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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
BETWEEN
XXXXXXXX AND XXXXXXXX, INC.
AND
XXXXXXX X. XXXXXXXXXX
Effective: July 26, 1994
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XXXXXXXX AND XXXXXXXX, INC.
00000 XXXXX XXXXXXX XXXXXXXXXX, XXXXX 000
XXXXXX, 00000
TELEPHONE: 000-0000
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EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
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1. Employment
2. Duties and Functions as Employee
A. Positions
B. General Duties and Functions
3. Extent of Employee Services
4. Satisfaction of Employer
5. Employee's Compensation and Benefits
A. Base Salary
B. Performance Bonus
C. Long-Term Incentive Bonus
D. Other Benefits
E. Vacations
F. Business Expense Reimbursement
6. Employee Covenants
A. Employee Representations
B. Non-Competition
C. Non-Interference
D. Disclosure of Information
E. Return of Records
F. Remedies
7. Term
8. Termination
A. Death
B. Disability
C. Mutual Consent
D. By Employee
E. For "Good Cause"
F. By Employer
G. July 31, 1999
9. Payments upon Termination; Severance
A. Death
B. Disability
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C. Mutual Consent
D. By Employee
E. For "Good Cause"
F. By Employer
G. July 31, 1999
H. Failure to Perform
10. References and Gender
11. Captions
12. Notices
13. Insurance; Medical Exam
14. Invalid Provisions
15. Amendments
16. Nonassignability
17. Entire Agreement
18. Laws Governing
19. Succession
20. Arbitration
21. Waivers and Consents
22. Multiple Counterparts
EMPLOYMENT AGREEMENT -ii- XXXXXXXXXX
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EMPLOYMENT AGREEMENT
This Agreement made this ______ day of July, 1994, effective as of July 26,
1994, by and between Xxxxxxxx and Xxxxxxxx, Inc., a Pennsylvania corporation
(the 'Employer'), and Xxxxxxx X. Xxxxxxxxxx ('Employee').
R E C I T A L S:
A. Employee desires employment as an Employee of the Employer.
B. The Employer desires to employ Employee under the terms and conditions
hereof.
C. In consideration of the mutual covenants herein contained, the parties
agree as follows:
Agreement
1. EMPLOYMENT. Conditioned upon Employee passing a physical exam
performed by medical doctors selected by the Employer, the Employer hereby
employs Employee and Employee hereby accepts such employment upon the terms and
conditions of this Agreement.
2. DUTIES AND FUNCTIONS AS EMPLOYEE. Employee is engaged by the
Employer to perform the following duties and functions:
A. POSITIONS. Employee will serve as President and
Chief Executive Officer of the Employer.
B. GENERAL DUTIES AND FUNCTIONS. Employee agrees to
render to Employer his services in the executive capacities provided herein.
The Board of Directors will appoint Employee to serve on the Board of Directors
until the next regularly scheduled annual meeting of shareholders. In the
above capacities, Employee shall perform such duties and functions as are
customarily performed by the principal corporate officer of a company of a size
and nature comparable to Employer, including, for example, the right to employ
and discharge employees; provided, the Chairman of the Board shall have the
right to discharge any employee with or without cause. Employee shall be
subject generally to the direction of the Board of Directors and the Chairman
of the Board with respect to his duties and to approval and disapproval of all
Employer policies.
3. EXTENT OF EMPLOYEE SERVICES. Employee shall devote his full
working time, attention, efforts, and energies to the business and affairs of
the Employer and its affiliated companies. Employee during the term of this
Agreement shall not engage in any other business activity whether or not that
business activity is pursued for gain, profit, or other pecuniary advantages,
nor shall Employee be interested, directly or indirectly, in any form, fashion,
or manner, as partner, officer, director, stockholder, advisor, employee,
investor, or in any other form or capacity, in any other business similar to
the Employer's business without the Employer's
EMPLOYMENT AGREEMENT -1- XXXXXXXXXX
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consent; provided, however, that nothing herein contained shall be deemed to
prevent or limit the right of Employee to invest any of his personal funds in
the capital, stock, or other securities of any corporation whose stock or
securities are publicly owned or are regularly traded on any public exchange or
regulated market. Notwithstanding the foregoing, Employee may, with the
permission of the Board of Directors of the Employer, sit on the boards of
corporations (public and private) and devote time and attention to nonprofit
organizations and academic institutions, provided such activities shall be
consistent with Employee's commitments to the Employer and not affect
Employee's performance of Employee's obligations under this Agreement. During
the term of Employee's employment, Employee's principal residence shall be in
Dallas County, Texas, or a county contiguous thereto or at such other place as
Employer shall, in good faith, require pursuant to Paragraph 4 hereof.
