EXHIBIT 10.13
MANAGEMENT
EMPLOYMENT AGREEMENT
This Management Employment Agreement (this "AGREEMENT") by and among
LandCare USA Management Co., L.P., a Delaware limited partnership ("EMPLOYER"),
and Xxxxx X. Xxxxxx ("EMPLOYEE") is hereby entered into and effective as of the
__ day of ____________, 1998 (the "EFFECTIVE DATE"), which date is the date of
the consummation of the initial public offering of the common stock of LandCare
USA, Inc., a Delaware corporation (the "COMPANY").
R E C I T A L S
A. The Company is engaged primarily in the landscaping services industry.
B. Employer is engaged primarily in the business of providing management
services to the Company;
C. Employer desires to employ Employee hereunder in a confidential
relationship wherein Employee, in the course of his employment, will become
familiar with and aware of information as to the Company's customers, specific
manner of doing business, processes, techniques and trade secrets and future
plans with respect thereto, all of which have been and will be established and
maintained at great expense to the Company, which information is a trade secret
and constitutes the valuable good will of the Company; and
D. The Company is intended to be a third-party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, it is hereby agreed as follows:
-1-
A G R E E M E N T S
1. EMPLOYMENT AND DUTIES.
(a) Employer hereby employs Employee to serve as Senior Vice President and
Chief Financial Officer of the Company. As such, Employee shall have
responsibilities, duties and authority customarily accorded to and expected of
an officer holding such position directly with the Company. Employee hereby
accepts this employment upon the terms and conditions herein contained and
agrees to devote his full time, attention and efforts to promote and further the
business of Employer.
(b) Employee shall faithfully adhere to, execute and fulfill all policies
established by Employer from time to time.
2. COMPENSATION. For all services rendered by Employee, Employer shall
compensate Employee as follows:
(a) BASE SALARY; PERFORMANCE BONUS; COMPANY STOCK OPTIONS. Effective as of
the Effective Date, the base salary payable to Employee shall be $150,000 per
year, payable on a regular basis in accordance with Employer's standard payroll
procedures but not less frequently than monthly. On at least an annual basis,
Employer will review Employee's performance and may, in its sole discretion, (i)
make increases to such base salary; (ii) pay a performance bonus; or (iii)
recommend Employee for the grant of Company stock options.
(b) EMPLOYEE PERQUISITES, BENEFITS AND OTHER COMPENSATION. Employee shall
be entitled to receive additional benefits and compensation from Employer in
such form and to such extent as specified below:
(i) Coverage, subject to contributions required of executives of the
Company
-2-
generally, for Employee and his dependent family members under health,
hospitalization, disability, dental, life and other insurance plans that
Employer may have in effect from time to time. Benefits provided to
Employee under this clause (i) shall be equal to such benefits provided to
other Employer employees of the same level.
(ii) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of services
pursuant to this Agreement. All reimbursable expenses shall be
appropriately documented in reasonable detail by Employee upon submission
of any request for reimbursement, and in a format and manner consistent
with Employer's expense reporting policy.
(iii) Employer shall provide Employee with other employee
perquisites as may be available to or deemed appropriate for Employee by
Employer and participation in all other Company-wide employee benefits as
are available from time to time.
3. NONCOMPETITION AGREEMENT.
(a) Employee shall not, during the term of his employment hereunder, be
engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes with Employee's duties and
responsibilities hereunder. The foregoing limitations shall not be construed as
prohibiting Employee from making personal investments in such form or manner as
will neither require his services in the operation or affairs of the companies
or enterprises in which such investments are made nor violate the terms of this
paragraph 3. Employee will not, during the period of his employment by or with
Employer, and for a period of two (2) years immediately following the
termination of his employment under this Agreement, except as provided below,
directly or indirectly, for himself or on behalf of or in conjunction with any
other person, persons, company, partnership, corporation or business of whatever
nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or
-3-
in a managerial capacity, whether as an employee, independent contractor,
consultant or advisor, or as a sales representative, in any business in
direct competition with Employer or the Company within 100 miles of where
the Company or any of its subsidiaries conduct business, including any
territory serviced by the Company or any of such subsidiaries (the
"TERRITORY");
(ii) call upon any person who is, at that time, an employee of
Employer or the Company (including the respective subsidiaries thereof) in
a sales or managerial capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of Employer or the
Company (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of the
Company (including the respective subsidiaries thereof) for the purpose of
soliciting or selling products or services in direct competition with the
Company; or
(iv) call upon any prospective acquisition candidate, on Employee's
own behalf or on behalf of any competitor, which candidate was, to
Employee's actual knowledge after due inquiry, either called upon by
Employer or the Company (including the respective subsidiaries thereof) or
for which Employer or the Company made an acquisition analysis for the
purpose of acquiring such entity or all or substantially all of such
entity's assets.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Employee from acquiring as a passive investment not more than two
percent (2%) of the capital stock of a competing business the stock of which is
traded on a national securities exchange or on an over-the -counter or similar
market.
