Exhibit 10.20
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT entered into as of March 17, 1997, by and
between Pivot Rules, Inc., a New York corporation (the "Company") and Xxxxxxx
X. XxXxxxx ("XxXxxxx").
RECITALS
1. The Company desires to retain the services of XxXxxxx as the
Executive Vice President of Sales of the Company in accordance with the terms
and conditions of this Agreement.
2. XxXxxxx will serve the Company as its Executive Vice President of
Sales in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and XxXxxxx agree as
follows:
1. TERM
The Company hereby agrees to employ XxXxxxx as the Executive Vice
President of Sales of the Company and XxXxxxx hereby agrees to serve in such
capacity, for a term commencing as of the date hereof, and ending March 16,
2002, upon the terms and subject to the conditions contained in this
Agreement. The terms of this Agreement may, at the option of the Company and
with the approval of XxXxxxx, be extended from time to time in a written
memorandum signed by the Company and XxXxxxx, after approval by the Board of
Directors.
2. DUTIES
During the term of this Agreement, XxXxxxx shall serve as the
Executive Vice President of Sales of the Company, and shall be responsible for
the duties attendant to such office, which duties will be generally consistent
with his position as an executive officer of the Company and such other
managerial duties and responsibilities with the Company as may be assigned by
the President and/or the Board of Directors of the Company.
The principal location of XxXxxxx'x employment shall be in the New
York City vicinity, although XxXxxxx understands and agrees that he will be
required to travel frequently for business reasons. XxXxxxx shall devote his
full professional and business time and best efforts to the performance of his
duties as the Executive Vice President of Sales of the Company during
the term of this Agreement. XxXxxxx shall not, directly or indirectly, render
services to any other person or entity, without the consent of the Board of
Directors.
3. COMPENSATION
For services rendered by XxXxxxx to the Company during the
term of this Agreement, the Company shall pay him a base salary of $125,000
per year, payable in accordance with the standard payroll practices of the
Company, subject to annual increases in the sole discretion of the Company's
Board of Directors, taking into account merit, corporate and individual
performance and general business conditions, including changes in the "cost of
living index," but in no event shall his salary, after giving effect to such
increase, be less than the amounts set forth below:
Year Amount
---- ------
March 17, 1998, commencing $137,500
March 17, 1999, commencing $151,250
March 17, 2000, commencing $166,375
March 17, 2001, commencing $183,012.50
4. BONUS/OPTIONS
a. For 1997, XxXxxxx shall be eligible to receive a bonus
set by E. Xxxxxxx Xxxxx ("Xxxxx"), the Company's Chief Executive Officer, and
the Board of Directors in its sole discretion, based on such factors as Xxxxx
and the Board of Directors deem appropriate including the financial and
operating performance of the Company's business and divisions and a
qualitative assessment of XxXxxxx'x performance during such year. For each
other year during the term of this Agreement, XxXxxxx shall be eligible to
receive a bonus contingent upon XxXxxxx satisfying and maintaining certain
established financial goals as determined by XxXxxxx, Xxxxx and the Option
Plan/Compensation Committee of the Company no later than September 30 of the
prior year and Xxxxx'x and the Board of Director's qualitative assessment of
his performance during such year. Bonuses to be paid to XxXxxxx pursuant to
this paragraph 4 shall not exceed 35% of XxXxxxx'x base salary for such year
and shall be paid within 30 days following completion of the audit of the
annual financial statements of the Company for the fiscal year in question.
b. The Company hereby agrees to cause the issuance to
XxXxxxx of stock options ("Options") to purchase shares of the Company's
common stock, $.01 par value ("Common Stock") in accordance with the following
schedule: (i) Options to purchase 8,000 shares of Common Stock to be issued
subject to and effective upon the closing date (the "Closing Date") of the
Company's initial public offering ("IPO Options"); and (ii) Options to
purchase 8,000 shares of Common Stock to be issued on the first, second, third
and fourth anniversary dates of the Closing Date, unless XxXxxxx is not, for
any reason, an employee of the Company
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on such date. All Options shall be issued pursuant to, and in accordance with,
the Company's 1997 Stock Option Plan (the "Plan") and shall not be issued if
the initial public offering is not consummated. The Options shall be Incentive
Stock Options (as defined in the Plan) and shall be exercisable at a price
equal to the Fair Market Value (as defined in the Plan) of the Common Stock on
the date of issuance of such Option, except with respect to the IPO Options,
which shall be exercisable at a price equal to the initial public offering
price of the Company's Common Stock. Each Option shall vest over a four year
period from the date of grant at a rate of 25% per year, commencing with the
first anniversary of the date of grant. In the event of the termination of
XxXxxxx'x employment for any reason, he shall have 30 days within which to
exercise any vested Options and any unvested or unissued Options shall be
forfeited.
