EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (this “Agreement”) by and between Employers Holdings, Inc.,
a Nevada corporation (the “Company”) and Xxxxxxx X. Xxxxx (the “Employee”) is
entered into as of the 17th day of December, 2008, effective as of January
1, 2009 (the “Effective Date”).
RECITALS
A. The Employee has knowledge and
experience applicable to the position of Chief Executive Officer.
B. The Company desires to continue to
employ the Employee to perform certain services for the Company, its parent, if
any, and their respective subsidiaries and affiliates (the “Company
Affiliates”), as may be required or requested of the Employee in his position as
Chief Executive Officer, and the Employee desires to continue to be so employed
by the Company and to perform such services for the Company and the Company
Affiliates.
In
consideration of the premises above and mutual covenants and promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are mutually acknowledged, the parties agree as follows:
TERMS
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1.
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Employment.
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The Company agrees to continue to
employ the Employee and the Employee accepts such continued employment upon the
terms and conditions specified herein. The Employee agrees to continue to devote
substantially all of his time and effort during working hours in the performance
of the duties called for herein and agrees that any other non-employment related
duties (i.e., industry related groups, service on boards, etc.) will not be
allowed to materially interfere with the performance of the duties called for
herein.
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2.
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Term.
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The term of this Agreement shall
commence on the Effective Date, and continue for four (4) years (the “Initial
Term”), until December 31, 2012, and, thereafter, shall automatically renew for
successive two (2) year periods (each, an “Additional Term;” the Initial Term
and any Additional Terms, collectively the “Term”), unless either party gives
written notice to the other no later than six (6) months prior to expiration of
the Initial Term or any Additional Term, as applicable, of an intent not to
renew this Agreement; subject, however to earlier termination of the Employee's
employment with the Company in accordance with this Agreement (the “Termination
Date”). The expiration of this Agreement at the end of the Term, in
and of itself, shall not constitute, nor be construed or interpreted as, a
termination of the Employee's
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employment
that would make him eligible for benefits or payments under Section 7
below. This Agreement shall expire upon the termination of the
Employee's employment for any reason, subject to the provisions of subsection
10(h) below.
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3.
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Services and
Duties.
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The Employee shall continue to serve as
Chief Executive Officer and shall perform such duties as may be assigned by the
Board of Directors of the Company (the “Board”) from time to time. At
the request of the Board, the Employee shall also serve as a director of the
Company and/or one or more of the Company Affiliates at no additional
compensation. The Employee agrees that upon the termination of his
employment with the Company, he shall resign from the Board and any and all
boards of the Company Affiliates effective on the Termination Date.
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4.
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Compensation and
Benefits.
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(a)
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During the term of this Agreement,
the Company shall pay
to the Employee an annual salary of not less than $675,000 (“Base Salary”), which amount shall be paid
according to the Company’s regular payroll practices. The
Company agrees to review the Base Salary on an annual basis and adjust
the salary to comply
with the executive compensation policy in effect at the time of the
review. Any increase made to the annual salary will establish
the new Base Salary for the Employee. All payments made
pursuant to this Agreement, including but not limited to this subsection
4(a), shall be reduced by and
subject to withholding for all federal, state, and local taxes and any
other withholding required by applicable laws and
regulations.
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(b)
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The Company will provide an annual incentive (the
“Annual
Incentive”) to the Employee during the Term
based on the Employee’s and the Company’s performance, as determined by
the Board (or a committee thereof) in its sole
discretion. In this regard, the Board (or a committee thereof)
shall set
an annual
incentive target
of not less than
seventy percent (70%) of Base Salary, and the Annual Incentive shall be paid in
accordance with the Company’s regular practice for its senior
officers, as in effect from time to time. To the extent not duplicative of
the specific benefits provided herein, the Employee shall
be eligible to participate in all incentive compensation, retirement,
supplemental retirement, and deferred compensation plans, policies and
arrangements that are provided generally to other senior officers of the
Company at a level (in terms of the
amount and types of benefits and incentive compensation that the Employee
has the opportunity to receive and the terms thereof) determined in the
sole discretion of the Board (or a committee
thereof).
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(c)
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The Employee agrees that
the amounts payable
and benefits provided under this Agreement, including but not limited to
any amounts payable or benefits provided under this Section 4 and Section 7 constitute good,
valuable and separate consideration for the non-competition,
assignment and
release of liability provisions contained herein. The Employee
acknowledges that he is aware of the effect of the non-competition,
assignment and release of liability provisions contained herein and agrees
that the amounts payable and benefits provided under this Agreement, including
but not limited to the amounts payable and benefits provided under
this Section 4 and
Section 7, if
any, constitute
sufficient consideration for his agreement to these
provisions.
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(d)
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In addition to the compensation
called for in this
Agreement, the Employee shall be entitled to receive any and all employee benefits and perquisites generally
provided from time to time to other similarly situated officers of the
Company as well as the benefits and
perquisites listed on “Exhibit A” attached hereto and incorporated
herein by this reference.
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5.
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Insurance.
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The Employee agrees to submit to a
physical examination at a reasonable time as requested by the Company for the
purpose of the Company’s obtaining life insurance on the life of the Employee
for the benefit of the Company; provided, however, that the Company shall bear
the costs for such examinations and shall pay all premiums on any life insurance
obtained as a result of such examinations. The Employee further
agrees to submit to drug testing in accordance with the Company's policies and
procedures.