(b) Because of the difficulty of measuring economic losses to Employer or
the Company as a result of a breach of the foregoing covenant, and because of
the immediate and irreparable
-4-
damage that could be caused to Employer or the Company for which they would have
no other adequate remedy, Employee agrees that the foregoing covenant may be
enforced by Employer or the Company in the event of breach or threatened breach
by Employee, by injunctions, restraining orders and other appropriate equitable
relief.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Employee in light of the activities
and business of the Company (including the Company's subsidiaries) on the date
of the execution of this Agreement and the current plans of the Company
(including the Company's subsidiaries); but it is also the intent of the Company
and Employee that such covenants be construed and enforced in accordance with
the changing activities, business and locations of the Company (including the
Company's subsidiaries) throughout the term of this covenant, whether before or
after the date of termination of the employment of Employee. For example, if,
during the term of this Agreement, the Company (including the Company's
subsidiaries) engages in new and different activities, enters a new business or
establishes new locations for its current activities or business in addition to
or other than the activities or business enumerated under the Recitals above or
the locations currently established therefor, then Employee will be precluded
from soliciting the customers or Employees of such new activities or business or
from such new location and from directly competing with such new business within
100 miles of its then-established operating location(s) through the term of this
covenant.
It is further agreed by the parties hereto that, in the event that
Employee shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with the Company (including the
Company's subsidiaries), or similar activities or business in locations the
operation of which, under such circumstances, does not violate clause (i) of
paragraph 3(a), Employee shall not be chargeable with a violation of this
paragraph 3 if the Company (including the Company's subsidiaries) shall
thereafter enter the same, similar or a competitive (i) business, (ii) course of
activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the
unenforceability
-5-
of any specific covenant shall not affect the provisions of any other covenant.
Moreover, in the event any court of competent jurisdiction shall determine that
the scope, time or territorial restrictions set forth herein are unreasonable,
then it is the intention of the parties that such restrictions be enforced to
the fullest extent which the court deems reasonable, and this Agreement shall
thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against Employer or the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by Employer or the Company of such covenants. It is
specifically agreed that the period of two (2) years following termination of
employment stated at the beginning of this paragraph 3, during which the
agreements and covenants of Employee made in this paragraph 3 shall be
effective, shall be computed by excluding from such computation any time during
which Employee is in violation of any provision of this paragraph 3.
4. PLACE OF PERFORMANCE; RELOCATION RIGHTS.
(a) Employee understands that he may be requested by Employer or the
Company to relocate from his present residence to another geographic location in
order to more efficiently carry out his duties and responsibilities under this
Agreement or as part of a promotion or other increase in duties and
responsibilities. In such event, if Employee agrees to relocate, Employer or the
Company will pay all relocation costs to move Employee, his immediate family and
their personal property and effects. Such costs may include, by way of example,
but are not limited to, pre-move visits to search for a new residence,
investigate schools or for other purposes; temporary lodging and living costs
prior to moving into a new permanent residence; duplicate home carrying costs;
all closing costs on the sale of Employee's present residence and on the
purchase of a comparable residence in the new location; and added income taxes
that Employee may incur if any relocation costs are not deductible for tax
purposes. The general intent of the foregoing is that Employee shall not
personally bear any out-of-pocket cost as a result of the relocation, with an
understanding that
-6-
Employee will use his best efforts to incur only those costs which are
reasonable and necessary to effect a smooth, efficient and orderly relocation
with minimal disruption to the business affairs of Employer or the Company and
the personal life of Employee and his family.
(b) Notwithstanding the above, if Employee is requested by Employer to
relocate and Employee refuses, such refusal shall not constitute "CAUSE" for
termination of this Agreement under the terms of paragraph 5(a)(iii).
