Exhibit 10.5
CHIEF EXECUTIVE
EMPLOYMENT AGREEMENT
THIS CHIEF EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is entered
into effective as of January 28, 2002 by and between CTI GROUP (HOLDINGS), INC.,
a Delaware corporation (the "Corporation"), having its principal place of
business at 000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 and
XXXXXXX X. XXXXXXXX ("Employee"), whose address is 000 Xxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000.
Background
The Corporation desires to employ the Employee and Employee desires to
be employed by the Corporation on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Employment and Duties.
(a) Upon the terms and conditions set forth herein, the Corporation
hereby agrees to employ the Employee, and the Employee agrees to accept such
employment and to perform his duties and responsibilities hereunder. Employee
shall serve as the President and Chief Executive Officer of the Corporation and
in such positions as reasonably may be assigned by the Board of Directors of the
Corporation (the "Board") or the Executive Committee of the Board (the
"Executive Committee"). In the performance of services hereunder, Employee shall
devote his best efforts and essentially all of his time during normal business
hours to the business of the Corporation, subject to vacations and sick leave.
Employee shall, subject to the direction of the Board or the Executive
Committee, have, such authority and perform such duties and functions incidental
to the position that he holds with the Corporation or such other duties and
functions as may from time to time be assigned to him by the Board. Employee's
responsibilities will include, without limitation, the duties and
responsibilities customarily associated with a Chief Executive Officer and
Executive Committee. Employee shall cooperate fully with the Board, the
Executive Committee and the other executive officers of the Corporation.
Employee shall also be available to assist subsidiaries and affiliates of the
Corporation. Employee shall not engage in any other business activity during the
term of this Agreement which may interfere with his ability to discharge his
duties and responsibilities to the Corporation.
(b) Employee represents to the Corporation that he is not subject or
a party to any employment agreement, non-competition covenant, non-disclosure
agreement or other agreement, covenant, understanding or restriction which would
prohibit Employee from executing this Agreement and performing fully his duties
and responsibilities hereunder, or which would in any manner, directly or
indirectly, limit or affect the duties and responsibilities which may now or in
the future be assigned to Employee by the Corporation.
2. Employment Term. Unless sooner terminated in accordance with the
provisions of this Agreement, the term of this Agreement shall commence on
January 28, 2002 and shall continue until the third anniversary of such date and
thereafter shall continue for additional one year periods unless either parry
gives the other party written notice of non-renewal at least three months prior
to any anniversary date of this Agreement. As used herein, the term "Employment
Term" shall refer to the foregoing period.
3. Compensation. For all services rendered by the Employee under this
Agreement, the Corporation shall pay Employee an annual salary (the "Salary") at
the rate of $275,000 for the Employment Term, less withholding required by law
or agreed to by Employee, payable in accordance with the Corporation's customary
and usual payroll practice for its employees. The Corporation agrees that the
Salary will be reviewed at least annually by the Board to determine if an
increase is appropriate, which increase shall be in the sole discretion of the
Board. The Salary shall not be decreased during the Employment Term.
4. Bonus and Additional Benefits.
(a) Incentive Program. For each calendar year during the Employment
Term that Employee meets the targets pursuant to the Corporation's annual
incentive plan (the "Incentive Plan") set forth in the Corporation's annual
incentive program (a draft, subject to completion which is set forth as Exhibit
A hereto), the Corporation shall pay to Employee, pursuant to the Incentive
Plan, a bonus (the "Bonus") of between 22.5% (a "Threshhold") and 90% of his
Salary within forty-five days after the end of such calendar year. The Bonus
shall be in lieu of any cash bonuses provided by the Corporation to its
employees or senior executives generally, and Employee shall not be entitled to
any such cash bonuses. For purposes of this Agreement, a Bonus of 45% of
Employee's Salary shall be referred to as a "Target Bonus."
(b) Additional Benefits. Employee shall be entitled to four (4)
weeks of paid vacation per year, with no right to carryover vacation to the next
year, but unused vacation may be sold back to the Corporation.
With the intention that Employee will move his family and
household goods to Indianapolis, Indiana by April 30, 2002, Employee shall
receive $89,000 for the cost of the transportation of his household goods to
Indianapolis, Indiana, the selling commission for the sale of his primary
residence in Georgia, purchasing fees, commissions and mortgage points. In
addition, Employee shall receive $15,000 for reasonable miscellaneous expenses
incurred by Employee through the date he relocates his primary residence to
Indianapolis, Indiana. For the $104,000 paid to Employee pursuant to the two
foregoing sentences, all amounts not supported by written receipts shall
be promptly refunded to the Corporation upon Employee's relocation to Indiana.
