (60) days after the end of such fiscal year and
the
balance shall be payable within thirty (30) days after delivery of audited
financial statements for the applicable fiscal year. The Company
shall deduct from the Base Salary and any Bonus any federal, state or local
withholding taxes, social security contributions and any other amounts which
may
be required to be deducted or withheld by the Company pursuant to any federal,
state or local laws, rules or regulations.
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4. Reimbursement
of Expenses; Fringe Benefits.
(A) Expenses.
The
Board will authorize an expense budget for Executive commensurate with
reasonable business requirements, which shall provide for reimbursement of
Executive’s reasonable travel and entertainment costs and expenses, costs and
expenses of attending conferences, seminars and conventions related to the
business of the Company or any present or future Affiliate of the Company,
and
such other costs and expenses as determined by the Board, in its sole
discretion. During the Term, the Company shall promptly reimburse Executive
for
reasonable business expenses incurred by Executive in the performance of
Executive’s duties on behalf of the Company or its present or future Affiliates,
including, without limitation, reasonable travel and entertainment costs and
expenses and costs and expenses of attending conferences, seminars and
conventions related to the business of the Company or any present or future
Affiliate of the Company; provided,
that
such expenses were incurred in the furtherance of the Company’s or an
Affiliate’s business in accordance with the foregoing budget, and that Executive
presents evidence of such expenses and costs as may be required under the
policies of the Company as are then in effect.
(B) Fringe
Benefits.
During
the Term, to the extent eligible, Executive shall be entitled to those fringe
benefits and perquisites that are now or in the future made available to other
executives of the Company or its present or future Affiliates generally,
including, without limitation, any health, accident, disability or other
insurance, pension, benefit and/or retirement plan (including 401k) or welfare
plan, as and when such benefit plans are established. The foregoing shall not
require the Company or any present or future Affiliate of the Company to
establish any such plan or program solely for Executive’s benefit.
(C) Directors’
and Officers’ Liability Insurance.
The
Company shall use reasonable commercial efforts to procure directors’ and
officers’ insurance in such form and amount and providing such coverage for
Executive, in his capacity as Chief Financial Officer and Chief Operating
Officer of the Company, as is customary for similarly situated executives
serving in similar capacities, provided
that the
costs of such coverage are not substantially greater than those at companies
engaged in similar business activities.
(D) Vacation.
Executive shall be entitled to twenty (20) paid vacation days during each year
of the Term at such times as are mutually agreed upon by Executive and
Company.
(E) Equity
Incentive Plans.
Executive may, at the discretion of the Board, be granted stock options or
other
incentive compensation under plans adopted by the Board for the benefit of
the
executives and key management personnel of the Company or any present or future
Affiliate of the Company. Executive shall be entitled to receive a grant of
stock options under the Company’s 2007 Stock Option Plan to purchase a total
number of shares of the Company’s common stock equal to 22.5% of the total
number of shares reserved for grant under such plan. The option agreement
relating to such options shall include (i) customary cashless exercise
provisions, (ii) accelerated vesting provisions in the event of (a) a Change
of
Control (as defined in Section 5) or (b) termination of the employment of
Executive by the Company without Cause (as defined in Section 5) or resignation
by Executive with Good Reason, and (iii) monthly vesting in equal monthly
amounts over twenty-four months. Such options will be granted upon approval
of
the Board at the first meeting of the Board after the Effective Date. Executive
shall be entitled to receive up to a total of 104,343 shares of the Company’s
common stock as performance incentive shares upon the Company achieving certain
budgeted performance targets for certain periods to be established by the Board
and approved by the holders of the Senior Secured Notes of Associated Third
Party Administrators, a California corporation.
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(F) Location.
Executive shall provide services at an office of the Company located in the
New
York City area, subject to reasonable travel requirements, it being the present
intention of the Company to move its existing office in Fairfield, Connecticut
to the New York City area.
5. Termination.
The
Company may terminate this Agreement upon Executive's death, and may terminate
this Agreement at any earlier time at the option of the Company due to
Executive's Disability (as defined below) or for Cause (as defined below).
Executive may terminate this Agreement for Good Reason (as defined below).
