XXXXXXX COMPUTER RESOURCES, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of the day of ,
-------- -------------
2001, by and between POMEROY COMPUTER RESOURCES, INC. ("Company"), a Delaware
corporation with its principal place of business located at 0000 Xxxxxxxxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000, and XXXXXXX X. XXXXXX ("Employee").
WITNESSETH:
WHEREAS, Employee has been employed by the company since March 5, 1991; and
WHEREAS, the parties now desire to enter into an Employment Agreement to
provide additional responsibilities, duties, benefits, and compensation for
Employee.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein set forth, the parties hereby covenant and agree as follows:
1. Employment. The Company agrees to employ the Employee, and the
-----------
Employee agrees to be employed by the Company, upon the following terms and
conditions.
2. Term. The initial term of Employee's employment pursuant to this
----
Agreement shall begin on the date first written above and shall continue for a
period of three (3) years thereafter, unless terminated earlier pursuant to the
provisions of Section 10, provided that Sections 8, 9, 10(b), 11, if applicable,
and 12, if applicable, shall survive the termination of such employment and
shall expire in accordance with the terms set forth therein.
3. Renewal Term. The term of Employee's employment shall
--------------
automatically renew for additional consecutive renewal terms of one (1) year
unless either party gives written notice of his/its intent not to renew the
terms of the Agreement ninety (90) days prior to the expiration of the then
expiring term. Employee's base salary for each renewal term shall be negotiated
and mutually agreed upon by and between the Company and Employee. However, in
no event shall Employee's annual base salary for any renewal term be less than
the base salary in effect for the prior year.
4. Duties & Place of Employment. Employee shall serve as an officer
-----------------------------
of the company in the position of Executive Vice President of Sales and
Operations. Employee shall be responsible to and report directly to the
President of the Company. Employee shall devote his best efforts and
substantially all his time during normal business hours to the diligent,
faithful and loyal discharge of the duties of his employment and towards the
proper, efficient and successful conduct of the Company's affairs. Employee
further agrees to refrain during the term of this Agreement from making any
sales of competing services or products or from profiting from any transaction
involving computer services or products for his account without the express
written consent of the Company. In connection with Employee's employment by
Company, Employee shall be based at the principal executive offices of the
Company located in Hebron, Kentucky.
5. Compensation. For all services rendered by the Employee under
------------
this Agreement, compensation shall be paid to Employee as follows:
(a) Base Salary. Employee's base annual salary shall be
$200,000.00. Employee shall be entitled to an increase in his annual base
salary, in the event the Company meets or exceeds the following net profit
before taxes thresholds: (1) if Company's net profit before taxes for fiscal
year 2001 is greater than 4.5% during that period, Employee's annual base salary
for the second year of this Agreement shall be automatically increased to
$225,000.00; and (2) if Company's net profit before taxes for fiscal year 2002
is greater than 4.75% during that period,
Employee's annual base salary for the final year of the initial term of this
three (3) year Agreement shall be automatically increased to $250,000.00.
(b) For purposes of this Section, the term "Gross Sales" shall
mean the gross sales of equipment, software and services by Company during the
applicable period, determined on a consolidated basis. In making said gross
sales determination, all gains and losses realized on the sale or other
disposition of Company's assets not in the ordinary course of business shall be
excluded. All refunds or returns which are made during such period shall be
subtracted along with all accounts receivable derived from such sales that are
written off during such period in accordance with Company's accounting system.
Such Gross Sales and net pre-tax margin of the Company in accordance with
generally accepted accounting principles and such determination shall be final,
binding and conclusive upon all parties hereto.