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6.
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Termination.
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(a)
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The Company, at any time, may
terminate this Agreement and the Employee's employment
immediately for
“Cause”. Cause is defined
as:
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(i)
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A material breach of this
Agreement by
the Employee;
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(ii)
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Failure or inability of
the Employee to obtain or maintain any
required licenses or
certificates;
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(iii)
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Willful violation by the Employee of any law, rule or
regulation, including but not limited to any material insurance law or
regulation, which
violation may, as determined by the Company, adversely affect the ability
of the Employee to perform his duties
hereunder or may subject the Company to liability or negative publicity; or
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(iv)
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Conviction or commission of or the entry of a guilty plea or
plea of no contest
to any felony or to any other crime involving moral
turpitude.
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(b)
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The Employee may terminate this
Agreement and his
employment with the Company immediately for “Good Reason,” which shall mean the occurrence
of any of the events described in subsections 6(b)(i), (ii)
or (iii) below
with respect to which
the Employee has notified the Company of the existence thereof within no
more than ninety (90) days of the initial existence thereof
and which is not cured by the Company
within thirty (30) days of the Company’s receipt of written notice from the
Employee of the events alleged to constitute such Good Reason:
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(i)
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A material diminution in the
Employee’s base compensation;
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(ii)
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A material diminution in the
Employee’s authority, duties or
responsibilities;
or
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(iii)
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Any other action or inaction that
constitutes a material breach by the Company of this Agreement (as may be amended
from time to time).
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In addition, the Employee may terminate
this Agreement and his employment with the Company at any time for any other reason or for no reason, but such termination shall not
constitute termination for “Good Reason.”
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(c)
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The Company may also terminate
this Agreement and
the Employee's employment upon the occurrence of one or more
of the following events or reasons, subject to applicable law (or, in the case of subsection
6(c)(i) below, termination of this Agreement and the Employee's employment
will be automatic):
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(i)
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Death of the Employee;
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(ii)
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The Employee is deemed to be disabled
in accordance with the policies of the Company or the law or if the Employee is unable to perform the
essential job functions of the Employee’s position with the Company, with
or without reasonable accommodation, for a period of more than 100
business days in any 120 consecutive business day period. The Employee is entitled to any and all
short term or long term disability programs, like any other employee, in
accordance with the terms of such programs and the
policies of the
Company;
or
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(iii)
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At any time for any other reason or no reason in the sole and absolute
discretion of the
Company.
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7.
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Payments Upon
Termination.
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(a)
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Qualifying
Termination and Severance Pay. If the Company terminates the Employee's employment prior to the expiration of the Term but other than during the CIC Period (as defined
below) for any reason
other than
as specified above in subsection
6(a) for Cause, subsection 6(c)(i) by reason of the death of the Employee, or subsection 6(c)(ii) for disability, or if the
Employee terminates his
employment for Good Reason pursuant to subsection 6(b), the Employee shall receive the following
severance pay (the “Severance Pay”):
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(i)
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In lieu of any further salary
payments to the Employee for periods subsequent to the Termination Date and in lieu of any severance
benefit otherwise payable to the Employee, an amount equal to two (2) times Base Salary, payable in equal bi-weekly installments on
the Company’s regular payroll
dates as in effect on
such Termination Date, for twenty-four (24) months following the Termination Date, commencing with the payroll date applicable to the first full payroll period
following the Termination Date; provided, however, that such
payments shall be delayed to the extent required under Section
25 below. The payments shall be subject to normal
payroll deductions.
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(ii)
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Continuation of the medical, dental and vision insurance coverage in effect on
the Termination Date for a period of eighteen (18) months following the Termination Date
with the Company
paying the employer portion of the premium and the Employee paying the
employee portion, including dependents if applicable, of the premium during
such eighteen (18)
month period, provided that the Employee elects to continue such
insurance coverage under the Consolidated Omnibus Budget Reconciliation
Act of 1986, as amended (“COBRA”). The Employee is solely responsible for taking the
actions necessary to exercise his rights under COBRA for the insurance
coverage the
Employee has in
effect, including
coverage for
dependents if applicable, on the Termination Date.
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(b)
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Severance
Pay as Liquidated Damages. The parties agree, in the event of
a material
breach of this
Agreement by the Company, following which the Employee
terminates his employment, that actual damages are
speculative and that the amount of the Severance Pay or, if applicable, the CIC Severance
Pay (as defined
below) set forth
herein is liquidated damages and is a reasonable estimate of what damages
would be for a material breach of this
Agreement.