4. SATISFACTION OF EMPLOYER. Employee agrees that he will
faithfully, promptly, and to the best of his ability, experience, and talent,
perform all of the duties that may be required of and from him pursuant to the
express and implicit terms hereof Such duties shall be rendered at Dallas,
Texas, and at such other place or places as the Employer shall in good faith
require, or as the interests, needs, business, and opportunities of the
Employer shall require or make advisable.
5. EMPLOYEE'S COMPENSATION AND BENEFITS. For all services
rendered by Employee during his employment hereunder, the Employer shall
compensate Employee as follows:
A. BASE SALARY. Employee's base salary shall be
determined by the Employer's Board of Directors, subject to the following
minimum amount. For the term of this Agreement, Employee's minimum base salary
shall be $230,000 per year. Employee's base salary shall be payable in
accordance with the Employer's payroll practices as in effect from time to
time, and subject to such withholding as is required by law.
B. PERFORMANCE BONUS. In addition to base salary,
Employee shall receive a 'Performance Bonus' (herein so called) determined as
follows:
(1) DETERMINATION. The Performance Bonus will be
determined from Employer's net annual income
before state and federal taxes ('Before Tax
Earnings'). The Employer's Board of
Directors shall each year during the term of
this Agreement establish a Performance Bonus
Criteria (herein so called) which shall be
Employer's projected Before Tax Earnings for
that year.
a. LEVEL ONE. If Employer's Before Tax
Earnings are 80%-99% of the
Performance Bonus Criteria, the
Performance Bonus shall be 25 % of
Employee's base salary.
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b. LEVEL TWO. If Employer's Before Tax
Earnings are 100% - 119% of the
Performance Bonus Criteria, the
Performance Bonus shall be 50% of
Employee's base salary.
c. LEVEL THREE. If Employer's Before
Tax Earnings are 120% or greater of
the Performance Bonus Criteria, the
Performance Bonus shall be 100% of
Employee's base salary.
(2) LIMITATION. The Performance Bonus shall not
exceed Employee's base salary.
(3) SOURCE OF FINANCIAL INFORMATION AND
CALCULATION. Before Tax Earnings shall be
determined on an accrual basis based on the
Employer's audited annual financial
statements for its fiscal tax year. The
determination of Employer's Before Tax
Earnings by the Employer's independent
auditors will be final and binding on all
parties.
(4) MID-YEAR CALCULATION. If employment is
started or terminated during a fiscal year
and Employee is entitled to the Performance
Bonus hereunder, the Performance Bonus
determination will be made at the end of the
Employer's fiscal year and prorated based on
the number of days Employee was employed
during that year; provided, in the case of
Employee's termination of employment, the
Employer in its sole discretion may elect to
determine the Performance Bonus based on
Before Tax Earnings annualized through the
last day of the month preceding the date of
Employee's termination of employment.
(5) PAYMENT. Except as otherwise provided for
herein, the Performance Bonus will be paid
within 30 days following the auditor's
completion of the Employer's audited annual
financial statements.
C. LONG-TERM INCENTIVE BONUS. Employee will have the
opportunity to earn additional compensation under the terms of that certain
Long-Term Incentive Bonus Plan attached hereto as Exhibit A (the 'LTI Plan").
D. OTHER BENEFITS. The Employer shall, at its expense,
furnish Employee with such other benefits as are from time to time provided by
the Employer for the benefit of its executives generally during the term of this
Agreement.
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E. VACATIONS. Employee shall be entitled to 3 weeks (15
business days) vacation during the first year of his employment and thereafter
he shall be entitled to 4 weeks (20 business days) vacation per year. Vacation
will be determined on an annual basis and vacation time may not to be carried
over from one year to the next nor will Employee be entitled to be paid for
vacation time accrued but not taken, even in the event of Employee's
termination of employment.
F. BUSINESS EXPENSE REIMBURSEMENT. Employee will be
reimbursed for reasonable out-of-pocket business expenses in accordance with
the Employer's reimbursement policies. In addition, the Employer will provide
Employee a leased company car comparable to cars provided to other Employer
executives with gas, maintenance, and insurance to be provided at Employer's
expense.
