EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of April 13, 1999 by and between XxxxxX.xxx, Inc., a Washington corporation
("ImageX"), Keystone Acquisition Corp., a Washington corporation and wholly
owned subsidiary of ImageX ("Employer"), and
Xxxxxxxx X. Xxxxxxx ("Executive").
RECITALS
A. ImageX, Employer, Fine Arts Engravers Company, Inc., an Oregon
corporation ("Fine Arts"), and Executive have entered into an Asset Purchase
Agreement dated as of February 23, 1999 (the "Asset Purchase Agreement")
pursuant to which Employer will purchase substantially all of the assets and
other rights, and assume certain specified liabilities, of Fine Arts.
B. It is a condition precedent to the closing of the Asset Purchase
Agreement that Executive and Employer enter into this Agreement.
AGREEMENT
In consideration of the mutual covenants and agreements set forth herein,
the parties hereby agree as follows:
1. Employment
Employer will employ Executive and Executive will accept employment by
Employer as Employer's President. Executive will, subject to Employer's Articles
of Incorporation and Bylaws, perform such duties as are customarily performed by
a President of a corporation that is, in all respects, similar to Employer, and
such other duties consistent with this Agreement as may be assigned from time to
time by Employer's Board of Directors that relate to the business of Employer,
its subsidiaries, its parent corporation or any business ventures in which
Employer, its subsidiaries or its parent corporation may participate that are
related to printing, engraving or e-commerce in connection therewith; provided,
however, that at all times during the term of this Agreement, Executive will be
employed as the President of Employer and shall have responsibilities and
compensation relative to other employees of ImageX that are consistent with that
title. Executive and Employer agree that Executive's principal place of
employment under this Agreement shall be in the Portland metropolitan area and
that no person, other than the Chief Executive Officer of ImageX will be
appointed to an office of Employer senior to that of Executive.
2. Attention and Effort
Executive will devote his entire working time, ability, attention and
effort to Employer's business and will faithfully serve its interests during the
Term (as defined below) of this Agreement; provided, however, that Executive may
devote reasonable periods of time
to (a) engaging in personal investment activities, (b) serving on the board of
directors of other corporations, if such service would not otherwise be
prohibited by Section 7 hereof, and (c) engaging in charitable or community
service activities, so long as none of the foregoing additional activities
materially interfere with Executive's duties under this Agreement. Without
limiting the generality of the foregoing, Executive may devote time and
attention to the activities identified on Exhibit A hereto at levels of
participation that do not materially interfere with his responsibilities as
President of Employer. The parties agree that the levels of participation
existing as of the date hereof do not materially interfere with such
responsibilities as they currently exist.
3. Term
Subject to Section 5 hereof or unless extended by mutual agreement of the
parties, Executive's initial term of employment under this Agreement (the
"Term") shall expire on the second anniversary of the date hereof.
4. Compensation
4.1 Base Salary
During the Term of this Agreement, Employer agrees to pay or cause to be
paid to Executive, and Executive agrees to accept in exchange for the services
rendered hereunder by him and the agreements undertaken by him herein, an annual
salary of One Hundred Twenty-Five Thousand Dollars ($125,000) before all
authorized or legally required payroll deductions. Such annual salary shall be
paid in substantially equal installments and at the same intervals as other
senior executives of Employer are paid as may be determined from time to time by
the Board. During the Term of this Agreement, Executive's annual base salary
shall not be reduced below the amount set forth in this Section 4.1. Such salary
shall be subject to increase from time to time as approved by the Board of
Directors of Employer in its sole discretion.
4.2 Bonus
Executive may be entitled to receive, in addition to the annual base
salary described above, an annual bonus in such amount, if any, as may be
determined by the Board of Directors of Employer in its sole discretion.
4.3 Benefits
During the term of this Agreement, Executive will be entitled to
participate, subject to and in accordance with applicable eligibility
requirements, in fringe benefit programs generally available to senior
executives of Employer, as those programs may currently exist or be modified
from time to time.
