EMPLOYMENT AGREEMENT
EXHIBIT
10.1
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made
and entered into this 3rd day of
August, 2010 by and between RBC Life Sciences, Inc. (“Employer”) located at
0000 Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000 and Xxxxxxx X. Xxxxxx (“Employee”), residing
at 0000 Xxx Xxxx Xxxxx, Xxxxxx, Xxxxx 00000.
WITNESSETH:
WHEREAS,
Employer is engaged in, among other businesses, the international distribution
of nutritional supplements and personal care products through the network
marketing distribution model, and the distribution of wound care and oncology
care products; and
WHEREAS,
Employee is being compensated as a consultant for a five-year period ending
December 31, 2013 pursuant to Section 16.2 of an employment agreement dated
November 20, 2003 (the “Former Employment Agreement”); and
WHEREAS,
Employer desires to employ Employee, and Employee desires to accept employment
with Employer, on the terms and conditions set forth in this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and promises set forth in
this Agreement, Employer and Employee hereby agree as follows:
Section
1. Effective
Date and Purpose. The effective date of this Agreement shall
be August 1, 2010 (the “Effective
Date”). This Agreement sets forth the terms and conditions of
Employee’s employment with Employer on and after the Effective Date during the
term hereof.
Section
2. Employment
Title and Duties. Employer hereby employs Employee and
Employee hereby accepts such employment by Employer on the terms and subject to
the conditions hereunder set forth. Employer shall employ Employee in
the capacity of Chief Executive Officer and President. In this capacity,
Employee shall have the responsibility to perform all duties that are
customarily performed by one holding that position in other, same, or similar
businesses or enterprises as that engaged in by Employer. Employee
accepts this employment, subject to the general supervision and pursuant to the
orders and direction of Employer’s Board of Directors (the
“Board”). Employee shall also render such other services and duties,
consistent with such capacity, as may be assigned from time to time by the
Board.
Section
3. Compensation
of Employee. Employer shall pay Employee, in full payment for
Employee’s services and covenants under this Agreement, the following
compensation:
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a.
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Salary. During his
employment pursuant to this Agreement, Employee’s annual base salary shall
be $325,000 payable bi-weekly in equal payments of $12,500 in accordance
with Employer’s customary payroll practices. Employee’s base
salary may be increased during the term of this Agreement by the
Compensation Committee of the Board as determined in its sole
discretion.
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b.
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Incentive
Bonus. The Board of
Directors (the “Board”) will
maintain a discretionary annual cash incentive bonus program each year
during the term of this Agreement. The Committee shall
determine in its discretion whether any annual incentive bonus will be
payable for any year to Employee based on business-related factors deemed
appropriate by the Board for a particular year. Any annual
incentive bonus payable to Employee will be paid in a lump sum payment in
the year immediately following the year to which the bonus relates and
will be paid only if Employee is employed by the Company on the date the
bonus is paid.
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If at the
end of the year in which employment is terminated, other than for “Cause”, the
employee would have received a bonus, Employee will be paid a prorata share for
the full months of actual employment in that year payable at the time the
bonuses for that year are paid to eligible employees.
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c.
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Health
and Welfare Benefits. During
his employment, Employer shall reimburse the Employee for the cost of
Employee’s Medicare Part D
coverage.
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d.
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Automobile
Allowance. Employer
shall pay to Employee an automobile allowance in an amount equal to $750
per month, payable in accordance with Employer’s customary payroll
practices.
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e.
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Former
Employment Agreement. In connection with employment
under this Agreement, the consulting arrangement under Section 16.2 of the
Former Employment agreement is hereby and forever
terminated.
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Section
4. Best
Efforts of Employee. Employee agrees to perform all of the
duties pursuant to the express and implicit terms of this Agreement to the
reasonable satisfaction of Employer. Employee further agrees to
perform such duties faithfully and to the best of his ability, talent, and
experience.
Section
5. Place of
Employment. Employee shall render such duties at 0000 Xxxxx
Xxxxx, Xxxxxx, Xxxxx 00000 and at such other places as Employer shall in good
faith require or as the interest, needs, business, or opportunity of Employer
shall require.
