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EMPLOYMENT AGREEMENT
This Agreement is made and entered into effective as of April
1, 1997 by and between Credit Store, Inc., a Delaware corporation ("Employer"),
and Xxxxx
Xxxxxxx ("Employee").
Employer hereby agrees to employ Employee, and Employee hereby
accepts such employment, on the terms and conditions hereinafter set forth.
1. Period of Employment. The period of Employee's employment
under this Agreement (the "Period of Employment") shall commence on the date
hereof (the "Effective Date") and shall expire on March 31, 2002 (the
"Expiration Date"), subject to any extension as may be agreed or any earlier
termination of Employee's employment as provided in Section 6 hereof. Upon the
expiration of the initial term of this Agreement, and each subsequent term or
extension thereof, this Agreement shall automatically be extended for an
additional term of one year, unless the Employer or the Employee shall have
notified the other party hereto of its election to terminate this Agreement not
later than 90 days prior to the scheduled Expiration Date. If Employee's
employment is terminated pursuant to Section 6 hereof, the Period of Employment
shall expire as of the Date of Termination (as hereinafter defined).
2. Duties. During the Period of Employment, Employee will
faithfully perform those duties and responsibilities assigned by the Board of
Directors of Employer (the "Board") and Employee will devote his full working
time and use his best efforts to advance the business and welfare of Employer in
furtherance of the policies
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established by the Board. It is understood that the office at which Employee
will be primarily located will be in Northern New Jersey or Rockland County or
Westchester County, New York, but that the Employee's duties and
responsibilities will require travel away from his office. During the Period of
Employment, Employee shall not engage in any other employment activities for any
direct or indirect remuneration without the concurrence of the Board, except
that Employee may continue to devote reasonable time to the management of
investments and to participation in community and charitable affairs, so long as
such activities do not interfere with his duties under this Agreement. Employee
shall have such title as the Board shall determine from time to time; Employee's
initial title is set forth on Exhibit A hereto.
3. Compensation.
3.1 Base Salary. During the Period of Employment, Employer shall
pay Employee a Base Salary at the rate of $300,000 per annum payable at least as
frequently as bi-weekly and subject to payroll deductions as may be necessary or
customary in respect of Employer's salaried employees in general. The amount of
Employee's Base Salary shall be subject to annual review by the Board, provided
that the level of such Base Salary shall not be subject to reduction.
3.2 Initial Payment. In addition to the foregoing Base Salary
and as an inducement to and in consideration for Employee entering into this
five year Employment Agreement, the Employer is paying to the Employee
simultaneously with the execution hereof the sum of $2,000,000.
3.3 Options. Simultaneously herewith Employer is granting the
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Employee an option (the "Option") to purchase 300,0000 shares of common stock
of the Employer at $7-3/8 share (the market price of the shares as of the date
hereof). The Option may only be exercised after two years from the date hereof.
The Options shall expire on the earlier of (a) five years from the date hereof,
(b) termination of Employee's employment pursuant to Section 6.1(c)(ii) hereof,
and (c) Employee terminating his employment hereunder prior to any material
breach hereof by Employer.
The Option shall be in substantially the form of Exhibit B hereto.
4. Benefits. During the Period of Employment, Employee shall
be entitled to participate in all fringe benefit programs (the "Fringe
Benefits") such as medical and dental coverage, life insurance, pension and
profit-sharing plans, etc., that may be maintained by Employer that are
available to its executive officers generally. Any payments or benefits payable
to Employee hereunder in respect of any calendar year during which Employee is
employed by Employer for less than the entire year shall, unless otherwise
provided in the applicable plan or arrangement, be prorated in accordance with
the number of days in such calendar year during which he is so employed.
Employee acknowledges that he shall have no vested rights under or to
participate in any such program except as expressly provided under the terms
hereof or thereof.
5. Expenses. Employer will pay or reimburse Employee for such
reasonable travel, entertainment or other expenses as he may incur on behalf of
Employer during the Period of Employment in connection with the performance of
his duties hereunder but only to the extent that such expenses were either
specifically
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authorized by Employer or incurred in accordance with policies established by
the Board and provided that Employee shall furnish Employer with such evidence
relating to such expenses as Employer may reasonably require to substantiate
such expenses for tax purposes.