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4.4 Warrants
In connection with the execution and delivery of this Agreement, ImageX
shall grant to Executive a warrant, in substantially the form of Exhibit B
hereto, to purchase One Hundred Fifty Thousand (150,000) shares of ImageX's
common stock, $.01 par value per share ("Common Stock") at an exercise price of
$2.00 per share; provided, however, that ImageX shall have the option,
exercisable in its sole discretion at any time prior to the issuance of the
warrant, to substitute a junior series of preferred stock in lieu of the Common
Stock.
4.5 Options
In connection with the execution and delivery of this Agreement, ImageX
shall grant to Executive (the "ImageX Board"), options to purchase Fifty
Thousand (50,000) shares of Common Stock, at an exercise price equal to the fair
market value per share of the Common Stock on the date such options are granted
by the ImageX Board, as such value is determined by the ImageX Board. Such
options shall be granted under, and shall be subject to all the terms and
conditions of, ImageX's employee stock option plan, as such plan may be amended
from time to time, and shall vest according to the customary vesting schedule
applicable to ImageX employees.
5. Termination
Employment of Executive pursuant to this Agreement may be terminated as
follows, but in any case the provisions of Section 7 hereof shall survive the
termination of this Agreement and the termination of Executive's employment
hereunder:
5.1 By Employer
Employer may terminate Executive's employment at any time upon giving
Notice of Termination (as hereinafter defined).
5.2 By Executive
Executive may terminate his employment at any time upon giving Notice of
Termination.
5.3 Automatic Termination
This Agreement and Executive's employment hereunder will terminate
automatically upon Executive's death or total disability. The term "total
disability" as used herein means Executive's inability to perform the duties set
forth in Section 1 hereof for a period of 60 consecutive days or periods
aggregating 120 calendar days in any 12-month period as a result of physical or
mental illness, loss of legal capacity or any other cause, unless Executive is
granted a leave of absence by Employer's Board of Directors. Executive and
Employer hereby acknowledge that Executive's ability to perform the duties
specified in Section 1
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hereof is of the essence of this Agreement. Termination hereunder will be deemed
to be effective (a) on the date of Executive's death or (b) immediately upon a
determination by Employer's Board of Directors or the ImageX Board of
Executive's total disability, which determination shall be based on the advice
of a qualified physician or psychiatrist appointed by such Board in the case of
a determination of total disability based on a mental or physical illness or
condition, it being agreed that Executive will cooperate in any such physical or
mental examination as may be necessary.
5.4 Notice of Termination
5.4.1 Termination For Cause or Without Good Reason
With respect to any termination of Executive's employment by Employer for
Cause (as defined below) or by Executive without Good Reason (as defined below),
the term "Notice of Termination" means written notice of termination of
Executive's employment delivered to the other party in accordance with Section
11 below. The effective date of any such termination for Cause or without Good
Reason shall be the date on which such Notice of Termination is deemed to be
effective pursuant to Section 11 below.
5.4.2 Termination Without Cause or For Good Reason
With respect to any termination of Executive's employment by Employer
without Cause or by Executive for Good Reason, the term "Notice of Termination"
means at least 30 days' written notice of termination delivered to the other
party in accordance with Section 11 below, during which period Executive's
employment and performance of services will continue; provided, however, that
Employer may, upon notice to Executive and without reducing Executive's
compensation during such period, excuse Executive from any or all of his duties
during such period. The effective date of any such termination without Cause or
for Good Reason shall be the date which is 30 days after the date on which such
Notice of Termination is deemed to be effective pursuant to Section 11 below.
5.5 Transfer of Executive's Employment
If Executive's employment is transferred from Employer to ImageX or any
other subsidiary of ImageX, such transfer shall not, in and of itself, be deemed
a termination of Executive's employment under this Agreement and this Agreement
shall continue in effect without regard to the transfer; but only if Executive's
position and duties after the transfer are substantially the same as his
position and duties with Employer immediately prior to the transfer.