Section
6. Non-Competition
with Employer during Employment. Employee shall devote all his
time, attention, knowledge, and skills solely to the business and interest of
Employer, and Employer shall be entitled to all of the benefits and profits
arising from the work of Employee. Employee shall not, during his
employment under this Agreement, perform services for or be interested directly
or indirectly, in any manner, as partner, officer, director, shareholder,
advisor, consultant, employee, or in any other capacity in any other business
similar to Employer’s business, any allied trade, or any business offering a
competing or alternative product or service. However, nothing contained in this
section shall prevent or limit Employee from continuing to receive the benefits
of relationships previously disclosed and approved by the Chair of the Audit
Committee of the Board in writing or investing in the capital stock or other
securities of any corporation whose stock or securities are publicly owned and
traded on any public exchange, nor shall anything contained in this Section 6
prevent or limit Employee from investing in real estate.
Section
7. Confidentiality
and Nondisclosure. Employer promises to
disclose to Employee and Employee acknowledges that in and as a result of his
employment by Employer, he will receive, be making use of, acquiring, and/or
adding to confidential information of a special and unique nature and value
relating to such matters as Employer’s trade secrets and proprietary and
confidential business information, including but not limited to, its unique
business methods and strategies, processes, product and design development,
programs and programming codes, pricing methods, operating techniques and
practices, operating and production costs, corporate financial information,
customer requirements, customer and supplier information, potential customer
lists and marketing techniques, systems, procedures, manuals, confidential
reports, the equipment and methods used and preferred by its customers and the
fees paid by them, and compilations of information, records, and specifications
(all of which are referred to collectively herein as “Confidential
Matters”). Employee further agrees that if a third party
(e.g., vendors, customers and manufacturers) contracts with Employer, the
information obtained or received from a third party including, but not limited
to, its patents, copyrights, proprietary information, trade secrets, systems,
product development, procedures, manuals, and confidential reports will be
treated in the same manner and subject to the same protection as other
Confidential Matters.
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Employee
acknowledges that Employer does not voluntarily disclose Confidential Matters,
but rather takes precautions to prevent their dissemination except pursuant to
suitable confidentiality safeguards. Employee further acknowledges
that Confidential Matters (1) are secret and not known in the industry;
(2) have been and will be entrusted to Employee because Employee is a
fiduciary of Employer; (3) have been and will be developed by Employer
and/or Employee for and on behalf of Employer through substantial expenditures
of time, effort, and money and are and will be used in Employer’s business;
(4) give Employer an opportunity to obtain an advantage over competitors
who do not know or use the Confidential Matters; and (5) are of such value
and nature as to make it reasonable and necessary for Employee and Employer to
protect and preserve the confidentiality and secrecy of the Confidential
Matters.
Employee
acknowledges and agrees that the Confidential Matters are valuable, special, and
unique assets of Employer, the disclosure of which could cause substantial
injury and loss of profits and good will to Employer. The
Confidential Matters to be prepared or compiled by Employee and/or Employer or
furnished to Employee prior to or during Employee’s term as an employee of
Employer shall be the sole and exclusive property of Employer. Upon
the separation of Employee’s employment with Employer, all documents and things
related to Confidential Matters shall be returned to Employer as soon as
practicable and none shall be retained by Employee, including any
copies.
As a
condition of employment and continued employment, Employee shall keep
confidential all such confidential and proprietary information that Employee
learns or acquires as a result of his employment with Employer, and shall not at
any time except as necessary to conduct the business of Employer, directly or
indirectly make known, divulge, use, furnish, or reveal to any person, firm,
company, corporation, or anyone else any of the Confidential Matters or any
knowledge or information with respect thereto, or otherwise use such information
for any purpose whatsoever. Employee promises that Employee will take
all steps necessary to safeguard all Confidential Matters and to prevent their
use, disclosure, or dissemination to any other person or entity except as
necessary to conduct the business of Employer.
