SETTLEMENT AGREEMENT
This Agreement and Full and Final Release of Claims ("Agreement") is made
as of the day of , 1997, by and between Xxxxx
Xxxxxxxxx ("Employee") and Diamond Home Services, Inc. ("Diamond Homes"). In
this Agreement, Diamond Homes and its successors, predecessors, subsidiaries,
affiliates and related companies (including but not limited to Globe Building
Materials, Inc., Diamond Exteriors Inc., Solitaire Heating and Air Conditioning,
Inc., and Marquise Financial Services, Inc.) and their respective present and
former employees, officials, directors, officers, agents and attorneys are
sometimes referred to as a "Diamond Entity" and collectively referred to as
"Diamond" or the "Company".
WHEREAS, Employee desires to settle fully and finally all actual and
potential differences and disputes, if any, between Diamond and Employee
including, but in no way limited to, any differences that arose out of
Employee's employment with Diamond Homes, and the termination thereof;
WHEREAS, the Company and the Employee desire that the Company pay the
Employee (a) additional salary in consideration for Employee's past services
with the Company and Employee's willingness to facilitate an orderly transition
of his work and (b) additional compensation in consideration for the Employee's
agreements regarding non-competition, confidentiality and other matters as set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Employee and his successors, assigns, relatives, related entities and
affiliates, release and forever discharge Diamond of and from all manner of
civil actions, causes, causes of action, suits, debts, sums of money, accounts,
reckonings, bonds, bills, covenants, controversies, agreements, promises,
damages, judgments, claims and demands whatsoever, in law or in equity, which
Employee has or may claim to have against any Diamond Entity, on account of, or
arising out of, any acts or omissions by any Diamond Entity whatsoever. Without
limiting the foregoing, Employee further agrees that, as a material inducement
to Diamond Homes to enter into this Agreement, Employee irrevocably and
unconditionally releases and discharges Diamond from any claim of discrimination
or other improper treatment on any basis, including race, color, age, sex,
disability or handicap, arising under any state, federal or local statute, law,
ordinance, rule, regulation, policy or procedure, including without limitation
Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of
1991, the Age Discrimination in Employment Act, the Illinois Human Rights Act,
the Employee Retirement Income Security Act, the Family and Medical Leave Act,
the Americans with Disabilities Act, and any other federal, state, or local
statute, ordinance, or regulation with respect to employment. Employee further
releases Diamond from any other claims, demands, or actions with respect to
Employee's employment with Diamond or the termination of Employee's employment
with Diamond, including, but not limited to, any right of payment for disability
or any other statutory or contractual right of payment, or any claim for relief
on the basis of an alleged tort or breach of contract under the common law of
any state. Employee specifically acknowledges that this release is made
voluntarily and without any duress or coercion of any kind. Without limiting
the foregoing, this Agreement also waives and releases any claim (a) that
Diamond breached or violated (i) any contract, agreement, promise or duty, legal
or equitable, written or oral, express or implied, (ii) any law, ordinance,
rule, regulation, policy, or procedure, or (iii) any term or condition of
Employee's employment and (b) for compensation, fringe benefits, reimbursement
or other damages that are or may be due from Diamond. Employee agrees that
Diamond has no liability for any attorneys' fees or costs resulting from an
attorney's review of this Agreement and consultation with Employee concerning
this Agreement. It is intended that this section operate as a general release
and as a covenant not to xxx.
2. Diamond Homes and Employee each represents, warrants and acknowledges
to the other that the person signing below on its or his behalf is authorized to
make and deliver this Agreement. Diamond Homes and Employee each represents,
warrants and acknowledges to the other that each intends to be bound by this
Agreement. Employee represents and warrants that, as of the date this Agreement
becomes effective, he is the only person entitled to assert any claim on behalf
of himself, that he is the sole owner of all claims and matters released herein,
and that he has not assigned, transferred, or encumbered all or any part or
interest in such claims and other matters. Employee agrees to indemnify and hold
Diamond harmless from the breach of any of these or any other representations or
warranties made by the Employee in this Agreement.