Upon presentation of written proof of the Federal income tax liability ("FIT"
Liability") payable by Employee as a result of the receipt of the amounts
paid to Employee under the three foregoing sentences, Employee shall be paid on
February 14, 2003 an amount equal to such FIT Liability plus the amount equal to
the gross up of the Federal income tax liability on the FIT Liability.
Employee shall be paid a non-accountable automobile allowance of
$500 per month for each full month during the Employment Term, payable in
accordance with the Corporation's customary and usual payroll practices for its
employees.
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Employee shall be reimbursed an amount not to exceed $5,000 for
attorney's fees and costs incurred by Employee for legal representation in
connection with the review and execution of this Agreement.
5. Fringe Benefits. Except as set forth in Section 4, Employee shall be
entitled to all normal and usual benefits provided by the Corporation to its
senior executives generally, including, but not limited to reimbursement for
reasonable expenses incurred in connection with performing services for the
Corporation upon presentation of an itemized account and written proof of such
expenses in accordance with policies established by the Corporation and
participation in any health or hospitalization plans. This provision shall not
obligate the Corporation to provide any specific benefits and shall not prohibit
the Corporation from changing such benefits. Except as set forth in Section
4(b), Employee alone shall be responsible for the payment of all federal, state
and local taxes in respect of payments to be made and benefits to be provided
under this Agreement.
6. Long-Term Incentive Compensation. The Corporation shall grant to the
Employee no later than the earlier of (a) 30 days after the commencement of
employment or (b) on the adoption by the Board of the Incentive Plan (as defined
in Section 4(a)), a stock option (the "Original Option" or an "Option") to
purchase shares of Class A common stock of the Corporation equal to 2% of the
outstanding common stock of the Corporation (on a fully-diluted basis)
("Original Option Shares") on the date of grant (the "Original Grant Date")
pursuant to the Corporation's Stock Option and Restricted Stock Plan, as amended
through February 12, 2001, and as it may be amended from time to time (the
"Plan"). To the extent allowed under Federal tax law, the Original Option shall
be an incentive stock option. At the end of each year ending December 31
commencing after December 31, 2002 and ending on December 31, 2004, that
Employee continues to be employed as the Chief Executive Officer and President
of the Corporation, Corporation shall grant to Employee an additional stock
option (each an "Additional Option" or an "Option" and collectively, with the
Original Option, the "Options") to purchase shares of Class A common stock of
the Corporation equal to 1% of the outstanding common stock of the Corporation
(on a fully diluted basis) ("Additional Option Shares" and collectively with the
Original Option Shares, "Option Shares") on the Original Grant Date pursuant to
the Plan. Each Option will expire on the tenth anniversary of its date of grant.
Each Option will vest annually over 4 years (1/4 a per year on yearly
anniversaries) from its date of grant. The exercise price per share for each
Option shall be the fair market value of the common stock of the Corporation on
the date of grant. Each Option shall otherwise be subject to all of the terms
and conditions set forth in the Plan, a copy of the current version of which the
Employee acknowledges having received.
7. Confidential Information. For purposes of this Section 7,
Confidential Information shall mean all confidential and proprietary technical,
business and financial information of the Corporation and its affiliates,
including, but not limited to, marketing and financial information, personnel,
sales and statistical data, plans for future development, computer programs,
information and knowledge pertaining to products and services offered,
inventions, innovations, designs, ideas, plans, trade secrets, proprietary
information, construction, advertising, sales methods and systems, sales and
profit figures, customer and client lists, and relationships between the
Corporation and its affiliates, customers, clients, suppliers and others who
have business dealings with the Corporation and its affiliates, information with
respect to various techniques, procedures, processes and methods and any other
information acquired, learned, used or developed by Employee or others during
his employment by the Corporation. Employee recognizes and acknowledges that by
reason of his employment by and service to the Corporation (both during the
Employment Term and before or after it), he has had and will continue to have
access to Confidential Information. Employee acknowledges that such Confidential
Information is a valuable and unique asset and Employee agrees that he will not,
either during or after his employment by the Corporation, use any Confidential
Information for his own commercial benefit or the benefit of others nor disclose
any Confidential Information to any person, firm or corporation not connected
with the Corporation for any reason whatsoever except as his duties hereunder
may require or as authorized in writing by the Board or the Executive
Committee. However, Employee shall be relieved of his responsibilities under
this Section 7 with respect to any Confidential Information which is in the
public domain through no fault of Employee. All documents, magnetic media and
other materials containing Confidential Information made or compiled by or made
available to Employee during the course of his employment, and all copies
thereof, are and shall be the property of the Corporation and shall be delivered
to the Corporation by Employee immediately upon the conclusion of his
employment.