6. EMPLOYEE COVENANTS. The parties recognize that the services
to be rendered as an employee under this Agreement by Employee are special,
unique, and of an extraordinary character and therefore, Employee in
consideration for the employment hereunder makes the following representations
and covenants (the 'Covenants') for the benefit of Employer:
A. EMPLOYEE REPRESENTATIONS.
(1) REASONABLENESS OF COVENANTS. Insofar as the
Covenants set out in this Paragraph 6 are
concerned, Employee specifically acknowledges
and agrees as follows: (i) the Covenants are
reasonable and necessary to protect the
goodwill and business interests of the
Employer; (ii) the scope, time, and
geographical area limitations of the
Covenants are reasonable and necessary to
protect the goodwill and legitimate business
interests of the Employer; (iii) the
consideration for the Covenants is the
employment and continued employment of
Employee by the Employer, the severance
payments, and the other monetary
considerations set forth in this Agreement;
(iv) the Covenants are not oppressive to
Employee and do not impose a greater
restraint on Employee than is necessary to
protect the goodwill and other business
interests of the Employer; and (v) upon
termination of employment hereunder for any
reason Employee acknowledges he will continue
to be able to earn a livelihood without
violating the provisions of this Paragraph 6.
(2) PROPRIETARY INFORMATION. Employee is aware
and acknowledges that Employer has developed
a special competence in its Business
(hereinafter defined) and has accumulated
Confidential Information (hereinafter
defined) not generally known to others in the
field which is of unique
EMPLOYMENT AGREEMENT -0- XXXXXXXXXX
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value in the conduct and growth of Employer's
Business and which Employer treats as
proprietary.
(3) ACCESS TO CONFIDENTIAL INFORMATION. In the
course of Employee's employment, Employee
will be employed in a position or positions
with Employer in which Employee may receive
or contribute to the Confidential Information
of Employer. Employee recognizes that
optimum progress of Employer's Business
cannot take place unless Confidential
Information is entrusted to Employee.
(4) PROTECTION OF GOODWILL. Employee
acknowledges that in the course of carrying
out, performing, and fulfilling his
responsibilities to Employer, Employee has
and will have access to and be entrusted with
Confidential Information relating to
Employer's Business and Clients (hereinafter
defined). Employee recognizes that (i) the
goodwill of Employer depends upon, among
other things, its keeping the Confidential
Information confidential and that
unauthorized disclosure of the Confidential
Information would irreparably damage
Employer, and (ii) disclosure of any
Confidential Information to competitors of
Employer or to the general public would be
highly detrimental to Employer. Employee
further acknowledges that in the course of
performing his obligations to Employer, he
will be a representative of Employer to many
of Employer's Clients and in some instances
Employer's primary contact with the Client,
and as such will be responsible for
maintaining or enhancing the business and
goodwill of Employer with those Clients.
(5) MEANINGS OF TERMS. Employee acknowledges
that the following terms shall have the
following meanings:
a. BUSINESS shall mean Employer's
present business of providing
personnel services, including but
not limited to, temporary help
services, employee placement,
employee search, employee leasing,
and as such business may be expanded
and diversified in the future
through acquisitions by Employer or
future development or
diversification, including any
business which Employer has targeted
or discussed to be targeted by
officers or board members for
acquisition or entry during the
Restricted Period (as defined below)
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b. EMPLOYER shall refer to Xxxxxxxx and
Xxxxxxxx, Inc. and shall also be
deemed to include Plant Maintenance,
Inc., of California, Advance
Processing Systems, Inc., and any
other business or entity acquired by
Employer.
c. CLIENTS means any individual,
principal, proprietorship,
partnership, corporation,
association, or other entity that
has been served by Employer as a
customer or franchise during the
term of Employee's employment,
including those who were (or became)
Client(s) of Employer at the time of
(or at any time during) Employee's
employment.
d. COMPETING BUSINESS means any
business, firm, undertaking,
company, or organization, other than
Employer, which competes in any
state in the United States in which
the Employer's business is located
(the 'Restricted Area') with
Employer's Business.
e. CONFIDENTIAL INFORMATION means
information disclosed to or known to
Employee as a direct or indirect
consequence of, or through his
employment with Employer, about
Employer's business methods,
operations, and services, including,
but not limited to, all information,
written or oral, including without
limitation, manuals, videos, audios,
and internal publications not
generally known, or proprietary to
Employer, about Employer's
manufacturing, marketing, pricing,
accounting, merchandising, and
information gathering techniques and
methods, and all accumulated data,
listings, or similar recorded matter
used or useful in Employer's
Business, including but not limited
to, Employer's Client lists,
Employer's franchisees' Client
lists, reports, business forms,
advertisements, and marketing
reports and presentation materials.