(c) Company will deliver to Employee copies of the reports of any
determination made hereunder by Company for the subject period, along with any
documentation reasonably requested by Employee. Within thirty (30) days
following delivery to Employee of such report, Employee shall have the right to
object in writing to the results contained in such determination. If timely
objection is not made by Employee to such determination, such determination
shall become final and binding for purposes of this Agreement. If a timely
objection is made by Employee, and the Company and Employee are able to resolve
their differences in writing within fifteen (15) days following the expiration
of the initial thirty (30) day period, then such determination shall become
final and binding as it pertains to this Agreement. If timely objection is made
by Employee to Company, and Employee and Company are unable to resolve their
differences in writing within fifteen (15) days following the expiration of the
initial 30 day period, then all disputed matters pertaining to the report shall
be submitted and reviewed by the Arbitrator ("Arbitrator"), which shall be an
independent accounting firm selected by Company and Employee. If Employee and
Company are unable to promptly agree on the accounting firm to serve as the
Arbitrator, each shall select, by not later than fifteen (15) days following the
expiration of the initial 30 day period, one accounting firm and the two
selected accounting firms shall then be instructed to select promptly a third
accounting firm, such third accounting firm to serve as the Arbitrator. The
Arbitrator shall consider only the disputed matters pertaining to the
determination and shall act promptly to resolve all disputed matters. A
decision with respect to all disputed matters shall be final and binding upon
Company and Employee. The expenses of Arbitration shall be borne one-half by
Employee and one-half by Company. Each party shall be responsible for his/its
own attorney and accounting fees.
(d) Quarterly Bonus.
(i) In addition to the annual base compensation provided
in Section 5(a)herein above, Employee shall be eligible to receive a quarterly
bonus based upon the Company meeting or exceeding certain gross sales thresholds
for the respective quarterly period as follows: in the event the Company's gross
sales are equal to or greater than $240,000,000.00 for the applicable quarter,
Employee shall be entitled to receive a cash bonus of $20,000.00; in the event
the Company's gross sales are equal to or greater than $250,000,000.00 for the
applicable quarter, Employee shall be entitled to receive a cash bonus of
$30,000.00; in the event the Company's total gross sales are equal to or greater
than $260,000,000.00 for the applicable quarter, Employee shall be entitled to
receive a cash bonus of $40,000.00. In the event the Company's gross sales do
not meet or exceed the minimum threshold level established in this Section
5(d)(i), Employee shall not be eligible for any quarterly bonus hereunder.
(ii) Employee shall also be eligible to receive a quarterly
bonus if Company's net profit before taxes ("NPBT") meet or exceed certain
thresholds, which are more particularly set forth herein below. If Company's
NPBT for the applicable quarter is greater than 4.5%, Employee shall be entitled
to receive a cash bonus of $20,000.00 for the quarter; if Company's NPBT for
the applicable quarter is greater than 4.75%, Employee shall be entitled to
receive a cash bonus of $30,000.00; or, if Company's NPBT is greater than 5.0%,
Employee shall
be entitled to receive a cash bonus of $40,000.00. In the event Company fails to
attain the NPBT thresholds referenced herein above for the applicable quarter,
Employee shall not be eligible for or entitled to any bonus hereunder.
(iii) The quarterly bonus schedules provided in Sections
5(d)(i) and 5(d)(ii) above are in effect for fiscal
year 2001. For each subsequent year, the parties shall,
in good faith, negotiate and agree upon criteria for
such quarterly bonuses.
