Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of July 1,
1997, by and between JEH ACQUISITION CORP., a Delaware corporation (the
"Employer" or the "Buyer"), and E. G. XXXXXX, an individual resident of the
State of Colorado (the "Executive").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Employer is acquiring, pursuant to that certain Asset Purchase Agreement by and
among the Employer as "Buyer", JEH Company, a Texas corporation, as "Seller",
and Xxxxx X. Xxxxxx as "Shareholder" of Seller, dated July 8, 1997 (the "Asset
Purchase Agreement"), substantially all of the assets of the Seller, including
the Seller's business operations in Texas, Colorado, Indiana, Iowa and Virginia
(the "Acquired Business").
B. The Executive is currently employed by Seller and is familiar with
the operations of the Acquired Business.
C. The Employer wishes to obtain the Executive's continued experience
and expertise with the Acquired Business and wishes to employ the Executive as
Vice President of JEH Acquisition Corp.
D. The Executive wishes to accept such employment upon the terms and
conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
or referred to in this Section 1.
"Agreement"--this Employment Agreement, including any Exhibits hereto, as
amended from time to time.
"Compensation"--Salary and Benefits.
"Benefits"--as defined in Section 3(B) hereof.
"Board of Directors"--the board of directors of the Employer.
"Confidential Information"--any and all:
(a) trade secrets concerning the business and affairs of the Employer,
product specifications, data, know-how, compositions, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas,
past, current, and planned research and development, current and
planned distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, and any other information, however documented, that is
a trade secret under New York law; and
(b) information concerning the business and affairs of the Employer and
the Acquired Business (which includes historical financial statements,
financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials), however
documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based, in whole
or in part, on any information included in the foregoing.
"disability"--as defined in Section 6.2 hereof.
"Effective Date"--July 1, 1997.
"Employee Invention"--any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by the
Executive, either solely or in conjunction with others, during the Employment
Period, or a period that includes a portion of the Employment Period, that
relates in any way to, or is useful in any manner in, the business then being
conducted or proposed to be conducted by the Employer, and any such item created
by the Executive, either solely or in conjunction with others, following
termination of the Executive's employment with the Employer, that is based upon
or uses Confidential Information.
"Employment Period"--the term of the Executive's employment under this
Agreement, as more fully described in Section 2.2 hereof.
"for cause"--as defined in Section 6.3 hereof.
"for good reason"--as defined in Section 6.4 hereof.
"person"--any individual, corporation (including any non-profit corporation),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, or governmental body.
"Post-Employment Period"--as defined in Section 8.2 hereof.
"Proprietary Items"--as defined in Section 7.2(a)(iv) hereof.
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"Salary"--as defined in Section 3(A) hereof.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Executive, and the Executive hereby
accepts employment by the Employer, upon the terms and conditions set forth in
this Agreement.
2.2 TERM
Subject to the provisions of Section 6 hereof, the initial term of the
Executive's employment under this Agreement will be five (5) years, beginning on
the Effective Date and ending on the fifth anniversary of the Effective Date. At
the expiration date of the initial term, this Agreement shall be renewed for
regular periods of one (1) year each, provided neither party submits a notice of
intent not to renew at least sixty (60) days prior to the expiration of any such
period.
2.3 DUTIES
The Executive will have such duties as are assigned or delegated to the
Executive by the Board of Directors or Chief Executive Officer, and will
initially serve as Vice President of the Employer. The Executive will initially
be responsible for managing the Colorado and Iowa operations of the Acquired
Business, and will perform such other, broader or different duties as assigned.
The Executive will devote his entire business time, attention, skill, and energy
to the business of the Employer, will use his best efforts to promote the
success of the Employer's business, and will cooperate fully with the Board of
Directors and the Chief Executive Officer in the advancement of the best
interests of the Employer. If the Executive is elected as a director of the
Employer or as a director or officer of any of its affiliates, the Executive
will agree to serve as such and will be entitled to the same compensation paid
to other directors of the Employer or any such affiliate for their services as
directors in addition to the Compensation to be paid pursuant to this Agreement.