Without regard to whether any or all
of the foregoing matters would be
deemed confidential, material, or
important, the parties hereto
stipulate that as between them, the
same are important, material, and
confidential and gravely affect the
effective and successful conduct of
the business of the Employer, and
its goodwill.
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B. NON-COMPETITION. Employee agrees that during his
employment with Employer and for a period of twenty-four (24) months after the
termination of his employment with Employer (the "Restricted Period"), Employee
shall not within the Restricted Area, either through any kind of ownership
(other than ownership of securities of publicly held corporations of which
Employee owns less than one percent (1%) of any class of outstanding
securities), or as a director, officer, principal, agent, employee, employer,
advisor, consultant, co-partner, or in any individual or representative
capacity whatsoever, either for Employee's own benefit or for the benefit of
any other person or firm, partnership, association, corporation, or other
entity, without the prior written consent of Employer, participate, directly or
indirectly, in a Competing Business.
C. NON-INTERFERENCE. During his employment with the
Employer and for a period of thirty-six (36) months after the termination of
his employment, irrespective of the time, manner, or cause of his termination,
Employee shall not:
(1) SOLICITATION. Directly or indirectly, either
as principal, agent, employee, employer,
stockholder, co-partner, or in any other
individual or representative capacity
whatsoever induce, solicit, or attempt to
induce or solicit any Client to terminate its
relationship with the Employer, either for
Employee's own benefit or for the benefit of
any other person, firm, or corporation
competitive with that of the Employer.
(2) SOURCES. Directly or indirectly, request or
advise any present or future merchandise
resource, supply resource, or service
resource of the Employer or any Client to
withdraw, curtail, or cancel the furnishing
or sales of merchandise, supplies, or
services to the Employer or any Client.
(3) EMPLOYEES. Directly or indirectly, induce or
attempt to influence any employee of the
Employer or employee of any Client to
terminate employment with the Employer or
the Client, as the case may be.
D. DISCLOSURE OF INFORMATION. Unless compelled to
disclose information in a legal proceeding, Employee expressly covenants and
agrees that he will not, during or after the termination of his employment with
the Employer, irrespective of the time, manner or cause of the termination,
directly or indirectly use, disclose, copy, or assist any other person or firm
in the use, disclosure, or copying of, any Confidential Information, except
with the written consent of or at the written request of Employer.
E. RETURN OF RECORDS. Upon termination of his
employment, Employee will surrender to the Employer all lists, books, and
records of or in connection with the Employer's Clients, customers, suppliers,
prospective customers, or businesses and all copies thereof and all other
property belonging to the Employer, whatsoever, including, without
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limitation, all Confidential Information. Employee shall have no right to copy
or otherwise reproduce lists, books or accounts, records or other property of
the Employer.
F. REMEDIES.
(1) ENFORCEMENT OF COVENANTS. Employee agrees
that a violation on his part of any Covenant
in this Paragraph 6 will cause such damage to
the Employer as will be irreparable and for
that reason, Employee further agrees that the
Employer shall be entitled, as a matter of
right, to an injunction out of any court of
competent jurisdiction, restraining any
further violation of the Covenants by
Employee, his employer, employees, partners,
or agents. In addition to the foregoing
remedy, in the event of a violation by
Employee of any Covenant in this Paragraph 6,
Employee shall be liable to the Employer for
actual damages. Such right to injunction and
actual damages shall be cumulative and in
addition to whatever other remedies the
Employer may have.
(2) SET OFF. In addition to the other remedies
available at law or equity, the Employer
shall have the right to set off any
obligation arising pursuant to this Paragraph
6 against any amount owed by Employer to
Employee, including but not limited to, any
salary or other compensation, or payable on
behalf of Employee by Employer.