3. Diamond Homes and Employee each recognizes that this Agreement does not
constitute an admission of liability or fault by either party, and each party
specifically denies that there has been any illegal or improper conduct by that
party or his/its agents. It is further agreed that evidence of this agreement
shall be inadmissible in any other action or arbitration of any kind, unless
introduced by or with the permission of Diamond.
4. The receipt of the following consideration is in full and final accord,
satisfaction and final compromise and settlement of any and all claims of
Employee against any Diamond Entity for liquidated damages, compensatory
damages, punitive damages, backpay, front pay, lost benefits, lost wages,
attorneys' fees, interest, court costs and all other monetary and equitable
relief: (i) the Salary Payments; (ii) payment of incentive compensation, based
on Diamond Homes's 1997 second quarter results, of any incentive compensation
attributable to Employee's employment for the period from April 1, 1997, through
the Termination Date, as determined by pro-rating a pro forma calculation of the
Company's financial results for that period (such determination to be made by
Diamond Homes and to be conclusively deemed correct except in the case of
manifest error and it being understood that Employee's right to any such payment
is dependent on those financial results and upon the final approval, in its sole
discretion, of the Compensation Committee of the Board of Directors of Diamond
Homes) (the "1997 Incentive Compensation Payment"); and (iii) the Security
Payments. Sixty percent (60%) of a preliminary calculation of the 1997
Incentive Compensation Payment shall be paid at the same time in 1997 as 1997
second quarter incentive compensation payments, if any, are made to corporate
executives of Diamond Homes and shall be made on a basis reflecting Employee's
duties and responsibilities at the Company from April 1, 1997 through the
Termination Date and the remaining forty percent (40%) shall be paid at the same
time in 1998 as the final portions of all 1997 incentive compensation payments,
if any, are made to corporate executives of Diamond Homes (it being understood
that such payments are subject to reduction for payment of any applicable
federal, state and local taxes and it being further understood that such 40%
payment may be reduced or eliminated depending on 1997 full-year results). In
addition, Diamond Homes hereby releases and forever discharges Employee and his
successors, assigns, relatives, related entities and affiliates other than
Diamond (collectively, "Employee Releasees") of and from all manner of civil
actions, causes, causes of action, suits, debts, sums of money, accounts,
reckonings, bonds, bills, covenants, controversies, agreements, promises,
damages, judgments, claims and demands whatsoever, in law or in equity, which
Diamond Homes has or may claim to have against Employee Releasees, on account
of, or arising out of, any acts or omissions by Employee whatsoever; provided,
however, that the release by Diamond Homes contained herein relates only to
those claims that Diamond Homes actually knows as of the date of this Agreement;
and provided further that the term "Diamond Homes knows" and phrases of similar
import shall mean the actual knowledge of C. Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx
X. Xxxxxxxxx, Xxxxxx Xxxxxx, or Xxxxxxx X. Xxxxx. Diamond Homes specifically
acknowledges that this release is made voluntarily and without any duress or
coercion of any kind. Diamond Homes agrees that Employee Releasees have no
liability for any attorneys' fees or costs resulting from an attorney's review
of this Agreement and consultation with Diamond Homes concerning this Agreement.
It is contemplated that release operate as both a release and a covenant not to
xxx.
5. Settlement Election.
a. For purposes of this Agreement, "Salary Payments" means either
the Lump Sum Payment or the Continuation Payments.