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(c)
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Conditions
to Severance Pay
,
CIC Severance Pay
or Non-Competition Pay. The Employee agrees and acknowledges that the following
must be satisfied by the Employee before he is entitled to the Severance
Pay or, if applicable, the CIC Severance
Pay provided for
herein or the
Non-Competition
Pay as defined and described in subsection 10(a):
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(i)
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That the Employee returns any and all equipment, software,
data, property and information of the Company and the Company
Affiliates, including
documents and records or copies thereof relating in any way to any
proprietary information of the Company or any of the Company Affiliates whether prepared by the Employee
or any other person or entity. That the Employee further agrees that he
shall not retain any proprietary information of the Company or any of the Company
Affiliates after the
Termination
Date;
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(ii)
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That the Employee executes a Global Release of Liability, in
a form to be
determined by the Company in its sole discretion, which releases the Company and the Company
Affiliates from liability for any and all
claims, complaints and causes of
action, whether based in law
or equity, arising
from, related
to or associated with
the Employee’s employment by the Company or under this Agreement and that such release has become
effective and non-revocable. That the Employee further acknowledges and
agrees that he has not made and will not make any assignment of
any claim, cause or right of action, or any right of any kind whatsoever,
arising from, related
to or associated with
the employment of the
Employee by the
Company; and
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(iii)
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That the Employee reaffirms the covenants contained
herein, in writing,
including, but not limited to, the covenants set forth in Section 10.
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Notwithstanding anything in this
Agreement to the contrary,
in any case where the first and last days of the applicable release and nonrevocability periods provided for in the Global Release of
Liability (the “Applicable Release Period”) are in two separate taxable years, any
payments required to be made to the Employee under this Agreement that are treated as deferred
compensation for purposes of Section 409A (as defined below) shall be made in the later taxable year,
as soon as practicable, but
in no event later than thirty (30) days following the conclusion of the
Applicable Release Period.
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(d)
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Voluntary
Termination by the Employee. The Employee may terminate
his
employment and
this Agreement for
reasons other than those identified in subsection 6(b) upon not less than
sixty (60) days prior written notice.
If the Employee terminates
his employment and
this Agreement
pursuant to this subsection 7(d), he shall be entitled only to the
following:
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(i)
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Any unpaid salary through the
Termination
Date;
and
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(ii)
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Payment for any accrued and unused
vacation as of the
Termination Date.
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(e)
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Qualifying
Change in Control Termination. If, before the expiration of the
Term, the Company terminates
the Employee's
employment within the period commencing six (6) months prior
to and ending twenty-four (24) months following
a Change in Control
(as defined below), such period referred to herein as
the “CIC
Period,” for any reason other than as specified above in subsection 6(a) for Cause, subsection 6(c)(i) for the death of the Employee, or subsection 6(c)(ii) for disability, or if the
Employee terminates his employment for Good Reason pursuant to subsection 6(b), the Employee shall receive
the severance pay
set forth in
subsections (i) and (ii) below (the “CIC Severance Pay”), provided that if the
Employee’s employment is
terminated during the
six (6) month period
prior to a Change in
Control, the Employee
shall be entitled to
CIC Severance Pay only if such termination (x) was by the Company other than for Cause but
at the request or direction of
any person that has entered into an agreement
with the Company the consummation of which would constitute a Change in
Control, (y) was by the Employee for Good Reason and the circumstance or event
that constitutes Good
Reason occurred at the request or direction of such
person or (z) was by the Company without Cause and
the Employee reasonably demonstrates that such termination
was otherwise in
connection with or in
anticipation of a Change in Control; and if the Employee is not
entitled to CIC Severance Pay hereunder, then the Employee's termination of employment will not be deemed to
have occurred during the CIC Period for purposes of subsection
7(a):
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(i)
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In lieu of any further salary payments to the
Employee for periods subsequent to the Termination Date and in lieu of any severance
benefit otherwise payable to the Employee, a lump sum cash payment equal to three (3) times the sum of (A) Base Salary
and (B) the average of the annual bonus amounts earned by the
Employee for the three (3) years preceding the year in which the Change in Control occurs; provided, however, that if the
Termination Date occurs prior to January 1, 2010, then (B)
shall instead
be the average of
the annual bonus
amounts earned by the Employee in 2007 and 2008. Such payment shall be made as soon
as practicable (but in no event later than sixty (60) days) following the Termination Date; provided, however, that such
payments shall be delayed to the extent required under Section
25 below;
and
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(ii)
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Continuation of the medical, dental and
vision insurance coverage in effect on
the Employee's
Termination Date for a period of
eighteen (18) months following the Termination Date
with the Company
paying the employer
portion of the premium and the Employee paying the
employee
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portion, including dependents if
applicable, of the
premium during such
eighteen (18)-month period, provided that the
Employee elects to continue such insurance coverage under COBRA. The
Employee is solely
responsible for taking the actions necessary to exercise his rights under
COBRA for the insurance coverage the Employee has in effect, including
coverage for
dependents if
applicable, on the Termination
Date.
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(f)
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Definition
of Change in Control.
For purposes of this Agreement,
a “Change in Control” shall be deemed to have occurred
if the event set forth in any one of the following paragraphs shall have
occurred:
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(i)
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Any one person, or more than one
person acting as a group, acquires ownership of stock of the Company that, together with stock held by
such person or group, constitutes more than 50% of the total fair market
value or total voting power of the stock of the Company;
or
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(ii)
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Any one person, or more than one person
acting as a group, acquires (or has acquired during the
twelve (12)-month period ending on the date
of the most recent acquisition by such person or persons) ownership of
stock of the Company possessing 35% or more of the total voting
power of the stock of the Company;
or
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(iii)
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A majority of members of the Board is replaced during any
twelve (12)-month period by directors whose
appointment or election is not endorsed by a majority of the members of
the Board before the date of the
appointment or election;
or
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(iv)
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Any one person or group acquires
(or has acquired
during the immediately preceding twelve (12)-month period ending on the
date of the most recent acquisition) assets of the Company with an
aggregate gross fair market value of not less than forty percent (40%) of
the aggregate gross fair market value of the assets of the
Company immediately prior to such acquisition. For this
purpose, gross fair market value shall mean the fair value of the affected
assets determined without regard to any liabilities associated with such
assets.