6. Termination of Employment.
6.1 Circumstances of Termination. Notwithstanding the
terms set forth in Section 1 hereof, Employee's employment shall terminate under
any of the following circumstances:
(a) Death. In the event of Employee's death.
(b) Permanent Disability. If during the Period of
Employment Employee becomes physically or mentally incapacitated or disabled so
that (i) he is unable to perform for Employer substantially the same services as
he performed prior to incurring such incapacity or disability or to devote his
full working time or use his best efforts to advance the business and welfare of
Employer or otherwise to perform his duties under this Agreement and (ii) such
condition exists for an aggregate of six months in any 12 consecutive calendar
month period (Employer, at its option and expense, being entitled to retain a
physician reasonably acceptable to Employee to confirm the existence of such
incapacity or disability, and the determination of such physician being birding
upon Employer and Employee).
(c) Cause. At the option of Employer, because
Employee:
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(i) has been convicted of, or has pled guilty or
nolo contendere to, a felony, or
(ii) has embezzled or misappropriated Employer
funds or property, or
(iii) has continued use of alcohol or drugs to an
extent that interferes with the performance by Employee of
his employment responsibilities, or
(iv) has materially violated Section 8.1, Section
8.2, Section 8.3 or Section 8.4 hereof, or
(v) has willfully failed or refused to perform
those duties reasonably assigned or delegated to him by
the Board of Directors, which failure or refusal continues
following (A) the Board of Directors giving the Employee
written notice setting forth the facts or events
constituting such failure or refusal and (B) a reasonable
opportunity to correct the deficiencies or other problems
specified in such notice to the reasonable satisfaction of
the Board of Directors.
(d) Not For Cause. At the option of Employer at
any time for any reason other than those referred to above or for no reason at
all, whereupon the Employer shall become obligated to make those payments set
forth in Section 7.1(d) hereof. If Employer shall be in material breach of this
Agreement and by
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reason thereof Employee terminates his employment hereunder, such termination
shall be deemed a termination by Employer pursuant to this Section 6.1(d).
6.2 Notice of Termination. Any termination of Employee's
employment by Employer (other than termination pursuant to Section 6.1(a)
hereof) or by Employee shall be communicated by written Notice of Termination to
the other party hereto in accordance with Section 9.2. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice terminating Employee's
employment by Employer. If a Notice of Termination is given by Employer, such
notice shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
that provide a basis for termination of Employee's employment under the
provision so indicated. For purposes of this Agreement, the "Date of
Termination" shall be the date on which the Notice of Termination is delivered
except that with respect to Section 6.1(a) the "Date of Termination" shall be
the date of Employee's death.
7. Payments Upon Termination of Employment.
7.1 Payments. In the event that Employee's employment is
terminated prior to the Expiration Date (including any extension thereof), the
Period of Employment shall expire as of the Date of Termination.
(a) If Employer terminates Employee's employment for
Cause or if Employee voluntarily terminates his employment other than as a
result of Employer's material breach of the terms of this Agreement, Employer's
obligation to compensate Employee shall in all respects cease as of the Date of
Termination, except
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that Employer shall pay Employee the Base Salary accrued under Section 3, any
Fringe Benefits accrued under Section 4 and the reimbursable expenses incurred
under Section 5 of this Agreement up to such Date of Termination (the "Accrued
Obligations");
(b) If Employee's employment is terminated upon the
death of Employee, Employer's obligation to compensate Employee shall in all
respects cease as of the Date of Termination, except that within thirty (30)
days after the Date of Termination Employer shall (i) pay Employee's estate or
legal representative the Accrued Obligations and (ii) continue to maintain
during the six month period following the Date of Termination for the benefit of
the Employee's dependents, basic health and dental insurance and related medical
expenses coverage on terms no less favorable to the Employee than Employer
provides to its executive officers generally, as such benefits may be modified
from time to time during such period;
(c) If Employee's employment is terminated upon the
Permanent Disability of Employee, Employer's obligation to compensate Employee
shall in all respects cease as of the Date of Termination, except that within