(e) Year End Deferred Compensation. Employee shall be eligible to
receive a year end deferred compensation bonus in accordance with the following
schedule so long as (1) Company achieves a net profit before taxes ("NPBT")
greater than 4.5% for fiscal year 2001 and (2) Company's gross sales are in
excess of the following thresholds: If Company generates gross sales in excess
of $1,020,000,000.00 for fiscal year 2001, Employee shall be entitled to receive
$100,000.00 in cash or stock and 25,000 stock options; if Company generates
gross sales in excess of $1,120,000,000.00 for fiscal year 2001, Employee shall
be entitled to receive $125,000.00 in cash or stock and 35,000 stock options; or
if Company generates gross sales in excess of $1,220,000,000.00 for fiscal year
2001, Employee shall be entitled to receive $150,000.00 in cash or stock and
50,000 stock options. Employee understands and acknowledges that payment of
fifty percent (50%) of any cash bonus deemed earned by Employee hereunder shall
be deferred and subject to a five (5) year vesting schedule. Employee further
understands and acknowledges that any stock options awarded hereunder shall be
subject to a three (3) year vesting schedule. Any such stock option awards made
pursuant to this Section 5(e) shall be made subject to any and all terms and
conditions contained in the Company's 1992 Non-Qualified and Incentive Stock
Option Plan and the Award Agreement incident thereto. Any such award shall grant
Employee the option to acquire a certain amount of common stock of the Company
at the fair market value of such common stock as of the applicable date. For
the purposes of this Agreement, the fair market value as of the applicable date
shall mean with respect to the common shares, the average between the high and
low bid and ask prices for such shares on the over-the-counter market on the
last business day prior to the date on which the value is to be determined (or
the next preceding date on which sales occurred if there were no sales on such
date). The year end deferred compensation schedule provided in this Section
shall be in effect for fiscal year 2001 only. For each subsequent year of this
Agreement, the parties shall, in good faith, negotiate and agree upon year end
criteria for such deferred compensation.
(f) Discretionary Bonus. The Company hereby agrees to provide
Employee with a discretionary bonus of $100,000.00 for his job performance in
fiscal year 2000. Employee acknowledges and agrees that he is already in receipt
of one-half of the aforesaid discretionary cash bonus to be paid to him
hereunder. Furthermore, Employee understands and agrees that the remaining
$50,000.00 of the discretionary cash bonus, which is due and owing to him
hereunder, shall be subject to a three year vesting period commencing on the
date of this Agreement.
(g) Signing Bonus. The Company hereby agrees to provide Employee
with a signing bonus, in the form of 25,000 stock options, as additional
consideration for his execution of and agreement to the terms of this Agreement.
Employee understands that the Company's award of such stock options is
contingent upon his execution of this Agreement with the Company and that the
award shall be made subsequent to the execution hereof as follows: Employee
shall be awarded the right to acquire 25,000 shares of common stock, .01 par
value, of Xxxxxxx Computer Resources, Inc., subject to a three (3) year vesting
schedule and any other conditions contained in the Xxxxxxx Computer Resources,
Inc., Non-Qualified and Incentive Stock Option Plan and the Award Agreement.
Such award of the stock options to acquire the common stock of Xxxxxxx Computer
Resources, Inc., shall be at the fair market value of such common stock as of
the applicable date. For purposes of this Agreement, the fair market value as of
the applicable date shall mean with respect to the common shares, the average
between the high and
low bid and ask prices for such shares on the over-the-counter market on the
last business day prior to the date on which the value is to be determined (or
the next preceding date on which sales occurred if there were no sales on such
date).
(h) In addition to the compensation provided herein above, Employee
shall be entitled to receive a one-time cash bonus in the amount of $100,000.00
if he remains employed with the Company pursuant to the express terms and
conditions of this Agreement for the entire initial term of three (3) years as
provided in Section 2 of this Agreement. Such cash bonus shall be paid to
Employee, if he meets the condition precedent prescribed in this Section, within
thirty (30) days after the end of the initial three (3) year term of this
Agreement.
(i) Employee hereby acknowledges that Company reserves the right to
modify, alter, or amend such pay plan, at any time, in the event there are
changes in the Company's business model due to events which include, but are not
necessarily limited to mergers, acquisitions, corporate
re-organization/re-structure, material changes to industry standards or
practices which affect the Company. Such modifications, alterations or
amendments to the compensation plan provided in this Section 5 shall not
constitute a breach of this Agreement or otherwise qualify as a default event
hereunder.
6. Fringe Benefits. During the term of this Agreement, Employee
-----------------
shall be entitled to the following benefits:
(a) Health Insurance - During the term of this Agreement, Employee
shall be provided with the standard medical health and insurance
coverage maintained by Company on its employees. Company and
Employee shall each pay fifty percent (50%) of the cost of such
coverage.