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Notwithstanding the foregoing, (1) a “Change in Control” shall not be deemed to have occurred by
virtue of the consummation of any transaction or series of integrated
transactions immediately following which the holders of the common stock of the
Company immediately prior
to such transaction or series of transactions continue to have substantially the
same proportionate ownership in an entity that owns all or substantially all of the
assets of the Company immediately following such transaction or series of
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transactions, and (2) a “Change in Control” shall not be deemed to have occurred as result of
any secondary offering of
Company common stock to the general public through a registration statement
filed with the Securities and Exchange Commission. The Board shall determine whether a Change in Control has
occurred hereunder in a manner consistent with the provisions of Section
409A.
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(g)
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No
Duplication of Payments or Benefits. Notwithstanding any
provision of this
Agreement to the
contrary, the
Employee shall not be eligible to receive any payments or
benefits under both subsections 7(a) and 7(e); but rather, to the extent the
conditions set forth in subsection 7(a) and subsection 7(e) are satisfied, the Employee
shall be eligible to receive benefits under only subsection 7(e).
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(h)
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Golden
Parachute (Section
280G) Excise
Taxes.
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(i)
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Subject to subsection 7(h)(ii) below, if it is determined that any payment or benefit received or
to be received by the Employee, whether pursuant to this
Agreement or otherwise (the “Severance Payments”), is a “parachute payment” within the meaning of
section 280G of the Internal Revenue Code (the
“Code”) (all such payments and benefits,
including the Severance Payments as applicable, but excluding the Gross-Up
Payment (as defined below) being hereinafter called “Total Payments”) that will be subject (in whole or part)
to the tax imposed
under section 4999 of the Code (the
“Excise Tax”), then the Company shall pay to
the Employee on or as soon as practicable
following the day on which the Excise Tax is remitted by the Employee (but not later than the end of
the taxable year following the year in which the Excise Tax is
incurred and subject
to the provisions set forth in Section 25 below, including if applicable,
the Six Month Delay (as defined in such section)) an additional amount (the
“Gross-Up Payment”) such that the net amount
retained by the Employee, after deduction of any Excise
Tax on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up
Payment, shall be equal to the Total
Payments.
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(ii)
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In the event that the amount of
the Total Payments does not exceed 110% of the largest amount that would
result in no portion of the Total Payments being subject to the Excise Tax
(the “Safe Harbor”), the non-cash portion of the Total Payments
shall first be
reduced (if necessary, to zero), and the cash portion of the Total Payments shall thereafter be reduced (if
necessary, to zero) so that the amount of the Total Payments is equal to
the Safe Harbor.
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(iii)
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For purposes of determining whether any of
the Total Payments will be subject to the Excise Tax and the amount of
such Excise Tax, (A) no portion of the Total Payments
shall be taken into account which, in the opinion of tax counsel
(“Tax
Counsel”) selected by the Board in existence immediately prior to
the Change in Control, does not constitute a
“parachute
payment” within the
meaning of section 280G(b)(2) of the Code, including by reason of
section 280G(b)(4)(A) of the Code, (B) the Severance Payments shall be
reduced only to the
extent necessary so that the Total Payments (other than those referred to
in clause (A)) in their entirety constitute
reasonable compensation for services actually rendered within the meaning
of section 280G(b)(4)(B) of the Code
or are otherwise not
subject to disallowance as deductions by reason of section 280G of the Code, in the
opinion of Tax Counsel, and (C) the value of any non-cash benefit or any deferred
payment or benefit included in the Total Payments shall be determined by
the Company's independent
auditor in
accordance with the
principles of sections 280G(d)(3) and (4) of the
Code. If the Employee disputes the Company's
calculations (in whole or in part), the reasonable opinion of Tax Counsel
with respect to the matter in dispute shall
prevail.
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(iv)
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If the Excise Tax is finally
determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, the Employee shall repay to the Company,
at the time that the amount of such reduction in Excise Tax is
finally determined,
the portion of the Gross-Up Payment attributable to such reduction (plus
that portion of the Gross-Up Payment attributable to the Excise Tax and
federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Employee to the
extent that such repayment results in a reduction in Excise Tax and/or a
federal, state or local income or employment tax deduction) plus interest
on the amount of such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code. If
the Excise Tax is determined to exceed the amount taken into account
hereunder in calculating the Gross-Up Payment (including by reason of any
payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make
an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Employee with respect to
such excess) at the time that the amount of such excess is finally
determined.
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(v)
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The Employee and the Company shall
each reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the existence or amount
of liability for Excise Tax with respect to the Total
Payments. The Company also shall pay to the Employee all legal
fees and expenses incurred by the Employee in connection with any tax
audit or proceeding to the extent attributable to the application of
section 4999 of the Code to any payment or benefit provided hereunder.
