Exhibit 10.11
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT, dated the 21st day of March, 2002, between XXXX INDUSTRIES, INC., a
Delaware corporation having its principal place of business in Jamestown, New
York (the "Company"), and Xxxxx X. Xxxxx, residing at 0000 XxxXxxx Xxxxx,
Xxxxxxxxx, XX 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of the Company and its stockholders; and
WHEREAS, the Executive is being employed as President of the Xxxx Business
Furniture Division, and the retention of the Executive's services, for and on
behalf of the Company, is materially important to the preservation and
enhancement of the value of the Company's business; and
WHEREAS, the Executive is willing to serve in the employ of the Company as
President of the Xxxx Business Furniture Division for the period and on the
other terms and conditions hereafter stated;
NOW THEREFORE, the Company and the Executive hereby agree as follows:
1. Employment. The Company agrees to employ the Executive, and the
----------
Executive agrees to remain in the employ of the Company for the period
and on the other terms and conditions set forth below.
2. Term of Agreement. The initial period of employment under this
-----------------
Agreement shall commence on April 1, 2002, and shall end on the third
anniversary of such date, unless sooner terminated in accordance with
the terms and conditions hereinafter set forth or unless the term is
extended by way of the automatic renewal provision contained in this
Section. On each annual anniversary date of the commencement of the
initial term hereof, the term of employment hereunder shall, unless
the Company provides the Executive with written notice to the contrary
at least sixty (60) days prior to such annual anniversary date, be
renewed for a term of three (3) years commencing on that annual
anniversary date. In the event the Company provides such written
notice of nonrenewal to the Executive at least sixty (60) days prior
to an annual anniversary date, then the term hereof shall not be
extended, but the then current three (3) year term in effect shall
continue for the remaining two (2) years of its term.
3. Position and Responsibilities. During the period of employment, the
-----------------------------
Executive agrees to serve the Company and the Company agrees to employ
the Executive as its President of the Xxxx Business Furniture Division,
with the duties and responsibilities summarized in Attachment A
attached hereto.
4. Compensation. For all services rendered by the Executive to or for the
------------
Company and its affiliates in all capacities during the period of
employment, and for the undertakings as to Confidential Information and
Competition set forth in Sections 7 and 8 below, the Executive shall be
entitled to the following:
(a) a base salary, payable in installments not less frequent than
monthly, at the rate of Two Hundred Ten Thousand ($210,000)
Dollars during the initial six months of employment hereunder.
After the initial six months, the base salary will increase to
Two Hundred Twenty-Five Thousand ($225,000) Dollars. Salary
for any subsequent year shall be based upon the merit system
employed for senior management of the Company, but shall not
be less than the salary paid for the immediate preceding year;
and
(b) participation in the Company's profit sharing or executive
incentive plan as in effect as of the date hereof at the level
set forth in Attachment B attached hereto. The level of
participation in such plan in subsequent years shall be based
upon the merit system employed for senior management of the
Company, but shall not be less than the level of participation
for the immediate preceding year; and
(c) participation in all Company health, welfare, pension and
other employee benefit and fringe benefit plans (including
insurance plans and vacation plans or policies) in which all
other officers of the Company participate during the period of
employment, subject in all events to any changes to the terms
and conditions of such plans as in effect from time to time;
and
(d) participation in the other special allowance and bonus
arrangements more particularly described in Attachments B and
C attached hereto; and
(e) relocation assistance as described in Attachment D attached
hereto.
5. Termination of Employment During the Period of Employment.
---------------------------------------------------------
(a) Termination by the Company without Good Cause. The Company
----------------------------------------------
may terminate the Executive's employment without Good Cause
(as defined in Section 5(f), hereof) only upon sixty (60)
days prior written notice to the Executive. If the
Executive's employment with the Company is so terminated by
the Company and such termination is not a Constructive
Termination (as defined in Section 5(f), hereof), the
Company, subject to full compliance by the Executive with
the provisions of Sections 7 and 8 below, relating to
"Confidential Information" and "Competition; Detrimental
Conduct," shall pay the Executive, as severance pay, an
amount equal to the compensation and benefits that would be
payable to the Executive under Sections 4(a), 4(b), and 4(d)
above during the next succeeding twenty-four (24) month
period if such termination of employment had not occurred, at
the time(s), in the installment(s) and on the other terms and
conditions that would apply to the payment of such
compensation, provided, however, that for purposes of
determining the amount of profit sharing payable to
Executive under this Section 5(a), such profit sharing award
shall be determined based upon the four full fiscal quarters
of the Company immediately preceding the date of the
afore-described notice to the Executive of Executive's
termination hereunder, as described below.