(b) Vacation - Employee shall be entitled each year to a vacation of
three (3) weeks during which time his compensation will be paid
in full. Provided, however, such weeks may not be taken
consecutively without the written consent of the President of the
Company. In addition, Employee shall provide the President of the
Company with two (2) weeks advance written notice of any such
vacation.
(c) Retirement Plan - Employee shall participate, after meeting
eligibility requirements, in any qualified retirement plans
and/or welfare plans maintained by the Company during the term of
this Agreement.
(d) Automobile Allowance - Company shall provide Employee with an
automobile allowance of $850.00 per month during the term of this
Agreement. Employee shall be responsible for all insurance,
maintenance and repair expenses associated with such vehicle.
(e) Cellular Phone Allowance - Company shall provide Employee with a
cellular phone allowance of $75.00 per month during the term of
this Agreement.
(f) Life Insurance - During the term of this Agreement, Company shall
maintain on the life of Employee, provided he is insurable at
standard rates a term life insurance policy in the amount of
$500,000.00. Employee shall have the right to designate the
beneficiary of such policy. Employee agrees to take any and all
physicals that are necessary incident to the issuance and/or
renewal of said policy. In addition, Employee agrees to take any
and all physicals that are necessary incident to the procurement
of key person insurance upon his life by Company. In the even
that Employee is not insurable at standard rates during the term
of this
Agreement, but Employee is able to procure rated coverage,
Employee shall have the right to procure coverage for a lower
amount of insurance, the cost of which is equivalent to the
standard term rate cost of $500,000.00 of coverage. In the event
Employee is not insurable, then Company shall pay Employee an
amount equal to the projected cost of the contemplated term
insurance of $500,000.00 at standard rates.
(g) Club Membership Dues - The Company shall provide payment for
Employee's monthly membership dues at Traditions Golf Club. In
addition, the Company will provide payment for any expenses
incurred by member on such accounts for legitimate business
purposes. Employee shall be solely responsible for the payment of
any and all personal charges to such member accounts.
Employee understands and acknowledges that he shall be responsible for any and
all taxes, owed, if any, on the fringe benefits provided to him pursuant to this
Section 6.
7. Expenses. During the term of Employee's employment hereunder,
---------
Employee shall be entitled to receive prompt reimbursement for all other
reasonable and customary expenses incurred by Employee in fulfilling Employee's
duties and responsibilities hereunder, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures established by
Company.
8. Non-Competition & Non-Solicitation. In connection with the
-------------------------------------
diligent, faithful and loyal discharge of the duties of Employee's employment
under this Agreement, Employee agrees that so long as he is employed by the
Company (whether or not pursuant to the provisions of this Agreement) he will
not, directly or indirectly, be employed by, or otherwise give assistance to or
be affiliated with (as an employee, consultant, independent contractor of any
type, director or otherwise) any person, firm, corporation or entity which is
directly or indirectly engaged in a competitive business with that carried on by
the Company or any of its subsidiaries. Employee agrees that so long as he is
employed by the Company, he will not own, engage in, conduct, manage, operate,
participate in, be employed by or be connected in any manner whatsoever with any
competitive business with that carried on by Company or any of its subsidiaries
or become associated with, in any capacity, or solicit or sell to, customers of
the Company or any of its subsidiaries or employ or attempt to employ any
current or future employee of the Company or any of its subsidiaries or induce
any employee of the company or of any of its subsidiaries to leave its employ.