(3) INDEPENDENT COVENANTS. Each of the Covenants
contained in this Paragraph 6 shall be
construed as covenants or agreements
independent of any other provision of this
Paragraph 6 of this Agreement and the
allegation or existence of any claim or cause
of action of Employee against the Employer,
whether predicated on this Agreement or
otherwise, shall not constitute a defense to
the enforcement by the Employer of the
Covenants contained herein.
(4) INTERPRETATION. It is the intent of the
parties that the provisions contained in
Paragraph 6 shall, to the fullest extent
permissible under law and public policy, be
enforced by the courts of each state and
jurisdiction in which enforcement is sought
and that the unenforceability (or the
modification necessary to conform with such
law and public policy) of any part of
Paragraph 6 shall not be deemed to render
unenforceable any other part of Paragraph 6.
Accordingly, if any part of Paragraph 6 shall
be adjudicated to be invalid or unenforceable
in any action or proceeding in which
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Employee, his heirs, executors,
administrators and the Employer, its
successors, or assigns, are parties, whether
in its entirety or except as modified as to
duration, territory, accounts, employees, or
otherwise, then that part shall be deemed
deleted or amended, as the case may be, from
the Agreement in order to render the
remainder of Paragraph 6 both valid and
enforceable. Any such deletion or amendment
shall apply only where the court rendering
the same has jurisdiction.
(5) SURVIVAL. Notwithstanding any provision in
this Agreement to the contrary, the Covenants
of Employee contained in this paragraph 6 and
the rights of the Employer hereunder shall
not terminate upon the termination of this
Agreement but shall continue to remain in
full force and effect.
(6) NOTICE REQUIRED. Employee expressly agrees
to notify any prospective employer or
affiliate in a Competing Business of the
Covenants, and authorizes Employer to make
contact with, and discuss the nature and
obligations of these Covenants with, any
person or affiliate reasonably believed by
Employer to be engaged or about to be engaged
in an act that would constitute a violation
of the Covenants. Employee hereby waives and
releases Employer from, any claims whatsoever
arising in connection with Employer's contact
or discussions with such person or affiliate.
7. TERM. Subject to the provisions for termination as provided
elsewhere herein, the term of Employee's employment under this Agreement shall
commence on July 26, 1994, and terminate on July 31, 1999.
8. TERMINATION. Notwithstanding anything, herein contained to
the contrary (including Paragraph 7 hereof), this Agreement shall terminate
upon the first to occur of any of the following events:
A. DEATH. Upon the death of Employee.
B. DISABILITY. Upon the disability of Employee. For
purposes of this Agreement, Employee shall be subject to a "disability" when he
is unable to continue his normal duties of employment by reason of a physical
or mental impairment. In determining whether Employee is subject to a
disability, Employer's determination shall be based upon the opinion of any
licensed physician of the appropriate recognized field of medicine or
psychiatric practice who has examined Employee and who agrees and opines that
the Employee is disabled; provided, however, if Employee disagrees with such
determination, then Employee and Employer shall agree upon an independent
qualified physician to review the case and make a
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final determination of disability. If the parties cannot agree upon an
independent physician to make such determination, then each party shall appoint
a physician and those two physicians shall select a third physician who shall
then make a final and binding determination with respect to Employee's
disability.
C. MUTUAL CONSENT. By mutual written consent of the
parties.
D. BY EMPLOYEE. By Employee by giving 30 days' written
notice of termination to Employer.
E. For "Good Cause". By Employer upon written notice
for "good cause," which shall mean for purposes of this Agreement, Employee's
(i) commission of a felony or any other criminal act which the Board of
Directors consider materially damaging to the reputation of the employer, (ii)
fraud, (iii) dishonesty, self-dealing, or embezzlement, (iv) violation of
Employer's published policies, (v) gross or intentional neglect of duty, (vi)
failure or unwillingness to perform substantially and faithfully Employee's
duties hereunder, or (vii) any act or failure to act which undermines or
besmirches the Employer's business reputation; provided, however, in the event
'cause' relates to items (iv) through (vi) above, then Employer shall notify
Employee of such cause, and, if such violation can be cured, Employee shall
have 30 days from receipt of notice to cure such violation.
F. BY EMPLOYER. By Employer, upon Employer giving at
least 30 days advance written notice to Employee.
G. JULY 31, 1999.
The effective date of termination under the foregoing provisions shall be as
follows:
(1) PARAGRAPH 8A, the date of death.
