EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of January 23, 2006, between
Xxxxxx American Corp., a Delaware corporation ("CAC" or the "Company"), and
Xxxxxx Xxxxxxxxx (the "Executive").
WHEREAS, the Company wishes to employ the Executive, and the
Executive wishes to accept such employment, on the terms and conditions set
forth in this Agreement;
Accordingly, the Company and the Executive hereby agree as
follows:
1. Employment, Duties and Acceptance.
1.1 Employment, Duties. The Company hereby employs the Executive for
the Term (as defined in Section 2.1.), to render exclusive and full-time
services to the Company as Senior Vice President, Partnership Development
(Sales) or in such other executive position as may be mutually agreed upon by
the Company and the Executive, and to perform such other duties consistent with
such position as may be assigned to the Executive by the Chief Executive Officer
of the Company.
1.2 Acceptance. The Executive hereby accepts such employment and
agrees to render the services described above. During the Term, the Executive
agrees to serve the Company faithfully and to the best of the Executive's
ability, to devote the Executive's entire business time, energy and skill to
such employment, and to use the Executive's best efforts, skill and ability to
promote the Company's interests. The Executive further agrees to accept
election, and to serve during all or any part of the Term, as an officer or
director of the Company and of any subsidiary or affiliate of the Company,
without any compensation therefor other than that specified in this Agreement,
if elected to any such position by the shareholders or by the Board of Directors
(the "Board") or of any subsidiary or affiliate, as the case may be.
1.3 Location. The duties to be performed by the Executive hereunder
shall be performed primarily at the offices of the Company in San Antonio,
Texas, subject to reasonable travel requirements on behalf of the Company.
2. Terms of Employment; Certain Post-Term Benefits.
2.1 The Term. This Agreement and the term of the Executive's employment
under this Agreement (the "Term") shall become effective as of the date hereof
(the "Effective Date") and will continue for a period of two years (the final
date of the two year period being referred to herein as the "Termination Date"),
subject to earlier termination pursuant to Section 4.
2.2 End-of-Term Provisions. Prior to the end of the Term, the Company and
the Executive shall meet to discuss whether the Term should be extended.
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The Company shall have the right at any time, however, to give written
notice of nonrenewal of the Term.
2.3 Non-renewal of Term. The Term shall end earlier than the
Termination Date provided in Section 2.1 or any extended termination date
provided in Section 2.2, in either case if sooner terminated pursuant to
Section 4. Non-extension of the Term shall not be deemed to be a
termination of this Agreement by the Company, and the Executive shall not
be entitled to receive severance benefits or any other payment pursuant to
this Agreement.
3. Compensation; Benefits.
3.1 Salary. As compensation for all services to be rendered pursuant
to this Agreement, the Company agrees to pay the Executive a base salary,
payable in accordance with the Company's normal payroll practices, at the
annual rate of not less than $300,000 less such deductions or amounts to be
withheld as required by applicable law and regulations (the "Base Salary").
In the event that the Company, in its sole discretion, from time to time
determines to increase the Base Salary, such increased amount shall, from
and after the effective date of the increase, constitute "Base Salary" for
purposes of this Agreement.