5. TERM; TERMINATION; RIGHTS ON TERMINATION.
(a) TERM. The term of this Agreement shall begin on the date hereof and
continue for three (3) years (the "INITIAL TERM") unless terminated sooner as
herein provided, and shall continue thereafter on a year-to-year basis on the
same terms and conditions contained herein in effect as of the time of renewal
(the "TERM"). This Agreement and Employee's employment may be terminated in any
one of the followings ways:
(i) TERMINATION AS A RESULT OF THE EMPLOYEE'S DEATH. The death of
Employee shall immediately terminate this Agreement with no severance
compensation due to Employee's estate.
(ii) TERMINATION ON ACCOUNT OF DISABILITY. If, as a result of
incapacity due to physical or mental illness or injury, Employee shall
have been absent from his full-time duties hereunder for four (4)
consecutive months, then thirty (30) days after receiving written notice
(which notice may occur before or after the end of such four (4) month
period, but which shall not be effective earlier than the last day of such
four (4) month period), Employer may terminate Employee's employment
hereunder provided Employee is unable to resume his full-time duties with
or without reasonable accommodation at the conclusion of such notice
period. Also, Employee may terminate his employment hereunder if his
health should become impaired to an extent that makes the continued
performance of his
-7-
duties hereunder hazardous to his physical or mental health or his life,
provided that Employee shall have furnished Employer with a written
statement from a qualified doctor to such effect and provided, further,
that, at Employer's request made within thirty (30) days of the date of
such written statement, Employee shall submit to an examination by a
doctor selected by Employer who is reasonably acceptable to Employee or
Employee's doctor and such doctor shall have concurred in the conclusion
of Employee's doctor. In the event this Agreement is terminated as a
result of Employee's disability, Employee shall receive from Employer, in
a lump-sum payment due within ten (10) days of the effective date of
termination, the base salary at the rate then in effect for whatever time
period is remaining under the Initial Term of this Agreement or for one
(1) year, whichever amount is greater; provided, however, that any such
payments shall be reduced by the amount of any disability insurance
payments payable to the Employee as a result of such disability.
(iii) TERMINATION BY THE COMPANY FOR CAUSE. Employer may terminate
this Agreement immediately for "CAUSE," which shall be: (1) Employee's
willful and material breach of this Agreement (which breach cannot be
cured or, if capable of being cured, is not cured within ten (10) days
after receipt of written notice to cure); (2) Employee's gross negligence
in the performance or intentional nonperformance of any of Employee's
material duties and responsibilities hereunder; (3) Employee's willful
dishonesty, fraud or misconduct with respect to the business or affairs of
Employer or the Company which materially and adversely affects the
operations or reputation of Employer or the Company; (4) Employee's
conviction of a felony crime; or (5) Employee's confirmed positive illegal
drug test result. In the event of a termination for Cause, as enumerated
above, Employee shall have no right to any severance compensation.
(iv) TERMINATION WITHOUT CAUSE. At any time after the commencement
of employment, either Employee or Employer may, voluntarily or without
Cause, respectively, terminate this Agreement and Employee's employment,
effective thirty (30) days after written notice is provided to the other.
Should Employee be terminated by Employer without Cause during the Initial
Term, Employee shall receive from Employer, in a lump-sum payment due on
the effective date of termination, the base salary at the rate then in
effect for whatever time period is remaining under the Initial Term of
this Agreement or for one (1) year, whichever amount is greater. Should
Employee be terminated by Employer without
-8-
Cause after the Initial Term, Employee shall receive from Employer, in a
lump-sum payment due on the effective date of termination, the base salary
at the rate then in effect equivalent to one (1) year of salary. Further,
any termination without Cause by Employer shall operate to shorten the
period set forth in paragraph 3(a) and during which the terms of paragraph
3 apply to one (1) year from the date of termination of employment. Except
as provided in paragraph 12 below, if Employee resigns or otherwise
terminates this Agreement, the provisions of paragraph 3 hereof shall
apply, except that Employee shall receive no severance compensation. If
Employee is terminated by the Company without Cause, or if the Employee
terminates his employment for Good Reason pursuant to paragraph 12(c)
below, then the Company shall make the insurance premium payments
contemplated by COBRA for a period of twelve (12) months immediately
following such termination.
(b) CHANGE IN CONTROL OF THE COMPANY. In the event of a Change in Control
of the Company (as defined below) during the Term, paragraph 12 below shall
apply.