Employee
further agrees that in the event Employee is subpoenaed, served with any legal
process or notice, or otherwise requested to produce or divulge, directly or
indirectly, any Confidential Matters by any entity, agency, or person in any
formal or informal proceeding, including, but not limited to, any interview,
deposition, administrative or judicial hearing, and/or trial, upon Employee’s
receipt of such subpoena, process, notice, or request, Employee shall
immediately notify and deliver a copy of the subpoena, process, notice, or
request to the Board. Employee further irrevocably nominates,
constitutes, and appoints Employer (specifically including any attorney retained
by Employer) as Employee’s true and lawful attorney-in-fact, to act in
Employee’s name, place, and stead to do and perform any act which Employee might
perform, including to institute, prosecute, defend, quash, compromise, settle,
arbitrate, release, and dispose of any and all legal, equitable, or
administrative hearings, actions, suits, attachments, subpoenas, claims, levies,
or other proceedings, or otherwise engage in or defend any and all litigation in
connection with or relating to any request to disclose, directly or indirectly,
any Confidential Matters; provided, however, that Employer shall be under no
obligation to act as Employee’s attorney-in-fact and may decline to do so upon
written notice to Employee.
Section
8. Term. This
Agreement shall be effective for the period beginning on August 1, 2010 and
ending on December 31, 2012. This Agreement will be automatically
renewed for an additional one-year period upon expiration of its initial term
and each subsequent term thereafter, unless either Employer or Employee gives
written notice to the other party at least sixty (60) days prior to the last day
of the then current term of the Agreement.
Section
9. Termination
of Employment.
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a.
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Termination
by Employer for Cause. Employer
may immediately terminate the employment of Employee under this Agreement
for “Cause” (as defined below) at any time by giving written notice of
termination to Employee without prejudice to any other remedy to which
Employer may be entitled either at law, in equity, or under this
Agreement. In this case, Employee will be paid his monthly base
salary up to the date of his termination of employment and shall not be
entitled to any other compensation or benefits under this
Agreement.
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For
purposes of this Agreement, “Cause” shall mean, in
each case, as reasonably determined by the Board: (i) conviction of,
or entry of a pleading of guilty or no contest by, Employee with respect to a
felony or any lesser crime of which fraud or dishonesty is a material element,
(ii) Employee’s willful and continued failure to perform his duties with
Employer, or a failure to follow the lawful direction of the Board after the
Board delivers a written demand for performance and Employee neglects to cure
such a failure to the reasonable satisfaction of the Board within 15 days after
receipt of the demand, (iii) Employee’s failure to comply with applicable laws
with respect to the execution of Employer’s business operations or his material
breach of Sections 6 or 7 of this Agreement, (iv) Employee’s theft, fraud,
embezzlement, dishonesty, or similar conduct which has resulted or is reasonably
likely to result in material damage to Employer or any of its affiliates or
subsidiaries, or (v) Employee’s habitual intoxication or continued abuse of
illegal drugs which interferes with Employee’s ability to perform his assigned
duties and responsibilities.
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b.
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Termination
by Employee for Good Reason or Termination by Employer Without
Cause. Employee
may terminate his employment under this Agreement for “Good Reason” (as
defined below) at any time by giving written notice of termination to
Employer without prejudice to any other remedy to which Employee may be
entitled either at law or in equity under this Agreement and Employer may
terminate Employee’s employment under this Agreement at any time for any
reason other than Cause or as described in Section 9.c. or Section 9.d. of
this Agreement by giving written notice of such termination to
Employee. If Employee’s employment under this agreement is
terminated by Employee for Good Reason or by Employer for a reason other
than Cause or as described in Section 9.c. or Section 9.d. of this
Agreement and Employee executes a general release in the form provided to
Employee by the Company (the “Release”)
within 30 days following the date of his termination of employment (the
“Termination
Date”) and does not revoke the Release during any applicable
revocation period, Employee shall be paid an amount equal to the greater
of (i) his monthly base salary through the last day of the term of this
Agreement or (ii) his monthly base salary for a period of six (6) months
as severance pay following the Termination Date payable, in each case, for
a period of twelve (12) months in substantially equal payments in
accordance with Employer’s normal payroll practices and commencing,
subject to the payment timing provisions of Section 10.b., on the first
regularly scheduled payroll date of Employer following the expiration of
45 days after the Termination Date, plus an amount equal to his accrued,
unused vacation and personal time of “PTO”) paid in a
single lump sum payment on the first regularly scheduled payroll date of
Employer following the Termination Date. The form of the
Release will be provided to Employee by Employer not later than five (5)
days following Employee’s Termination Date. The amounts paid
shall be reduced by all amounts withheld and deducted pursuant to Section
20. No benefits, bonuses, PTO, or other forms of compensation,
except for the severance payments and accrued PTO described in this
Section 9.b., will be paid to Employee or accrued for the severance
payment period. Payments under this Section 9.b. shall cease if
during the term of the payments Employee violates the provisions of
Section 7 or Section 13.