3. COMPENSATION
(A) Salary. The Executive will be paid an annual salary of $125,000.00,
subject to adjustment as provided below (the "Salary"), which will be payable in
equal periodic installments according to the Employer's customary payroll
practices, but no less frequently than monthly. The Salary will be reviewed by
the Board of Directors not less frequently than annually and may be adjusted
upward or downward in the sole discretion of the Board of Directors, but in no
event will the Salary be less than $125,000.00 per year.
(B) Benefits. The Executive will, during the Employment Period, be
permitted to participate in such pension, profit sharing, bonus, stock option,
life insurance, hospitalization, major medical, and other employee benefit plans
of the Employer that may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans (collectively, the
"Benefits").
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The Executive agrees to submit to any medical examination(s) and
provide any information and documents reasonably necessary for the Employer to
obtain any insurance required by this Agreement and "Key Man" life insurance on
the Executive's life.
4. FACILITIES AND EXPENSES
The Employer will furnish the Executive with office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Employer will pay on behalf of the Executive (or reimburse
the Executive for) reasonable expenses incurred by the Executive at the request
of, or on behalf of, the Employer in the performance of the Executive's duties
pursuant to this Agreement and in accordance with the Employer's employment
policies, including reasonable expenses incurred by the Executive in attending
conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. The Executive must file
expense reports with respect to such expenses in accordance with the Employer's
policies.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to paid vacation in accordance with the
vacation policies of the Employer in effect for its executive officers as may be
changed from time to time by the Employer. Vacation must be taken by the
Executive at a time mutually convenient to the Employer and the Executive. The
Executive will also be entitled to the paid holidays and other paid leave set
forth in the Employer's policies.
6. TERMINATION
6.1 EVENTS OF TERMINATION
The Employment Period, the Executive's Compensation, and any and all
other rights of the Executive under this Agreement or otherwise as an employee
of the Employer will terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section 6.2
hereof) immediately upon written notice from either party to the other;
(c) for cause (as defined in Section 6.3 hereof), at the option of the
Employer, immediately upon written notice from the Employer to the Executive, or
at such later time as such notice may specify;
(d) for good reason (as defined in Section 6.4 hereof) upon not less
than thirty (30) days' prior written notice from the Executive to the Employer;
(e) in spite of anything in this Agreement to the contrary, in the
event that the Employer shall discontinue the operation of its business, then
this Agreement shall terminate as of the last
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day of the month in which the Employer ceases operations with the same force and
effect as if such day were originally set as the termination date of this
Agreement; or
(f) at the Executive's option after a period of thirty-six (36) months
from the Effective Date, upon not less than sixty (60) days' prior written
notice from the Executive to the Employer.
6.2 DEFINITION OF DISABILITY
For purposes of Section 6.1 hereof, the Executive will be deemed to
have a "disability" if, for physical or mental reasons, the Executive is unable
to perform the essential functions of the Executive's duties under this
Agreement for 120 consecutive days, or 180 days during any twelve month period,
as determined in accordance with this Section 6.2. The disability of the
Executive will be determined by a medical doctor selected by written agreement
of the Employer and the Executive upon the request of either party by written
notice to the other. If the Employer and the Executive cannot agree on the
selection of a medical doctor, each of them will select a medical doctor and the
two medical doctors will select a third medical doctor who will determine
whether the Executive has a disability. The determination of the medical doctor
selected under this Section 6.2 will be binding on both parties. The Executive
must submit to a reasonable number of examinations by the medical doctor making
the determination of disability under this Section 6.2, and the Executive hereby
authorizes the disclosure and release to the Employer of such determination of
disability and all supporting medical records. If the Executive is not legally
competent, the Executive's legal guardian or duly authorized attorney-in-fact
will act in the Executive's stead, under this Section 6.2, for the purposes of
selecting the medical doctor to make the determination of disability, submitting
the Executive to the examinations, and providing the authorization of
disclosure, required under this Section 6.2.
6.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1 hereof, the phrase "for cause" means: (a)
the Executive's material breach of this Agreement; (b) the Executive's failure
to adhere to any written Employer policy if the Executive has been given a
reasonable opportunity to comply with such policy or cure his failure to comply
(the time for said reasonable opportunity shall be agreed upon between the
parties depending upon the circumstances, but in no event shall be less than ten
(10) business days prior to a termination of this Agreement by the Employer "for
cause"; (c) the appropriation (or attempted appropriation) by the Executive of a
material business opportunity of the Employer, including attempting to secure or
securing any personal profit in connection with any transaction entered into or
on behalf of the Employer with a third party; (d) the misappropriation (or
attempted misappropriation) by the Executive of any of the Employer's funds or
property; or (e) the conviction of, or the entering of a guilty plea or plea of
no contest with respect to, a felony, the equivalent thereof, or any other crime
with respect to which imprisonment for more than six (6) months is a possible
punishment.