(c) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason provided above, Employee shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of
termination. Additional compensation subsequent to termination, if any, will be
due and payable to Employee only to the extent and in the manner expressly
provided herein. All other rights and obligations of Employer and Employee under
this Agreement shall cease as of the effective date of termination, except that
Employer's obligations under paragraph 9 herein and Employee's obligations under
paragraphs 3, 6, 7, 8 and 10 herein shall survive such termination in accordance
with their terms.
(d) BREACH BY COMPANY. If termination of Employee's employment arises out
of
-9-
Employer's failure to pay Employee on a timely basis the amounts to which he is
entitled under this Agreement or as a result of any other breach of this
Agreement by Employer, as determined by a court of competent jurisdiction or
pursuant to the provisions of paragraph 16 below, Employer shall pay all amounts
and damages to which Employee may be entitled as a result of such breach,
including interest thereon and all reasonable legal fees and expenses and other
costs incurred by Employee to enforce his rights hereunder. Further, none of the
provisions of paragraph 3 shall apply in the event this Agreement is terminated
as a result of a breach by Employer.
6. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Employee by or on behalf of the Company or its
representatives, vendors or customers which pertain to the business of the
Company shall be and remain the property of the Company and be subject at all
times to its discretion and control. Likewise, all correspondence, reports,
records, charts, advertising materials and other similar data pertaining to the
business, activities or future plans of the Company which is collected by
Employee shall be delivered promptly to the Company without request by it upon
termination of Employee's employment.
7. INVENTIONS. Employee shall disclose promptly to the Company any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by Employee,
solely or jointly with another, during the period of employment or within one
(1) year thereafter, and which are directly related to the business or
activities of the Company and which Employee conceives as a result of his
employment hereunder. Employee hereby assigns and agrees to assign all his
interests therein to the Company or its nominee. Whenever requested to do so by
the Company, Employee shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
8. TRADE SECRETS. Employee agrees that he will not, during or after the
Term of this
-10-
Agreement, disclose the specific terms of the Company's relationships or
agreements with their respective significant vendors or customers or any other
significant and material trade secret of the Company, whether in existence or
proposed, to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever, except and only to the extent required by law or
legal process following notice to the Company.
9. INDEMNIFICATION. In the event Employee is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by Employer
against Employee), by reason of the fact that he is or was performing services
under this Agreement, then Employer shall indemnify Employee against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, as actually and reasonably incurred by Employee in connection
therewith, to the maximum extent permitted by applicable law. The advancement of
expenses shall be mandatory to the extent permitted by applicable law. In the
event that both Employee and Employer are made a party to the same third-party
action, complaint, suit or proceeding, Employer agrees to engage counsel, and
Employee agrees to use the same counsel, provided that if counsel selected by
Employer shall have a conflict of interest that prevents such counsel from
representing Employee, Employee may engage separate counsel and Employer shall
pay all reasonable attorneys' fees of such separate counsel. Employer shall not
be required to pay the fees of more than one law firm except as described in the
preceding sentence, and shall not be required to pay the fees of more than two
law firms under any circumstances. Further, while Employee is expected at all
times to use his best efforts to faithfully discharge his duties under this
Agreement, Employee cannot be held liable to Employer for errors or omissions
made in good faith where Employee has not exhibited gross, willful and wanton
negligence or misconduct or performed criminal or fraudulent acts.
10. NO PRIOR AGREEMENTS. Employee hereby represents and warrants to
Employer and the Company that the execution of this Agreement by Employee and
his employment by Employer and the performance of his duties hereunder will not
violate or be a breach of any agreement with a former employer, client or any
other person or entity. Further, Employee agrees to indemnify
-11-
Employer and the Company for any claim, including, but not limited to,
attorneys' fees and expenses of investigation, by any such third party that such
third party may now have or may hereafter come to have against Employer or the
Company based upon or arising out of any noncompetition agreement, invention or
secrecy agreement between Employee and such third party which was in existence
as of the date of this Agreement.
11. ASSIGNMENT; BINDING EFFECT. Employee understands that he has been
selected for employment by Employer and/or the Company on the basis of his
personal qualifications, experience and skills. Employee agrees, therefore, he
cannot assign all or any portion of his performance under this Agreement.