Such payments shall be made within sixty (60)
business days after
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delivery of the Employee's written
request for payment accompanied with such evidence of fees and expenses
incurred as the Company reasonably may require (but in no event shall any
such payment be made after the end of the calendar year
following the calendar year in which the expenses were incurred), provided
that no such payment shall be made in respect of fees or expenses incurred
by the Employee after the later of the tenth (10th) anniversary of the
effective date of the Employee's
termination with the Company or the Employee's death and, provided
further, that, upon the Employee’s “separation from
service” (as such
term is defined under Section 409A) with the Company, in no event shall
any additional such payments be made prior to the
date that is six (6) months after the date of the Employee’s “separation from
service” to the
extent such payment delay is required under section 409A(a)(2)(B) of the
Code.
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8.
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Licensing.
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The Employee has obtained and
possesses, or will obtain and possess, and will maintain throughout the Term
hereof, all licenses, approvals, permits, and authorization (the “Licenses”)
necessary to perform the Employee’s duties hereunder (if any). Any
costs, attorneys’ fees, investigation fees or other expenses incurred in
connection with obtaining or maintaining such Licenses shall be borne by the
Company, provided that payment of such fees or costs by the Company shall be
made no later than the end of the year following the year in which the expenses
were incurred. The Employee warrants that the Employee is fully
eligible, under all standards and requirements, to obtain, possess, and maintain
such Licenses and that the Employee will commit no acts during the Term hereof
that would jeopardize or eliminate the Employee’s ability to possess or maintain
such Licenses.
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9.
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Rules and
Regulations.
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The Employee shall observe, enforce,
and comply with the policies, philosophies, strategies, rules, and regulations
of the Company, as they may be promulgated and/or modified from time to time,
and shall carry out and perform the orders, directions, and policies of the
Company, as they may be stated and/or amended from time to time, either orally
or in writing. A violation of this Section 9 by the Employee is a
material breach of this Agreement.
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10.
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Restrictive
Covenants.
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In consideration of the amounts payable
and benefits provided under Section 4, and, if applicable, Section 7 and
subsection 10(a), the other compensation paid hereunder, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
the parties, the parties agree to the following provisions of this Section
10:
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(a)
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Non-Competition. The Employee understands and agrees that the
Company and the
Company Affiliates do business throughout the State of
Nevada and other states. The Employee further understands and agrees
that he is a high ranking officer of the Company and will have access to
confidential and trade secret information and goodwill of the Company and the Company Affiliates that will allow the Employee to unfairly compete with the
Company and the
Company Affiliates justifying this restriction.
If the Employee's
employment is
terminated (by either
the Employee or the Company), whether or not during the
Term, for any reason other than
as specified above in subsection 6(c)(i) by reason of the death of the Employee, or
subsection 6(c)(ii) for disability, then for a period of twenty-four (24)
months commencing on the date of such termination of
employment,
the Employee agrees that, without the written
permission of the Company, he will not engage (whether as owner, partner,
controlling stockholder, controlling investor, employee, director, adviser, consultant, or otherwise)
in any business that is in direct competition with the business being conducted by the Company or
any of the
Company
Affiliates as of the date the Employee terminates
employment, in Nevada
or in any other state in which the
Company is conducting such business (the “Non-Compete Area”) as of the date the Employee terminates
employment; provided
that if the Employee's employment is terminated (x) during the Term by the
Employee for any reason other than (I) as specified above in subsection
6(b) for Good Reason, (II) as specified above
in
subsection
6(c)(i) by reason of death, or (III) as specified above
in subsection
6(c)(ii) by reason of disability, or (y) following the expiration of the Term (by either the Employee or the
Company) for any reason other than as
specified above in
subsection
6(a) by the Company for “Cause,” in subsection 6(c)(i) by reason of
the death of the Employee, or subsection 6(c)(ii) for
disability, then the
Employee shall be entitled to, in lieu of any further salary
payments to the Employee for periods subsequent to such termination of
employment and in
lieu of any severance benefit otherwise payable to the Employee, an amount
(the “Non-Competition Pay”) equal to two (2) times Base Salary, payable in equal bi-weekly
installments on the Company’s regular payroll dates as in
effect on such
termination date, for twenty-four (24) months following
such termination date, commencing with the payroll
date applicable to the first full payroll period following such termination date; provided, however, that such
payments shall be delayed to the extent required under
Section 25 below. The payments
shall be subject to normal payroll deductions. Notwithstanding anything in this
Agreement to the contrary, if the non-competition provision in this subsection 10(a)
is, or at any time
becomes,
nonenforceable, then
the Employee shall not be entitled to any unpaid Non-Competition Pay that would otherwise be due under
this subsection
10(a).
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(b)
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Non-Solicitation. Without limiting the generality
of the foregoing, the
Employee agrees that
for a period of
twenty-four (24)
months following the
Employee's
termination of employment (for any reason, by either the
Employee or the Employer), he will not, without the prior
written consent of the Company, directly or indirectly solicit or attempt
to solicit, within
the Non-Compete Area, any business from any person or entity that the
Company or any of the
Company Affiliates called upon, solicited, or
conducted business with as of such
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12
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termination date, any persons or entities that
have been customers of the Company or any of the Company Affiliates
or recruit any person
who has been or is an employee of the Company or any of the Company
Affiliates, during
the preceding one
(1)-year period from
such termination date. In addition, the Employee agrees that he shall
not directly or
indirectly solicit or encourage any employee of the Company or any of the Company
Affiliates to go to
work for or with the
Employee for a period
of one
(1)-year following
such termination date.