3.2 Incentive Compensation.
3.2.1 Annual Bonus. The Executive will be eligible to receive a bonus
with respect to 2006 and each later fiscal year ending during the Term
computed in accordance with the provisions hereafter. If, with respect to
any such fiscal year, the Company achieves "Consolidated EBITDA" (as
defined below) of at least the percentage set forth in the table below of
its business plan for such fiscal year, such bonus shall be the percentage
set forth in the table below of Base Salary with respect to the fiscal year
for which the bonus (any such bonus, an "Annual Bonus") was earned:
PERCENTAGE OF CONSOLIDATED
EBITDA IN BUSINESS PLAN PERCENTAGE OF BASE SALARY
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89.9% and below Nil
90-94.9 67.5%
95-99.9 71.25
100-105 78.75
105.1-110 82.5
110.1-115 86.25
115.1-120 90
120.1-125 93.75
125.1-130 97.5
130.1-135 101.25
135.1-140 105
140.1-145 108.75
145.1 and over 112.5
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An Annual Bonus if earned in accordance with this Agreement shall be paid no
later than the fifteenth day of the third month next following the year with
respect to which such bonus was earned, provided that, except as otherwise
specifically provided in this Agreement, as a condition precedent to any bonus
entitlement the Executive must remain in employment with the Company at the time
that the Annual Bonus is paid. Notwithstanding the foregoing, to the extent that
Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"),
may be applicable, such Annual Bonus shall be subject to, and contingent upon,
such shareholder approval as is necessary to cause the Annual Bonus to qualify
as "performance-based compensation" under Section 162(m) of the Code and the
regulations promulgated thereunder as well as approval of this Section 3.2.1 by
the Compensation Committee of Parent's board of directors.
For the purposes of this Agreement, "Consolidated EBITDA" means for any fiscal
year of CAC, consolidated net income for such fiscal year plus, without
duplication and to the extent reflected as a charge in the statement of such
consolidated net income for such fiscal year, the sum of (i) income tax expense,
(ii) interest expense, amortization or write-off of debt discount and debt
issuance costs and commissions (to the extent not already captured in interest
expense), discounts and other fees and charges associated with indebtedness,
(iii) depreciation and amortization expense (excluding amounts of prepaid
incentives under customer contracts), (iv) any extraordinary non-cash expenses
or losses, (v) any costs and expenses incurred in connection with the
acquisition of CAC by Parent or an affiliate, (vi) any auditing, legal,
reporting or administrative expenses incurred by CAC in complying with the
Xxxxxxxx-Xxxxx Act of 2002, as amended, or other reporting obligations required
by securities laws applicable to publicly traded corporations (except to the
extent such expenses are of a type historically charged to the business in the
ordinary course), and (vii) all restructuring costs and minus (i) to the extent
included in the statement of such consolidated net income for such period, the
sum of (a) interest income, (b) any extraordinary or non-recurring income or
gains (including, whether or not otherwise includable as a separate item in the
statement of such consolidated net income for such period, gains on the sales of
assets outside of the ordinary course of business), and (c) income tax credits
(to the extent not netted from income tax expense) and (ii) any cash payments
made during such period in respect of items described in clause (iv) above
subsequent to the fiscal quarter in which the relevant non-cash expenses or
losses were reflected as a charge in the statement of consolidated net income,
all as determined on a consolidated basis, all of the foregoing to be determined
by the Board or the Compensation Committee of Parent's board of directors, as
applicable, with a view to consistency with management projections disclosed as
presented to Parent in the Confidential Management Presentation dated August
2005. For the purposes of determining compensation milestones for any fiscal
year, Consolidated EBITDA will be adjusted by the Board or the Compensation
Committee of Parent's board of directors, as applicable, as appropriate for
material acquisitions or dispositions of any business or assets of or by the
Company or its subsidiaries for such fiscal year and thereafter.
3.2.2 Long Term Incentive Plan. During the Term, the Executive shall
participate in the Company's 2005 Long Term Incentive Plan ("LTIP"). The
Executive will receive 12% of the "LTIP bonus pool," as defined
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in and in accordance with the LTIP (which will include a provision that the
LTIP bonus pool will be 20% of Consolidated EBITDA achieved by CAC in
excess of the target Consolidated EBITDA). If the Term is extended, the
Executive shall participate in a new Long Term Incentive Plan that shall
commence after the LTIP ends. Notwithstanding the foregoing, to the extent
that Section 162(m) of the Code may be applicable, the LTIP (and any
subsequent Long Term Incentive Plan) shall be subject to, and contingent
upon, such shareholder approval as is necessary to cause the LTIP to
qualify as "performance-based compensation" under Section 162(m) of the
Code and the regulations promulgated thereunder.