The aggregate amount of such profit sharing payable every
three (3) months under this Section 5(a) shall equal the (i)
the average (the "Average") of the Company's return on sales
percentage (calculated before tax or any profit-sharing award)
for the above four fiscal quarters (determined by adding the
Company's return on sales percentage for each of the above
four fiscal quarters and dividing said sum by four), and (ii)
multiplied by the Executive's multiple, as set forth in
Attachment B, used in calculating the Executive's profit
sharing award during the last full fiscal quarter of the
Company prior to the date of the above-described notice of
termination, (iii) multiplied by the Executive's annual gross
base salary as of the date such notice is given hereunder,
(iv) with the resulting product multiplied by 2.0. By way of
illustration and not limitation, in the event on July 15, the
Company gives the
2
Executive the afore-described sixty day notice of termination,
the profit sharing award the Executive would be entitled to
hereunder would be the Average of the return on sales
percentage for the Company for the four full fiscal quarters
ending immediately prior to July 15. Accordingly, if the
return on sales percentage for quarter one was 7%, quarter
two, 11%, quarter 3, 15% and quarter four, 7%, the Average
would be determined by adding the return on sales percentage
for each of such fiscal quarters (which would result in the
sum of 40%), divided by 4, with a resulting Average
percentage of 10%. If the Executive's multiple in the last
full fiscal quarter of the Company immediately preceding the
date of notice of termination was 7, for example, the
Average percentage would be multiplied by 7, resulting in a
product of 70%, multiplied by the Executive's annual gross
base salary as of the date of such notice. If such gross
base annual salary, for example, was $100,000, the profit
sharing would equal $70,000, multiplied by 2.0 (the
equivalent of twenty-four months in years) or $140,000,
which would be paid in eight equal installments over the 24
month period, as part of the severance compensation
hereunder. In said example, the Executive would, therefore, be
entitled hereunder to an aggregate severance compensation
payable over said twenty-four month period equal to his
annual gross base salary during said twenty-four month period,
or $100,000 multiplied by 2.0 or $200,000, plus the
above-determined profit sharing award of $140,000, for a
total of $340,000, plus the other benefits and entitlements
the Executive is to receive hereunder.
For the purposes of this Agreement, a termination of
employment by the Executive that occurs after the Executive is
assigned (without his written consent) duties,
responsibilities or reporting relationships not contemplated
by Section 3 and not consistent with his position as a senior
executive, or after his duties or responsibilities
contemplated by Section 3 above are limited in any respect
materially detrimental to him, which situation is not remedied
within thirty (30) days after the Company receives written
notice from the Executive of the situation, shall be deemed a
termination by the Company without Good Cause under this
Section 5(a).
(b) Termination by the Company for Good Cause or by the Executive.
-------------------------------------------------------------
The Company may terminate the Executive's employment with the
Company with Good Cause, or the Executive may elect to
terminate his employment with the Company for any reason, upon
thirty (30) days prior written notice to the other party
hereto. If Executive's employment by the Company is so
terminated by the Company with Good Cause or is terminated by
the Executive, and such termination is not a Constructive
Termination, the Executive shall not be entitled to receive
any compensation or benefits under Sections 4(a), 4(b), or
4(d) accruing after the date of such termination or any
payment under Section 5(a), or otherwise, and Executive shall
continue to be bound by Sections 7 and 8.