In addition, as an inducement for and as additional consideration for the
Company entering into this Agreement, Employee agrees that for a period of one
(1) year commencing on the termination of employment, he will not with any other
person, corporation or entity, directly or indirectly, by stock or other
ownership, investment, employment, or otherwise, or in any relation whatsoever:
(1) solicit, recruit, divert or take away or attempt to solicit,
divert or take away any of the business, customers or patronage
of the Company or of any of its subsidiaries;
(2) attempt to seek or cause any customers of the Company or any of
its subsidiaries thereof, to refrain from continuing their
patronage;
(3) engage in the business, or the business of being a value added
microcomputer reseller or network integrator, or any other
business activity which is competitive with the Company, or any
of its affiliates, subsidiaries or branches of the Company,
including but not limited to, any affiliates, subsidiaries or
branches of the
Company after the date of this Agreement, within a 90 mile radius
of Hebron, Kentucky; Lexington, Kentucky; Louisville, Kentucky;
Knoxville, Tennessee; Nashville, Tennessee; Memphis, Tennessee;
Atlanta, Georgia; Jacksonville, Florida; Miami, Florida;
Tallahassee, Florida; Tampa, Florida; Charleston, West Virginia;
Morgantown, West Virginia; Birmingham, Alabama; Montgomery,
Alabama; Evansville, Indiana; Indianapolis, Indiana; Des Moines,
Iowa; Chicago, Illinois; Greensboro, Xxxxx Xxxxxxxx; Xxxxxxxxx,
Xxxxx Xxxxxxxx; Raleigh, North Carolina; Columbia, South
Carolina; Columbus, Ohio; Cleveland, Ohio; Cincinnati, Ohio;
Dayton, Ohio; Richmond, Virginia; Oklahoma City, Oklahoma; Tulsa,
Oklahoma; Little Rock, Arkansas; Kalamazoo, Michigan; Harrisburg,
Pennsylvania; Minneapolis, Minnesota; Houston, Texas; San
Antonio, Texas; and Washington, DC. The parties agree that the
preceding list is not intended to be exclusive and the
application of this non-competition provision shall extend to any
other city/state in which the Company, its affiliates,
subsidiaries or branches conduct business during the term of this
Agreement;
(4) knowingly employ or attempt to recruit, solicit or employ in any
capacity any employee or agent of Company, or any of its
subsidiaries; and
(5) Perform services, either as an employee or as a consultant, for
any competitive business.
For purposes of this Section 8, a competitive business shall mean any person,
corporation, partnership or other legal entity (including manufacturers which
sell computer products and services directly to end users) engaged, directly or
indirectly, through subsidiaries or affiliates, in any of the following business
activities:
I. distributing of computer hardware, software, peripheral devices,
and related products and services;
II. sale or servicing, whether at the wholesale or retail level, or
leasing or renting, of computer hardware, software, peripheral
devices or related products;
III. any other business activity which can reasonably be determined to
be competitive with the principal business activity being engaged
in by the Company or any of its subsidiaries during the term of
this Agreement; and
IV. any other business activities which Company or any of its
subsidiaries subsequently become involved in after the date of
this Agreement.
This one (1) year non-competition provision commencing on the date of
Employee's termination of employment shall not be applicable if the Employee is
terminated by the Company without cause pursuant to Section 10(a)(v) or if
Company does not renew this Agreement after the expiration of the initial term
of this Agreement or any renewal term. Provided, however, such one (1) year
non-competition provision shall be applicable in any of such instances in the
event the Company elects in writing to compensate Employee pursuant to Section
11 of this Agreement.
Employee has carefully read and has given careful consideration to all the
terms and conditions of this Agreement and agrees that they are necessary for
the reasonable and proper protection of the Company's business. The Employee
acknowledges that the Company has entered into this Agreement because of
Employee's promise that he will abide by and be bound by each of the terms
contained in this Section 8. The Employee agrees that company shall be entitled
to injunctive relief to enforce these terms in addition to all other legal
remedies. Employee acknowledges that each and every one of the terms of this
provision is reasonable in all respects including their subject matter,
duration, scope and the geographical area embraced herein and waives any and all
right to compensation and/or benefits herein mentioned or referred to if
Employee violates the provisions of this Section 8.