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8. Inventions and Ideas; Ownership of Work Product.
(a) All work produced by Employee in the course of his employment
under this Agreement including, without limitation, all inventions, creations,
expressions, improvements, computer programs, specifications, operating
instructions and all other documentation, whether copyrightable or
uncopyrightable, or patentable or unpatentable, which are first conceived, made
or otherwise originated or acquired, or first actually or constructively reduced
to practice during his employment by the Corporation or within six (b) months
following expiration or termination hereof, whether preliminary or final, and on
whatever media rendered (collectively, the "Work Product"), shall be deemed work
made for hire and made in the course of services rendered for the Corporation
and shall be the sole and exclusive property of the Corporation. The Corporation
shall have the sole, absolute and unlimited right throughout the world to
protect by patent or copyright, and to make, have made, use, reconstruct,
repair, modify, reproduce, publish, distribute and sell the Work Product, in
whole or in part, or combine the Work Product with other matter, or not use the
Work Product at all, as it sees fit.
(b) To the extent that title to the Work Product may not, by
operation of law, vest in the Corporation, or such Work Product may not be
considered to be work made for hire, the Employee hereby irrevocably agrees to
transfer and assign to the Corporation in perpetuity all worldwide right, title
and interest in and to the patent rights, copyrights, trade secrets and other
proprietary rights (including, without limitation, applications for registration
thereof, and all priority rights therein under applicable international
conventions for the protection of such rights) in, and ownership of, the Work
Product that the Employee may have, as and when such rights arise.
(c) Employee hereby agrees, without cost to the Corporation other
than reimbursement of reasonable expenses, to cooperate fully with the
Corporation in executing all applications for patents, copyrights, assignments
and other documents, papers and writing and to perform all acts and do all
things necessary to protect or vest the Corporation's rights in or to the Work
Product, whether during the term of his employment or at anytime thereafter. If
the Corporation is unable, after reasonable effort, to secure Employee's
signature on any documents or documents needed to apply for or prosecute any
patent, copyright, or right or protection relating to any Work Product, whether
because of Employee's physical or mental incapacity or for, any other reason
whatsoever, Employee hereby irrevocably designates and appoints the Corporation
and its duly authorized officers and agents as Employee's agent and
attorney-in-fact, to act for and in his behalf and stead to execute and file any
such application or applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyrights, or similar
protections thereon with the same legal force and effect as if executed by
Employee.
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9. Non-Competition.
(a) During his employment by the Corporation and for a period of
one (1) year after the employment of Employee by the Corporation or any of its
affiliates has ended (whether or not such employment is pursuant to this
Agreement), Employee will not, directly or indirectly: (i) anywhere in the world
own, manage, operate, join, control, finance or participate in the ownership,
management, operation, control or financing of, render financial assistance to,
or be connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any competing business; (ii) contact or attempt to
persuade any agents or employees of the Corporation or any of its affiliates to
terminate their relationship with the Corporation or any of its affiliates, nor
do any act which may result in the impairment of the relationship between the
Corporation or any of its affiliates and its agents or employees; or (iii) in
anyway, for his own account, or for the account of any person, firm, corporation
or enterprise engaged in a competing business, directly or indirectly through
others, sell to, solicit, contact, serve, or cater to any person, firm,
corporation or other enterprise which is or was a customer of the Corporation
during his employment by the Corporation, regardless of the time when, or the
person by or through whom, said customer became a customer of the Corporation;
provided, however, that nothing in this Section 9 shall prohibit Employee from
owning interests of less than one percent (1%) in companies with securities
traded on a national securities exchange or quoted on the National Association
of Securities Dealers, Inc. Automated Quotation System.