6. Termination Payments
In the event of termination of Executive's employment, all compensation
and benefits set forth in this Agreement will terminate upon the effective date
of such termination, except as specifically provided in this Section 6:
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6.1 Termination by Employer
(a) If Employer terminates Executive's employment without Cause prior to
the end of the Term of this Agreement, Executive will be entitled to receive (i)
termination payments equal to the sum of (A) the annual base salary Executive
would have received if his employment hereunder had continued from the effective
date of the termination until the end of the Term of this Agreement and (B)
Seventy-Five Thousand Dollars ($75,000), subject to adjustment as provided in
Section 7.4 below; and (ii) any unpaid annual base salary and benefits that have
accrued for services already performed as of the date termination of Executive's
employment becomes effective.
(b) If Employer terminates Executive's employment with Cause, Executive
will not be entitled to receive any of the foregoing benefits, other than those
set forth in clauses (i)(B) and (ii) above.
6.2 Termination by Executive
(a) If Executive terminates his employment for Good Reason prior to the
end of the term of this Agreement, Executive will be entitled to receive the
payments set forth in Section 6.1(a) hereof.
(b) If Executive terminates his employment for any reason other than Good
Reason prior to the end of the term of this Agreement, Executive will not be
entitled to any payments hereunder, other than those set forth in clauses (i)(B)
and (ii) of Section 6.1(a) hereof.
6.3 Termination Because of Death or Total Disability
In the case of the termination of Executive's employment as a result of
his death or total disability as defined above, Executive shall not be entitled
to receive any payments or benefits hereunder, other than those set forth in
clause (ii) of Section 6.1(a) hereof plus an amount equal to three months' base
salary.
6.4 Termination Because of Expiration of Term
In the case of the termination of Executive's employment as a result of
the expiration of the Term of this Agreement, Executive will not be entitled to
receive any payments or benefits hereunder, other than those set forth in
clauses (i)(B) and (ii) of Section 6.1(a) hereof.
6.5 Payment Schedule
All payments under this Section 6 will be made to Executive at the same
interval as payments of salary would have been made hereunder if such employment
had not been terminated.
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6.6 Certain Definitions
(a) Wherever reference is made in this Agreement to termination being with
or without Cause, "Cause" means the occurrence of one or more of the following
events:
(i) Executive's willful material misconduct or dishonesty in the
performance of, or the willful failure to perform, any duty assigned to
Executive consistent with the terms of this Agreement or incident to his
employment responsibilities as President of Employer;
(ii) Executive's willful injury of Employer or its affiliates,
Executive's breach of a fiduciary duty owed to Employer or its affiliates, or
any act of Executive involving moral turpitude and materially adversely
affecting (or which Employer has a reasonable basis for believing will
materially adversely affect) the business, goodwill or reputation of Employer or
its affiliates;
(iii) Conviction of Executive of a violation of (including plea of
nolo contendere) a state or federal criminal law involving the commission of a
crime against Employer or its affiliates or any felony, in each case, materially
adversely affecting (or which Employer has a reasonable basis for believing will
materially adversely affect) the business, goodwill or reputation of Employer or
its affiliates;
(iv) Habitual misuse by Executive of alcohol or controlled
substances that materially impairs Executive's ability to perform his duties
under this Agreement; or
(v) Any material violation by Executive of any provision of Section
7 of this Agreement.
(b) Wherever reference is made in this Agreement to termination being with
or without "Good Reason," "Good Reason" means the occurrence of any of the
following without the consent of the Executive:
(i) the assignment to Executive of duties materially inconsistent
with and detrimental to Executive's position, authority, duties or
responsibilities as contemplated by this Agreement; provided, however, that the
reduction of Executive's position, authority, duties and responsibilities by
Employer following Executive's written notice to Employer that he intends to
resign his position with Employer under circumstances that would not constitute
Good Reason shall not constitute Good Reason under this Agreement;
(ii) Employer requiring the Executive to spend materially more time
traveling than is customarily spent by executive officers of comparable
companies performing similar functions; or
(iii) Any material violation by Employer of any provision of this
Agreement.