Subject to the preceding two (2) sentences and the express provisions of
paragraph 12 below, this Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
12. CHANGE IN CONTROL.
(a) Unless Employee elects to terminate this Agreement pursuant to
paragraph 12(c) below, Employee understands and acknowledges that Employer
and/or the Company may be merged or consolidated with or into another entity and
that such entity shall automatically succeed to the rights and obligations of
Employer and/or the Company hereunder or that the Company may undergo another
type of Change in Control. In the event such a merger or consolidation or other
Change in Control is initiated during the Term of this Agreement, then the
provisions of this paragraph 12 shall be applicable.
(b) In the event of a pending Change in Control wherein the Company and
Employee have not received written notice at least five (5) business days prior
to the anticipated closing date of the transaction giving rise to the Change in
Control from the successor to all or a substantial portion of the Company's
business and/or assets that such successor is willing as of the closing to
assume and agree to perform Employer's obligations under this Agreement in the
same manner and to the same extent that Employer is hereby required to perform,
then the Employee may elect to
-12-
terminate his employment and shall be entitled to receive in a lump-sum payment
the amount equal to three (3) times his annual base salary then in effect, and
the noncompetition provisions of paragraph 3 shall apply for a period of one (1)
year immediately following the effective date of termination.
(c) In any Change in Control situation, if Employee is terminated by
Employer without Cause at any time during the twelve (12) months immediately
following the closing of the transaction giving rise to the Change in Control,
or Employee terminates this Agreement for Good Reason (as defined below) at any
time during the twelve (12) months immediately following the closing of the
transaction giving rise to the Change in Control, Employee shall be entitled to
receive in a lump-sum payment, due on the effective date of termination, the
amount equal to three (3) times the greater of (i) his annual base salary then
in effect or (ii) his annual base salary in effect immediately prior to the
closing of the transaction giving rise to the Change in Control, and the
noncompetition provisions of paragraph 3 shall apply for a period of one (1)
year immediately following the effective date of termination. For purposes of
this Agreement, Employee shall have "GOOD REASON" to terminate this Agreement
and his employment hereunder if, without Employee's consent, (x) Employee is
demoted by means of a reduction in authority, responsibilities, duties or title
to a position of materially less stature or importance within the Company than
as described in paragraph 1 hereof or (y) the Employer breaches this Agreement
in any material respect and fails to cure such breach within ten (10) days after
Employee delivers written notice and a written description of such breach to the
Employer, which notice shall specifically refer to this section of this
Agreement.
(d) For purposes of applying paragraph 5 under the circumstances described
in (b) above, the effective date of termination will be the closing date of the
transaction giving rise to the Change in Control and all compensation,
reimbursements and lump-sum payments due Employee must be paid in full by
Employer at or prior to such closing. Further, Employer shall ensure that
Employee will be given sufficient time and opportunity to elect whether to
exercise all or any of his vested options to purchase the Company's Common
Stock, including any options with accelerated vesting
-13-
under the provisions of the Company's 1998 Long-Term Incentive Plan (or other
applicable plan then in effect), such that he may convert the options to shares
of the Company's Common Stock at or prior to the closing of the transaction
giving rise to the Change in Control, if he so desires.
(e) A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(i) any person, other than the Company or an employee benefit plan
of the Company, and other than Notre Capital Ventures II, L.L.C. or any
entity controlled by it, acquires directly or indirectly the Beneficial
Ownership (as defined in Section 13(d) of the Securities Exchange Act of
1934, as amended) of any voting security of the Company and immediately
after such acquisition such Person is, directly or indirectly, the
Beneficial Owner of voting securities representing fifty percent (50%) or
more of the total voting power of all of the then-outstanding voting
securities of the Company;
(ii) the following individuals no longer constitute a majority of
the members of the Board of Directors of the Company: (A) the individuals
who, as of the closing date of the Company's initial public offering,
constitute the Board of Directors of the Company (the "ORIGINAL
DIRECTORS"); (B) the individuals who thereafter are elected to the Board
of Directors of the Company and whose election, or nomination for
election, to the Board of Directors of the Company was approved by a vote
of at least two-thirds (2/3) of the Original Directors then still in
office (such directors becoming "ADDITIONAL ORIGINAL DIRECTORS"
immediately following their election); and (C) the individuals who are
elected to the Board of Directors of the Company and whose election, or
nomination for election, to the Board of Directors of the Company was
approved by a vote of at least two-thirds (2/3) of the Original Directors
and Additional Original Directors then still in office (such directors
also becoming " ADDITIONAL ORIGINAL DIRECTORS" immediately following their
election);
(iii) the stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company, a
reverse stock split of outstanding voting
-14-
securities, or consummation of any such transaction if stockholder
approval is not obtained, other than any such transaction which would
result in at least seventy-five percent (75%) of the total voting power
represented by the voting securities of the surviving entity outstanding
immediately after such transaction being Beneficially Owned by at least
seventy-five percent (75%) of the holders of outstanding voting securities
of the Company immediately prior to the transaction, with the voting power
of each such continuing holder relative to other such continuing holders
not substantially altered in the transaction; or
(iv) the stockholders of the Company shall approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or a substantial portion of the
Company's assets (i.e., fifty percent (50%) or more of the total assets of
the Company).