(2) PARAGRAPH 8B, the date of written notice from
the Employer to Employee of his "disability"
termination.
(3) XXXXXXXXX 0X-, the date determined under the
written mutual consent of the parties.
(4) PARAGRAPH 8D, the termination date as
provided in Employee's written notice;
provided that the Employer may accelerate the
termination so that it occurs at any time
during the 30-day notice period, while
continuing Employee's base salary for the
remainder of the 30-day notice period.
(5) PARAGRAPH 8E, the termination shall be
immediate upon the delivery by Employer of
written notice or the end of the cure period
if cure is possible but is not effected.
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(6) PARAGRAPH 8F, the termination date as
provided in the Employer's written notice;
provided that the Employer may accelerate the
termination so that it occurs immediately,
while continuing Employee's base salary for
the 30-day notice period.
(7) PARAGRAPH 8G, July 31, 1999.
Notwithstanding the foregoing, Employer may terminate Employee's use of
Employer's offices, equipment, supplies, and vehicles at any time after notice
of termination of employment is given by Employer or Employee.
9. PAYMENTS UPON TERMINATION; SEVERANCE.
A. DEATH. In the event termination is the result of
death under Paragraph 8A above, Employee shall be paid his base salary through
the end of the month in which death occurred; Employee's Performance Bonus will
be payable through the last day of the month preceding the month in which death
occurs; and the vested portion of Employee's incentive bonus under the LTI Plan
earned and vested through the last day of the month preceding the month in
which death occurs will be determined and paid in accordance with the LTI Plan.
B. DISABILITY. In the event of termination for
disability under Paragraph 8B above, Employee shall be paid his base salary
through the date of termination of employment; Employee's Performance Bonus
will be payable through the last day of the month preceding the month in which
the termination of employment occurs; and the vested portion of Employee's
incentive bonus under the LTI Plan earned and vested through the last day of
the month preceding termination of employment will be determined and paid in
accordance with the LTI Plan.
C. MUTUAL CONSENT. If termination of employment is by
mutual consent under Xxxxxxxxx 0X above, the parties shall agree to the
payments to be made, if any, to Employee upon such termination.
D. BY EMPLOYEE. In the event of termination by
Employee under Xxxxxxxxx 0X, Xxxxxxxx shall be paid his base salary through
the date of termination of employment. Employee's Performance Bonus will be
payable through the last day of the month preceding the date of termination of
his employment. Employee will not be entitled to receive any benefits under
the LTI Plan.
E. FOR GOOD CAUSE. In the event of a termination of
employment for good cause under Paragraph 8E, Employee will be entitled to
receive his base salary through the date of termination of employment.
Employee will not be entitled to receive any Performance Bonus or benefits
under the LTI Plan.
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F. BY EMPLOYER. In the event of a termination of
employment under Paragraph 8F, Employee shall be paid his base salary for six
months following the date of termination. Employee shall be entitled to a pro
rata portion of his Performance Bonus and benefits under the LTI Plan
determined through the date of termination of employment.
G. EXPIRATION OF AGREEMENT. In the event of termination
of employment under Paragraph 8G, Employee shall be paid his base salary,
Performance Bonus and benefits under the LTI Plan through July 31, 1999.
Except for the foregoing payments, Employee shall not be entitled to receive
any other benefits except as may be required by law.
10. REFERENCES AND GENDER. All references to 'paragraphs' or
'subparagraphs' contained herein are, unless specifically indicated otherwise,
references to paragraphs or subparagraphs of this Agreement. Whenever herein
the singular number is used, the same shall include the plural where
appropriate, and words of any gender shall include each other gender where
appropriate. The terms 'herein' and 'hereof' as used in this Agreement are
references to this Agreement, unless the context indicates otherwise.
11. CAPTIONS. The captions, headings, and arrangements used in
this Agreement are for convenience only and do not in any way affect, limit,
amplify, or modify the terms and provisions hereof.
12. NOTICES. Whenever this Agreement requires or permits any
consent, approval, notice, request, or demand from one party to another, the
consent, approval, notice, request, or demand must be in writing to be
effective, including, without limitation, telex, or telegraphic communications,
and shall be deemed to have been given on the earlier of receipt or the third
day after it is enclosed in an envelope, addressed to the party to be notified
at the address stated below or at such other address as may have been
designated by written notice, properly stamped, sealed, and deposited in the
United States mail. The address of each party for the purposes hereof is as
for each party on the signature page hereof.