thirty (30) days after the Date of Termination Employer shall (i) pay Employee
Accrued Obligations and a lump sum payment equal to 25% of the Employee's annual
Base Salary payable under Section 3 hereof at the rate in effect immediately
prior to such termination less the amount of any disability payments payable to
Employee during the six-month period following the Date of Termination pursuant
to any Employer-paid or
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state sponsored insurance policy or employer self-insured program and (ii)
continue to maintain during the six-month period following the Date of
Termination for the benefit of Employee and his dependents, basic health,
disability and dental insurance and related medical expenses coverage on terms
no less favorable to the Employee than Employer provides to its executive
officers generally, as such benefits may be modified from time to time during
such period provided that the Employee shall continue to be obligated to make
any contributions or payments in connection with such benefits to the same
extent as other executive officers generally; and
(d) If Employee's employment is terminated by
Employer pursuant to Section 6.1(d), Employer's obligation to compensate
Employee shall in all respects cease, except that within thirty (30) days after
the Date of Termination Employer shall pay to Employee the Accrued Obligations
and during the period ending on the Expiration Date (the "Severance Period"),
Employer shall (i) pay to Employee on a monthly basis the sum of one-twelfth
(1/12th) of the annual Base Salary of Employee in effect at the Date of
Termination (the "Continuation Payments") and (ii) continue to maintain, during
the Severance Period for the benefit of the Employee and his dependents, basic
health, dental and life insurance and related medical expenses coverage
(including disability and hospitalization coverage) (the "Continuation
Benefits") on terms no less favorable to the Employee than the Employer provides
to its executive officers generally, as such benefits may be modified from time
to time during the Severance Period. During the Severance Period, Employee shall
be required to make any contributions required to maintain such Continuation
Benefits, which may be
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withheld from the Continuation Payments; provided that such contributions are
also required to be made by the Employer's executive officers generally. If at
any time during the Severance Period Employee shall obtain employment with a
third party (the "Substitute Employer") in which Employee is entitled to receive
basic health benefits in connection with such employment on terms provided by
the Substitute Employer to its similarly situated employees generally, the
Employer shall no longer be required to provide Continuation Benefits to the
Employee, regardless of whether such benefits differ in any respect from the
Continuation Benefits. The Employer shall be excused from its obligations to
make payments under this Section 7.1(d) if the Employee breaches its obligations
hereunder (including its obligations under Article 8 hereof).
7.2 Release and Satisfaction. With respect to
Employee, his heirs, successors and assigns, payment by Employer of the amounts
provided under this Section 7 shall release, relinquish and forever discharge
Employer and any director, officer, employee, shareholder or agent of Employer
from any and all claims, damages, losses, costs, expenses, liabilities or
obligations, whether known or unknown (other than any such claims, damages,
losses, costs, expenses, liabilities or obligations (a) covered by any
indemnification arrangement of Employer with respect to Employee or (b) arising
under any written employee benefit plan or arrangement (whether or not
tax-qualified) covering Employee, which Employee has incurred or suffered or may
incur or suffer as a result of the termination of such employment.
7.3 Effect on This Agreement. Any termination of
Employee's employment and any expiration of the Period of Employment under this
Agreement
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shall not affect the continuing operation and effect of Sections 7.2, 8.1, 8.2,
8.3, 8.4 and 8.5 hereof, which shall continue in full force and effect with
respect to Employer and Employee, and its and his heirs, successors and assigns.
Nothing in Section 7.1 hereof shall be deemed to operate or shall operate as a
release, settlement or discharge of any action or omission by Employee
enumerated in Section 6.1(c) hereof as a possible basis for termination of
Employee's employment for Cause.
7.4 No Mitigation. Subject to the provisions of
Sections 8.1, 8.2, 8.3, 8.4 and 8.5 hereof, Employee shall be free to accept
such employment and engage in such business as Employee may desire following the
termination of his employment hereunder, and any compensation received by
Employee therefrom shall not reduce any payments required to be made by Employer
hereunder.
8. Non-disclosure of Proprietary Information, Surrender of
Records, Inventions and Patents: Non-Compete.