5. EXPENSE REIMBURSEMENT AND PERQUISITES
a. During the term of this Agreement, XxXxxxx shall be
entitled to reimbursement of all reasonable and actual out-of-pocket expenses
incurred by him in the performance of his services to the Company consistent
with corporate policies, if any, provided that the expenses are properly
accounted for.
b. During each calendar year of the term of this Agreement,
XxXxxxx shall be entitled to reasonable vacation with full pay; provided,
however, that XxXxxxx shall schedule such vacations at times convenient to the
Company.
c. During the term of this Agreement, the Company shall
provide XxXxxxx with family major medical insurance coverage as determined by
the Company in its sole discretion, and XxXxxxx shall be entitled to
participate in all dental insurance and disability plans and other employee
benefit plans instituted by the Company from time to time on the same terms
and conditions as other employees of the Company, to the extent permitted by
law.
6. NON-COMPETITION; NON-SOLICITATION
a. In consideration of the offer of employment, severance
benefits and Options to be granted to XxXxxxx hereunder, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, during the term of this Agreement and for a period equal to two
years thereafter, XxXxxxx shall not, without the prior written consent of the
Company, anywhere in the United States where the Company conducts business or
sells its products, directly or indirectly, (i) enter into the employ of or
render any services to any person, firm or corporation engaged in any business
which now or at the time, has material operations which are engaged in any
business activity competitive (directly or indirectly) with the business of
the Company (currently the design, sourcing and marketing of golf lifestyle
sportswear and/or moderate collections for men) including, for these purposes,
any business in which, at the time of termination of his employment, there is
a bonafide intention on the part of the Company to engage in the future (in
each case, a "Competitive Business"); (ii) engage in any Competitive Business
for his own account; (iii) become associated with or interested in any
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Competitive Business as an individual, partner, shareholder, creditor,
director, officer, principal, agent, employee, trustee, consultant, advisor or
in any other relationship or capacity; (iv) employ or retain, or have or cause
any other person or entity to employ or retain, any person who was employed or
retained by the Company while XxXxxxx was employed by the Company; or (v)
solicit, interfere with, or endeavor to entice away from the Company, for the
benefit of a Competitive Business, any of its customers or other persons with
whom the Company has a contractual relationship. However, nothing in this
Agreement shall preclude XxXxxxx from investing his personal assets in the
securities of any corporation or other business entity which is engaged in a
Competitive Business if such securities are traded on a national stock
exchange or in the over-the-counter market and if such investment does not
result in his beneficially owning, at any time, more than three percent (3%)
of the publicly-traded equity securities of such Competitive Business.
x. XxXxxxx and the Company agree that the covenants of
non-competition and non-solicitation contained in this paragraph 6 are
reasonable covenants under the circumstances, and further agree that if, in
the opinion of any court of competent jurisdiction, such covenants are not
reasonable in any respect, such court shall have the right, power and
authority to excise or modify such provision or provisions of these covenants
as to the court shall appear not reasonable and to enforce the remainder of
these covenants as so amended. XxXxxxx agrees that any breach of the covenants
contained in this paragraph 6 would irreparably injure the Company.
Accordingly, XxXxxxx agrees that the Company, in addition to pursuing any
other remedies it may have in law or in equity, may obtain an injunction
against XxXxxxx from any court having jurisdiction over the matter,
restraining any further violation of this paragraph 6.