3.3 Business Expenses. The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or paid by the
Executive during the Term in the performance of the Executive's services
under this Agreement, upon presentation of expense statements or vouchers
or such other supporting information as the Company customarily may require
of its officers provided, however, that the maximum amount available for
such expenses during any period may be fixed in advance by the Board.
3.4 Vacation. During the Term, the Executive shall be entitled to a
vacation period or periods of four (4) weeks taken in accordance with the
vacation policy of the Company during each year of the Term. Vacation time
not used by the end of a year shall be forfeited.
3.5 Fringe Benefits. During the Term, the Executive shall be entitled
to all benefits for which the Executive shall he eligible under any
qualified pension plan, 401(k) plan, group insurance or other so-called
"fringe" benefit plan which Xxxxxx American provides to its executive
employees generally.
4. Termination.
4.1 Death. If the Executive dies during the Term, the Term shall
terminate forthwith upon the Executive's death. The Company shall pay to
the Executive's estate: (i) any Base Salary earned but not paid; and (ii) a
pro rated Annual Bonus based on the number of days of the fiscal year
worked by the Executive. The Executive shall have no further rights to any
compensation (including any Base Salary or Annual Bonus) or any other
benefits under this Agreement.
4.2 Disability. If, during the Term the Executive is unable to perform
his duties hereunder due to a physical or mental incapacity for a period of
6 months within any 12-month period (hereinafter a "Disability"), the
Company shall have the right at any time thereafter to terminate the Term
upon sending written notice of termination to the Executive. If the Company
elects to terminate the Term by reason of Disability, the Company shall pay
to the Executive promptly after the notice of termination: (i) any Base
Salary earned but not paid, and (ii) a pro rated Annual Bonus based on the
number of days of the fiscal year worked by the Executive until the date of
the notice of termination, in each case less any other benefits payable to
the Executive under any disability plan provided for hereunder or otherwise
furnished to the Executive
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by the Company. The Executive shall have no further rights to any
compensation (including any Base Salary or Annual Bonus) or any other
benefits under this Agreement.
4.3 Cause. The Company may at any time by written notice to the
Executive terminate the Term for "Cause" (as defined below) and, upon such
termination, this Agreement shall terminate and the Executive shall be
entitled to receive no further amounts or benefits hereunder, except for
any Base Salary earned but not paid prior to such termination. For the
purposes of this Agreement, "Cause" means: (i) continued neglect by the
Executive of the Executive's duties hereunder, (ii) conviction of the
Executive of any felony or any lesser crime or offense involving the
property of the Company or any of its subsidiaries or affiliates, (iii)
willful misconduct by the Executive in connection with the performance of
any material portion of the Executive's duties hereunder, (iv) commission
of any act of fraud, personal dishonesty, disloyalty or defalcation, or
usurpation of a Company opportunity, (v) any act that has a material
adverse effect upon the reputation of and/or the public confidence in the
company, or (vi) failure to comply with a reasonable order, policy or rule
that constitutes material insubordination.
4.4 Termination by Company without Cause. If the Executive's
employment is terminated by the Company without Cause (other than by reason
of death or Disability), the Executive shall receive: (i) as severance pay,
an amount equal to 18 months of Base Salary payable ratably in accordance
with the Company's normal payroll practices, (ii) continuation for a
12-month period following the date of termination of group health plan
benefits to the extent authorized by and consistent with 29 U.S.C. ss. 1161
et seq. (commonly known as "COBRA"), with the cost of the regular premium
for such benefits shared in the same relative proportion by the Company and
the Employee as in effect on the date of termination, (iii) pro-rated
Annual Bonus for the year in which termination occurred if the Executive
would have been eligible to receive such bonus hereunder (including due to
satisfaction by the Company of performance milestones) had the Executive
been employed at the time such Annual Bonus is normally paid, which
pro-rated Annual Bonus will be paid at the time and in the manner such
Annual Bonus is paid to other executives receiving such bonus payment, and
(iv) Annual Bonus for the year prior to the year in which the Executive is
so terminated if at the time of termination the Executive has earned an
Annual Bonus payment for such prior year and has not yet been paid such due
to such termination, which prior year Annual Bonus will be paid at the time
and in the manner such prior year Annual Bonus is paid to other executives
receiving such prior year Annual Bonus. The Executive shall have no further
rights to any compensation (including any Base Salary or Annual Bonus) or
any other benefits under this Agreement.