(c) Constructive Termination. If, during the period of employment,
------------------------
the Executive's employment is terminated by the Company
subject to a Constructive Termination, or in the event that
portion of the Company's business with respect to which
primarily the Executive's duties relate, is sold,
liquidated, or otherwise ceased to be operated, then the
Company shall pay the Executive, as a severance payment, an
amount equal to the compensation and benefits that would
have been payable to the Executive under Sections 4(a), 4(b),
and 4(d), hereof during the next succeeding thirty (30)
month period if such termination of employment had not
occurred, such sum to be paid in a lump sum on or before the
tenth day following the date of termination, provided,
however, that for the purposes of this Section 5(c), such
profit sharing award shall be determined based upon the four
full fiscal quarters of the Company
3
immediately preceding the date of the termination, as
described below. Notwithstanding the foregoing, in the event
the Executive's employment with the Company is terminated
within three months prior to an event which otherwise would
have give rise to a termination with respect to which the
provisions of this Section 5(c) would have been applicable,
then the provisions of this Section 5(c) shall control.
The aggregate amount of such profit sharing payable under this
Section 5(c) shall equal the (i) the Average of the Company's
return on sales percentage (calculated before tax or any
profit-sharing award) for the above four fiscal quarters
(determined by adding the Company's return on sales percentage
for each of the above four fiscal quarters and dividing said
sum by four), and (ii) multiplied by the Executive's multiple,
as set forth in Attachment B hereto, used in calculating the
Executive's profit sharing award during the last full fiscal
quarter of the Company prior to the date of the
above-described termination, (iii) multiplied by the
Executive's annual gross base salary as of the date of
termination, (iv) with the resulting product multiplied by
2.5. By way of illustration and not limitation, in the event
on July 15, the Executive's employment is terminated, the
profit sharing award the Executive would be entitled to
hereunder would be the Average of the return on sales
percentage for the Company for the four full fiscal quarters
ending immediately prior to July 15. Accordingly, if the
return on sales percentage for quarter one was 7%, quarter
two, 11%, quarter 3, 15% and quarter four, 7%, the Average
would be determined by adding the return on sales percentage
for each of such fiscal quarters (which would result in the
sum of 40%), divided by 4, with a resulting Average percentage
of 10%. If the Executive's multiple in the last full fiscal
quarter of the Company immediately preceding the date of
termination was 7, for example, the Average percentage would
be multiplied by 7, resulting in a product of 70%, multiplied
by the Executive's annual gross base salary as of the date of
such termination. If such gross base annual salary, for
example, was $100,000, the profit sharing would equal $70,000,
multiplied by 2.5 or $175,000, which would be paid in the lump
sum payment described above. In said example, the Executive
would, therefore, be entitled hereunder to an aggregate
severance compensation payable in a lump sum equal to his
annual gross base salary during said three year period, or
$100,000 multiplied by 2.5 or $250,000, plus the
above-determined profit sharing award of $175,000, for a total
of $425,000, plus the other benefits and entitlements the
Executive is to receive hereunder.
If the lump sum payment under this Section 5(c), either alone
or together with other payments which the Executive has the
right to receive from the Company, would constitute a
parachute payment (as defined in Section 280G of the Internal
Revenue Code of 1986, as amended, (the "Code"), such lump sum
severance payment shall be reduced to the largest amount as
will result in no portion of the lump sum severance payment
under this Section 5(c) being subject to the excise tax
imposed by Section 4999 of the Code. The determination of any
reduction in the lump sum severance payment under this Section
5(c) pursuant to the foregoing provision shall be made by
independent counsel to the Company in consultation with the
independent certified public accountants of the Company.
(d) Continuation of Insurance upon Termination.
------------------------------------------
(i) Upon the termination of the employment of the
Executive pursuant to Sections 5(a), or 5(c), hereof,
the Executive shall be entitled to continuation of
coverage under the group health, life, and disability
plans then in effect
4
covering the Executive, or such similar plans as the
Company may provide for its executives from time to
time thereafter, but in no event shall such coverages
be less favorable than the group health, life, and
disability coverages provided by the Company as of
the date hereof. The Company shall be responsible for
paying all of the costs of such coverages that it
would have paid if the Executive was still in the
employ of the Company. Such coverages shall continue
until the earlier of the following dates: (i) the
date that the Executive is eligible for similar
employer-sponsored group coverage from a subsequent
employer, or (ii) the date the Executive attains age
65. The group health coverage shall cover the
Executive and his spouse and dependents. The life
insurance policy covering the life of the Executive
shall name as beneficiary the person or persons
designated from time to time by the Executive.