(A) As
used
in this Agreement:
(i) The
term
"Disability" means the inability of Executive substantially to perform his
duties and obligations under this Agreement for sixty (60) consecutive days
or
ninety (90) days in any one hundred eighty (180)-day period because of any
mental or physical incapacity.
(ii) The
term
"Cause" means the adoption by the Board of a resolution finding that Executive
has (a) engaged in any reckless or negligent misconduct that damages, in any
material respect, the reputation, business or business relationships of the
Company or any present or future Affiliate of the Company, (b) committed a
fraud, embezzlement or other act of misappropriation against the Company or
any
present or future Affiliate of the Company, (c) been convicted by, or entered
a
plea of nolo contendere
in, a
court of competent and final jurisdiction for any crime involving moral
turpitude, fraud, embezzlement, misappropriation or any other felony or crime
punishable by imprisonment; (d) refused or failed to perform his duties
hereunder or shall materially violate his duty of loyalty to the Company or
any
of its present or future Affiliates, provided that such refusal, failure or
violation, if curable, is not cured within thirty (30) days after written notice
of such refusal or failure is given by the Board to Executive, or (e) materially
breached this Agreement or any other written agreement between Executive and
the
Company, or any Affiliate (as defined below) of the Company, that continues
without cure for a period of thirty (30) days after written notice of such
breach is given by the Board to Executive.
(iii) The
term
“Good Reason” means (a) any circumstance resulting in a material reduction in
the Base Salary or duties and responsibilities of Executive or (b) any material
breach by the Company of this Agreement or any other written agreement between
Executive and the Company, or any Affiliate of the Company, that continues
without cure for a period of thirty (30) days after written notice of such
breach is given by Executive to the Company; provided,
however,
that in
order for Good Reason to exist hereunder, the Executive must provide the Company
with written notice of the event(s) alleged to constitute Good Reason within
90
days of the occurrence of such event(s) and Executive must terminate his
employment within six months of such event.
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(iv) The
term
“Change of Control” means and shall have occurred or be deemed to have occurred
only if any of the following events occur:
(a) The
acquisition, directly or indirectly, by any person or group (as those terms
are
defined in Sections 3(a)(9), 13(d) and 14(d) of the Securities Exchange Act
(the
“Exchange Act”) and the rules thereunder) of beneficial ownership (as determined
pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote
generally in the election of directors (voting securities) of the Company that
represent 50% or more of the combined voting power of the Company’s then
outstanding voting securities, other than (1) any such acquisition by any person
or group that includes Executive; (2) an acquisition by a trustee or other
fiduciary holding securities under any employee benefit plan (or related trust)
sponsored or maintained by the Company or any person controlled by the Company
or by any employee benefit plan (or related trust) sponsored or maintained
by
the Company or any person controlled by the Company; or (3) an acquisition
of
voting securities by the Company or a corporation owned, directly or indirectly
by all of the stockholders of the Company in substantially the same proportions
as their ownership of the stock of the Company.
Notwithstanding
the foregoing, the following event shall not constitute an acquisition by any
person or group for purposes of this subsection (a): an acquisition of the
Company’s securities by the Company which causes the Company’s voting securities
beneficially owned by a person or group to represent 50% or more of the combined
voting power of the Company’s then outstanding voting securities; provided,
however,
that if
a person or group shall become the beneficial owner of 50% or more of the
combined voting power of the Company’s then outstanding voting securities by
reason of share acquisitions by the Company as described above and shall, after
such share acquisitions by the Company, become the beneficial owner of any
additional voting securities of the Company, then such acquisition shall
constitute a Change of Control; or
(b) Individuals
who, as of the Effective Date, constitute the Board of the Company (as of the
Effective Date, the “Incumbent Board”) cease for any reason to constitute at
least a majority of the Board of the Company, provided that any person becoming
a director subsequent to the Effective Date whose election, or nomination for
election by the Company’s stockholders, was approved by a vote of at least a
two-thirds of the directors then comprising the Incumbent Board (other than
an
election or nomination of an individual whose initial assumption of office
is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or
(c) The
consummation by the Company (whether directly involving the Company or
indirectly involving the Company through one or more intermediaries) of (i)
a
merger, consolidation, reorganization, or business combination, or (ii) the
acquisition of assets or stock of another entity, in each case other than a
transaction:
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(1) Which
results in the Company’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by
being
converted into voting securities of the Company or the person that, as a result
of the transaction, controls, directly or indirectly, the Company or owns,
directly or indirectly, all or substantially all of the Company’s assets or
otherwise succeeds to the business of the Company (the Company or such person,
the “Successor Entity”)) directly or indirectly, at least a majority of the
combined voting power of the Successor Entity’s outstanding voting securities
immediately after the transaction; and
(2) After
which no person or group beneficially owns voting securities representing 50%
or
more of the combined voting power of the Successor Entity; provided,
however,
that no
person or group shall be treated for purposes of this clause (B) as beneficially
owning 50% or more of combined voting power of the Successor Entity solely
as a
result of the voting power held in the Company prior to the consummation of
the
transaction; or
(d) a
sale or
disposition of all or substantially all of the Company’s assets; or
(e) The
Company’s stockholders approve a liquidation or dissolution of the
Company.