7. TERMINATION
a. This Agreement, the employment of XxXxxxx, and XxXxxxx'x
position as Executive Vice President of Sales of the Company shall terminate
upon the first to occur of:
(i) his death;
(ii) his "permanent disability," due to injury or
sickness for a continuous period of four (4)
months, or a total of eight months in a twenty-four
month period (vacation time excluded), during which
time XxXxxxx is unable to attend to his ordinary
and regular duties;
(iii) a "Constructive Termination" by the Company, which,
for purposes of this Agreement, shall be deemed to
have occurred upon (A) the removal of XxXxxxx from
his position as Executive Vice President of Sales
of the Company, or (B) the material breach by the
Company of this Agreement; provided that no such
breach shall be considered a Constructive
Termination unless XxXxxxx has provided the Company
with at least
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sixty (60) days' prior written notice of such
breach and the Company has failed to cure such
breach within such sixty (60) day period;
(iv) the termination of this Agreement at any time
without cause by the Company;
(v) non-renewal of this Agreement by the Company and/or
the Board of Directors;
(vi) the termination of this Agreement for cause, which,
for purposes of this Agreement, shall mean that (1)
XxXxxxx has been convicted of a felony or any
serious crime involving moral turpitude, or engaged
in materially fraudulent or materially dishonest
actions in connection with the performance of his
duties hereunder, or (2) XxXxxxx has willfully and
materially failed to perform his duties hereunder,
or (3) XxXxxxx has breached the terms and
provisions of this Agreement in any material
respect, or (4) XxXxxxx has failed to comply in any
material respect with the Company's policies of
conduct including with respect to trading in
securities; provided that no such willful and
material failure or breach shall be considered a
termination of this Agreement for cause unless the
Company has provided XxXxxxx with at least ten (10)
days' prior written notice of such willful and
material failure or breach, as the case may be, and
XxXxxxx has failed to cure such willful and
material failure or breach, as the case may be,
within such ten (10) day period; or
(vii) the termination of this Agreement by XxXxxxx, which
shall occur on not less than 60 days prior written
notice from XxXxxxx.
b. In the event that this Agreement is terminated, other
than as a result of a Constructive Termination or by the Company without
cause, the Company shall pay XxXxxxx his base salary only through the date of
termination. In the event that this Agreement is terminated without cause by
the Company pursuant to paragraph 7(a)(iv) or through a Constructive
Termination pursuant to paragraph 7(a)(iii), the Company shall pay XxXxxxx, in
lieu of all salary, compensation payments and perquisites set forth in
paragraphs 3, 4 and 5 (including bonus payments and option grants), severance
payments (the "Severance Payments") as follows:
(i) the then-current base salary for a period of ninety
(90) days, if XxXxxxx is terminated during the
first year of the term of this Agreement;
(ii) the then-current base salary for a period of
one-hundred twenty (120) days, if XxXxxxx is
terminated during the second year of the term of
this Agreement; or
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(iii) the then-current base salary for a period of
one-hundred fifty (150) days, if XxXxxxx is
terminated during the third year of the term of
this Agreement or any time thereafter. The
Severance Payments shall be payable in periodic
installments in accordance with the Company's
standard payroll practices.
8. CONFIDENTIALITY
x. XxXxxxx recognizes that the services to be performed by
him are special, unique and extraordinary in that, by reason of his employment
under this Agreement, he may acquire or has acquired confidential information
and trade secrets concerning the operation of the Company, its predecessors,
and/or its affiliates, the use or disclosure of which could cause the Company,
or its affiliates substantial loss and damages which could not be readily
calculated and for which no remedy at law would be adequate. Accordingly,
XxXxxxx covenants and agrees with the Company that he will not at any time
during the term of this Agreement or thereafter, except in the performance of
his obligations to the Company or with the prior written consent of the Board
of Directors or as otherwise required by court order, subpoena or other
government process, directly or indirectly, disclose any secret or
confidential information that he may learn or has learned by reason of his
association with the Company, or any predecessor. If XxXxxxx shall be required
to make such disclosure pursuant to court order, subpoena or other government
process, he shall notify the Company of the same, by personal delivery or
electronic means, confirmed by mail, within twenty-four (24) hours of learning
of such court order, subpoena or other government process and, at the
Company's expense, shall (i) take all reasonably necessary and lawful steps
required by the Company to defend against the enforcement of such subpoena,
court order or government process, and (ii) permit the Company to intervene
and participate with counsel of its choice in any proceeding relating to the
enforcement thereof. The term "confidential information" includes, without
limitation, information not in the public domain and not previously disclosed
to the public or to the trade by the Company's management with respect to the
Company's or its affiliates' facilities and methods, trade secrets and other
intellectual property, designs, manuals, confidential reports, supplier names
and pricing, customer names and prices paid, financial information or business
plans. XxXxxxx understands and agrees that the rights and obligations set
forth in this paragraph 8(a) shall survive the termination or expiration of
this Agreement.