(ii) Upon the termination of employment of the Executive
pursuant to Section 5(b), hereof, the Executive shall
be entitled only to continuation of coverage under
the group health plans then in effect covering the
Executive and only to the extent required by the
provisions of ss. 4980B of the Internal Revenue Code,
as amended, and xx.xx. 601-608 of the Employee
Retirement Income Security Act of 1974, as amended.
As permitted under such statutes, the Executive shall
be responsible for paying the full cost of such
continuation coverage.
(e) Disability of Executive. In the event of the Executive's
-----------------------
disability (as hereinafter defined) during his employment
under this Agreement, the employment of the Executive and
this Agreement may be terminated by the Company nine (9)
months after the commencement of such disability; provided,
however, that upon any such termination, the Executive shall
be entitled to payment of the Severance payments provided
under Section 5(a) hereof, reduced by any benefits he may
receive under any short term disability and long term
disability plans sponsored by the Company covering its
senior management employees at the time that the Executive's
disability commences. During the period of the Executive's
disability, the Executive shall continue to receive the
compensation provided for in this Agreement, reduced by any
benefits he may receive under any short term disability and
long term disability plans sponsored by the Company covering
its senior management employees at the time that the
Executive's disability commences. If before the end of nine
months from the first day of disability, the Executive's
disability shall have ceased, and he shall have resumed the
full-time performance of his duties under this Agreement,
the Executive shall continue to receive the compensation
provided for in this Agreement. Provided, however, that
unless the Executive shall satisfactorily perform his duties
on a full-time basis under this Agreement for a continuous
period of at least sixty (60) calendar days following a
period of disability before the Executive again becomes
disabled, he shall not be entitled to begin a new nine month
period for such subsequent disability, and the subsequent
period of disability shall be added to the first in
determining whether the Executive has been disabled for nine
(9) months in connection with this Section. During the
period of his disability, the Executive shall be entitled to
benefits in accordance with and subject to the terms and
provisions of the Company's short-term disability income
plan and its long-term disability plan for its senior
management employees, as in effect at the time of the
commencement of disability. For purposes of this Agreement,
"disability" shall have the same meaning as given that term
under the Company's long term disability plan for its senior
management employees, as in effect from time to time.
5
(f) Definitions Applicable to this Section. For the purposes of this
--------------------------------------
Agreement:
(i) "Good Cause" shall mean the Executive willfully or
intentionally neglects to substantially perform
his duties with the Company, or the Executive
materially breaches any provision of this
Agreement, including Section 7 below, relating to
confidential information; provided, however, that
such willful or intentional neglect of duties or
the material breach hereof continues uncured by
the Executive for more than sixty (60) days after
written notice of such neglect or material breach
from the Company to the Executive. For purposes of
this Agreement, no act, or failure to act, on the
Executive's part shall be considered "willful" or
"intentional" unless done, or omitted to be done,
by him in bad faith and without reasonable belief
that his action or omission to act was in the best
interest of the Company. The Company shall also
have "Good Cause" to terminate the Executive if
the Executive commits an act or acts of dishonesty
resulting or intended to result directly or
indirectly in gain or personal enrichment at the
expense of the Company, its affiliates, or its
stockholders.
(ii) a "Constructive Termination" shall mean a termination
of this Agreement by the Executive under any of the
following circumstances:
(1) The Company is in material breach of any of
its obligations under this Agreement, and
the situation is not remedied within thirty
(30) days after the Company receives written
notice from the Executive of the situation,
or
(2) The Executive determines in good faith that,
as a result of Change in the Control of the
Company (as defined below) there is a
substantial adverse alteration in the nature
or status of the Executive's duties or
responsibilities from those in effect
immediately prior to the change in control
of the Company, and the situation is not
remedied within thirty (30) days after the
Company receives written notice from the
Executive of such determination, or
(3) Any termination of the Employee's employment
by the Company under Section 5(a), except a
termination pursuant to Section 5(b) hereof
by the Company with Good Cause, shall be
deemed a Constructive Termination if it
occurs within thirty-six (36) months
following the date of a Change in Control.