(v) The
term
“Termination Date” shall mean the earlier of the expiration of this Agreement or
the effective date of the Company’s termination of this Agreement.
(B) Payments
to Executive Upon Termination of This Agreement.
(i) In
the
event this Agreement is terminated prior to the expiration of the Term by the
Company without Cause, or by Executive for Good Reason, the Company shall pay
to
Executive: (a) in a lump sum, within thirty (30) days after the Termination
Date, Executive’s accrued but unpaid Base Salary as of the Termination Date; (b)
in a lump sum, within thirty (30) days after the Termination Date, any earned
but unpaid Bonus as of the Termination Date; (c) in a lump sum, within thirty
(30) days after the Termination Date, an amount equal to any costs or expenses
incurred by Executive prior to the Termination Date which are reimbursable
pursuant to Section 4(A); (d) any amounts that would have been payable for
Executive’s health insurance or any other benefit plans of the Company in which
Executive participates (only to the extent allowable under law) through the
remainder of the Term had Executive’s employment not been terminated, in
accordance with the terms of the applicable health insurance policy or such
other plan, but without duplication; and (e) within sixty (60) days after the
Termination Date, a lump sum cash payment equal to the product of one week
of
the Base Salary in effect on the Termination Date multiplied by the number
of
full months that the Employee was employed by the Company or ATPA; provided,
however,
in no
event shall Executive receive a payment under subparagraph (d) in an amount
less
than three months of the Base Salary in effect on the Termination
Date.
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(ii) If
within
twelve (12) months following a Change of Control occurring during the Term,
the
employment of Executive hereunder is terminated by the Company without Cause
or
Employee terminates his employment for Good Reason, the Company shall pay to
Executive: (a) in a lump sum, within thirty (30) days after the Termination
Date, Executive’s accrued but unpaid Base Salary as of the Termination Date; (b)
in a lump sum, within thirty (30) days after the Termination Date, any earned
but unpaid Bonus as of the Termination Date; (c) in a lump sum, within thirty
(30) days after the Termination Date, an amount equal to any costs or expenses
incurred by Executive prior to the Termination Date which are reimbursable
pursuant to Section 4(A); (d) any amounts that would have been payable for
the
Executive’s health insurance or any other benefit plans of the Company in which
Executive participates (only to the extent allowable by law) through the
remainder of the Term had Executive’s employment not been terminated, in
accordance with the terms of the applicable insurance policy or such other
plan,
but without duplication; and (e) within sixty (60) days after the Termination
Date, a lump sum cash payment in an amount equal to one year’s Base Salary in
effect on the Termination Date.
(iii) If
the
Company or any present or future Affiliate of the Company (a) during the Term
enters into a binding written agreement to engage in a transaction which, if
consummated, would result in a Change of Control; (b) such transaction is
consummated within twelve (12) months after the last date of the Term; and
(c)
subsequent to entering into such agreement the Company terminates the employment
of Executive without Cause or Executive terminates his employment for Good
Reason, the Company shall pay to Employee an amount equal to the payments set
forth in Section 5(b)(ii) hereof.