4.5 Termination by Executive. The Executive is required to provide the
Company with 60 days' prior written notice of termination. Upon termination
of employment by the Executive, the Executive shall receive any Base Salary
earned but not paid prior to such termination and shall have no further
rights to any compensation (including any Base Salary or Annual Bonus) or
any other benefits under this Agreement.
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4.6 Release. Notwithstanding any other provision of this Agreement to
the contrary, the Executive acknowledges and agrees that any and all
payments, other than payment of any accrued and unpaid Base Salary to which
the Executive is entitled under this Section 4 are conditioned upon and
subject to the Executive's execution of a general waiver and release, in
such form as may be prepared by the Company, of all claims, except for such
matters covered by provisions of this Agreement which expressly survive the
termination of this Agreement.
4.7 Section 409A. Notwithstanding the foregoing provisions of this
Section 4, if any payments or benefits due to the Executive hereunder would
cause the application of an accelerated or additional tax under Section
409A of the Code such payments or benefits shall be restructured in a
manner which does not cause such an accelerated or additional tax. Without
limiting the application of the preceding sentence, any payment of money
due hereunder which is delayed in order to avoid the application of Section
409A of the Code (e.g., a six-month delay in the commencement of severance
pay, if necessary, if at the time of the Executive's termination of
employment he is a "specified employee," as defined in Section 409A of the
Code) shall be paid as soon as possible without causing the application of
Section 409A.
5. Protection of Confidential Information; Restrictive Covenants.
5.1 From the Effective Date, the Company will share with Executive
confidential and trade secret information regarding not only the Company
but also its subsidiaries and affiliates. In view of the fact that the
Executive's work for the Company will bring the Executive into close
contact with many confidential affairs of the Company not readily available
to the public, trade secret information and plans for future developments,
the Executive agrees:
5.1.1 To keep and retain in the strictest confidence all
confidential matters of the Company, including, without limitation,
"know how", trade secrets, customer lists, pricing policies,
operational methods, technical processes, formulae, inventions and
research projects, other business affairs of the Company, and any
information whatsoever concerning any director, officer, employee,
shareholder, partner, customer or agent of the Company or their
respective family members learned by the Executive heretofore or
hereafter, and not to disclose them to anyone outside of the Company,
either during or after the Executive's employment with the Company,
except in the course of performing the Executive's duties hereunder or
with the Company's express written consent. The foregoing prohibitions
shall include, without limitation, directly or indirectly publishing
(or causing, participating in, assisting or providing any statement,
opinion or information in connection with the publication of) any
diary, memoir, letter, story, photograph, interview, article, essay,
account or description (whether fictionalized or not) concerning any
of the foregoing, publication being deemed to include any presentation
or reproduction of any written, verbal or visual material in any
communication medium, including any book, magazine, newspaper,
theatrical production or movie, or television or radio programming or
commercial; and
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5.1.2 To deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any time the Company may
so request, all memoranda, notes, records, reports, manuals, drawings,
blueprints and other documents (and all copies thereof), including
data stored in computer memories or on other media used for electronic
storage or retrieval, relating to the Company's business and all
property associated therewith, which the Executive may then possess or
have under the Executive's control, and not retain any copies, notes
or summaries.