If the Executive is terminated by the
Company within thirty-six (36) months
following the date of a Change in Control,
the Company shall pay the Executive, as
severance pay, an amount equal to the
compensation and benefits that would be
payable to the Executive under Sections
4(a), 4(b), and 4(d) above during the next
succeeding thirty (30) month period if such
termination of employment had not occurred,
at the time(s), in the installment(s) and on
the other terms and conditions that would
apply to the payment of such compensation,
provided, however, that for purposes of
determining the amount of profit sharing
payable to Executive under this Section
5(f)(ii)(3), such profit sharing award shall
be determined based upon the four full
fiscal quarters of the Company immediately
preceding the date of the afore-described
notice to the Executive of Executive's
termination hereunder.
6
However, if the Executive elects to
terminate his employment by resigning from
the Company for any reason (upon thirty (30)
days prior written notice to the Company)
pursuant to Section 5(b), within thirty-six
months following the date of a Change in
Control, the Company shall pay the Executive
as severance pay, an amount equal to the
compensation and benefits that would be
payable to the Executive under Sections
4(a), 4(b), and 4(d) above during the next
succeeding twenty-four (24) month period if
such termination of employment had not
occurred, at the time(s), in the
installment(s) and on the other terms and
conditions that would apply to the payment
of such compensation, provided, however,
that for purposes of determining the amount
of profit sharing payable to Executive under
this Section 5(f)(ii)(3), such profit share
award shall be determined based upon the
four full fiscal quarters of the Company
immediately preceding the date of the
afore-described notice by the Executive to
the Company of Executive's termination
hereunder.
Such severance calculations shall be
consistent with the illustrations contained
in Section 5(a) and 5(c) of this Agreement.
(iii) "Change in Control of the Company" shall mean an
event which shall be deemed to have occurred if:
(1) any "person" as such term is used in Section
13(d) and 14(d) of the Securities Exchange
Act of 0000, (xxx "Xxxxxxxx Xxx") (other
than Xxxx X. Xxxx, the Company, any trustee
or other fiduciary holding securities under
any employee benefit plan of the Company, or
any Company owned, directly or indirectly,
by the stockholders of the Company in
substantially the same proportions as their
ownership of stock of the Company), is or
becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the
Company representing thirty percent (30%) or
more of the combined voting power of the
Company's then outstanding securities;
(2) during any period of two consecutive years,
individuals who at the beginning of such
period constitute the Board, and any new
director (other than a director designated
by a person who has entered into an
agreement with the Company to effect a
transaction described in clause (i), (iii),
or (iv) herein) whose election by the Board
or nomination for election by the Company's
stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then
still in office who either were directors at
the beginning of the period or whose
election or nomination for election was
previously so approved, cease for any reason
to constitute at least a majority thereof;
(3) the stockholders of the Company approve a
merger or consolidation of the Company with
any other corporation, other than a merger
----------
or consolidation which would result in the
voting securities of the Company outstanding
immediately prior thereto continuing to
7
represent (either by remaining outstanding
or by being converted into voting securities
of the surviving entity) more than eighty
percent (80%) of the combined voting power
of the voting securities of the Company or
such surviving entity outstanding
immediately after such merger or
consolidation; provided, however, that a
merger or consolidation effected to
implement a recapitalization of the Company
(or similar transaction) in which no
"person" (as hereinabove defined) acquires
more than twenty-five percent (25%) of the
combined voting power of the Company's then
outstanding securities shall not constitute
a change of control of the Company; or
(4) the stockholders (or if stockholder approval
is not required, then the Company's Board of
Directors) of the Company approve a plan of
complete liquidation of the Company or an
agreement for the sale or disposition by the
Company of all or substantially all of the
Company's assets; or
(5) Xxxx Xxxx ceases to own capital stock of the
Company having fifty one percent (51%) of
the total voting control of the Company.
6. Obligation to Mitigate Damages. The Executive shall not be required to
------------------------------
mitigate the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of any
payment hereunder be reduced by any compensation earned by the
Executive as the result of employment by another employer after
termination of the Executive.