(b) The parties acknowledge and agree that, for purposes of this
Section 9, a "competing business", on the date hereof is the development,
marketing, support and sale of data processing software (which data processing
software directly competes with Corporation's data processing software) and
telecommunication systems management, traditional paper billing, electronic
billing, rating, printing and mailing services.
(c) Employee acknowledges and agrees that the geographical area in
which the Corporation conducts its business is worldwide.
10. Equitable Relief.
(a) Employee acknowledges that the restrictions contained in
Sections 7, 8 and 9 hereof are reasonable and necessary to protect the
legitimate interests of the Corporation and its affiliates, that the Corporation
would not have entered into this Agreement in the absence of such restrictions,
and that any violation of any provision of those Sections will result in
irreparable injury to the Corporation. Employee represents that his experience
and capabilities are such that the restrictions contained in Section 9 hereof
will not prevent Employee from obtaining employment or otherwise earning a
living at the same general level of economic benefit as anticipated by this
Agreement. Employee further represents and acknowledges that (i) he has been
advised by his own independent legal counsel in respect of this Agreement, and
(ii) that he has had full opportunity, prior to execution of this Agreement, to
review thoroughly this Agreement with his counsel.
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(b) Employee agrees that the Corporation shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits and
other benefits arising from any violation of Sections 7, 8 and 9 hereof, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Corporation may be entitled. In the event that any of the provisions
of Sections 7, 8 and 9 hereof should ever be adjudicated to exceed the time,
geographic, product or service, or other limitations permitted by applicable
law in any jurisdiction; then such provisions shall be deemed reformed in such
jurisdiction to the maximum time, geographic, product or service, or other
limitations permitted by applicable law.
11. Termination.
(a) The Employee's employment pursuant to this Agreement shall be
terminated during the Employment Term only as follows:
(i) at anytime by Employee, by Employee giving written notice of
his voluntary resignation to the Board at least 30 days before the resignation
is to be effective;
(ii) at Will (as defined below) by the Corporation, by
Corporation giving written notice to the Employee at least 30 days before the
termination is to be effective;
(iii) upon a determination by the Board that there is Cause (as
defined below) for such termination, by the Corporation giving written notice to
the Employee at least 30 days before the termination is to be effective;
(iv) immediately upon the Employee's death or Disability (as
defined below) or upon mutual agreement of Employee and Corporation;
(v) by Employee giving written notice to the Board at least 60
days before the termination is to be effective if such notice is given within 60
days after a Change of Control (as defined below);
(vi) by Corporation giving written notice to Employee at least
30 days before the termination is to be effective if the Corporation becomes
aware that, prior to the effective date of this Agreement, Employee has been
involved in or subject to any of the events or proceedings set forth in 17 CFR
229.401(f), 17 CFR 230.262(a), or 17 CFR 230.262(b) or any similar
"disqualification" or "bad boy" provision under any Federal or state securities
law or regulation;
(vii) by Corporation giving written notice to Employee at least
30 days before the termination is to be effective if the Board or Executive
Committee determines that Employee's performance as President and Chief
Executive Officer (in areas under Employee's control as President and Chief
Executive Officer) is unsatisfactory and Employee has not cured such
unsatisfactory performance within 60 days after notice from Corporation to
Employee; or
(viii) by Employee giving written notice to Corporation at least
30 days before termination is to be effective for Good Reason (as defined
below).
(b) "at Will" shall mean for any reason upon the majority vote of
the Board or Executive Committee at a duly constituted meeting of the Board or
Executive Committee.
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(c) "Cause" for termination shall mean: a material failure of
Employee to observe any of the terms or provisions of this Agreement or a breach
of his representations in this Agreement; dishonesty; fraudulent
misrepresentation; an act of moral turpitude on the part of Employee; continued
neglect, willful misconduct or gross negligence by Employee in connection with
the performance of his duties hereunder; Employee's willful failure to follow
the reasonable directions of the Board or Executive Committee, which failure, if
curable, is not cured within 30 days after notice from Corporation to Employee,
or which failure, if cured, recurs; conduct by Employee that may adversely
affect the Corporation, its business, goodwill or good name; conviction of a
crime (other than a minor traffic offense); misappropriation of funds; or
deliberate and premeditated acts against the interest of the Corporation.