5.2 In support of Executive's commitments to maintain the
confidentiality of the Company's confidential and trade secret information,
during (i) the Term, and (ii) for a period of two years following
termination of the Executive's employment for any reason, the Executive
shall not in the United States and in any non-US jurisdiction where the
Company may then do business: (a) directly or indirectly, enter the employ
of, or render any services to, any person, firm or corporation engaged in
any business competitive with the business of the Company or of any of its
subsidiaries or affiliates; (b) engage in such business on the Executive's
own account; and the Executive shall not become interested in any such
business, directly or indirectly, as an individual, partner, shareholder,
director, officer, principal, agent, employee, trustee, consultant, or in
any other relationship or capacity; (c) directly or indirectly, solicit,
encourage or cause any client, customer or supplier of the Company to cease
doing business with the Company, or to reduce the amount of business such
client, customer or supplier does with the Company or (d) directly or
indirectly, solicit or encourage to cease to work with the Company, or
directly or indirectly hire, any person who is an employee of or consultant
then under contract with the Company or who was an employee of or
consultant then under contract with the Company within the six-month period
preceding such activity without the Company's written consent.
5.3 If the Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 5.1 or 5.2 hereof, the Company
shall have the following rights and remedies:
5.3.1 The right and remedy to have the provisions of this
agreement specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company;
5.3.2 The right and remedy to require the Executive to account
for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by the
Executive as the result of any transactions constituting a breach of
any of the provisions of the preceding paragraph, and the Executive
hereby agrees to account for and pay over such benefits to the
Company. Each of the rights and remedies enumerated above shall be
independent of the other, and shall be severally enforceable, and all
of such rights and remedies shall be in addition to, and not in lieu
of, any other rights and remedies available to the Company under law
or in equity; and
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5.3.3 In addition to any other remedy which may be available (i)
at law or in equity, or (ii) pursuant to any other provision of this
Agreement, the payments by the Company of Base Salary and the regular
premium for group health benefits pursuant to Section 4.4 will cease
as of the date on which such violation first occurs. In addition, if
the Executive breaches any of the covenants contained in Sections 5.1
and 5.2 and the Company obtains injunctive relief with respect
thereto, the period during which the Executive is required to comply
with that particular covenant shall be extended by the same period
that the Executive was in breach of such covenant prior to the
effective date of such injunctive relief.
5.4 If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, hereafter are held by a court to be invalid or unenforceable,
the same shall not affect the remainder of the covenant or covenants, which
shall be given full effect, without regard to those portions found invalid.
5.5 If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, are held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court
making such determination shall have the power to reduce the duration
and/or area of such provision and, in its reduced form, said provision
shall then be enforceable.
5.6 The Executive agrees (whether during or after the Executive's
employment with the Company) not to issue, circulate, publish or utter any
false or disparaging statements, remarks or rumors about the Company or its
affiliates or the officers, directors, managers, customers, partners, or
shareholders of the Company or its affiliates unless giving truthful
testimony under subpoena.
5.7 For purposes of this Section 5 only, the term "Company" includes
the Company and its subsidiaries and affiliates.
6. Inventions and Patents.
6.1 The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during the Term shall belong to the
Company, provided that such Inventions grew out of the Executive's work
with the Company or any of its subsidiaries or affiliates, are related in
any manner to the business (commercial or experimental) of the Company or
any of its subsidiaries or affiliates or are conceived or made on the
Company's time or with the use of the Company's facilities or materials.
The Executive shall further: (a) promptly disclose such Inventions to the
Company; (b) assign to the Company, without additional compensation, all
patent and other rights to such Inventions for the United States and
foreign countries; (c) sign all papers necessary to carry out the
foregoing; and (d) give testimony in support of the Executive's
inventorship.
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6.2 If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Executive within
two years after the termination of the Executive's employment by the
Company, it is to be presumed that the Invention was conceived or made
during the Term.