7. Confidential Information. Except as required in the course of his
-------------------------
employment, the Executive agrees not to disclose to others or permit
such disclosure, or make use of or permit the use of for his own
benefit or the benefit of others, any confidential information,
without the prior written consent of the Company. Confidential
information as used in this Agreement includes any information,
whether of a financial, technical or marketing nature, that pertains
to the present or prospective business of the Company or any affiliate
of the Company, or of any present or prospective customer, consultant
or supplier of the Company or of any other party with which the
Company does business and may be contractually or otherwise obligated
to maintain such information secret, and becomes known to Executive or
is generated by the Executive in the course of his employment with the
Company, including, but not limited to, manufacturing equipment,
processes and materials, data, know-how, experience, names, buying
habits, or practices of any customers, marketing methods and related
data, the names of any vendors or suppliers, costs of materials,
prices, manufacturing and sales costs or lists or other written
records. Confidential information, however, shall not include
information that is, or through no fault of the Executive becomes,
generally and overtly known in the industry in which the Company
competes. The Executive also agrees that upon leaving the Company's
employ he will not take with him, without the prior written consent of
the Company, and he will surrender to the Company, any record, list,
drawing, blueprint, specification or other document or property of the
Company or any subsidiary thereof, together with any copy or
reproduction thereof, mechanical or otherwise, which is of a
confidential nature relating to the Company or any affiliate of the
Company, or, without limitation, relating to its or their methods of
distribution, suppliers, customers, client relationships, marketing
strategies or any description of any formulae or secret processes, or
which was obtained by him or entrusted to him during the course of his
employment with the Company or which otherwise contains confidential
information.
8
8. Competition, Detrimental Conduct.
--------------------------------
(a) The Executive covenants and agrees that during the six (6)
months following the termination of his employment with the
Company for any reason whatsoever, he will not engage in
"Competition" with the Company. For purposes of this Section
8, "Competition" shall mean:
(i) Directly or indirectly, either as a principal, agent
employer, partner, director, stockholder or
otherwise, engaging in, or being interested in, any
ready-to-assemble furniture company as
specified in Attachment E in competition with the
business of the Company or any affiliate of the
Company, including, without limitation, taking a
management, advisory, sales, or ownership position
with, or control of, a business engaged in the
design, manufacturing, marketing, distribution or
sale of ready-to-assemble furniture products in
any geographical area in which the Company or any
affiliate of the Company is at the time engaging
in the design, manufacturing, marketing,
distribution, or sale of such products; provided,
however, that in no event shall ownership of less
than five percent (5%) of the outstanding capital
stock entitled to vote for the election of
directors of a corporation with a class of equity
securities held of record by more than five
hundred (500) persons, standing alone, be deemed
Competition with the Company within the meaning of
this Section 8(a).
(ii) Soliciting any person who is a supplier or customer
of the businesses conducted by the Company, or any
business in which the Executive has been engaged on
behalf of the Company, or any affiliate of the
Company, at any time during the period of employment
on behalf of a business described in clause (i) of
this Section 8(a).
(iii) Inducing or attempting to persuade any employee of
the Company or any of its affiliates to terminate his
employment in order to enter into employment with a
business described in clause (i) of this Section
8(a). The Executive recognizes and agrees that the
restrictions on his activities contained in this
Section 8 are required for the reasonable protection
of the Company and its investments.
(b) The Executive recognizes and agrees that, by reason of his
knowledge, experience, skill and ability, his services are
extraordinary and unique, that the breach or attempted breach
of the restrictive covenants set forth in Section 7 or Section
8(a) above will result in immediate and irreparable injury to
the Company for which the Company will not have an adequate
remedy at law, and that the Company shall be entitled to a
decree of specific performance of those covenants and to a
temporary and permanent injunction enjoining the breach
thereof, and to seek any and all other remedies to which the
Company may be entitled, including, without limitation,
monetary damages, without posting bond or furnishing security
of any kind.
(c) The Executive agrees that the Company shall not be obligated
to make any further payments provided for in Section 5(a), or
otherwise above if the Executive shall, during the period in
which such payments are being made, engage in Competition with
the Company as defined in Section 8(a) above, breach his
obligations under Section 7, or otherwise act or conduct
himself to the detriment of the Company or any affiliates. The
provisions of this Section 8(c) and Section 8(b) are in
addition to
9
and not by way of limitation of any other rights or remedies
available to the Company.