x. XxXxxxx confirms that all confidential information is and
shall remain the exclusive property of the Company. All business records,
papers and documents kept or made by XxXxxxx relating to the business of the
Company shall be and will remain the property of the Company. Upon the
termination of his employment with the Company, XxXxxxx shall promptly deliver
to the Company, and shall not, without the consent of the Company, retain
copies of any written materials prepared by or for the Company not previously
made available to the public or records and documents made by XxXxxxx or
coming into his possession and not in the public domain concerning the
business or affairs of the Company or any predecessors to its business, or any
of its affiliates or subsidiaries. XxXxxxx understands and agrees that the
rights
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and obligations set forth in this paragraph 8(b) shall survive the termination
or expiration of this Agreement.
9. LOAN
XxXxxxx acknowledges to the Company that he has received a
loan (the "Loan") from the Company in the aggregate principal amount of
$50,000. The terms and provisions of the Loan are as set forth in the
promissory note (the "Note"), in the form of Schedule A attached hereto.
XxXxxxx agrees to, simultaneously with the execution of this Agreement,
execute and deliver the Note to the Company.
10. REPRESENTATIONS AND WARRANTIES
x. XxXxxxx represents and warrants to the Company that he
was advised to consult with an attorney of XxXxxxx'x own choosing concerning
this Agreement and that XxXxxxx has done so.
x. XxXxxxx represents and warrants to the Company that the
execution, delivery and performance of this Agreement by XxXxxxx complies with
all laws applicable to XxXxxxx or to which his properties are subject and does
not violate, breach or conflict with any agreement by which he or his assets
are bound or affected.
11. GOVERNING LAW
This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of New
York, without giving effect to its conflict of law provisions.
12. ENTIRE AGREEMENT
This Agreement contains all of the understandings between XxXxxxx and
the Company pertaining to XxXxxxx'x employment with the Company, and it
supersedes all undertakings and agreements, whether oral or in writing,
previously entered into between them.
13. AMENDMENT OR MODIFICATION; WAIVER
No provision of this Agreement may be amended or modified unless such
amendment or modification is agreed to in writing, signed by XxXxxxx and by an
officer of the Company duly authorized to do so. Except as otherwise
specifically provided in this Agreement, no waiver by either party of any
breach by the other party of any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent time.
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14. NOTICES
Any notice to be given hereunder shall be in writing and delivered
personally or sent by certified mail, postage prepaid, return receipt
requested, addressed to the party concerned at the address indicated below or
to such other address as such party may subsequently designate by like notice:
If to the Company, to:
Pivot Rules, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
With a copy to:
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to XxXxxxx, to:
Xxxxxxx X. XxXxxxx
0 Xxxxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
15. SEVERABILITY
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the
remaining provisions or portions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
16. TITLES
Titles of the Sections of this Agreement are intended solely
for convenience of reference and no provision of this Agreement is to be
construed by reference to the title of any Section.
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17. ARBITRATION
In the event of any dispute or difference between the
parties hereto concerning their rights and duties under this Agreement, either
party may, by notice to the other, require such dispute or difference to be
submitted to arbitration. The arbitrator or arbitrators shall be selected by
agreement of the parties or, if they cannot agree on an arbitrator or
arbitrators within thirty (30) days, then the arbitrator or arbitrators shall
be selected by the American Arbitration Association (the "AAA") in New York,
New York upon the application of either party. The determination reached in
such arbitration shall follow a hearing (at which written statements may also
be submitted), shall be contained in a written decision and shall be final and
binding on both parties without any right of appeal or further dispute.
Enforcement of a determination by such arbitrator(s) may be sought in any
court of competent jurisdiction. The fees and expenses of any arbitrators and
the AAA shall be shared equally by the Company and XxXxxxx, unless otherwise
determined by the arbitration. Unless otherwise agreed by the parties, any
such arbitration shall take place in New York, New York and shall be conducted
in accordance with the rules of the AAA, subject to this paragraph 17.
18. BINDING EFFECT: ASSIGNMENT
This Agreement shall be binding upon, and inure to the
benefit of, the Copany and its successors and assigns and upon XxXxxxx and his
successors and assigns. "Successors and assigns" shall mean, in the case of
the Company, any successor pursuant to a merger, consolidation, or sale or a
transfer of all or substantially all of the assets of the Company and, in the
case of XxXxxxx, his heirs and/or legal representatives as determined by will
or by operation of law. Neither this Agreement nor any rights hereunder shall
be assignable or otherwise subject to hypothecation by XxXxxxx (except by will
or by operation of law). The Company may assign this Agreement and all of its
rights hereunder to any of its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
PIVOT RULES, INC.