(d) "Change of Control" shall mean a change of control of a nature
that would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any successor Item, whether or not Corporation
is then subject to such reporting requirement; provided that, without
limitation, a Change of Control shall be deemed to have occurred if (1) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Corporation representing
50% or more of the combined voting power of Corporation's then outstanding
securities; (2) during any period of two consecutive years during the term of
this Agreement, individuals who at the beginning of such period constitute the
Board and any new director, whose election by the Board of Directors or
nomination for election by Corporation's stockholders was approved by a vote of
at least a majority of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof; or (3) the business of Corporation for which Employee's
services are principally performed is disposed of by the Corporation pursuant to
a partial or complete liquidation of Corporation, a sale of assets (including
stock of a subsidiary) of Corporation or, otherwise.
(e) "Disability" shall mean either the total and permanent
disability or partial and permanent disability of Employee due to illness or
incapacity which prevents him from performing all or substantially all of his
duties and responsibilities hereunder for six months in any twelve month period
as determined by the Board of Directors or Executive Committee of the
Corporation.
(f) "Good Reason" shall mean: (1) a decrease in Employee's Salary or
a material decrease in Employee's employee benefits (which shall not include any
change in benefits made generally to all senior executives); or (2) a material
change in the responsibilities or duties assigned to Employee, as measured
against Employee's responsibilities or duties immediately prior to such change,
that causes Employee to be of reduced stature or responsibility.
(g) In the event of the termination of this Agreement for any
reason, Sections 7, 8 and 9 shall survive.
12. Rights After Termination; Severance.
(a) If Employee's employment terminates pursuant to Section 11(a)
or pursuant to notice by either party pursuant to Section 2, the Corporation
shall pay Employee as severance pay all accrued and unpaid Salary and benefits
through the date of termination of employment ("Termination Date") and unpaid
business expenses previously paid and reimbursable pursuant to Section 5 through
the Termination Date. Unless set forth in the remainder of this Section 12,
Employee shall not be entitled to any additional severance pay.
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(b) If Employee's employment terminates pursuant to Section 11(a)
(iv) or (v) during any calendar year during the Employment Term, Corporation
shall pay Employee as additional severance pay (w) an amount equal to his annual
Salary which shall be payable in accordance with Corporation's customary and
usual payroll practices over twelve months plus (x) a Target Bonus payable
pursuant to the Incentive Plan for such year, which Bonus shall be payable on
February 15 of the calendar year following the Termination Date, and Corporation
shall pay for the cost to continue Employee's participation in the Corporation's
health and hospitalization plans, or its equivalent, for twelve months after the
Termination Date. If Employee's employment terminates pursuant to Section
11(a)(ii) or (viii) during any calendar year during the Employment Term,
Corporation shall pay Employee as additional severance pay (y) an amount equal
to his annual Salary which shall be payable in accordance with Corporation's
customary and usual payroll practices over twelve months plus (z) a Threshhold
Bonus payable pursuant to the Incentive Plan for such year, which Threshhold
Bonus shall be payable on February 15 of the calendar year following the
Termination Date, and Corporation shall pay for the cost to continue Employee's
participation in the Corporation's health and hospitalization plans, or its
equivalent, for twelve months after the Termination Date. If Employee's
employment terminates pursuant to Section 11(a)(vi) or (vii) during any calendar
year during the Employment Term, Corporation shall pay Employee as additional
severance pay an amount equal to his annual Salary which shall be payable in
accordance with Corporation's customary and usual payroll practices over twelve
months.
(c) If Employee's employment terminates pursuant to Section
11(a)(ii), (iv), (v) or (viii) or pursuant to notice by either party pursuant to
Section 2 and as long as Employee is in compliance with the terms of this
Agreement, Employee shall have 90 days following the Termination Date to
exercise all vested Options. If Employee's employment terminates pursuant to
Section 11(a)(i), (iii), (vi) or (vii) all vested Options shall terminate on the
Termination Date. If Employee's employment terminates for any reason other than
pursuant to Section 11(a)(v), all unvested Options shall terminate on the
Termination Date. If Employee's employment terminates pursuant to Section
11(a)(v) all unvested Options shall immediately vest and be deemed vested
Options on the Termination Date.
(d) As a condition to receiving any severance pay under this
Agreement, Employee shall execute a release in a form satisfactory to the
Corporation. Upon any termination of employment, Corporation's obligations to
grant any Options not granted prior to termination shall cease on the
Termination Date.