8.1 Proprietary Information. Employee shall not
during the Period of Employment or at any time thereafter (irrespective of the
circumstances under which Employee's employment by Employer terminates),
directly or indirectly use for his own purpose or for the benefit of any person
or entity other than Employer, nor otherwise disclose, any proprietary
information, as defined below, to any individual or entity, unless such
disclosure has been authorized in writing by the Board or is otherwise required
by law. For purposes of this Agreement, the term "proprietary information" shall
include, but is not limited to: (a) the name or address of any customer, vendor
or affiliate or Employer or any information concerning the
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transactions or relations of any customer, vendor or affiliate of Employer with
Employer or any of its shareholders; (b) any information concerning any product,
technology or procedure employed by Employer but not generally known to its
customers, vendors or competitors, or under development by or being tested by
Employer but not at the time offered generally to customers or vendors; (c) any
information relating to Employer's computer software, computer systems, pricing
or marketing methods, margins, capital structure, operating results, borrowing
arrangements or business plans; (d) any information which is generally regarded
as confidential or proprietary in any line of business engaged in by Employer;
(e) any information contained in any of Employer's written or oral policies and
procedures or employee manuals; (f) any information belonging to customers,
vendors or affiliates of Employer which Employer has agreed to hold in
confidence; (g) any inventions, innovations or improvements covered by Section
8.3 below, (h) any other information which the Board has reasonably determined
by resolution and communicated to Employee to be confidential or proprietary;
and (i) all written, graphic and other material relating to any of the
foregoing. Information that is not novel or copyrighted or patented may
nonetheless be proprietary information. Proprietary information, however, shall
not include (i) any information that is or becomes generally known to the
industries in which Employer competes through sources independent of Employer or
through authorized publication to persons other than Employer's employees by
Employer or (ii) other non-sensitive information that may be disclosed by
Employee in the ordinary course of business, the disclosure of which is not
reasonably likely to adversely affect Employer's business
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operations, their relationships with customers, vendors or employees or the
results of their operations.
8.2 Confidentiality and Surrender of Records.
Employee shall not during the Period of Employment or at any time thereafter
(irrespective of the circumstances under which Employee's employment by Employer
terminates), except as required by law, directly or indirectly give any
"confidential records" (as hereinafter defined) to, or permit any inspection or
copying of confidential records by, any individual or entity other than in the
course of such individual's or entity's employment or retention by Employer, nor
shall he retain, and will deliver promptly to Employer, any of the same
following termination of his employment. For purposes hereof, "confidential
records" means all correspondence, memoranda, files, manuals, books, lists,
financial, operating or marketing records, magnetic tape, or electronic or other
media or equipment of any kind which may be in Employee's possession or under
his control or accessible to him which contain any proprietary information as
defined in Section 8.1. above. All confidential records shall be and remain the
sole property of Employer during the Period of Employment and thereafter.
8.3 Inventions and Patents: All inventions,
innovations or improvements in Employer's method of conducting its business
(including policies, procedures, products, improvements, software, ideas and
discoveries, whether paten-table or copyrightable or not) conceived or made by
Employee, either alone or jointly with others, during the Period of Employment
belong to Employer. Employee will promptly disclose in writing such inventions,
innovations or improvements to the Board
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and perform all actions reasonably requested by the Board to establish and
confirm such ownership by Employer, including, but not limited to, cooperating
with and assisting Employer in obtaining patents for Employer in the United
States and in foreign countries. Any patent application filed by Employee within
a year after termination of his employment hereunder shall be presumed to relate
to an invention which was made during the Period of Employment unless Employee
can provide evidence to the contrary.