b. Unless and until Employee elects to receive the Lump Sum Payment in
the manner specified herein, Employee shall be entitled to receive the amounts
described in this subpart b. Beginning on the first regular payday at Diamond
Homes that is seven or more days after the Election Date and ending on and
including the date that is fifty weeks later (the "Last Payment Date"), Employee
shall be entitled to receive every two weeks a payment in the amount of $8653.85
(each such payment being a "Regular Continuation Payment" and all such payments
being "Continuation Payments"). In addition, by executing and delivering a
notice substantially in the form of Exhibit A to Diamond Homes at its corporate
offices in Woodstock, Illinois (the "Office") on or before the close of
business, Woodstock, Illinois time on the Election Date, Employee may further
elect for Diamond Homes to deduct from the Regular Continuation Payments premium
payments for medical insurance (including dental and vision coverage). If the
Employee elects medical insurance deductions pursuant to the preceding sentence,
Diamond Homes shall pay for Employee's medical benefits through the Last Payment
Date, as if Employee continued to be an Employee of the Company ("Medical
Payments"). For the purpose of this Agreement, each of the Regular Continuation
Payments and the Medical Payments individually may be referred to as a
"Continuation Payment" and collectively as "Continuation Payments." Such
Continuation Payments shall be made in the same manner as if Employee continued
to be an employee of Diamond Homes, it being understood by Employee that any
amounts actually received by him are subject to reduction for payment of any
applicable federal, state and local taxes and, if the Employee so elects,
premium payments for medical insurance.
c. On or before the last day of the revocation period described in
section 13 below (such last day being the "Election Date"), Employee may elect
to receive, in lieu of the Continuation Payments, a lump sum payment of
$225,000.00 ("Lump Sum Payment"). To elect the Lump Sum Payment, Employee must
cause Diamond Homes actually to receive, no later than the close of business,
Woodstock, Illinois time, on the Election Date, at Diamond Homes's corporate
office in Woodstock, Illinois, a fully executed and signed notice of election
("Notice") in the form of Exhibit B hereto. If the Employee elects to receive
the Lump Sum Payment, Diamond Homes shall deliver to Employee's attention, at
Diamond Homes's offices in Pittsburgh, Pennsylvania (or if Employee elects by
marking the Notice, shall directly deposit at Employee's bank account), on the
date that is fourteen days after the Election Date, payment in the amount of the
Lump Sum Payment as reduced for certain amounts that are withheld for payment of
federal, state, and local taxes.
d. Election of the Lump Sum Payment by Employee in the manner specified
herein shall release and discharge Diamond from any obligation to pay any
Continuation Payments or any other payments other than the Lump Sum Payment, the
1997 Incentive Compensation Payment, and the Security Payments. Failure of the
Employee to elect the Lump Sum Payment in the manner specified herein shall
forever preclude the Employee from the right to make such election and shall
forever release and discharge Diamond from any obligation to make the Lump Sum
Payment or any other payments other than the Continuation Payments, the 1997
Incentive Compensation Payment, and the Security Payments.
6. Security Payment. Diamond Homes shall make twenty-nine (29) payments,
one for each of the months in the period from August 1, 1997, through December
31, 1999, in the amount of $5,000 on behalf of Employee (the "Security
Payments"). Each Security Payment will be made on the last day of the month,
with the first Security Payment being made on August 31, 1997. In addition,
Employee shall receive an additional payment of $5,000 on July 31, 1997, if this
Agreement becomes effective before July 31, 1997, and if and to the extent
Employee did not receive a payment for July 1997 under that certain agreement
dated April 1, 1996. It is understood and agreed that the amount of such
Security Payments and such additional payments may be reduced for payment of
applicable federal, state, and local taxes.
7. Employee acknowledges that from time to time he has received salary,
medical benefits, a travel allowance, security payments pursuant to an agreement
dated April 1, 1996, incentive compensation, vacation pay, sick pay, other
benefits, and other compensation from Diamond for some or all of the period
through the Termination Date. Employee agrees that, upon the effectiveness of
this Agreement, his right to receive, and Diamond's obligation to pay, any
further salary, medical benefits, travel allowances, security payments,
incentive compensation, vacation pay, sick pay, other benefits, and other
compensation shall terminate and shall be replaced by the obligations set forth
in this Agreement.