13. Notices. All notices or other communications which may be or are
required to be given pursuant to this Agreement shall be in writing and shall be
deemed to have been given, if delivered personally, upon delivery, if sent by
registered or certified mail postage prepaid, two business days after mailing,
or if sent by overnight mail, one business day after mailing, to the other party
at the address stated above, or such other address as either party may supply in
the future.
14.Survival. Notwithstanding the expiration or termination of this
Agreement or his employment by the Corporation, the obligations of the Employee
under Sections 7, 8 and 9 hereof shall survive and remain in full force and
effect for the periods therein provided, and the obligations of the Corporation
to make all required payments hereunder shall survive and remain in full force
and effect.
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15.Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of Indiana without giving effect to any conflict of
laws provisions.
16. Contents of Agreement; Amendment and Assignment.
(a) This Agreement supersedes all prior agreements, letters or term
sheets and sets forth the entire understanding among the parties hereto with
respect to the subject matter hereof and cannot be changed, modified, extended
or terminated except upon written amendment approved by the Board and executed
on its behalf by a duly authorized officer(s). Without limitation, nothing in
this Agreement shall be construed as giving Employee any right to be retained in
the employ of the Corporation beyond the expiration of the Employment Term, and
Employee specifically acknowledges that he shall be subject to discharge by the
Corporation pursuant to the terms and conditions of this Agreement.
(b) Employee acknowledges that from time to time, the Corporation
may establish, maintain and distribute employee manuals or handbooks or
personnel policy manuals, and officers or other representatives of the
Corporation may make written or oral statements relating to personnel policies
and procedures. Such manuals, handbooks and statements are intended only for
general guidance. No policies, procedures or statements of any nature by or on
behalf of the Corporation (whether written or oral, and whether or not contained
in any employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of any nature to Employee.
(c) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, except that the duties and responsibilities of Employee
hereunder are of a personal nature and shall not be assignable or delegatable in
whole or in part by Employee.
17. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision or application in any
other jurisdiction.
18. Remedies, Cumulative; No Waiver. No remedy conferred upon either
party hereto by this Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in addition to
any other remedy given hereunder or now or hereafter existing at law or in
equity. No delay or omission by the Corporation in exercising any right, remedy
or power hereunder or existing at law or in equity shall be construed as a
waiver thereof, and any such right, remedy or power may be exercised by the
Corporation from time to time and as often as maybe deemed expedient or
necessary by the Corporation in its sole discretion.
19. Miscellaneous. All section headings are for convenience only. This
Agreement may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
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20. Dispute Resolution; Arbitration.
(a) Before either party initiates arbitration or permitted court
proceedings in respect of any action or matter relating to this Agreement, such
party shall first refer such matter to the other party for negotiation by
Employee and by an authorized officer or director of Corporation. Following such
referral, the parties shall take reasonable steps to resolve such disagreement
within one week of the date of the referral thereof and shall negotiate in good
faith with each other to such end. If the disagreement is not resolved in the
course of such negotiations between the parties within such one week period, the
parties shall consult with a neutral third parry mediator and shall use their
reasonable efforts to resolve such disagreement with the assistance of such
mediator within two weeks of the date on which the mediator was first consulted.
If the parties fail to resolve their disagreement within such two-week period,
then either party may initiate arbitration or permitted court proceedings
hereunder.
(b) In the event a dispute between the parties arising under this
Agreement is not resolved using the procedures of Section 20(a), the parties
shall submit to binding arbitration before a single arbitrator knowledgeable of
the software industry in Indianapolis, Indiana, under the Commercial Arbitration
Rules of the American Arbitration Association, except that temporary restraining
orders or preliminary injunctions, or their equivalent, may be obtained from any
court of competent jurisdiction. The hearing proceedings in the arbitration
shall be generally governed by the Federal Rules of Civil Procedure, the Federal
Rules of Evidence and the judicial precedent interpreting those rules as the
same may or may not be determined to be applicable and appropriate by the
arbitrator. The decision of the arbitrator shall be final and binding with
respect to the dispute subject to the arbitration and shall be enforceable in
any court of competent jurisdiction. Each party shall bear its own expenses,
attorneys' fees and costs incurred in such arbitration. The arbitrator shall
not be required to provide the reason's for the arbitrator's decision.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Agreement.
CIT GROUP (HOLDINGS), INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
Chairman of the Board of Directors
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, Employee
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