8.4 Covenant Not to Compete: No Solicitation.
(a) Employee acknowledges and recognizes the
highly competitive nature of Employer's business and, in consideration of the
payment by Employer to Employee of amounts that may hereafter be paid to
Employee pursuant to Sections 7.1 and 8.4(d) hereof, Employee agrees that,
provided he receives the applicable payments provided for in Section 7.1 and
8.4(d) hereof, during the period (the "Covered Time") beginning on the Date of
Termination
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and ending (i) if Employee's employment is terminated for any reason
other than pursuant to Section 6.1(d) hereof, on the second anniversary of the
Date of Termination or (ii) if Employee's employment is terminated pursuant to
Section 6.1(d) hereof and subject to Section 8.4(d) hereof, on the earlier of
(A) the first anniversary of the Date of Termination or (B) the Expiration Date,
Employee will not compete with the business of Employer, which means that
Employee will not engage, directly or indirectly, in the "Covered Business" (as
hereinafter defined) in any state of the United States of America in which the
Employer is conducting business or proposes to conduct business as of the Date
of Termination and any states contiguous herewith (these areas are hereinafter
collectively referred to as the "Covered Area"). For the purpose of this
Agreement (i) "Covered Business" shall mean the businesses in which Employer or
any "affiliate" of Employer was engaged at any time during the one year period
preceding the Date of Termination; and (ii) the phrase "engage, directly or
indirectly" shall mean engaging directly or having an interest, directly or
indirectly, as owner, partner, shareholder, employee, independent contractor,
capital investor, lender, renderer of consultation services or advice or
otherwise (other than as the holder of less than 2% of the outstanding stock of
a publicly-traded corporation), either alone or in association with others, in
the operation of any aspect of any type of business or enterprise engaged in any
aspect of the Covered Business. Employee shall be deemed engaged in business in
the Covered Area if his place of business is located in the Covered Area or if
he solicits customers located anywhere in, or provides products anywhere in, the
Covered Area. For all purposes of this Agreement, the term "affiliate(s)" shall
be defined as the term "affiliate" is defined in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934.
(b) Employee agrees that during the term of
this Agreement (including any extension thereof) and during the Covered Time he
shall not (i) directly or indirectly solicit or attempt to solicit any of the
employees, agents or representatives of Employer or of affiliates of Employer to
leave any of such entities; (ii) directly or indirectly solicit or attempt to
solicit any of the employees, agents, consultants or representatives of Employer
or of affiliates of Employer to become
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employees, agents, representatives or consultants or any other person or entity;
or (iii) directly or indirectly solicit or attempt to solicit any customer,
vendor or lender of Employer or of affiliates of Employer with respect to any
product or service being furnished by Employer.
(c) Employee understands that the provisions
of Section 8.4(a) may limit his ability to earn a livelihood in a business which
is substantially similar to the business of Employer but nevertheless agrees and
hereby acknowledges that the consideration provided under this Agreement,
including any amounts or benefits provided under Section 7 hereof, is sufficient
to justify the restrictions contained in such provisions and in consideration
thereof and in light of Employee's education, skills and abilities, Employee
agrees that he will not assert that, and it should not be considered that, such
provisions prevent him from earning a living or otherwise are void or
unenforceable or should be voided or held unenforceable. Employee acknowledges
and agrees that his duties with Employer are of an executive nature and that he
is a member of Employer's management group.
(d) If Employee's employment is terminated
pursuant to Section 6.1(d) hereof, Employer may extend the Covered Time to
extend up to and through the second anniversary of the Date of Termination, but
no later than the first anniversary of the Expiration Date by delivering written
notice to Employee (specifying the duration of the extended Covered Time),
within ten (10) days of such Date of Termination, that Employer has elected to
continue to pay to Employee the Continuation Payments (except that during any
period of Covered Time that extends
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beyond the Expiration Date, the Continuation Payments shall be increased by an
additional 50% thereof) and provide the Continuation Benefits (on terms no less
favorable to Employee than Employer provides to its executive officers
generally, as such benefits may be modified from time to time) for each month of
such extended Covered Time. During the extended Covered Time, Employee shall be
required to make any contributions required to maintain such Continuation
Benefits, which may be withheld from the Continuation Payments; provided that
such contributions are also required to be made by the Employer's executive
officers generally. If at any time during the extended Covered Time Employee
shall obtain employment with a Substitute Employer in which Employee is entitled
to receive basic health benefits in connection with such employment on terms
provided by the Substitute Employer to its similarly situated employees
generally, Employer shall no longer be required to provide Continuation Benefits
to the Employee, regardless of whether such benefits differ in respect from the
Continuation Benefits. Employer shall be excused from its obligations to make
payments under this Section 8.4(d) if Employee breaches its obligations
hereunder.
8.5 Litigation Assistance. Employee agrees that after
the Date of Termination he shall, at the request of Employer, render all
reasonable assistance and perform all lawful acts that Employer considers
necessary or advisable in connection with any litigation involving Employer or
any director, officer, employee, shareholder, agent, representative, consultant,
customer or vendor of Employer. In the event that Employer requests Employee's
assistance under this Section 8.5, Employer
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shall pay to Employee for each day such assistance is rendered an amount equal
to the annual Base Salary of Employee in effect at the Date of Termination
divided by 250 and shall promptly pay or reimburse Employee for such reasonable
travel expenses as he may incur in connection with rendering assistance
hereunder.