By: /s/ E. Xxxxxxx Xxxxx
--------------------------------
E. Xxxxxxx Xxxxx
President
/s/ Xxxxxxx X. XxXxxxx
-----------------------------------
XXXXXXX X. XXXXXXX
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Schedule A
Promissory Note
$50,000.00 March 17, 1997
FOR VALUE RECEIVED, Xxxxxxx X. XxXxxxx (the "Debtor") residing at 0
Xxxxxxxxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000, promises to pay to the order
of Pivot Rules, Inc., a New York corporation, with its principal office at 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), or registered
assigns, on March 17, 2002 (the "Maturity Date"), on the terms set forth in
this note (this "Note"), the principal amount of Fifty Thousand and no/100
Dollars ($50,000) (or so much thereof as shall not have been prepaid or
forgiven as set forth below), and to pay interest on all unpaid principal from
the date hereof at a rate of 8% per annum, such interest to be payable
semi-annually on each September 17 and March 17 hereafter. Interest shall be
computed on the basis of a 360-day year consisting of twelve (12) 30-day
months. Payments of principal, premium, if any, and interest shall be made in
lawful money of the United States of America at the principal office of the
Company, and all payments shall be applied first to pay accrued but unpaid
interest, and the remainder to reduce the outstanding principal hereof.
Subject to the terms and provisions of this Note, ten percent (10%)
of the original principal amount hereof shall be forgiven by the Company on
each of March 17, 1998, March 17, 1999, March 17, 2000, March 17, 2001 and the
Maturity Date.
In addition, the Debtor shall be obligated to make mandatory annual
payments ("Mandatory Annual Payments") to the Company each year in amounts not
to exceed ten percent (10%) of the original principal amount hereof, which
Mandatory Annual Payments shall be payable solely out of bonus payments
received or to be received by the Debtor under Section 4(a) of the Employment
Agreement (as defined below), if any. To the extent that the Debtor has not
received a bonus payment in such year or the amount of bonus payment received
by the Debtor is insufficient to cover the applicable Mandatory Annual
Payment, the unpaid portion of Mandatory Annual Payment shall be carried over
to the following year(s) and shall be payable out of the following year(s)
bonus payment to the extent such bonus payment is sufficient to cover such
outstanding Mandatory Annual Payment (in addition to the Debtor's obligation
to make his Mandatory Annual Payment(s) in respect of such following year).
This Note is being issued pursuant to the terms of that certain
Employment Agreement, dated as of the date hereof between the Debtor and the
Company (the "Employment Agreement").
1. Events of Default.
(a) The occurrence of any of the following events, which shall have
occurred and be continuing, shall be deemed to be an "Event of Default" under
this Note:
(i) The Debtor shall default in the payment of the principal
and/or interest of this Note when due; or
(ii) (1) The Debtor shall commence any proceeding or other
action relating to him in bankruptcy or seek reorganization,
arrangement, readjustment of his debts, receivership,
dissolution, liquidation, winding-up, composition or any
other relief under the federal bankruptcy act, as amended,
or under any other insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt
or any other similar act or law, of any jurisdiction,
domestic or foreign, now or hereafter existing; or (2) the
Debtor shall admit the material allegations of any petition
or pleading in connection with any such proceeding; or (3)
the Debtor applies for, or consents or acquiesces to, the
appointment of a receiver, conservator, trustee or similar
officer for him or for all or a substantial part of his
property; or (4) the Debtor makes a general assignment for
the benefit of creditors; or (5) the Debtor generally admits
his inability to pay his debts as they become due and
payable; or
(iii) (1) The commencement of any proceeding or the taking
of any other action against the Debtor in bankruptcy or
seeking reorganization, arrangement, readjustment of his
debts, liquidation, dissolution, arrangement, composition,
readjustment of debt or any other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing
and the continuance of any of such events for sixty (60)
days undismissed, unbonded or undischarged; or (2) the
appointment of a receiver, conservator, trustee or similar
officer for the Debtor or for all or substantially all of
the Debtor's property and the continuance of any such event
for sixty (60) days undismissed, unbonded or undischarged;
or (3) the issuance of a warrant or attachment, execution or
similar process against substantially all of the property of
the Debtor and the continuance of such event for thirty (30)
days undismissed, unbonded and undischarged; or
(iv) Debtor's employment by the Company pursuant to the
Employment Agreement shall be terminated for any reason
whatsoever; or
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(v) Debtor has breached any of the terms or conditions of
the Employment Agreement in any material respect.