9. Severability.
------------
(a) In the event that any provision of this Agreement shall be
determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement
not so invalid or unenforceable shall be unaffected thereby
and shall remain in full force and effect to the fullest
extent permitted by law.
(b) Any provision of this Agreement which may be invalid or
unenforceable in any jurisdiction shall be limited by
construction thereof, to the end that such provision shall be
valid and enforceable in such jurisdiction; and
(c) Any provision of this Agreement which may for any reason be
invalid or unenforceable in any jurisdiction shall remain in
effect and be enforceable in any jurisdiction in which such
provision shall be valid and enforceable.
10. General Provisions.
------------------
(a) No right of the Executive to or in any payments under this
Agreement shall be subject to anticipation, alienation, sale,
assignment, encumbrance, pledge, charge or hypothecation or to
execution, attachment, levy or similar process, or assignment
by operation of law.
(b) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York without
giving effect to the principles of conflicts of laws thereof.
(c) This Agreement shall be binding upon and inure to the benefit
of the Company, its successors and assigns, and the Executive,
his heirs, legatees, distributees and legal representatives;
provided, however, the Executive may not assign his rights or
delegate his duties under this Agreement without the consent
of the Company and any purported assignment or delegation
shall be void.
(d) All claims, disputes and other matters in question between the
Company and the Executive arising out of or relating to this
Agreement, including the breach or enforcement thereof,
shall be decided by arbitration held in Jamestown, New York,
in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, unless the parties
otherwise mutually agree; provided, however, that this
arbitration provision shall not prevent the Company from
obtaining a temporary restraining order or preliminary
injunction from a court of competent jurisdiction pending
final resolution by arbitration of a claim, dispute or other
matter arising hereunder. The foregoing Agreement to
arbitrate shall be specifically enforceable under the
prevailing arbitration rules. Any award rendered by the
arbitrator(s) shall be final, and judgment may be entered
thereon in any court having jurisdiction thereof. All fees
and charges of the American Arbitration Association, and the
legal fees and other costs and expenses of the parties,
shall be borne as the arbitrators shall determine in their
award. Notice of demand for arbitration shall be filed in
writing with the other party to this Agreement and with the
American Arbitration Association. The demand for arbitration
shall be made within a reasonable time after
10
the claim, dispute or other matters in question have arisen
but in no event after the date when institution of legal or
equitable proceedings based on such claim, dispute or other
matters in question would be barred by the applicable statute
of limitations.
(e) Any notice or other communication to the Company pursuant to
any provision of this Agreement shall be given in writing and
will be deemed to have been delivered
(i) when delivered in person to the Corporate Secretary
of the Company, or
(ii) one week after it is deposited in the United States
certified or registered mail, postage prepaid,
addressed to the Corporate Secretary of the Company
at Xxx Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, or at
such other address of which the Company may from time
to time give the Executive written notice in
accordance with Section 10(f) below.
(f) Any notice or other communication to the Executive pursuant to
any provision of this Agreement shall be in writing and will
be deemed to have been delivered
(i) when delivered to the Executive in person, or
(ii) one week after it is deposited in the United States
certified or registered mail, postage prepaid,
addressed to the Executive at the address set forth
on the first page hereof, and/or at such other
address of which the Executive may from time to time
give the Company written notice in accordance with
Section 10(e) above.
(g) No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver shall be
agreed to in writing, signed by the Executive and an
authorized officer of the Company.
(h) An affiliate of the Company is any person that directly or
indirectly controls, is controlled by, or is under common
control with, the Company. An affiliate shall not, however,
include any business enterprise owned or controlled by Xx.
Xxxx X. Xxxx other than the Company and its direct and
indirect subsidiaries unless such business enterprise is
engaged in a business of a type conducted by the Company or
its subsidiaries.
(i) This instrument contains the entire agreement of the parties
relating to the subject matter of this Agreement and
supersedes and replaces all prior agreements and
understandings with respect to such subject matter, and the
parties have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not
set forth herein.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
XXXX INDUSTRIES, INC.
By: _/s/_______________
/s/_______________
Xxxxx X. Xxxxx
12