9. Non-Disclosure and Assignment of Confidential Information. The
--------------------------------------------------------------
Employee acknowledges that the Company's trade secrets and confidential and
proprietary information, including without limitation:
(a) unpublished information concerning the Company's:
i. research activities and plans,
ii. marketing or sales plans,
iii. pricing or pricing strategies,
iv. operational techniques,
v. customer and supplier lists, and
vi. strategic plans;
(b) unpublished financial information, including unpublished
information concerning revenues, profits and profit margins;
(c) internal confidential manuals; and
(d) any "material inside information" as such phrase is used for the
purposes of the Securities Exchange Act of 1934, as amended;
all constitute valuable, special and unique proprietary and trade secret
information of the Company. In recognition of this fact, the Employee agrees
that the Employee will not disclose any such trade secrets or confidential
proprietary information (except (i) information which becomes publicly available
without violation of this Agreement, (ii) information of which the Employee did
not know and should not have known was disclosed to the Employee in violation of
any other person's confidentiality obligation, and (iii) disclosure required in
connection with any legal process), nor shall the Employee make use of any such
information for the benefit of any person, firm, operation or other entity
except the Company and its subsidiaries or affiliates. The Employee's
obligation to keep all such information confidential shall be in effect during
and for a period of five (5) years after the termination of his employment;
provided, however, that the Employee will keep confidential and will not
disclose any trade secret or similar information protected under law as
intangible property (subject to the same exceptions set forth in the
parenthetical clause above) for so long as such protection under law is
extended.
10. Termination.
------------
(a) The Employee's employment with the Company may be terminated at
any time as follows:
(i) By the Employee at his discretion, upon ninety (90) days
written notice to Company;
(ii) By Employee' s death;
(iii) By Employee's physical or mental disability which renders
Employee unable to perform his duties hereunder.
(iv) By the company, for cause upon three (3) days written notice
to Employee. For purposes of this Agreement, the term
"cause" shall mean termination upon: (i) the failure by
Employee to substantially perform his duties with the
Company, after a written demand for substantial performance
is delivered to him by the Company, which demand
specifically identifies the manner in which the Company
believes that he has not substantially performed his duties;
(ii) the engaging by Employee in conduct which is materially
injurious to the Company, monetarily or otherwise, including
but not limited to any material misrepresentation related to
the performance of his duties; (iii) the conviction of
Employee of a felony or other crime involving theft or
fraud; (iv) Employee's neglect or misconduct in carrying out
his duties hereunder resulting, in either case, in material
harm to the Company; or (v) any material breach by Employee
of this Agreement.
(v) By the Company at its discretion, without cause, upon thirty
(30) days written notice to the Employee.
(b) Compensation upon Termination:
(i) In the event of termination of employment, the Employee
or his estate, in the event of death, shall be entitled to his annual base
salary and other benefits provided hereunder to the date of his termination. If
applicable, Employee or his estate shall be entitled to receive any bonuses
accrued to the date of such termination of employment and any vested incentive
compensation that may be deemed due and undisputed by Company.
(ii) In the event the Company terminates Employee's employment
hereunder without cause pursuant to paragraph 10(a)(v), Employee shall continue
to receive his base annual salary compensation, then in effect, for a period of
six (6) months commencing on the date of said termination, provided he is not
employed by a competitor or otherwise in breach of this Agreement. Payment of
such base compensation shall be made in the ordinary course of the Company's
business in accordance with its usual and customary payroll practices. Company
shall also be obligated to pay Employee commissions, bonuses, and/or deferred
compensation which has been deemed earned, is vested in Employee, and is
otherwise not in disputed and is due to Employee as of Employee's termination
date. In addition, to the foregoing, any and all deferred compensation and
stock options awarded to Employee hereunder during the term of this Agreement,
which remain "unvested" at the time of such termination without cause, shall be
subject to accelerated vesting and shall be payable, in full, to Employee or
exercisable by Employee, as the case may be, in accordance with Company's usual
and customary practices regarding the payment of vested deferred compensation
and/or the exercise of vested stock options.