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(c)
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In the event the Employee violates subsection 10(a) or 10(b), the applicable period of time during which the respective restriction
applies will automatically be extended for
the period of time from which the Employee began such violation until he
permanently ceases such violation. If any provision of this covenant is invalid in
whole or in part, it will be limited, whether as to time, area covered, or
otherwise as and to the extent required for its validity under the
applicable law and as so limited, will be
enforceable.
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(d)
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Confidential
Information.
The Employee acknowledges that he has had or
will have access to the confidential information of the Company and the
Company
Affiliates
(including, but not limited to, records regarding sales, price and cost
information, marketing plans, customer names, customer lists, sales techniques,
distribution plans or procedures, and other material relating to the
business conducted by
the Company and the Company Affiliates), proprietary, or trade secret
information (the “Confidential
Information”), and
agrees never to use
the Confidential Information other than for the sole benefit of the
Company and the
Company Affiliates and further agrees to never
disclose such Confidential Information (except as may be required by
regulatory authorities or as may be required by law) to any entity or person that
is not an officer or employee of the Company or a Company Affiliate
at the time of such
disclosure (unless at
such time such Confidential Information is subject to a policy of the
Company or a Company
Affiliate restricting
disclosure to
non-officers), in which case disclosure shall
be limited solely to officers of the Company or the applicable Company
Affiliate at the time
of such disclosure, without the prior written consent of the Company.
The Employee further acknowledges that this covenant to maintain
Confidential Information is necessary to protect the goodwill and
proprietary interests of the Company and the Company
Affiliates and the
restriction against the disclosure of Confidential Information is
reasonable in light
of the consideration and other value the Employee has received or will
receive pursuant to this Agreement and otherwise pursuant to his
employment by the Company.
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(e)
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From and following the Employee's termination of employment, the Employee agrees to cooperate with the Company and the Company Affiliates
in any litigation,
administrative proceeding, investigation or audit involving any matters
with which the
Employee has
knowledge of from his employment with the Company. The Company shall reimburse
the
Employee for reasonable
expenses,
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13
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including reasonable compensation for services
rendered at his
hourly rate of compensation as of such termination date, incurred in providing such
assistance and approved by the Company. The Company shall reimburse the
Employee for such
expenses incurred in
accordance with the policies and procedures of the Company, but in no event no later than the end of the year
following the year in which the expenses were incurred.
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(f)
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In the event of a violation of
this Section 10, the Company and the Company
Affiliates shall be
entitled to any form of relief at law or equity, and the parties agree and
acknowledge that injunctive relief is an appropriate, but not exclusive,
remedy to enforce the provisions hereof. The existence of any claim
or cause of action of
the
Employee against the
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense of the Company’s enforcement of the covenants set
forth in this Section 10. The Employee hereby submits to the
jurisdiction of the
courts of the State of Nevada and federal courts therein for the purposes
of any actions or proceedings instituted by the Company to enforce its
rights under this Agreement, to seek money damages or seek injunctive
relief. The Employee further acknowledges and agrees
(i) that the obligations contained in
Section 10 of this Agreement are necessary to protect the
interests of the Company and the Company
Affiliates,
(ii) that the restrictions contained herein
are fair, do not
unreasonably restrict
the
Employee's further
employment and business opportunities, and are commensurate with the
compensation arrangements set out in this Agreement and (iii) that such compensation arrangements
constitute separate consideration for the obligations set
forth in this Section
10. The covenants contained in Section
10 shall each be construed as an agreement independent of any other
provisions of this Agreement. Both parties intend to make the
covenants of Section 10 binding only to the extent that it may be
lawfully done under
existing applicable laws. If a court of competent
jurisdiction decides any part of any covenant is overly broad, thereby
making the covenant unenforceable, the parties agree that such court shall
substitute a reasonable, judicially enforceable limitation in place of the
offensive part of the covenant and as so modified the covenant shall be as
fully enforceable as set forth herein by the parties themselves in the
modified form.
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(g)
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The Employee acknowledges that it is possible
that the corporate
structure of the Company could change during the term of this Agreement.
The Employee hereby acknowledges and affirms
that the Company may assign its rights under this Agreement, including but not limited to its
rights to enforce the covenants set forth in subsections 10(a), 10(b) and
10(c), to a
third-party without the approval of or additional consideration to
the
Employee.
The Employee acknowledges and agrees that the
consideration called for herein is good and sufficient consideration for
the Company's right
to assign its rights under this
Agreement.
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14
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(h)
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Subsections 10(a) through
(g), inclusive, of this Agreement
shall survive either termination of the employment relationship
and/or termination of this Agreement
for the full period set forth in subsections 10(a) through (g),
inclusive.
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11.
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Work for
Hire.
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The Employee agrees that any work,
invention, idea or report that he produces or that results from or is suggested
by the work the Employee does on behalf of the Company or any of the Company
Affiliates is “work for hire” (hereinafter referred to as “Work”) and will be
the sole property of the Company. The Employee agrees to sign any
documents, during or after employment that the Company deems necessary to
confirm its ownership of the Work, and the Employee agrees to cooperate with the
Company to allow the Company to take advantage of its ownership of such
Work.
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12.