8. In consideration of the payments made to and to be made to Employee
under this Agreement, Employee agrees as follows:
(i) In the course of Employee's employment with the Company, and
because of the nature of Employee's responsibilities, Employee has had
access to valuable trade secrets, proprietary data and other confidential
information of one or more Diamond Entities (collectively, "Confidential
Information"). With respect to the customers, suppliers, competitors and
business, such trade secrets, proprietary data and other Confidential
Information include but are not limited to the following: the Company's
existing and contemplated services in the product lines of roofing,
gutters, fencing, entry doors, security doors, garage doors, storm windows,
replacement windows, siding, soffit and fascia (overhead and trim), mobile
home improvement products (including without limitation roofing, doors, and
windows), car ports, patio covers, financial services, heating and air
conditioning, duct cleaning, and carpet cleaning (the "Product Lines"),
products, business and financial methods and practices, plans, pricing,
selling techniques, business systems, product technologies and formulae,
and special methods and processes involved in providing services, lists of
the Company's existing and prospective suppliers, subcontractors and/or
customers, methods of obtaining suppliers and customers, credit and
financial data of the Company's present and prospective suppliers and/or
customers, particular business requirements of the Company's present and
prospective customers. In addition, Employee, on behalf of the Company,
has developed personal acquaintances and relationships with the Company's
present and prospective suppliers, subcontractor and customers, which
acquaintances and relationships may constitute the Company's only contact
with such persons or entities. As a consequence thereof, the parties agree
that Employee occupied a position of trust and confidence with respect to
the Company's affairs and its products and services. In view of the
foregoing and in consideration of the payments made pursuant to this
Agreement, Employee acknowledges and agrees that it is reasonable and
necessary for the protection of the goodwill and business of the Company
that Employee make the covenants contained in subsections (ii) through
(vii) below regarding the conduct of Employee following the date of this
Agreement, and that the Company will suffer irreparable injury if Employee
engages in conduct prohibited thereby. Employee represents that observance
of the aforementioned covenants will not cause Employee any undue hardship
nor will it unreasonably interfere with Employee's ability to earn a
livelihood. The covenants contained in subsections (ii) through (vii)
below shall each be construed as a separate agreement independent of any
other provision of this Agreement, and the existence of any claim or cause
of action of Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of any of those covenants. If the Company ceases to provide
or to contemplate providing services in any Product Line, that product line
shall, from and after the date of such cessation, no longer be a "Product
Line" for purposes of this Agreement.
(ii) Non-Disclosure. Employee will not, without the express written
consent of the Company, directly or indirectly communicate or divulge to,
or use for his own benefit or for the benefit of any other person, firm,
association or corporation, any Confidential Information; provided,
however, Employee may disclose or use such information under any of the
following circumstances: (a) disclosure which Employee is advised by
counsel is required by a court or other governmental agency of competent
jurisdiction, (b) disclosure or use by Employee of any such information or
data which is generally known within the industry or is otherwise available
through independent sources and (c) disclosure or use by Employee after the
expiration of three years following the Election Date (or, if this period
shall be unenforceable by law, then for such lesser period as shall be
required by law to make the provisions of this subsection enforceable), of
any such information in connection with Employee's subsequent employment or
business endeavors undertaken in good faith and without the specific intent
of unreasonably depriving any Diamond Entity of the value and benefit of
such proprietary data. In the event that any Confidential Information is
communicated as permitted by the provisions of this subsection (ii),
Employee shall notify the chief executive officer of Diamond Homes in
writing at least ten calendar days prior to such communication.
(iii) Return of Information and Equipment. Promptly after executing
this Agreement, Employee will deliver to Diamond Homes all originals and
copies of memoranda, customer lists, samples, records, documents,
computers, computer programs, computer disks and software, product informa-
tion, hardware, equipment (e.g., computers, fax machines) and other
materials and equipment requested by any Diamond Entity which he has
obtained from any Diamond Entity.
(iv) Non-Competition. For a period of three years following the
Election Date (or, if this period shall be unenforceable by law, then for
such lesser period as shall be required by law to make the provisions of
this subsection enforceable), Employee shall not, without the express
written consent of Diamond Homes or approval of the board of directors of
Diamond Homes, directly or indirectly, own, manage, participate in or
otherwise engage in or have any connection with (as an employee,
representative, agent or otherwise) any business in the United States which
provides any product or service in the Product Lines except that Employee
shall not be precluded hereby from (i) owning stock or any other securities
in a publicly traded company where such investment entitles Employee to
less than 5% of the voting control over such company, or (ii) working as an
employee, after the termination of Employee's employment with the Company,
for any entity in which Employee has no ownership interest, or option or
other right to acquire an ownership interest, in any capacity where the
likelihood of Employee's breach or violation of the provisions of
subsections (ii) through (vii) is demonstrated to the reasonable
satisfaction of Diamond Homes to be remote.