(iv) In
the
event this Agreement is terminated prior to the expiration of the Term by the
Company for Cause or due to Executive’s death or Disability, the Company shall
pay to Executive, within thirty (30) days after the Termination Date: (a) in
a
lump sum, an amount equal to Executive’s accrued but unpaid Base Salary and
Bonus as of the Termination Date; (b) in a lump sum, reimbursement for any
reimbursable business expenses incurred in accordance with this Agreement prior
to the Termination Date; and (c) any amounts or benefits due through the
Termination Date under this Agreement and any health insurance policy applicable
to Executive or any other benefit plan of the Company in which Executive
participates (only to the extent allowable under law) in accordance with the
terms of such policy, but without duplication.
(v) As
consideration for the payments under Sections 5(B)(i), (ii) or (iii), Executive
shall execute and deliver to the Company a release of any and all claims against
the Company and any Affiliate of the Company (excluding any claim for such
payments) in form and substance reasonably satisfactory to the Company.
(vi) If,
at
the time Executive’s employment with the Company is terminated, Executive is a
“specified employee” under section 409A of the Internal Revenue Code of 1986 (as
amended, the “Code”) and payments herein would result in a violation of Section
409A of the Code, any such payment shall be delayed until the first day after
the six month anniversary of the date of such termination.
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6. Non-Disclosure;
Non-Competition and Non-Solicitation.
(A) Non-Disclosure.
Executive
understands and agrees that the business of the Company is based upon
specialized work and Confidential Information (as hereinafter defined).
Executive agrees that he shall keep secret all Confidential Information and
that
he will not, directly or indirectly, use for his own benefit or for the benefit
of others or Disclose (as hereinafter defined), without the prior written
consent of the Company, any Confidential Information. At any time upon the
Company’s request and upon the expiration or earlier termination of this
Agreement, Executive shall turn over to the Company all books, notes, memoranda,
manuals, notebooks, records and other documents made, compiled by, delivered
to,
or in the possession or control of Executive containing or concerning any
Confidential Information, including all copies thereof, in any form or format,
including any computer hard disks, wherever located, containing any such
information, it being agreed that the same and all information contained therein
are at all times the exclusive property of the Company.
The
provisions of this Section 6(A) shall survive for a period of three (3) years
following the Termination Date.
As
used
in this Agreement, the term “Confidential Information” means any information or
compilation of information not generally known to the public or the industry,
that is proprietary or confidential to the Company, its Affiliates and/or those
doing business with the Company and/or its Affiliates, including but not limited
to know-how, processes, techniques, methods, plans, specifications, trade
secrets, patents, copyrights, supplier lists, customer lists, mailing lists,
financial information, business plans and/or policies, methods of operation,
sales and marketing plans and any other information acquired or developed by
Executive in the course of his past, present and future dealings with the
Company, which is not readily available to the public. “Confidential
Information” shall not include information that Executive can demonstrate was
known to him prior to the Effective Date or that was made available to Executive
by a third party without obligation of confidentiality.
As
used
in this Agreement, the term “Disclose” means to reveal, deliver, divulge,
disclose, publish, copy, communicate, show, allow or permit access to, or
otherwise make known or available to any third party, any of the Confidential
Information. Notwithstanding any provision contained herein to the contrary,
Disclosure of Confidential Information made pursuant to applicable law or the
order of any court, agency or other governmental authority of competent
jurisdiction shall not be a violation of this Section 6.
(B) Non-Competition;
Non-Solicitation.
During
the period (the “Restricted Period”) Commencing on the date hereof and ending on
the second anniversary of the Termination Date, Executive covenants and agrees
that he will not, without the Company’s prior written consent, directly or
indirectly, either on behalf of himself or any other person, firm, corporation
or other entity (other than on behalf of the Company or its
Affiliates):
(i) be
employed by, own, manage, control, operate, advise or provide consulting
services to any entity or individual that competes with the Company in the
areas
of Xxxx-Xxxxxxx
pension plan administration and health and welfare claims processing in the
geographical areas where the Company or any of its subsidiaries conducts
business or proposes to conduct business (a “Competitive Business”);
provided,
however,
that,
notwithstanding the foregoing, passive ownership of not more than one percent
(1%) of the outstanding voting or other equity securities of a Competitive
Business, the common stock or comparable equity securities of which are traded
on a national securities exchange or in the over-the-counter market, shall
not
be a violation of this Section 6;
8
(ii) solicit
or divert any business or any customer from the Company or its Affiliates or
assist any person, firm, corporation or other entity in doing so or attempting
to do so;
(iii) cause
or
seek to cause any person, firm or corporation to refrain from dealing or doing
business with the Company or its Affiliates or assist any person, firm,
corporation or other entity in doing so; or
(iv) hire,
solicit or divert from the Company or its Affiliates any of their respective
employees, consultants or agents who have, at any time during the immediately
preceding one (1) year period from the date hereof or the Restricted Period,
been engaged by the Company
or its
Affiliates,
nor
assist any person, firm, corporation or other entity in doing so.