6.4 DEFINITION OF "FOR GOOD REASON"
For purposes of Section 6.1 hereof, the phrase "for good reason" means
any of the following: (a) The Employer's material breach of this Agreement; (b)
the assignment of the
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Executive without his consent to a position, responsibilities, or duties of a
materially lesser status or degree of responsibility than a vice-president of
the Employer; (c) the reduction of the Salary of the Executive pursuant to
Section 3(A) hereof; or (d) the Employer becomes insolvent, files a petition in
bankruptcy, or enters into receivership, voluntarily or involuntarily.
6.5 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Executive (or, in the event of his death, his designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5 and in lieu of all other amounts and in settlement and complete
release of all claims the Executive may have against the Employer. For purposes
of this Section 6.5, the Executive's designated beneficiary will be such
individual beneficiary or trust, located at such address, as the Executive may
designate by written notice to the Employer from time to time or, if the
Executive fails to give notice to the Employer of such a beneficiary, the
Executive's estate. Notwithstanding the preceding sentence, the Employer will
have no duty, in any circumstances, to attempt to open an estate on behalf of
the Executive, to determine whether any beneficiary designated by the Executive
is alive or to ascertain the address of any such beneficiary, to determine the
existence of any trust, to determine whether any person or entity purporting to
act as the Executive's personal representative (or the trustee of a trust
established by the Executive) is duly authorized to act in that capacity, or to
locate or attempt to locate any beneficiary, personal representative, or
trustee.
(A) Termination by the Executive for Good Reason. If the Executive
terminates this Agreement for good reason, the Employer will pay the Executive
the Executive's Salary for the remainder, if any, of the calendar month in which
such termination is effective.
(B) Termination by the Employer for Cause. If the Employer terminates
this Agreement for cause, the Employer will pay to the Executive the Executive's
Salary only through the date such termination is effective.
(C) Termination upon Disability. If this Agreement is terminated by
either party as a result of the Executive's disability, as determined under
Section 6.2 hereof, the Employer will pay the Executive his Salary through the
calendar month during which such termination is effective.
(D) Termination upon Death. If this Agreement is terminated because of
the Executive's death, the Employer will pay to the Executive the Executive's
Salary through the end of the calendar month in which his death occurs.
(E) Benefits. The Executive's accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of this Agreement, and the Executive will be entitled to accrued Benefits
pursuant to such plans only as provided in each such plan.
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7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the Employment Period and as
a part of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on the Employer and its business; (c) because the Executive
possesses substantial expertise and skill with respect to the Employer's
business, the Employer desires to obtain exclusive ownership of each Employee
Invention, and the Employer will be at a substantial competitive disadvantage if
it fails to acquire exclusive ownership of each Employee Invention; (d) the
Buyer has required that the Executive make the covenants in this Section 7 as a
condition to its purchase of the Acquired Business; and (e) the provisions of
this Section 7 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information and to provide the Employer with
exclusive ownership of all Employee Inventions.
7.2 AGREEMENTS OF THE EXECUTIVE
In partial consideration of the compensation and benefits to be paid or
provided to the Executive by the Employer under this Agreement, the Executive
covenants as follows:
(A) Confidentiality.
(i) During and following the Employment Period, the Executive
will hold in confidence the Confidential Information and will not
disclose it to any person except with the specific prior written
consent of the Employer or except as otherwise expressly permitted by
the terms of this Agreement or except as ordered to be disclosed by the
Executive by a court of competent jurisdiction.
(ii) Any trade secrets of the Employer will be entitled to all
of the protections and benefits under New York and any other applicable
law. If any information that the Employer deems to be a trade secret is
found by a court of competent jurisdiction not to be a trade secret for
purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement. The
Executive hereby waives any requirement that the Employer submit proof
of the economic value of any trade secret or post a bond or other
security in regard to any Confidential Information.