(v) Non-Solicitation of Customers, Subcontractors and Suppliers. For
a period of three years following the Election Date (or if this period
shall be unenforceable by law, then for such lesser period as shall be
required by law to make the provisions of this subsection enforceable), and
except in the good faith furtherance of the interests of the Company,
Employee will not, without the express written consent of the Company or
the approval of the Board of Directors of Diamond Homes, contact (whether
or not initiated by Employee), with a view toward selling any product or
service competitive with any product or service in any of the Product
Lines, any person, firm, association or corporation: (i) to which any
Diamond Entity was known by Employee to have sold any product or service
during the preceding year, (ii) which Employee solicited, contacted or
otherwise dealt with on behalf of any Diamond Entity during the preceding
year, or (iii) which Employee was otherwise aware was a customer or
prospective customer, or supplier subcontractor or prospective supplier
subcontractor, of any Diamond Entity during the preceding year. Employee
will not directly or indirectly make any such contact, either for his
benefit or for the benefit of any person, firm, association or corporation,
and Employee will not in any manner assist any such person, firm,
association or corporation to make any such contact.
(vi) Non-Interference. For a period of three years following the
Election Date (or if this period shall be unenforceable by law, then for
such lesser period as shall be required by law to make the provisions of
this subsection enforceable), Employee shall not induce or encourage,
directly or indirectly, (a) any employee of any Diamond Entity to leave his
or her employment, or to seek employment with anyone other than the
Company, unless it has been determined by Employee in good faith, with
approval by the Board of Directors of Diamond Homes or the chief executive
officer of Diamond Homes, that such employee's performance or other
characteristics or circumstances are such that employee's leaving the
relevant Diamond Entity is in the best interests of the Company, or (b) any
customer, subcontractor, or supplier (including without limitation, Sears,
Xxxxxxx & Co., ABC Supply Co., Inc., and independent contractors engaged by
Diamond Homes to provide or deliver products to, or perform services for,
customers of Diamond Homes) of any Diamond Entity to modify or terminate
any relationship, whether or not evidenced by a written contract, with such
Diamond Entity unless it has been determined by Employee in good faith,
with approval by the Board of Directors of Diamond Homes or the chief
executive officer of Diamond Homes, that such modification or termination
is in the best interests of the Company.
(vii) Non-Disparagement. Employee agrees that he will not act
in any manner that might damage the business or reputation of Diamond. He
further agrees that he will not counsel or assist any attorneys or their
clients in the presentation or prosecution of any disputes, differences,
grievances, claims, charges, or complaints against Diamond or any of its
officers, employees, or directors, unless under subpoena or other court
order to do so.
9. Employee acknowledges and agrees that his employment relationship with
Diamond terminated as of June 27, 1997 (the "Termination Date"). Employee
agrees that he will not, to any one or in any manner, portray himself as an
officer or an employee of Diamond Homes or any affiliate of Diamond Homes for
any time after the Termination Date.
10. Diamond Homes confirms that, upon the effectiveness of this Agreement,
Employee shall be deemed to have retired for purposes of the Diamond Home
Services, Inc. Incentive Stock Option dated June 19, 1996, between Diamond Homes
and Employee.