(iii) In the event Employee terminates this Agreement prior
to the end of the initial term or during any renewal term hereof, Employee shall
forfeit and waive his right to any compensation provided to him hereunder which
is not deemed due and undisputed, earned and/or vested as of the date of such
termination. So long as Employee has not otherwise breached this Agreement or
is not otherwise in default under the terms hereof, Employee shall be entitled
to receive any bonuses accrued to the date of such termination of employment and
any vested incentive compensation that may be deemed due and undisputed.
(iv) In the event Company terminates Employee's employment
hereunder for cause pursuant to Section 10(a)(iv), Employee shall not be
entitled to deferred compensation and/or other incentive compensation, if any,
which is not deemed vested in Employee, in accordance with the applicable
vesting schedule for said compensation, at the time of such termination for
cause and Employee shall forfeit and forever waive any and all right, interest
or claim in such unvested portions thereof.
11. Payments to Extend Covenant Not to Compete of Employee. In the
----------------------------------------------------------
event Company does not renew this Agreement upon the expiration of the initial
term of this Agreement or any renewal term, Company shall have the option to pay
Employee an amount equal to his base annual salary that was in effect prior to
such non-renewal of his Employment Agreement in twelve (12) consecutive equal
monthly installments commencing thirty (30) days after the date of termination
of employment in consideration for Employee not competing with Company for a
period of twelve (12) months from the date of the termination of his employment
for any of the reasons set forth above, as applicable.
12. Disability. In the event that Employee becomes temporarily
----------
disabled and/or totally and permanently disabled, physically or mentally, which
renders him unable to perform his duties hereunder, Employee shall receive one
hundred percent (100%) of his base annual salary (in effect at the time of such
disability) for a period of one (1) year following the initial date of such
disability (offset by any payments to the Employee received pursuant to
disability benefit plans, if any, maintained by the Company.) Such payments
shall be payable in twelve consecutive equal monthly installments and shall
commence thirty (30) days after the determination by the physicians of such
disability as set forth below.
For purposes of this Agreement, Employee shall be deemed to be temporarily
disabled and/or totally and permanently disabled if attested to by two qualified
physicians, (one to be selected by Company and the other by Employee) competent
to give opinions in the area of the disabled Employee's physical and/or mental
condition. If the two physicians disagree, they shall select a third physician,
whose opinion shall control. Employee shall be deemed to be temporarily
disabled and/or totally and permanently disabled if he shall become disabled as
a result of any medically determinable impairment of mind or body which renders
it impossible for such Employee to perform satisfactorily his duties hereunder,
and the qualified physician(s) referred to above certify that such disability
does, in fact, exist. The opinion of the qualified physician(s) shall be given
by such physician(s), in writing directed to the Company and to Employee. The
physician(s) decision shall include the date that disability began, if possible,
and the 12th month of such disability, if possible. The decision of such
physician(s) shall be final and conclusive and the cost of such examination
shall be paid by Company.
13. Severability. In case any one (1) or more of the provisions or part
------------
of a provision contained in this Agreement shall be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement.
In such a situation, this Agreement shall be reformed and construed as if such
invalid, illegal or unenforceable provision, or part of a provision, had never
been contained herein, and such provision or part shall be reformed so that it
will be valid, legal and enforceable to the maximum extent possible.
14. Governing Law. This Agreement shall be governed and construed under
--------------
the laws of the Commonwealth of Kentucky and shall not be modified or
discharged, in whole or in part, except by an agreement in writing signed by the
parties.
15. Notices. All notices, requests, demands and other communications
-------
relating to this Agreement shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed by certified or registered mail,
return receipt requested, postage prepaid:
If to Company, to: Pomeroy Computer Resources, Inc.
X/X Xxxxx Xxxxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxx X. Xxxxx III
Xxxxxxxxx & Dreidame Co., L.P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
If to Employee, to the Employee's residential address, as set forth in the
Company's records.