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For
purposes of this Agreement, the term “Good Reason” shall
mean: (i) a material breach by Employer of this Agreement; or (ii) a
material diminution of Employee’s authority, duties, or responsibilities as in
effect immediately after the Effective Date of this Agreement; provided, however
that Employee must provide notice to Employer of the condition described in
clause (i) or (ii) above, as applicable, within ninety (90) days of the initial
existence of the condition, upon the notice of which Employer shall have a
thirty (30) day period during which it may remedy the condition.
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c.
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Death
of Employee. This
Agreement shall be deemed terminated as of the date of Employee’s
death. In this case, Employer shall pay to employee’s estate
Employee’s monthly base salary as provided in this Agreement up to the
Termination Date, plus Employee’s accrued, unused PTO, payable, in each
case, in accordance with Employer’s customary payroll
practices.
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d.
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Disability
of Employee. Should
Employee be unable to perform his duties under this Agreement by reason of
inability to perform the essential functions of the position for a period
of six (6) months, as determined by the Board in its sole discretion,
Employer shall have the right to terminate this Agreement upon written
notice to Employee. During the six-month period that Employee
fails to perform his duties as a result of his inability to perform the
essential functions of the position, Employer will continue to pay
Employee Employee’s monthly base salary based on its customary payroll
practices, reduced by any disability payments received by Employee from a
disability program made available by Employer, and Employee shall be
treated as on a bona fide leave of absence. On the Termination
Date, Employee shall be paid his accrued, unused PTO. The
amounts paid shall be reduced by all amounts withheld and deducted
pursuant to Section 20.
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e.
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Early
Termination by Employee. Should
Employee terminate his employment prior to the end of the term of this
Agreement, other than for Good Reason, death or disability, Employee shall
be paid his monthly base salary and unused, accrued PTO up to the
Termination Date, and shall be entitled to any other compensation or
benefits under this Agreement, including any incentive
bonus.
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Section
10. Additional
Termination Provisions.
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a.
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Separation
from Service. Notwithstanding anything to the contrary
in this Agreement, with respect to any amounts payable to Employee under
this Agreement in connection with a termination of Employee’s employment
that would be considered “non-qualified deferred compensation” under
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), in no
event shall a termination of employment be considered to have occurred
under this Agreement unless such termination constitutes Employee’s
“separation from service” with Employer as such term is defined in
Treasury Regulation Section 1.409A-1(h) and any successor provision
thereto (“Separation from
Service”).
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b.
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Section
409A Compliance. Notwithstanding anything contained in
this Agreement to the Contrary, to the maximum extent permitted by
applicable law, the severance payments payable to Employee pursuant to
Section 9 shall be made in reliance upon Treasury Regulation Section
1.409A-1(b)(9)(iii) (relating to separation pay plans) or Treasury
Regulation Section 1.409A-1(b)(4) (relating to short-term
deferrals). However, to the extent any such payments are
treated as “non-qualified deferred compensation” subject to Section 409A
of the Code, and if Employee is deemed at the time of his Separation from
Service to be a “specified employee” for purposes of Section
409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of
any portion of the benefits to which Employee is entitled under this
Agreement is required in order to avoid a prohibited payment under Section
409A(a)(2)(B)(i) of the Code, such portion of Employee’s termination
benefits shall not be provided to Employee prior to the earlier of
(i) the expiration of the six-month period measured from the date of
Employee’s Separation from Service or (ii) the date of Employee’s
death. Upon the earlier of such dates, all payments deferred
pursuant to this Section 10.b. shall be paid in a lump sum to
Employee. The determination of whether Employee is a “specified
employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the
time of his Separation from Service shall made by Employer in accordance
with the terms of Section 409A of the Code and applicable guidance
thereunder (including without limitation Treasury Regulation Section
1.409A-1(i) and any successor provision
thereto).