(iii) None of the foregoing obligations and restrictions shall
apply to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other than
as a result of disclosure by the Executive.
(iv) The Executive will not remove from the Employer's
premises (except to the extent such removal is for purposes of the
performance of the Executive's duties at home, or in conducting
business on behalf of the Employer at a location other than at the
Employer's premises, or while traveling, or except as otherwise
specifically authorized by the Employer) any document, record,
notebook, plan, model, component, device, or
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computer software or code, whether embodied in a disk or in any other
form (collectively, the "Proprietary Items"). The Executive recognizes
that, as between the Employer and the Executive, all of the Proprietary
Items, whether or not developed by the Executive, are the exclusive
property of the Employer. Upon termination of this Agreement by either
party, or upon the request of the Employer during the Employment
Period, the Executive will return to the Employer all of the
Proprietary Items in the Executive's possession or subject to the
Executive's control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
(B) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Executive acknowledges that all of the
Executive's writing, works of authorship, specially commissioned works, and
other Employee Inventions are works made for hire and the property of the
Employer, including any copyrights or other intellectual property rights
pertaining thereto. If it is determined that any such works are not works made
for hire, the Executive hereby assigns to the Employer all of the Executive's
right, title, and interest, including all rights of copyright and other
intellectual property rights, to or in such Employee Inventions. The Executive
covenants that he will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee Invention
for the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may request in order
to apply for and obtain copyrights or other registrations with respect
to any Employee Invention in the United States and any foreign
jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance in support
of the Employer's rights to any Employee Invention.
7.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any court,
arbitration panel or person, or medication panel or person, or other third
party, the preservation of the secrecy of Confidential Information may be
jeopardized. All pleadings, documents, testimony, and records relating to any
such adjudication will be maintained in secrecy when allowed by such
adjudication and will be available for inspection by the Employer, the
Executive, and their respective attorneys and experts, who will agree, in
advance and in writing, to receive and maintain all such information in secrecy,
except as may be limited by them in writing, by rule of the adjudication, or
pursuant to an order of a court of competent jurisdiction, arbitration panel or
person, mediation panel or person, or other third party conducting such
adjudication.
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8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be performed by
him under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the Employer's business is currently regional in
scope but may become national in scope and its products are currently marketed
in five or more regions but may in the future be marketed throughout the United
States; (c) the Employer competes with other businesses that are or could be
located in any part of the United States; (d) the Buyer has required that the
Executive make the covenants set forth in this Section 8 as a condition to the
Buyer's purchase of the Acquired Business; and (e) the provisions of this
Section 8 are reasonable and necessary to protect the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In partial consideration of the acknowledgments by the Executive in
this Section 8, and in consideration of the compensation and benefits to be paid
or provided to the Executive by the Employer, the Executive covenants that he
will not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period, engage or invest
in, own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend the Executive's name or any similar
name to, lend Executive's credit to or render services or advice to, any
business whose products or activities compete in whole or in part with the
products or activities of the Employer; provided, however, that the Executive
may purchase or otherwise acquire up to (but not more than) one percent of any
class of securities of any enterprise (but without otherwise participating in
the activities of such enterprise) if such securities are listed on any national
or regional securities exchange or have been registered under Section 12(g) of
the Securities Exchange Act of 1934;
(b) whether for the Executive's own account or for the account of any
other person, at any time during the Employment Period or the Post-Employment
Period, solicit business of the same or similar type being carried on by the
Employer, from any person known by the Executive to be a customer of the
Employer, whether or not the Executive had personal contact with such person
during and by reason of the Executive's employment with the Employer;
(c) whether for the Executive's own account or the account of any other
person (i) at any time during the Employment Period or the Post-Employment
Period, solicit, employ, or otherwise engage as an employee, independent
contractor, or otherwise, any person who is or was an employee of the Employer
at any time during the Employment Period or in any manner induce or attempt to
induce any employee of the Employer to terminate his employment with the
Employer; or (ii) at any time during the Employment Period or the Post
Employment Period, interfere with the Employer's relationship with any person,
including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
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(d) at any time during or after the Employment Period, disparage the
Employer or any of its shareholders, directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the one (1) year period beginning on the date of termination of the
Executive's employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's employer. The Employer may notify
such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement or
relevant portions thereof.