16. Enforcement of Rights. The parties expressly recognize that any
-----------------------
breach of this Agreement by either party is likely to result in irrevocable
injury to the other party and agree that such other party shall be entitled, if
it so elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach of
this Agreement, or to enforce the specific performance of this Agreement by each
party or to enjoin any party from activities in violation of this Agreement.
Should either party engage in any activities prohibited by this Agreement, such
party agrees to pay over to the other party all compensation, remuneration,
monies or property of any sort received in connection with such activities.
Such payment shall not impair any rights or remedies of any non-breaching party
or obligations or liabilities of any breaching party pursuant to this Agreement
or any applicable law.
17. Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter contained herein and may be
altered, amended or superseded only by an agreement in writing, signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
18. Parties in Interest. This Agreement shall inure to the benefit and
-------------------
shall be binding upon the Company, the Employee, and their respective
successors, assigns and heirs. The rights of any party under this Agreement
shall not be assignable, except that Company reserves the right to assign this
Agreement to any of its affiliates or subsidiaries, without Employee's consent.
Any assignee of Company shall be entitled to all rights and benefits of Company
contained in this Agreement.
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
assets of the Company or the business with respect to which the duties and
responsibilities of Employee are principally related, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
Company would have been required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company as herein
before defined and any successor to its business and/or assets as aforesaid
which executes and delivers the assumption agreement provided for in this
Section 18 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
19. Representation of Employee. Employee represents and warrants that he
--------------------------
is not party to or bound by any agreement or contract or subject to any
restrictions including without limitation any restriction imposed in connection
with previous employment which prevents Employee from entering into and
performing his obligations under this Agreement.
20. Dispute Resolution Procedure. The parties agree that as an essential
----------------------------
element of this Agreement, any controversy, dispute, or claim arising out of,
concerning or otherwise relating to this Agreement or the breach thereof, as
well as any claim arising under any federal, state, local or common law
governing the relationship between the Company and Employee, shall be settled by
arbitration in accordance with the rules of the American Arbitration Association
then in effect. Any such arbitration will be conducted in the Metropolitan
Greater Cincinnati,
Ohio/Northern Kentucky area. The exact location and time of
the arbitration shall be agreed to by the parties and the panel. In the event
the parties cannot agree, the panel shall designate the location and time of the
arbitration. Either party may initiate arbitration by filing a demand for
binding arbitration in accordance with the Arbitration Rules. The parties shall
attempt to agree upon and appoint a panel of three (3) arbitrators promptly
after the demand is filed. Each of those arbitrators must have the requisite
qualifications to arbitrate the dispute. If the parties are unable to agree upon
the selection of arbitrators within ten (10) business days after the date the
dispute is submitted to arbitration, either party may request the American
Arbitration Association to appoint a panel of three (3) arbitrators who possess
the requisite qualifications to arbitrate the dispute. The arbitration shall be
binding in nature and the parties acknowledge that the decision is final, not
subject to judicial review, and may be entered and enforced in any Court of
competent jurisdiction. Unless otherwise agreed by the parties in advance of the
arbitration, each party shall be responsible for one-half (1/2) of the fees and
expenses incurred in connection with the alternative dispute methods described
herein above during the course of said process. Notwithstanding the foregoing,
the parties acknowledge and agree that the prevailing party in the arbitration
proceeding shall be entitled to recover applicable attorneys fees, all
reasonable out-of-pocket expenses, as well as any and all other costs associated
with the arbitration, including the Arbitrators' fees.
21. Prior Agreement. This Agreement shall supersede and cancel any
---------------
previous agreement entered into by and between the Employee and Company
regarding the subject matter.
IN WITNESS WHEREOF, this Agreement has been executed effective as of the
day and year first above written.
WITNESSES: XXXXXXX COMPUTER RESOURCES, INC.
By:
------------------------- -------------------------------
-------------------------
------------------------- ----------------------------------
XXXXXXX X. XXXXXX
-------------------------