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(iv) Relocation of Executive's principal place of employment outside
of the Portland metropolitan area.
(c) For purposes of Sections 6.6(a)(i) and (ii), no act, or omission to
act, on Executive's part shall be considered "willful" unless done, or omitted
to be done, by him not in good faith or without reasonable belief that his
action or omission was in the best interest of Employer; provided, however, that
any act, or omission to act, on Executive's part in reliance upon the advice of
counsel to Employer, or counsel to Executive, shall not be deemed to be willful.
7. Noncompetition and Nonsolicitation
7.1 Applicability
This Section 7 will survive the termination of Executive's employment with
Employer or the expiration of the term of this Agreement. Executive agrees that
the duration and scope of his obligations under this Section 7 are reasonable.
7.2 Scope of Competition
Executive agrees that he will not, directly or indirectly, during his
employment and for eighteen (18) months after the date on which his employment
is terminated, be employed by, consult with or otherwise perform services for,
own, manage, operate, join, control or participate in the ownership, management,
operation or control of, or otherwise be connected with or related to, in any
manner, directly or indirectly, any Competitor (as defined below), unless
released from such obligation in writing by Employer's Board of Directors. A
"Competitor" consists of any entity that produces, markets, distributes or
otherwise derives benefit from the production, marketing or distribution of
products or services that compete with products or services then produced,
marketed or distributed by Employer (excluding any such products or services
that are wholly unrelated to Executive's responsibilities with Employer and as
to which he possesses no material confidential or proprietary information of
Employer), or any entity that is preparing to market or is developing products
that will be in competition with the products or services then produced,
marketed or distributed or being developed by Employer (excluding any such
products or services that are wholly unrelated to Executive's responsibilities
with Employer and as to which he possesses no material confidential or
proprietary information of Employer), anywhere in North America. Without
limiting the generality of the foregoing, Executive shall be deemed to be
related to or connected with a Competitor if, among other things, such
Competitor is (a) a partnership in which he is a general or limited partner or
employee, (b) a corporation or association of which he is a shareholder,
officer, employee or director, (c) a limited liability company in which he is a
member or employee, or (d) a partnership, corporation, limited liability company
or association of which he is a member, consultant or agent; provided, however,
that nothing herein will prevent the purchase or ownership by Executive of
shares of a Competitor that constitute less than 1% of the outstanding equity
securities of a publicly or privately held corporation, if Executive has no
other relationship with such corporation.
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7.3 Scope of Nonsolicitation
Executive will not (a) directly or indirectly solicit, influence or
entice, or attempt to solicit, influence or entice, any employee, consultant or
third-party contractor of Employer to cease his or her relationship with
Employer or (b) solicit, influence, entice or in any way divert any customer,
distributor, partner, joint venturer or supplier of Employer from continuing to
do business with Employer at historic or previously planned or intended levels.
This Section 7.3 will apply during the time period and geographical area
described in Section 7.2 hereof.
7.4 Waiver of Noncompetition and Nonsolicitation Provisions
In the event of any termination of Executive's employment for any reason
prior to expiration of the Term of this Agreement, Executive shall promptly
notify Employer in writing of the identity of any company or other entity with
whom Executive (a) will be working (in whatever capacity) or (b) is discussing a
possible working relationship. On or prior to the effective date of Executive's
termination of employment other than by death or total disability, and within 30
days thereafter in the event of a termination of Executive's employment by the
Company for Cause, Employer may, by executing a written waiver or modification,
reduce the time period during which the prohibitions set forth in Sections 7.2
and 7.3 hereof shall apply and, to the extent such time period is reduced, any
termination payment set forth in Section 6.1(a)(i)(B) of this Agreement
otherwise due to Executive, shall be proportionately reduced. By way of example,
if Employer timely elects to reduce the time period from 18 months to nine
months (a 50% reduction in the time period), the termination payment under
Section 6.1(a)(i)(B) shall be reduced by 50% to $37,500. A waiver or
modification by Employer of the time period pursuant to this Section 7.4 need
not comply with Section 16 hereof to the extent such Section would require the
signature of Executive in order for the waiver or modification to be effective.