6.3 The Executive agrees that the Executive will not assert any rights
to any Invention as having been made or acquired by the Executive prior to
the date of this Agreement, except for Inventions, if any, disclosed to the
Company in writing prior to the date hereof.
7. Intellectual Property.
The Company shall be the sole owner of all the products and proceeds of the
Executive's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Executive may acquire,
obtain, develop or create in connection with and during the Term, free and clear
of any claims by the Executive (or anyone claiming under the Executive) of any
kind or character whatsoever (other than the Executive's right to receive
payments hereunder). The Executive shall, at the request of the Company, execute
such assignments, certificates or other instruments as the Company may from time
to time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its right, title or interest in or to any such
properties.
8. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by overnight courier or mailed
first class, postage prepaid, by registered or certified mail (notices mailed
shall be deemed to have been given on the date mailed), as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
If to the Company, to:
Xxxxxx American Corp.
00000 Xxxxxxxx Xx.
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: CEO
If to the Executive, to:
Xxxxxx Xxxxxxxxx
[ ]
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9. Governing Law; Dispute Resolution. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas without regard
to conflicts of laws provisions. Any controversy or claim arising out of or
relating to Section 5 of this Agreement (or the breach thereof) shall be settled
by a federal court located in Bexar County, Texas; additionally each of the
parties hereto specifically waives any objection that it may otherwise have to
the jurisdiction or venue of any such courts or that such courts are an
inconvenient forum and acknowledges that service of process may be made by
mailing a copy thereof in accordance with the provisions of Section 8. Any
controversy or claim arising out of or related to any other provision of this
Agreement shall be settled by final, binding and non-appealable arbitration in
Bexar County, Texas by a single arbitrator. Subject to the following provisions,
the arbitration shall be conducted in accordance with the applicable rules of
JAMS then in effect. Any award entered by the arbitrator shall be final, binding
and non-appealable and judgment may be entered thereon by either party in
accordance with applicable law in any court of competent jurisdiction. This
arbitration provision shall be specifically enforceable. The arbitrator shall
have no authority to modify any provision of this Agreement or to award a remedy
for a dispute involving this Agreement other than a benefit specifically
provided under or by virtue of the Agreement. Each party shall be responsible
for its own expenses relating to the conduct of the arbitration or litigation
(including reasonable attorneys' fees and expenses) and shall share the fees of
JAMS and the arbitrator, if applicable, equally.
10. General.
10.1 JURY TRIAL WAIVER. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT
TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY IS LITIGATED OR HEARD
IN ANY COURT.
10.2 Continuation of Employment. Unless the parties otherwise agree in
writing, continuation of the Executive's employment with the Company beyond the
expiration of the Term shall be deemed an employment at will and shall not be
deemed to extend any of the provisions of this Agreement, and Executive's
employment may thereafter be terminated "at will" by the Executive or the
Company and Executive will be entitled to fringe benefits which the Executive is
eligible to receive for so long as the Executive continues to be employed with
the Company.
10.3 Headings. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
10.4 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the Executive's employment by the
Company, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the Executive's employment by the Company. No
representation, promise or inducement has been made by either party that is not
embodied in this
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Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
10.5 Assignment. This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive. The Company may assign its
rights, together with its obligations, hereunder (i) to any affiliate or (ii) to
third parties in connection with any sale, transfer or other disposition of all
or substantially all of the business or assets of the Company; in any event the
obligations of the Company hereunder shall be binding on its successors or
assigns, whether by merger, consolidation or acquisition of all or substantially
all of its business or assets.
10.6 Waiver. This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by all of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
11. Subsidiaries and Affiliates.
11.1 As used herein, the term "subsidiary" shall mean any corporation or other
business entity controlled directly or indirectly by the corporation or other
business entity in question, and the term "affiliate" shall mean and include any
corporation or other business entity directly or indirectly controlling,
controlled by or under common control with the corporation or other business
entity in question.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXXX AMERICAN CORP.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: President & Chief Executive Officer
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