11. Employee and Diamond hereby acknowledge and agree that any breach by
Employee or his affiliates, individually or collectively, of the foregoing
restrictive covenants may cause Diamond irreparable injury for which there is no
adequate remedy at law. Therefore, Employee expressly agrees that in the event
of any breach by Employee or his affiliates of the foregoing, Diamond shall be
entitled, in addition to any remedies available at law, to injunctive and/or
other equitable relief, to require specific performance or prevent a breach
under the provisions of this Agreement. In addition, as partial consideration
for any damages to Diamond, if Employee or his affiliates shall breach any
provisions of this Agreement or if any representation by Employee herein is
incorrect in any material respect, Diamond Homes, at its option, may discontinue
making any payments to Employee otherwise due pursuant to this Agreement. In
view of the difficulty of determining damages in the event of a breach of these
provisions, it is agreed that Diamond shall be entitled to damages in the amount
of at least $15,000, plus reasonable attorneys' fees and costs associated in
enforcing these provisions to judgment, in the event of a breach of this
Agreement by Employee, which remedies are agreed by Employee to be reasonable.
Diamond Homes shall be liable for Employee's reasonable attorneys' fees and
costs associated in defending himself, if Diamond Homes frivolously files and
prosecutes a lawsuit under this section against Employee. Employee understands
and agrees that these provisions are reasonable to protect the legitimate
interests of Diamond, and that the consideration is therefore adequate, and
Employee hereby waives any claim to the contrary.
12. Employee agrees that he may have certain property in his possession
which is the property of one or more Diamond Entities, including, but not
limited to, the following: (i) keys to certain buildings; (ii) credit cards;
(iii) documentation concerning other Diamond corporate charge privileges; (iv)
computer hardware and software; and (v) airplane tickets which have been ordered
in connection with Employee's employment. As a part of this Agreement, Employee
agrees to return all of Diamond's property promptly upon his execution of this
Agreement, including but not limited to the property specifically listed in this
section 12, to Diamond, c/o Xxxxxx X'Xxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx.
13. Each party to this Agreement hereby affirms that it/he has had the
opportunity, and Diamond hereby advises Employee, to consult with counsel with
respect to the terms and conditions of this Agreement, and each party hereto
waives the right to assert that any claim, demand or provision has been, through
oversight or error, omitted from the covenants set forth in this Agreement. The
parties understand that this Agreement and the releases it contains may be pled
by any Diamond Entity as a complete defense to any claim or entitlement which
Employee may hereafter assert in any suit or claim for or on account of any
matter or thing whatsoever occurring up to and including the date of this
Agreement. Employee acknowledges that he is being given twenty-one (21) days to
consider and execute this Agreement and that he has seven (7) days to revoke its
acceptance and cancel this Agreement measured from the date he executes this
Agreement to the close of business (5:00 p.m. local Woodstock, Illinois time) on
the seventh day thereafter. To be effective, revocation must be in writing and
received by Diamond Homes at the Office by the close of business on such seventh
day. Employee further acknowledges that this Agreement was delivered to and
received by him on July 24, 1997.
14. The provisions of this Agreement are severable, and if any part of it
is found to be unenforceable, the other provisions shall remain fully valid and
enforceable provided that, if any of the releases or other obligations of
Employee hereunder are unenforceable, then Diamond Homes shall no obligation to
make the payments or take the other actions contemplated under section 4.
15. The undersigned Employee affirms that the only consideration for his
signing this Agreement are the terms stated above; that no other promise or
Agreement of any kind has been made to or with him by any person or entity
whomsoever to cause him to execute this instrument; that this Agreement contains
all agreements and understandings between Employee and Diamond and fully
supersedes any all prior agreements or understandings between the parties hereto
pertaining to the subject matter of this Agreement; and that he fully
understands the meaning and intent of this release, including, but not limited
to, its final and binding effect, and that he is voluntarily entering into this
Agreement.
16. Employee agrees to keep the terms, amount and fact of this Agreement
completely confidential and not to disclose any terms or conditions of this
Agreement to anyone, other than (a) to his spouse and children, (b) pursuant to
the provisions of subsection 8(ii) hereof, (c) as may be necessary to disclose
to attorneys and financial advisers, and (d) Employee may discuss with others
his obligations under this section and under sections 8(iv) and (vi).