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Section
11. Section
409A; Separate Payments. This Agreement is intended to be
written, administered, interpreted and construed in a manner such that no
payment or benefits provided under the Agreement become subject to (a) the
gross income inclusion set forth within Section 409A(a)(1)(A) of the Code or
(b) the interest and additional tax set forth within Section 409A(a)(1)(B)
of the Code (collectively, “Section 409A
Penalties”), including, where appropriate, the construction of defined
terms to have meanings that would not cause the imposition of Section 409A
Penalties. In no event shall Employer be required to provide a tax
gross-up payment to Employee or otherwise reimburse Employee with respect to
Section 409A Penalties. For purposes of Section 409A of the Code
(including, without limitation, for purposes of Treasury Regulation Section
1.409A-2(b)(2)(iii)), each payment that Employee may be eligible to receive
under this Agreement shall be treated as a separate and distinct payment and
shall not collectively be treated as a single payment.
Section
12. In-kind
Benefits and Reimbursements. Notwithstanding anything to the
contrary in this Agreement, in-kind benefits and reimbursements provided under
this Agreement during any tax year of Employee shall not affect in-kind benefits
or reimbursements to be provided in any other tax year of Employee and are not
subject to liquidation or exchange for another
benefit. Notwithstanding anything to the contrary in this Agreement,
reimbursement requests must be timely submitted by employee and, if timely
submitted, reimbursement payments shall be made to Employee as soon as
administratively practicable following such submission, but in no event later
than the last day of Employee’s tax year following the taxable year in which the
expense was incurred. This paragraph shall apply only to in-kind
benefits and reimbursements that would result in taxable compensation income to
Employee.
Section
13. Post
Employment Non-Compete. As a material
inducement for receiving, the trade secrets and confidential and proprietary
information described in Section 7 and other good and valuable consideration,
Employee agrees that during the term of his employment and for a period of
twelve (12) months after the separation date of Employee’s employment with
Employer, for whatever reason:
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a.
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Employee
shall not, directly or indirectly, without written approval of the CEO,
solicit or induce, or attempt to solicit or induce, any current customer
(defined as all customers of Employer within the 12 months preceding
Employee’s separation of employment) or employee of Employer to alter,
leave or cease their relationship with Employer, for any reason
whatsoever,
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b.
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In
an executive, financial, sales, or operational capacity, Employee shall
not, directly or indirectly, without written approval of the CEO, accept
employment from or provide competitive services or assistance to any
current customer of Employer with whom Employee has had any contact during
his employment with Employer; and
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c.
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Employee
shall not solicit or attempt to solicit Employer’s current customers with
whom Employee has had any contact during his employment with Employer to
purchase services or products that are competitive with those marketed,
offered for sale and/or under any stage of development by Employer as of
the date of Employee’s separation from
Employer.
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Notwithstanding
the foregoing provisions, Employer shall not unreasonably restrict Employee’s
ability to serve on boards of directors of other companies.
Section
14. Indemnity. Employer
shall indemnify Employee and hold Employee harmless for any acts or decisions
made by Employee in good faith and that were reasonably believed to be in the
best interest of Employer while performing services for
Employer. Employer will use its reasonable best efforts, to maintain
Director and Officer insurance coverage in the amount of not less than
$1,000,000 for Employee under an insurance policy covering the officers and
directors of Employer against lawsuits. Employer shall pay all
reasonable expenses, including attorney’s fees, actually and necessarily
incurred by Employee in connection with any appeal thereon, including the cost
of court settlements. Notwithstanding the preceding sentence,
(i) the obligations of Employer shall be subject to the condition that the
Board shall not have determined based on advice from its legal counsel that
Employee would not be permitted to be indemnified under applicable law, and
(ii) the obligation of Employer to make an expense or fee advance pursuant
to this Section 14 shall be subject to the condition that, if, when and to
the extent that the Board determines that Employee would not be permitted to be
so indemnified under applicable law, Employer shall be entitled to be reimbursed
by Employee (who hereby agrees to reimburse Employer) for all such amounts
theretofore paid (it being understood and agreed that the foregoing agreement by
Employee shall be deemed to satisfy any requirement that Employee provide
Employer with an undertaking to repay any advancement of fees or expenses if it
is ultimately determined that Employee is not entitled to indemnification under
applicable law); provided, however, that if Employee has commenced or thereafter
commences legal proceedings in a court of competent jurisdiction to secure a
determination that Employee should be indemnified under applicable law, any
determination made by the Board that Employee would not be permitted to be
indemnified under applicable law shall not be binding and Employee shall not be
required to reimburse Employer for any expense advance until a final judicial
determination is made with respect thereto (as to which all rights of appeal
therefrom have been exhausted or have lapsed). This undertaking by
Employee to repay such expense advance shall be unsecured and
interest-free.