7.5 Assignment of Intellectual Property
Executive's interest in all proprietary concepts, designs, machines,
devices, uses, processes, technology, trade secrets, works of authorship,
customer lists, plans, embodiments, inventions, improvements or related work
product (collectively, "Intellectual Property") that Executive develops,
conceives or first reduces to practice during the term of his employment
hereunder, whether working alone or with others, shall be Employer's sole and
exclusive property, together with any and all Intellectual Property rights,
including, without limitation, patent or copyright rights, relating thereto, and
Executive hereby assigns to Employer all of such Intellectual Property. The
Intellectual Property so assigned shall include only such concepts, designs,
machines, devices, uses, processes, technology, trade secrets, works of
authorship, customer lists, plans, embodiments, inventions, improvements and
related work product that (a) relate to Executive's performance of services
under this Agreement, to Employer's field of business or to Employer's actual or
demonstrably anticipated research or development (excluding any field of
business or area of research and development that is wholly unrelated to
Executive's responsibilities with Employer and as to which he possesses
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no material confidential or proprietary information of Employer, it being agreed
that printing and engraving and the manufacturing and distribution of printed or
engraved materials, and e-commerce related thereto, are not so excluded) ,
whether or not developed, conceived or first reduced to practice during normal
business hours or with the use of any equipment, supplies, facilities or trade
secret information or other resource of Employer or (b) are developed in whole
or in any material part on Employer's time or developed using Employer's
equipment, supplies (other than occasional and immaterial uses of such
supplies), facilities or trade secret information, or other resources of
Employer, whether or not the work product relates to Employer's field of
business.
NOTICE: Notwithstanding any other provision of this Agreement to the
contrary, this Agreement does not obligate Executive to assign or offer to
assign to Employer any of Executive's rights in any invention for which no
equipment, supplies, facilities or trade secret information of Executive was
used and which was developed entirely on Executive's own time, unless (except to
the extent further restricted above) (a) the invention relates (i) directly to
the business of Employer or (ii) to Employer's actual or demonstrably
anticipated research or development, or (b) the invention results from any work
performed by Executive for Employer. This satisfies the written notice and other
requirements of RCW 49.44.140, to the extent applicable.
7.6 Disclosure and Protection of Inventions
Executive shall disclose in writing all concepts, designs, processes,
technology, plans, embodiments, inventions or improvements constituting
Intellectual Property to Employer promptly after the development thereof. At
Employer's request and at no cost or expense to Executive, Executive will assist
Employer or its designee in efforts to protect all rights relating to such
Intellectual Property. Such assistance may include, without limitation, the
following: (a) making application in the United States and in other countries
for a patent or copyright on any work products specified by Employer; (b)
executing documents of assignment to Employer or its designee of all of
Executive's right, title and interest in and to any work product and related
intellectual property rights; and (c) taking such additional action (including,
without limitation, the execution and delivery of documents) to perfect,
evidence or vest in Employer or its designee all right, title and interest in
and to any Intellectual Property and any rights relating thereto.
7.7 Nondisclosure; Return of Materials
(a) During the term of his employment by Employer and following
termination of such employment, Executive will not disclose (except as required
by his duties to Employer) any concept, design, process, technology, trade
secret, customer list, plan, embodiment or invention, any other Intellectual
Property or any other confidential information, whether patentable or not, of
Employer of which Executive becomes informed or aware during his employment,
whether or not developed by Executive; provided, however, that the foregoing
obligations of confidentiality and nondisclosure shall not apply to any
information which (i) at the time of disclosure or use is, or thereafter
becomes, available in the public domain
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through no breach of this Agreement by Executive; or (ii) is obtained by
Executive from a source other than Employer and other than one who would be
breaching a commitment of confidentiality to Employer by disclosing the
information to Executive and Executive can bear the burden of proving that it
was so obtained; or (iii) is developed by Executive independently of Employer's
confidential information; or (v) is required by law to be disclosed by
Executive, provided that written notice is delivered to Employer prior to any
such disclosure to afford Employer a reasonable opportunity to object to such
disclosure.