As
used
in this Agreement, the
term
“Affiliate” shall mean any
entity controlling, controlled by or under the common control with the Company.
For purposes of this Agreement, “control” shall mean the direct or indirect
ownership of fifty (50%) percent or more of the outstanding equity securities
or
voting rights of an entity or possession, directly or indirectly, of the power
to direct, or cause the direction of, the management and policies of an
entity.
(C) Injunctive
Relief.
If
Executive shall breach or threaten to breach any of the provisions of this
Section 6, in addition to and without limiting any other remedies available
to Company at law or in equity, the Company shall be entitled, upon application
to any court of competent jurisdiction, to immediate injunctive relief to
restrain any such breach or threatened breach and to enforce the provisions
of
Section 6. Executive acknowledges and agrees that there is no adequate remedy
at
law for any such breach or threatened breach and, in the event that any
proceeding is brought seeking injunctive relief, Executive shall not use as
a
defense thereto that there is an adequate remedy at law.
7. Indemnification. The
Company, on behalf of itself and its Affiliates, shall defend, indemnify and
hold harmless Executive in his capacity as an officer and director of the
Company and/or any of its Affiliates to the fullest extent permitted by
applicable law against any losses or damages incurred by Executive in connection
with any action, suit or proceeding to which Executive may be made a party
by
reason of his being or having been an officer or director of the Company or
any
of its Affiliates, or because of actions taken by Executive which were believed
by Executive to be in the best interests of the Company and not in violation
of
applicable law, and Executive shall be entitled to be covered by any directors’
and officers’ liability insurance policies which the Company maintains for the
benefit of its directors and officers, subject to the limitations of any such
policies. The Company shall have the right to assume, with legal counsel of
its
choice, who shall be reasonably acceptable to Executive, the defense of
Executive in any such action, suit or proceeding for which the Company is
providing indemnification to Executive. Should Executive determine to employ
separate legal counsel in any such action, suit or proceeding, any costs and
expenses of such separate legal counsel shall be the sole responsibility of
Executive. If the Company does not assume the defense of any such action, suit
or proceeding, the Company shall, upon the request of Executive, promptly
advance or pay any amount for costs or expenses, including the reasonable fees
of counsel retained by Executive, incurred by Executive in connection with
such
action, suit or proceeding; provided
that
Executive agrees in writing to repay any such amounts advanced if it is
ultimately determined by a court, administrative agency or other governmental
authority having competent jurisdiction that Executive is not entitled to such
indemnification. Executive shall be entitled to indemnification under this
clause regardless of any subsequent amendment of the Certificate of
Incorporation or By-Laws of the Company.
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8. Representation
and Warranty of Executive.
Executive represents and warrants to Company that the execution and delivery
of
this Agreement and the performance of Executive’s obligations pursuant hereto
shall not conflict with or result in a breach of any provisions of any (a)
agreement, commitment, undertaking, arrangement or understanding to which
Executive is a party or by which Executive is bound; or (b) order, judgment
or
decree of any court or arbitrator.
9. General
Provisions.
(A) Notices.
All
notices and other communications under this Agreement shall be in writing and
may be given by personal delivery, registered or certified mail, postage
prepaid, return receipt requested or generally recognized overnight delivery
service. Notices shall be sent to the appropriate party at that party's address
set forth above or at such other address for that party as shall be specified
by
notice given under this Section. All such notices and communications shall
be
deemed received upon (a) actual receipt by the addressee or (b) actual delivery
to the appropriate address. Copies of notices hereunder shall be sent as
follows: If to Executive, to: 000 Xxxx 00xx
Xxxxxx,
Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000 fax no. [_________], attention: Xxxxxxx
Xxxxxxx; and if to the Company, to: United Benefits & Pension Services,
Inc., 000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxx
00000.