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Assignment of
Agreement.
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The Employee agrees that his services
are unique and personal and that, accordingly, the Employee may not assign his
rights or delegate his duties or obligations under this Agreement. The Company
may assign its rights, duties, and obligations under this Agreement to any
successor to its business. This Agreement shall inure to the benefit
of and be binding upon the Company’s successors and assigns.
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13.
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Indemnification of the
Employee.
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The Company shall indemnify the
Employee and hold him harmless for acts or decisions made by him in good faith
while performing services for the Company or any of the Company Affiliates to
the maximum extent allowed by law. The Company shall also use its
reasonable efforts to obtain coverage for him under any insurance policy now in
force or hereinafter obtained during Term covering the officers and directors of
the Company against lawsuits, subject to the business judgment of the
Board. The Company shall pay all expenses, including attorneys’ fees
of an attorney selected and retained by the Company to represent the Employee,
actually and necessarily incurred by the Employee in connection with the defense
of such act, suit, or proceeding and in connection with any related appeal,
including the cost of court settlements, provided that, to the extent required
by Section 409A, any such payment by the Company shall be made no later than the
end of the year following the year in which the expenses were
incurred.
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14.
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Notices.
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Any notice, document, or other
communication (hereinafter “Notice”) which either party may be required or may
desire to give to the other party shall be in writing, and any such notice may
be given or delivered personally or by mail or facsimile. Any such
notices given or delivered personally shall be given or delivered by hand to an
officer of the entity to which they are being given or delivered or the
individual, as the case may be, and shall be deemed given or
15
delivered
when so given or delivered by hand. Any such notices given or
delivered by facsimile will be deemed given or delivered upon receipt by the
sender of a successful facsimile transmission to the facsimile number below, and
any such notices given or delivered by mail shall be deemed given or delivered
three (3) days after it is deposited in the U.S. mail, certified or registered
mail, return receipt requested, with all postage and fees prepaid, addressed to
the person or entity in question as follows:
If
to the Employee:
Xxxxxxx
X. Xxxxx
To
the address (or facsimile number, if applicable) on record with the
Company
If
to the Company:
General
Counsel
00000
Xxxxxxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000-0000
Fax: (000)
000-0000
or,
in either case, to such other address as either party may have previously
notified the other pursuant to the provisions of this Section 14.
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15.
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Severability.
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In the event that any provision hereof
shall be declared by a court of competent jurisdiction to be void or voidable as
contrary to law or public policy, such declaration shall not affect the
continuing validity or enforceability of any other provisions hereof insofar as
it may be reasonable and practicable to continue to enforce such other provision
in the absence of the provision which shall have been declared to be void and
voidable.
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16.
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Remedy for
Breach.
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Both parties recognize that the
services to be performed by the Employee are special and unique. The
Company will have the right to seek and obtain damages and any available
equitable remedies for the Employee’s breach of this Agreement. The
Employee's remedy for any breach of this Agreement is strictly limited to the
Severance Pay or CIC Severance Pay, as the case may be, called for
herein.
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17.
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Mitigation of
Damages.
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The Employee shall not be required to
mitigate damages or the amount of any payment provided under this Agreement by
obtaining other employment or otherwise after the termination of employment
hereunder, and any amounts earned by the Employee, whether from self-employment
or other employment shall not reduce the amount of any Severance Pay or CIC
Severance Pay, as the case may be, called for herein.
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18.
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Attorneys' Fees and
Costs.
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In any claim or dispute between the
parties arising out of or associated with this Agreement or the breach hereof or
otherwise arising out of or associated with the Employee’s employment by the
Company, the prevailing party shall be entitled to recover all reasonable
attorneys' fees, expenses, and costs thereof or associated therewith, provided
that, to the extent required by Section 409A, any such payment by the Company
shall be made no later than the end of the year following the year in which such
fees, expenses and costs were incurred. The term “prevailing party”
means the party obtaining substantially the relief sought via litigation or
through an action in arbitration.
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19.
|
Integration, Amendment, and
Waiver.
|
This Agreement and such other written
agreements referenced in this Agreement, constitute the entire agreement between
the parties pertaining to the subject matter contained in it except as expressly
provided herein, and supersedes all prior agreements, representations,
assurances, and understandings of the parties, including any prior employment
agreements. No amendment of, addition to, or modification of this
Agreement shall be binding unless executed in writing by the
parties. Any term or provision of this Agreement may be waived in a
signed writing at any time by the party that is entitled to the benefit thereof,
provided, however, that any waiver shall apply only to the specific event or
omission waived and shall not constitute a continuing waiver. Any
term or provision of this Agreement may be amended or supplemented at any time
by a written instrument executed by all the parties hereto.
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20.
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Captions.
|
The captions and section headings of
this Agreement are for convenience and reference only, and shall have no effect
on the interpretation or construction of this Agreement.
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21.
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Applicable
Law.
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The substantive laws of the State of
Nevada shall govern the validity, construction, interpretation, performance, and
effect of this Agreement.
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22.
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Arbitration.