13. INSURANCE: MEDICAL EXAM. Employee agrees to take a physical
examination to be performed by a medical doctor selected by the Employer. The
cost of such exam will be borne by the Employer. During the term of Employee's
employment he shall be required as a condition of employment to take an annual
physical exam at the expense of the Employer. In addition, Employee agrees to
take such physical examinations as may be required by the Employer in order for
the Employer to purchase insurance on Employee's life in such amount or amounts
as the Employer deems appropriate.
14. INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term, including renewals, of this Agreement, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Agreement; and the remaining provisions of this
Agreement shall
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remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such illegal, invalid, or unenforceable provision
there shall be added automatically as part of this Agreement a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
15. AMENDMENTS. This Agreement may be amended at any time and
from time to time in whole or in part by an instrument in writing setting forth
the particulars of such amendment and duly executed by an authorized officer of
the Employer and by Employee; provided, however, that salary increases or
decreases may be made without a writing if such changes are reflected in the
minutes of the Board of Directors of the Employer.
16. NONASSIGNABILITY. Neither this Agreement, nor any rights or
obligations of either party hereunder may be transferred or assigned except
that the Employer may assign this entire Agreement to any successor to all or
substantially all of the Employer's business and assets.
17. ENTIRE AGREEMENT. This Agreement, together with the Long Term
Incentive Bonus Plan of even date, contains the entire agreement of the parties
hereto. No modification or amendment of any of the terms, conditions, or
provisions herein may be made otherwise than by written agreement signed by the
parties hereto, or in any event by the parties sought to be bound hereby.
18. LAWS GOVERNING. THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF TEXAS.
19. SUCCESSION. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, and upon their successors in interest of
any kind whatsoever.
20. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, including but not limited to claims based on or
arising from an alleged tort, shall at the request of any party be determined
by arbitration, under the auspices and rules of the American Arbitration
Association, in accordance with the Texas General Arbitration Act if
applicable, otherwise in accordance with the United States Arbitration Act.
Judgment upon the award rendered by the arbitrator shall be entered in any
court having jurisdiction. The institution and maintenance of an action for
judicial relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party to submit the controversy or
claim to arbitration. Nothing contained in this paragraph is intended to
prevent a party from bringing an action in State or Federal court in Dallas
County, Texas, or such other county and state in which Employer then has its
principal place of business, to (i) enforce that party's right to arbitrate
under this Agreement or (ii) to obtain relief by way of Specific Performance to
enforce the Covenants contained in Paragraph 6 hereof. The arbitration shall
be commenced by filing a demand for arbitration upon the other party or parties
and the American Arbitration Association. The arbitrator shall be a person who
is qualified to make decisions in legal matters. The arbitration proceeding
shall be held in Dallas County, Texas, or such other county
EMPLOYMENT AGREEMENT -13- XXXXXXXXXX
17
and state in which Employer then has its principal place of business. The
arbitrator shall maintain the privacy of the hearings, and shall have the
power to exclude witnesses, other than a party, during the testimony of any
other witness. The prevailing party in the arbitration proceeding shall be
entitled to reasonable attorney's fees, costs, and necessary expenses incurred
in connection with such proceeding, as determined by the arbitrator.
21. WAIVERS AND CONSENTS. One or more waivers of any covenant,
term, or provision of this Agreement by any party shall not be construed as a
waiver of a subsequent breach of the same covenant, term, or provision, nor
shall it be considered a waiver of any other then existing or subsequent breach
of a different covenant, term, or provision. The consent or approval by
either party to or of any act by the other party requiring such consent or
approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act. No custom or practice of either party
shall constitute a waiver of either party's rights to insist upon strict
compliance with the terms hereof.
22. MULTIPLE COUNTERPARTS. This Agreement has been executed in a
number of identical counterparts, each of which, for all purposes, is to be
deemed an original, and all of which constitute, collectively, an agreement;
but in making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
EMPLOYEE: EMPLOYER:
XXXXXXXX AND XXXXXXXX, INC.
/s/ XXXXXXX XXXXXXXXXX By: /s/ XXXXXX X. XXXXXXXX, XX.
------------------------------ ------------------------------
Xxxxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxxx, Xx.,
Chairman of the Board
ADDRESS: ADDRESS:
0000 Xxxxxxxxxxx Xxxxx 00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