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Section
15. Effect of
Partial Invalidity. The invalidity of any portion of this
Agreement shall not affect the validity of any other provision. In
the event that any provision of this Agreement is held to be invalid, the
parties agree that the remaining provisions shall remain in full force and
effect.
Section
16. Entire
Agreement. This Agreement contains the complete Agreement
between the parties and shall supersede all other agreements, either oral or
written, between the parties. The parties stipulate that neither of
them has made any representations except as are specifically set forth in this
Agreement and each of the parties acknowledges that they have relied on their
own judgment in entering into this Agreement.
Section
17. Successors
and Assigns; Survival of Rights and Obligations.
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a.
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Binding
Agreement; Employee’s Personal Agreement. This
Agreement shall be binding upon and inure to the benefit of Employee’s and
his heirs and legal representatives and Employer and its successors and
assigns. Employee’s rights and obligations under this Agreement
are personal and may not be assigned or transferred in whole or in part by
Employee (except that his rights may be transferred upon his death by
will, trust, or the laws of
intestacy).
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b.
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Employer’s
Successor. Employer
will require any successor to all or substantially all of the business and
assets of Employer (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession had taken place; except that
no such assumption and agreement will be required if the successor is
bound by operation of law to perform this Agreement. In this
Agreement, “Employer” shall include any successor to Employer’s business
and assets that assumes and agrees to perform this Agreement (either by
agreement or by operation of law).
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c.
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Survival. The
respective rights and obligations of Employer and Employee under this
Agreement (including Sections 7, 9, 10, 11, 13, 14 and 17) shall survive
the expiration or termination of the Agreement to the extent necessary to
give full effect to those rights and
obligations.
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Section
18. Notices. All
notices, requests, demands, and other communications shall be in writing and
shall be given by registered or certified mail, postage prepaid, to the
addresses shown on the first page of this Agreement, or to such subsequent
addresses as the parties shall so designate in writing.
Section
19. Dispute
Resolution.
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a.
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Arbitration. The
exclusive remedy or method of resolving all disputes or questions arising
out of or relating to this Agreement (including its expiration or
termination) or the expiration or termination of Employee’s employment
hereunder (“Disputes”)
shall be arbitration held in Dallas, Texas. Nevertheless,
although disputes or questions arising out of or relating to Sections 6, 7
and 13 shall be subject to arbitration, Employer shall not be precluded
from also seeking and obtaining injunctive relief from any court of proper
jurisdiction to enforce or protect its rights under Sections 6, 7 and 13.
Any arbitration may be requested or initiated by a party to the Dispute by
written notice to the other party or parties to the Dispute specifying the
subject of the requested arbitration and preparing the name of an
arbitrator (“Arbitration
Notice”).
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b.
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Arbitrators. Arbitration
shall be before a single arbitrator agreed upon by Employer and Employee
(collectively, the “Parties”). If
the Parties are unable to agree upon the selection of an arbitrator, then
the Parties shall request that the American Arbitration Association in
Dallas, Texas appoint an
arbitrator.
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c.