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Any controversy, cause of action or
claim related to or arising out of or in connection with the Employee’s
employment with the Company, including but not limited to termination of such
employment or under this Agreement, other than an action to enforce the
provisions of Section 10 herein or the breach thereof, shall be settled by
arbitration according to the rules of the American Arbitration Association
applicable to disputes arising in Nevada and under Nevada law. Any
party to the arbitration may enter judgment upon the award rendered by the
arbitrator in any court having jurisdiction thereof. The arbitrator
shall not be entitled to amend or alter the terms of this
Agreement. Notwithstanding this Section 22, the Company shall be
entitled to seek any available equitable remedy for enforcement of provisions of
this Agreement.
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23.
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Authorization.
|
The Company and the Employee,
individually and severally, represent and warrant to the other party that it has
the authorization, power and right to deliver, execute and fully perform the
obligations under this Agreement in accordance with its terms. The Employee
represents and warrants to the Company that there is no restriction or
limitation, by reason of this Agreement or otherwise, upon the Employee’s right
or ability to enter into this Agreement and fulfill his obligations under this
Agreement.
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24.
|
Acknowledgment.
|
The Employee acknowledges that he has
been given a reasonable period of time to study this Agreement before signing
it. The Employee certifies that he has fully read, has received an
explanation of, and completely understands the terms, nature, and effect of this
Agreement. The Employee further acknowledges that he is executing
this Agreement freely, knowingly, and voluntarily and that the Employee’s
execution of this Agreement is not the result of any fraud, duress, mistake, or
undue influence whatsoever. In executing this Agreement, the Employee
does not rely on any inducements, promises, or representations by the Company or
any person other than the terms and conditions of this Agreement.
25. Section 409A.
Notwithstanding
anything to the contrary in this Agreement, the payment of consideration,
compensation, and benefits pursuant to this Agreement shall be interpreted and
administered in a manner intended to avoid the imposition of additional taxes
under section 409A of the Code and the regulations and guidance promulgated
thereunder (“Section 409A”). Notwithstanding any provision to the contrary in
this Agreement or otherwise, no payment or distribution under this Agreement or
otherwise that constitutes an item of “deferred compensation” under Section 409A
and becomes payable by reason of the termination of the Employee’s employment
hereunder shall be made to the Employee unless and until the termination of the
Employee’s employment constitutes a “separation from service” (as such term is
defined in Section 409A).
18
In
addition, no such payment or distribution of deferred compensation shall be made
to the Employee prior to the earlier of (a) the expiration of the six (6) month
period (the “Six Month Period”) measured from the date of the Employee’s
“separation from service” (as such term is defined in Section 409A), and (b) the
date of the Employee’s death, if the Employee is deemed at the time of such
separation from service to be a “specified employee” within the meaning of that
term under Section 409A (the “Six Month Delay”) and if such delayed commencement
is otherwise required to avoid an “additional tax” under section 409A(a)(1)(B)
of the Code. All payments and benefits that are delayed pursuant to the
immediately preceding sentence shall be paid to the Employee in a lump sum upon
expiration of such six (6) month period (or if earlier, upon the Employee’s
death).
Notwithstanding
the foregoing provisions, to the extent permitted under Section 409A, any
separate payment or benefit under this Agreement or otherwise shall not be
“deferred compensation” subject to Section 409A and the Six Month Delay to the
extent provided in the exceptions in Treasury Regulation section 1.409A-1(b)(4)
and (b)(9) and any other applicable exception or provision under Section
409A. Further, each individual installment payment that becomes
payable under this Agreement and each payment of the Severance Pay or if
applicable, the CIC Severance Pay or the Non-Competition Pay pursuant to
subsection 10(a) shall be a “separate payment” under Section
409A. Specifically, to the extent the provisions of Treasury
Regulation section 1.409A-1(b)(9) are applicable to the Severance Pay or if
applicable, the CIC Severance Pay or the Non-Competition Pay pursuant to
subsection 10(a), the portion of such pay set forth in respectively, subsection
7(a)(i), subsection 7(e)(i) or subsection 10(a) above that is less than the
limit prescribed under Treasury Regulation section 1.409A-1(b)(9)(iii)(A) (or
any successor provision) (the “Delayed Amount”) shall be payable to the Employee
in the manner prescribed in subsection 7(a)(i), subsection 7(e)(i) or subsection
10(a), as applicable, without regard to the Six Month
Delay. Following the Six Month Delay, (1) to the extent applicable,
the Employee shall receive a lump sum cash payment equal to the Severance Pay,
CIC Severance Pay or the Non-Competition Pay pursuant to subsection 10(a), as
applicable, he otherwise would have received during the Six Month Period (absent
the Six Month Delay) less the Delayed Amount and (2) the Employee shall receive
the remainder of his Severance Pay, CIC Severance Pay or the Non-Competition Pay
pursuant to subsection 10(a), as applicable, in the manner prescribed by
subsection 7(a), subsection 7(e) or subsection 10(a), as
applicable.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
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COMPANY:
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EMPLOYEE:
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|||||
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By:
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By:
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|||||
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/s/
Xxxxxx X. Xxxxxxx
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/s/
Xxxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxxxx,
Chairman
of the Board
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Name:
Xxxxxxx X.
Xxxxx
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19
Appendix
A
Perquisites
1.
Automobile Allowance in the amount of $1,300.00 per month
2.
Annual Executive Physical Examination as a part of the Company’s executive
wellness program
3.
Life Insurance as a part of the Company’s group life insurance program in an
amount equal to three (3) times the Employee’s Base Salary
20