(b) In the event of the termination of his employment with Employer or the
expiration of this Agreement, Executive will return all documents, data and
other materials of whatever nature, including, without limitation, drawings,
specifications, research, reports, embodiments, software and manuals to Employer
that pertain to his employment with Employer or to any Intellectual Property and
shall not retain or cause or allow any third party to retain photocopies or
other reproductions of the foregoing.
7.8 Equitable Relief
Executive acknowledges that the provisions of this Section 7 are essential
to Employer, that Employer would not enter into this Agreement if it did not
include this Section 7 and that damages sustained by Employer as a result of a
breach of this Section 7 cannot be adequately remedied by damages, and Executive
agrees that Employer, notwithstanding any other provision of this Agreement,
including, without limitation, Section 14 hereof, in addition to any other
remedy it may have under this Agreement or at law, will be entitled to
injunctive and other equitable relief to prevent or curtail any breach of any
provision of this Agreement, including, without limitation, this Section 7. The
prevailing party in any proceedings under this Section 7 will be entitled to
recover costs and expenses, including attorneys' fees.
7.9 Effect of Violation
Executive and Employer acknowledge and agree that additional consideration
has been given for Executive's entering into this Section 7, such additional
consideration including, without limitation, certain provisions for termination
payments pursuant to Section 7 hereof. Violation by Executive of this Section 7
will relieve Employer of any obligation it may have to make such termination
payments, but shall not relieve Executive of his obligations, as required
hereunder, not to compete.
7.10 Definition of Employer
For purposes of this Section 7, "Employer" shall include (in addition to
the corporation defined as Employer in Recital A above), Fine Arts and all other
current and future entities controlling, controlled by or under common control
with Employer.
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8. Representations and Warranties
To induce Employer to enter into this Agreement, Executive represents and
warrants to Employer as follows:
8.1 No Violation of Other Agreements
Neither the execution nor the performance of this Agreement by Executive
will violate or conflict in any way with any other agreement by which Executive
may be bound, or with any other duties imposed on Executive by corporate or
other statutory or common law.
8.2 Patents, Etc.
Executive has prepared and attached hereto as Schedule A a list of all
inventions, patent applications and patents made or conceived by Executive prior
to the date hereof that (a) otherwise would be affected by this Agreement and
(ii) are subject to prior agreement or that Executive desires to exclude from
this Agreement, or, if no such list is attached, Executive hereby represents and
warrants to Employer that there are no such inventions, patent applications or
patents.
9. Young Presidents Organization ("YPO") Eligibility
Notwithstanding anything in this Agreement to the contrary, Employer
agrees to use commercially reasonable efforts to provide Executive with a
position and level of responsibility consistent with YPO eligibility
requirements.
10. Notice and Cure of Breach
Whenever a breach of this Agreement by any party is relied upon as
justification for any action taken by the other party pursuant to any provision
of this Agreement, other than pursuant to the definition of "Cause" set forth in
Section 6.6(a)(iii) hereof, before such action is taken, the party asserting the
breach of this Agreement shall give the other party at least 20 days' prior
written notice of the existence and nature of such breach before taking further
action hereunder and shall give the party purportedly in breach of this
Agreement the opportunity to correct such breach during such 20-day period;
provided, however, that if the cure reasonably cannot be completed within such
20-day period, such period shall be extended to the period of time reasonably
necessary to effect such cure, up to a maximum of 60 days in the aggregate from
the date of the notice referred to above. No such extension shall be permitted
unless the party purportedly in breach begins such cure immediately upon
receiving notification thereof and continues to diligently pursue such cure to
completion.