8.6 Definition of Employer. For purposes of this
Section 8, the term Employer shall include Employer and any and all of its
subsidiaries, ventures or affiliates, whether currently existing or hereafter
formed, which are engaged in the Covered Business or a portion thereof, as well
as any person to whom this Agreement is assigned as permitted by Section 9.8
hereof.
8.7 Enforcement.
(a) The parties hereto agree and
acknowledge that the covenants and agreements contained herein are reasonably
necessary in duration and to protect the reasonable competitive business
interests of Employer, including, without limitation, the value of the
proprietary information and goodwill of Employer.
(b) Employee agrees that the covenants and
undertakings contained in Article 8 of this Agreement relate to matters which
are of a special, unique and extraordinary character and that Employer cannot be
reasonably or adequately compensated in damages in an action at law in the event
Employee breaches any of these covenants or undertakings. Therefore, Employee
agrees that Employer shall be entitled, as a matter of course, without the need
to prove irreparable injury, to an injunction, restraining order or other
equitable relief from any court of
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competent jurisdiction restraining any violation or threatened violation of any
of such terms by Employee and such other persons as the court shall order.
Employee agrees to pay costs and legal fees incurred by Employer provided
Employer is successful in obtaining such injunction.
(c) Rights and remedies provided for in
this Section are cumulative and shall be in addition to rights and remedies
otherwise available to the parties under any other agreement or applicable law.
(d) In the event that any provision of this
Agreement shall to any extent be held invalid, unreasonable or unenforceable in
any circumstance, the parties hereto agree that the remainder of this Agreement
and the application of such provision of this Agreement to other circumstances
shall be valid and enforceable to the fullest extent permitted by law. If any
provision of this Agreement, or any part thereof, is held to be unenforceable
because of the scope or duration of or the area covered by such provision, the
parties hereto agree that the court or arbitrator making such determination
shall reduce the scope, duration and/or area of such provision (and shall
substitute appropriate provisions for any such unenforceable provisions) in
order to make such provision enforceable to the fullest extent permitted by law,
and/or shall delete specific words and phrases, and such modified provision
shall then be enforceable and shall be enforced. The parties hereto recognize
that if, in any judicial proceeding, a court shall refuse to enforce any of the
separate covenants contained in this Agreement, then that unenforceable covenant
contained in this Agreement shall be deemed eliminated from these provisions to
the extent necessary to permit the
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remaining separate covenants to be enforced. In the event that any court or
arbitrator determines that the time period or the area, or both, are
unreasonable and that any of the covenants is to that extent unenforceable, the
parties hereto agree that such covenants will remain in full force and effect,
first, for the greatest time period, and second, in the greatest geographical
area that would not render them unenforceable.
9. Miscellaneous.
9.1 Key Man Insurance. Employee recognizes
and acknowledges that Employer or its affiliates may seek and purchase one or
more policies providing key man life insurance with respect to Employee, the
proceeds of which would be payable to Employer or such affiliate. Employee
hereby consents to Employer or its affiliates seeking and purchasing such
insurance and will provide such information, undergo such medical examinations
(at Employer's expense), execute such documents, and otherwise take any and all
actions necessary or desirable in order for Employer or its affiliates to seek,
purchase and maintain in full force and effect such policy or policies.
9.2 Notice. Any notice required or permitted
to be given hereunder shall be deemed sufficiently given if sent by registered
or certified mail, postage prepaid, addressed to the addressee at his or its
address last provided the sender in writing by the addressee for purposes of
receiving notices hereunder or, unless or until such address shall be so
furnished, to the address indicated opposite his or its signature to this
Agreement. For purposes of this Agreement, notice sent in conformity with this
Section 9.2 shall be deemed to have been received on the third
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business day following the date on which such notices are so sent.