(f) Employee must be notified in writing by Employer or the Company at any
time that either Employer or the Company anticipates that a Change in Control
may take place.
(g) If it shall be determined that any payment or distribution by
Employer, the Company or any other person to or for the benefit of the Employee
(a "PAYMENT") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "EXCISE TAX"), as a result of the
termination of employment of the Employee in the event of a Change in Control,
then Employer, the Company or the successor to the Company shall pay an
additional payment (a "GROSS-UP PAYMENT") in an amount such that after payment
by the Employee of all taxes, including, without limitation, any income taxes
and Excise Tax imposed on the Gross-Up Payment, the Employee retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed on the Payments. Such
amount will be due and payable by Employer, the Company or the successor to the
Company within ten (10) days after the Employee delivers written request for
reimbursement accompanied by a copy of the Employee's tax return(s) or other tax
filings showing the excise tax actually incurred by the Employee.
-15-
13. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto relating to the subject matter hereof and supersedes any
other employment agreements or understandings, written or oral, between or among
Employer, the Company and Employee. This Agreement is not a promise of future
employment. Employee has no oral representations, understandings or agreements
with Employer or the Company or any of its officers, directors or
representatives covering the same subject matter as this Agreement. This
Agreement is the final, complete and exclusive statement and expression of the
agreement between Employer and Employee and of all the terms of this Agreement,
and it cannot be varied, contradicted or supplemented by evidence of any prior
or contemporaneous oral or written agreements. This written Agreement may not be
later modified except by a further writing signed by a duly authorized officer
of Employer and Employee, and no term of this Agreement may be waived except in
writing signed by the party waiving the benefit of such term.
-16-
14. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To Employer: LandCare USA Management Co., L.P.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Law Department
To: Company: LandCare USA, Inc.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Law Department
To Employee: Xxxxx X. Xxxxxx
__________________________________
__________________________________
Notice shall be deemed given and effective on the earlier of three (3) days
after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually received
by means of hand delivery, delivery by Federal Express or other courier service,
or by facsimile transmission. Either party may change the address for notice by
notifying the other party of such change in accordance with this paragraph 14.
15. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part
-17-
hereof.
16. ARBITRATION. With the exception of paragraphs 3 and 7, any unresolved
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before a panel of three (3)
arbitrators in Houston, Texas, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association
("AAA") then in effect, provided that Employee shall comply with Employer's
grievance procedures in an effort to resolve such dispute or controversy before
resorting to arbitration, and provided further that the parties may agree to use
arbitrators other than those provided by the AAA. The arbitrators shall not have
the authority to add to, detract from, or modify any provision hereof nor to
award punitive damages to any injured party. The arbitrators shall have the
authority to order back-pay, severance compensation, vesting of options (or cash
compensation in lieu of vesting of options), reimbursement of costs, including
those incurred to enforce this Agreement, and interest thereon in the event the
arbitrators determine that Employee was terminated without disability or Cause,
as defined in paragraphs 5(a)(ii) and 5(a)(iii), respectively, or that Employer
has breached this Agreement in any material respect. A decision by a majority of
the arbitration panel shall be final and binding. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. The direct expense of any
arbitration proceeding shall be borne by Employer.
17. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Texas.
18. COUNTERPARTS. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
19. THIRD-PARTY BENEFICIARY. The Company is intended to be a third-party
beneficiary under this Agreement, and shall be entitled to enforce the
provisions hereof benefiting the Company.
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
LANDCARE USA MANAGEMENT CO., L.P.
BY: XXXX XX, INC.
By:_______________________________
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
LANDCARE USA, INC.
By:_______________________________
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
-19-
EMPLOYEE:
___________________________________
Xxxxx X. Xxxxxx
-20-