(b) Upon the occurrence of an Event of Default set forth in Section
1(a) (i), (ii), (iii) or (iv) hereof, the entire unpaid principal amount of
this Note outstanding, together with accrued interest thereon, shall become
immediately due and payable, and the forgiveness provision set forth in the
second paragraph of this Note shall be terminated, without presentment,
demand, protest, or other notice of any kind, all of which are expressly
waived, and without any action on the part of the Company. Upon the occurrence
of an Event of Default set forth in Section 1(a)(v) hereof, the Company may,
at its option, by written notice to the Debtor, declare the entire unpaid
principal amount of this Note outstanding, together with accrued interest
thereon to be due and payable, and upon receipt of such notice by the Debtor,
the same shall become due and payable forthwith.
2. Prepayment. This Note may be prepaid by the Debtor at any time, in
whole or in part, from time to time, without penalty at the principal amount
plus accrued but unpaid interest to the date of prepayment.
3. Miscellaneous.
(a) Further Assurances. The Debtor agrees to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Note.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered personally or
sent by facsimile transmission, overnight courier, or certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally or sent by facsimile transmission (provided that a
confirmation copy is sent by overnight courier), one day after deposit with an
overnight courier, or if mailed, five (5) days after the date of deposit in
the United States mails, to the Debtor or to the Company at such respective
addresses set forth above, or as may be furnished in writing to the other
party hereto.
(c) Parties in Interest. This Note shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
permitted assigns.
(d) Waiver. Any waiver by the Company of a breach of any provision of
this Note shall not operate or be construed as a waiver of any subsequent
breach of the same or any other provision hereof. No failure to exercise and
no delay in exercising, on the part of the Company, any right, power or
privilege under this Note shall operate as a waiver thereof nor shall any
partial exercise of any right, power or privilege preclude any other or
further exercise thereof, or the exercise of any other power, right or
privilege.
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(e) Governing Law; Consent to Jurisdiction. This Note shall be
construed and enforced in accordance with, and the rights of the Debtor and
the Company shall be governed by, the laws of the State of New York, without
giving effect to the principles of conflicts of laws thereof. The Debtor and
the Company hereby consent to the jurisdiction of the state or federal courts
of New York for all disputes arising under this Note.
(f) Severability. Any term or provision of this Note which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Note or affecting the validity or enforceability of any of the terms and
provisions of this Note in any other jurisdiction.
(g) Assignment. The Debtor shall not, without the written consent of
the Company, assign or transfer this Note or any rights or obligations
hereunder.
(h) Amendment. No provision of this Note may be waived, altered or
amended, except by written agreement between the parties.
(i) Arbitration. In the event of any dispute or difference between
the Debtor and the Company concerning their rights and duties under this Note,
either the Debtor or the Company may, by notice to the other, require such
dispute or difference to be submitted to arbitration. The arbitrator or
arbitrators shall be selected by agreement of the Debtor and the Company or,
if they cannot agree on an arbitrator or arbitrators within thirty (30) days,
then the arbitrator or arbitrators shall be selected by the American
Arbitration Association (the "AAA") in New York, New York upon the application
of either party. The determination reached in such arbitration shall follow a
hearing (at which written statements may also be submitted), shall be
contained in a written decision and shall be final and binding on both the
Debtor and the Company without any right of appeal or further dispute.
Enforcement of a determination by such arbitrator(s) may be sought in any
court of competent jurisdiction. The fees and expenses of any arbitrators and
the AAA shall be shared equally by the Company and the Debtor, unless
otherwise determined by the arbitration. Unless otherwise agreed by the Debtor
and the Company, any such arbitration shall take place in New York, New York
and shall be conducted in accordance with the rules of the AAA, subject to
this paragraph 3(i).
IN WITNESS WHEREOF, this Note has been executed and delivered by the
Debtor on the date specified above.
------------------------------
Xxxxxxx X. XxXxxxx
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