9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be suffered by
the Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 7 and 8 hereof) would be irreparable and
that an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce any provision
of this Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. Without limiting the Employer's rights under
this Section 9 or any other remedies of the Employer, if the Executive breaches
any of the provisions of Section 7 or 8 hereof, the Employer will have the right
to cease making any payments otherwise due to the Executive under this
Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
The covenants by the Executive in Sections 7 and 8 hereof are essential
elements of this Agreement and the Asset Purchase Agreement, and without the
Executive's agreement to comply with such covenants, the Buyer would not have
purchased the Acquired Business under the Asset Purchase Agreement and the
Employer would not have entered into this Agreement or employed the Executive.
The Employer and the Executive have independently consulted their respective
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counsel and have been advised in all respects concerning the reasonableness and
propriety of such covenants, with specific regard to the nature of the business
conducted by the Employer.
The Executive's covenants in Sections 7 and 8 hereof are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise, or against the Buyer, will not excuse the
Executive's breach of any covenant in Section 7 or 8 hereof.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 7 and 8
hereof.
9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (b) conflict with, result in
the breach of any provisions of or the termination of, or constitute a default
under, any agreement to which the Executive is a party or by which the Executive
is or may be bound.
9.4 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYER
The Employer represents and warrants to the Executive (a) that, at the
time of execution and delivery by the Employer of this Agreement, it is a
corporation duly formed and in good standing under the laws of the State of
Delaware; (b) that this Agreement and the employment of the Executive by the
Employer has been approved by the Board of Directors, and that the Employer's
officers or representatives executing this Agreement have full power and
authority to enter into this Agreement on behalf of the Employer; and (c) that
the execution and delivery, by the Employer of this Agreement do not, and the
performance by the Employer of the Employer's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both (i) violate
any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Employer, or (ii) conflict with, result in
the breach of any provisions of, or the termination of, or constitute a default
under, any agreement to which the Employer is a party or by which the Employer
is or may be bound.
9.5 OBLIGATIONS CONTINGENT UPON PERFORMANCE
A. The obligations of the Employer hereunder, including its obligation
to pay and provide the Compensation to the Executive provided for herein, are
contingent upon the Executive's performance of the Executive's obligations
hereunder.
B. The obligations of the Executive hereunder are contingent upon
performance of the Employer's obligations hereunder, including its obligation to
pay and provide the Compensation to Executive provided for herein.
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9.6 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law: (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
9.7 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated to any third party.
9.8 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
certified mail, return receipt requested, or (c) when received by the addressee,
if sent by a nationally recognized overnight delivery service (receipt
requested), in each case to the appropriate addresses and facsimile numbers set
forth below (or to such other addresses and facsimile numbers as a party may
designate by notice to the other parties):
If to Employer: JEH Acquisition Corp.
c/o TDA Industries, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx,
Chief Executive Officer
With a copy to: Carlton, Fields, Xxxx, Xxxxxxxx,
Xxxxx & Xxxxxx, P.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
(if by mail)
or
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Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(if by hand delivery)
Attention: Xxxxxxxxx X. Xxxxxxx,
Attorney at Law
If to the Executive: E. G. Xxxxxx
0000 Xxxx Xxxxxx Xxxx 00
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxx, Attorney at Law
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
9.9 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.10 GOVERNING LAW
This Agreement will be governed by the laws of the State of New York
without regard to conflicts of laws principles.
9.11 JURISDICTION
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against either of the
parties in the courts of the State of New York in New York County, New York, or
a District Court in any county of appropriate venue in the State of Colorado, if
it has or can acquire jurisdiction, in the United States District Court for the
Southern District of New York, or the Middle District of Florida, or the
District of Colorado and each of the parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. The parties agree to
accept service of process by certified mail, or such other means as permitted
for the giving of notices hereunder. Process in any action or proceeding
referred to in the preceding sentence may be served on either party anywhere in
the world.
9.12 SECTION HEADINGS; CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used
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in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms.
9.13 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable in
any jurisdiction by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect in such jurisdiction. Any
provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or
unenforceable.
9.14 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
WITNESSES: EXECUTIVE:
/s/ E. G. Xxxxxx
---------------------------------- ------------------------------------
E. G. XXXXXX
----------------------------------
EMPLOYER:
JEH ACQUISITION CORP., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
----------------------------------
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