17. This Agreement shall be governed by, construed and interpreted in
accordance with the laws of the State of Illinois and may be executed in
separate counterparts that together constitute one instrument. This Agreement
shall be binding upon and shall inure to the benefit of Diamond, its successors
and assigns and shall be binding upon and inure to the benefit of Employee, his
successors, assigns, relatives, related entities and affiliates.
18. This Agreement shall become effective only if (a) on or before the
close of business at the Office on the date that is 22 days after Employee
receives this Agreement, Diamond Homes actually receives, at the Office, a copy
of this Agreement executed by Employee and (b) the time for revocation of this
Agreement under section 13 has expired with no such revocation having occurred
pursuant to that section. This Agreement shall become effective upon the
expiration of the revocation period described in the foregoing sentence if the
conditions described in the foregoing sentence have occurred as of that date.
19. If the date on which any payment due hereunder is not a business day
of Diamond Homes, such payment shall be due and payable, without interest, on
the next business day thereafter.
20. The Company may enforce any claim arising out of this Agreement in any
state or federal court having subject matter jurisdiction and located in
Chicago, Illinois or XxXxxxx County, Illinois. For the purpose of any action or
proceeding instituted with respect to any such claim, the Employee hereby
irrevocably submits to the jurisdiction of such courts. The Employee further
irrevocably consents to the service of process out of said courts by mailing a
copy thereof, by registered mail, postage prepaid, to the Employee at 0000 Xxxxx
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000 or such other address as Employee
notifies the Company in writing (such notice by Employee to be hand-delivered,
to be sent by overnight courier, such as Federal Express, or to be sent by
registered mail, in any case to the Office, attention Chief Executive Officer).
Employee agrees that such service, to the fullest extent permitted by law, (i)
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding and (ii) shall be taken and held to be valid
personal service upon and personal delivery to it. Nothing herein contained
shall affect the right of the Company to serve process in any other manner
permitted by law or preclude the Company from bringing an action or proceeding
in respect hereof in any other country, state or place having jurisdiction over
such action. The Employee hereby irrevocably waives, to the fullest extent
permitted by law, any objection which it may have or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such
court, located in Chicago, Illinois or XxXxxxx County, Illinois and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum.
21. THE EMPLOYEE AND THE COMPANY HEREBY EXPRESSLY WAIVE ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
22. This Agreement may only be changed or modified in writing signed by
both of the parties hereto. Section headings are for convenience only and do
not constitute a part of the Agreement.
23. This Agreement may be executed in one or more counterparts, all of
which together shall constitute one and the same Agreement.
WHEREFORE, the parties have executed this Agreement as of the date first
written above.
DIAMOND HOME SERVICES, INC.
________________________
By: C. Xxxxxxx Xxxxx
Its: Chief Executive Officer
_________________________
Xxxxx Xxxxxxxxx
EXHIBIT A
To: Diamond Home Services, Inc.
Attn: Xxxxxx X'Xxxx
From: Xxxxx Xxxxxxxxx ("Employee")
Reference is made to the Agreement dated June 30, 1997, between Employee
and Diamond Homes Services, Inc. ("Agreement"). Unless otherwise indicated or
the context otherwise requires, defined terms in this notice have the meanings
given to them in the Agreement. Employee has NOT elected the Lump Sum Payment.
Employee elects to have medical insurance premiums payable by him under the
Diamond Homes medical insurance plan (or the Sears Flex Plan, if applicable)
deducted from his Continuation Payments.
_________________________
Xxxxx Xxxxxxxxx
EXHIBIT B
To: Diamond Home Services, Inc.
Attn: Xxxxxx X'Xxxx
From: Xxxxx Xxxxxxxxx
Reference is made to the Agreement dated June 30, 1997, between Employee
and Diamond Homes Services, Inc. ("Agreement"). Unless otherwise indicated or
the context otherwise requires, defined terms in this notice have the meanings
given to them in the Agreement. Employee hereby elects the option of a Lump Sum
Payment pursuant to the Agreement.
_____________________
Xxxxx Xxxxxxxxx
Please direct deposit the Lump Sum Payment. [Initial if
direct deposit election is taken.]