9.3 Modification and No Waiver of Breach. No waiver
or modification of this Agreement shall be binding unless it is in writing
signed by the parties hereto. No waiver or modification of this Agreement shall
be binding unless it is in writing signed by the parties hereto. No waiver by a
party of a breach hereof by the other party shall be deemed to constitute a
waiver of a future breach, whether of a similar or dissimilar nature, except to
the extent specifically provided in any written waiver under this Section 9.3.
9.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND ALL QUESTIONS RELATING TO THE VALIDITY AND PERFORMANCE HEREOF AND
REMEDIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
9.5 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same agreement.
9.6 Captions. The captions used herein are for ease
of reference only and shall not define or limit the provisions hereof.
9.7 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto relating to the matters encompassed
hereby and supersedes any prior oral or written agreements.
9.8 Assignment. The rights of Employer under this
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Agreement may, without the consent of Employee, be assigned by Employer to any
person, firm, corporation, or other business entity which at any time, whether
by purchase, merger, or otherwise, directly or indirectly, acquires all or
material portions of the stock, assets or any line of business of Employer,
provided such assignee assumes all of the obligations of Employer under this
Agreement.
9.9 Non-Transferability of Interest. None of the
rights of Employee to receive any form of compensation payable pursuant to this
Agreement shall be assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the death of
Employee. Any attempted assignment, transfer, conveyance, or other disposition
(other than as aforesaid) of any interest in the rights of Employee to receive
any form of compensation to be made by Employer pursuant to this Agreement shall
be void.
9.10 Arbitration. The parties shall endeavor to
settle all disputes by amicable negotiations. Except as otherwise provided
herein, any claim, dispute, disagreement or controversy that arises between the
parties relating to this Agreement that is not amicably settled shall be
resolved by arbitration, as follows:
(a) Any such arbitration shall be heard in
The City of New York, New York, before a panel consisting of one (1) to three
(3) arbitrators, each of whom shall be impartial. Upon the written Request of
Arbitration of either party hereto to commence arbitration hereunder, the
parties shall attempt to mutually agree as to the number and identity of the
arbitrator(s), within thirty (30) days of the date of such Request. Except as
the parties may otherwise agree, all arbitrators (if not
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selected by the parties hereto within thirty (30) days of a written Request for
Arbitration) shall be appointed pursuant to the commercial arbitration rules of
the American Arbitration Association. In determining the number and appropriate
background of the arbitrators, the appointing authority shall give due
consideration to the issues to be resolved, but his or her decision as to the
number of arbitrators and their identity shall be final.
(b) An arbitration may be commenced by any
party to this Agreement by the service of a written Request for Arbitration upon
the other affected parties. Such Request for Arbitration shall summarize the
controversy or claim to be arbitrated.
(c) All attorneys' fees and costs of the
arbitration shall in the first instance be borne by the respective party
incurring such costs and fees, but the arbitrators shall have the discretion to
award costs and/or attorneys' fees as they deem appropriate under the
circumstances. The parties hereby expressly waive punitive damages, and under no
circumstances shall an award contain any amount that in any way reflects
punitive damages.
(d) Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
(e) It is intended that controversies or
claims submitted to arbitration under this Section 9.10 shall remain
confidential, and to that end it is agreed by the parties that neither the facts
disclosed in the arbitration, the issues arbitrated, nor the views or opinions
of any persons concerning them, shall be
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disclosed to third persons at any time, except to the extent not necessary to
enforce an award or judgment or as required by law or in response to legal
process or in connection with such arbitration.
(f) Any arbitration under this Section 9.10
shall be conducted pursuant to the commercial arbitration rules of the American
Arbitration Association.
9.11 Jurisdiction: Venue. Subject to Section 9.10
hereof, the parties hereto irrevocably and unconditionally submit to the
exclusive jurisdiction of any State or Federal court sitting in New York, New
York over any suit, action or proceeding arising out of or relating to this
Agreement. The parties hereto irrevocably and unconditionally waive any
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. A final judgment in
any suit, action or proceeding brought in any such court shall be conclusive and
binding upon the parties and may be enforced in any other courts to whose
jurisdiction a party is or may be subject, by suit upon such judgment.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
CREDIT STORE, INC. - Employer
By: /s/ Xxx Xxxxxxxx, Chairman
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/s/ Xxxxx Xxxxxxx - Employee
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Xxxxx Xxxxxxx
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EXHIBIT A
TITLE
PRESIDENT