(B) Assignment.
This
Agreement shall be binding upon, and inure to the benefit of, the parties'
respective successors, permitted assigns, and heirs and legal representatives.
This Agreement may be assigned to, and thereupon shall inure to the benefit
of,
any organization which succeeds to substantially all of the business or assets
of the Company, whether by means of merger, consolidation, acquisition of all
or
substantially all of the assets of the Company or otherwise, including, without
limitation, by operation of law. This Agreement is a personal services contract
and may not be assigned by Executive nor may the duties of Executive hereunder
be delegated by Executive to any other person.
(C) Severability.
If any
provision of this Agreement, or the application of any provision to any person
or circumstance, shall for any reason or to any extent be invalid or
unenforceable, the remainder of this Agreement and the application of that
provision to other persons or circumstances shall not be affected, but shall
be
enforced to the full extent permitted by law.
(D) Certain
Tax Provisions.
In
the
event of any inconsistency between any provision of this Agreement and Section
409A of the Internal Revenue Code of 1986 (as amended, the “Code”),
including any regulatory and administrative guidance issued from time to time
thereunder, the provisions of Section 409A shall control. It is the intention
of
the parties hereto that this Agreement satisfy the requirements of Code Section
409A, and the parties hereby agree to amend this Agreement as and when necessary
or desirable to conform to or otherwise properly reflect any guidance issued
under Code Section 409A after the date hereof without violating Code Section
409A. In case any one or more provisions of this Agreement fails to comply
with
the provisions of Code Section 409A, the remaining provisions of this Agreement
shall remain in effect, and this Agreement shall be administered and applied
as
if the non-complying provisions were not part of this Agreement. The parties
in
that event shall endeavor to agree upon a reasonable substitute for the
non-complying provisions, to the extent that a substituted provision would
not
cause this Agreement to fail to comply with Code Section 409A, and, upon so
agreeing, shall incorporate such substituted provisions into this
Agreement.
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(E) 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 or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other
term
of this Agreement. Any waiver must be in writing.
(F) Governing
Law; Arbitration.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and to be performed in that
state, without regard to any of its principles of conflicts of laws or other
laws that would result in the application of the laws of another jurisdiction.
This Agreement shall be construed and interpreted without regard to any
presumption against the party causing this Agreement to be drafted. Each of
the
parties hereby unconditionally and irrevocably waives the right to a trial
by
jury in any action, suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. All disputes relating in
any
way to this Agreement shall be resolved exclusively through arbitration
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association as then in effect. The arbitration hearing shall be
held
in New York, New York and shall be before a single arbitrator selected by the
parties in accordance with the Commercial Arbitration Rules of the American
Arbitration Association pursuant to its rules on selection of arbitrators.
Any
arbitrator selected shall have reasonable experience as an arbitrator relating
to the dispute at issue. The arbitrator shall render a formal, binding
non-appealable resolution and award on each issue as expeditiously as possible
but not more than thirty days after the hearing. All discovery disputes shall
be
resolved by the arbitrator. The prevailing party in the arbitration shall be
entitled to reimbursement of its reasonable attorneys fees, and the parties
shall use all reasonable efforts to keep arbitration costs to a
minimum.
(G) Counterparts.
This
Agreement may be executed in counterparts, both of which shall be considered
an
original, but both of which together shall constitute the same
instrument.
(H) Entire
Agreement; Amendment.
This
Agreement contains the complete statement of all the arrangements between the
parties with respect to its subject matter, supersedes all prior agreements
between them with respect to that subject matter, and may not be changed or
terminated orally. Any amendment or modification must be in writing and signed
by the party to be charged.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first set forth
above.
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By:
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/s/
Xxxxxxx Xxxxxxxxx
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Name:
Xxxxxxx
Xxxxxxxxx
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Title:
Chief
Executive Officer
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/s/
Xxxxxxx Xxxxxxx
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Xxxxxxx
Xxxxxxx
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[SIGNATURE
PAGE – XXXXXXX EMPLOYMENT AGREEMENT]
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