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Award
and Costs. The
arbitration proceeding shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association. The costs of arbitration (exclusive of the expense
of a party to the Dispute in obtaining and presenting evidence and
attending the arbitration and of the fees and expenses of legal counsel to
a party to the dispute, all of which shall be borne by that party to the
Dispute) shall be borne by Employer if Employee receives substantially the
relief sought by him in the arbitration, whether by settlement, award, or
judgment; otherwise, the costs shall be borne one-half by Employer and
one-half by Employee. The arbitration determination or award
shall be final and conclusive on the parties to the Dispute, and judgment
upon such award may be entered and enforced in any court of competent
jurisdiction.
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Section
20. Tax
Withholding. Employer shall be
entitled to deduct and withhold from payments made under this Agreement all
amounts required to satisfy its withholding obligations with respect to income,
employment and any other applicable taxes.
Section
21. Limitation
on Payments. Notwithstanding anything in this Agreement to the
contrary, if the total of the payments and benefits under this Agreement,
together with any other payments or benefits received by Employee from Employer,
will be an amount that would cause them to be a “parachute payment” within the
meaning of Section 280G(b)(2)(A) of the Code (the “Parachute Payment
Amount”), then such payments under this Agreement shall be reduced so
that the total amount thereof is $1 less than the Parachute Payment
Amount.
Section
22. Attorney’s
Fees. If any arbitration proceeding or any action for
injunctive or declaratory relief is brought to enforce or interpret the
provisions of this Agreement, attorney’s fees shall be borne by Employer if
Employee is the prevailing party (or receives substantially the relief sought by
Employee), otherwise each party will be responsible for its own attorney’s
fees.
Section
23. Additional
Obligations. During and after the term of this Agreement,
Employee shall, upon reasonable notice from Employer, furnish Employer with such
information as may be in Employee’s possession, and cooperate with Employer as
may reasonably be requested by Employer, in connection with any legal or
governmental proceedings in which Employer or any of its affiliates is or may
become a party. The Company shall reimburse Employee for his
reasonable expenses in fulfilling his obligations under this Section 23
promptly, but in no event later than the last day of the calendar year following
the calendar year in which Employee incurs the expense.
Section
24. Supplemental
Consulting and Related Payments. Except as otherwise provided
below in this Paragraph, as additional consideration for this Agreement and for
the items covered in this Section, upon termination of Employee’s employment
with Employer for any reason other than death or upon non-renewal of this
Agreement, Employer shall pay to Employee a sum equal to Fourteen Thousand Four
Hundred Thirty-three Dollars ($14,433) each month for a period of thirty-six
(36) consecutive months. This sum will be paid to Employee each month
beginning on the first day of the month that immediately follows the date
Executive’s employment terminates. The above referenced payment
amount will be reduced by fifty percent (50%) (i) if or when all of the
Employer’s obligations that are personally guaranteed by Employee (the “Employer
Guarantees”) have been satisfied or released and Employee is provided written
verification satisfactory to him showing that he is no longer obligated on any
such debts, or (ii) if his employment is terminated due to
disability. If Executive’s employment is terminated by Employer for
Cause or disability and all of the debts upon which he is a guarantor have been
released, then there shall be no payment obligations under this
Paragraph. If Employee is terminated for Cause or disability, and he
has not been released from all of his obligations on the Employer Guarantees,
then the above referenced supplemental consulting and related payments shall be
reduced by fifty percent (50%) for the thirty-six (36) months or until the
Employer Guarantees are released, whichever is sooner.
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Section
25. Amendment. Any
modification, amendment or change of this Agreement will be effective only if it
is in a writing signed by both parties.
Section
26. Governing
Law; Interpretation. This Agreement, and all transactions
contemplated by this Agreement, shall be governed by, construed, and enforced in
accordance with the laws of the State of Texas. This Agreement shall
be construed and interpreted by the Board and such determination shall be final,
binding and conclusive on all parties.
Section
27. Headings. The
titles to the Sections and the paragraphs of this Agreement are solely for the
convenience of the parties and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on
this 3rd day
of August, 2010.
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EMPLOYEE:
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EMPLOYER:
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||
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/s/
Xxxxxxx X. Xxxxxx
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By:
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/s/
Xxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxxx
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Xxxxxx
X. Xxxxx
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||
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Chief
Financial Officer and Vice
President-Finance
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|||
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