11. Notices
All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be sent by facsimile
transmission, or mailed postage
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prepaid by first-class certified or registered mail, or sent for next business
morning delivery via a nationally recognized express courier service, or
hand-delivered, addressed as follows:
If to Executive:
Xxxxxxxx X. Xxxxxxx
000 X.X. Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
with a copy to:
Miller, Nash, Wiener, Hager & Xxxxxxx LLP
3500 U.S. Bancorp Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
If to Employer or ImageX:
XxxxxX.xxx, Inc.
00000 XX 0xx Xxxxxx; Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Any party may change the persons, fax numbers or addresses to which any
notices or other communications to it should be addressed by notifying the other
party as provided above. Any notice or other communication, if addressed and
sent, mailed or delivered as provided above, shall be deemed given or received
five days after the date sent as indicated on the certified or registered mail
receipt, or on the next business day if mailed by express courier service, or on
the date of delivery or transmission if hand-delivered or sent by facsimile
transmission.
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12. Assignment
This Agreement is personal to Executive and shall not be assignable or
delegable by Executive. Employer may assign its rights and obligations hereunder
to (a) ImageX, (b) any corporation resulting from any merger, consolidation or
other reorganization to which Employer or ImageX is a party, or (c) any
corporation, partnership, association or other person to which Employer or
ImageX may transfer all or substantially all its assets. All the terms and
provisions of this Agreement shall be binding on and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and
permitted assigns.
13. Waivers
No delay or failure by any party hereto in exercising, protecting or
enforcing any of its rights, titles, interests or remedies hereunder, and no
course of dealing or performance with respect thereto, will constitute a waiver
thereof. The express waiver by a party hereto of any right, title, interest or
remedy in a particular instance or circumstance will not constitute a waiver
thereof in any other instance or circumstance. All rights and remedies shall be
cumulative and not exclusive of any other rights or remedies.
14. Arbitration
Subject to the provisions of subparagraph 7.8 hereof, any controversies or
claims arising out of or relating to this Agreement shall be fully and finally
settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect (the "AAA Rules"), conducted
by one arbitrator either mutually agreed on by Employer and Executive or chosen
in accordance with the AAA Rules, except that the parties thereto shall have any
right to discovery as would be permitted by the Federal Rules of Civil Procedure
for a period of 90 days following the commencement of such arbitration and the
arbitrator thereof shall resolve any dispute that arises in connection with such
discovery. The prevailing party shall be entitled to costs, expenses and
reasonable attorneys' fees, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
15. Amendments in Writing
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure therefrom by either
party hereto, will be effective unless the same is in writing, specifically
identifying this Agreement and the provision intended to be amended, modified,
waived, terminated or discharged and signed by the party to be bound thereby,
and each such amendment, modification, waiver, termination or discharge will be
effective only in the specific instance and for the specific purpose for which
given. No provision of this Agreement will be varied, contradicted or explained
by any oral agreement, course of dealing or performance or any other matter not
set forth in an agreement in writing and signed by Employer and Executive.
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16. Governing Law
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Oregon as though made and to be fully performed in that
State.
17. Severability
If any provision of this Agreement is held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof will remain in full force and
effect in such jurisdiction and will be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability will not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover will have the power to reform such
provision to the extent necessary for such provision to be enforceable under
applicable law.
18. Headings
All headings used herein are for convenience only and will not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
19. Counterparts
This Agreement, and any amendment or modification entered into pursuant to
Section 15 hereof, may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
20. Entire Agreement
This Agreement on and as of the date hereof constitutes the entire
agreement between Employer and Executive with respect to the subject matter
hereof and all prior or contemporaneous oral or written communications,
understandings or agreements between Employer and Executive with respect to such
subject matter are hereby superseded and nullified in their entireties.
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IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement on the date set forth above.
EXECUTIVE
/s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxxx X. Xxxxxxx
KEYSTONE ACQUISITION CORP.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Its
------------------------------------
XXXXXX.XXX, INC.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Its
------------------------------------
-15-
