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EXHIBIT 10.58 1
CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT
THIS CORPORATE EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
November 1, 2000 by and between XXXXXX X. XXXXXXXXX ("Executive"), and ABM
INDUSTRIES INCORPORATED ("Company") for itself and on behalf of its subsidiary
corporations as applicable herein.
WHEREAS, Company is engaged in the building maintenance and related service
businesses, and
WHEREAS, Executive is experienced in the administration, finance, marketing, and
operation of such services, and
WHEREAS, Company has invested significant time and money to develop proprietary
trade secrets and other confidential business information, as well as invaluable
goodwill among its customers, sales prospects and employees, and
WHEREAS, Executive wishes to, or has been and desires to remain employed by
Company, and to utilize such proprietary trade secrets, other confidential
business information and goodwill, and
WHEREAS, Company has disclosed or will disclose to Executive such proprietary
trade secrets and other confidential business information which Executive will
utilize in the performance of this Agreement;
NOW THEREFORE, Executive and Company agree as follows:
A. EMPLOYMENT: Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, on the terms and conditions set forth in
this Agreement.
B. TITLE: Executive's title shall be President & Chief Executive Officer of
Company.
C. DUTIES & RESPONSIBILITIES: Executive shall be expected to assume and
perform such executive or managerial duties and responsibilities as are
assigned from time-to-time by the Board of Directors of Company, to whom
Executive shall report and be accountable.
D. TERM OF AGREEMENT: Employment hereunder shall commence on November 1,
2000 for a term of three (3) years ("Initial Term"), unless sooner
terminated pursuant to Paragraph O hereof, or later extended pursuant to
Paragraph N hereof ("Extended Term").
E. PRINCIPAL OFFICE: During the Initial Term and any Extended Term, as
applicable, of this Agreement, Executive shall be based at a Company
office located in the County of San Francisco ("County of Employment"),
California ("State of Employment).
F. COMPENSATION: Company agrees to compensate Executive, and Executive
agrees to accept as compensation in full, for Executive's assumption and
performance of duties and responsibilities pursuant to this Agreement:
1. SALARY: A base salary paid in equal installments of no less
frequently than semi- monthly at the annual rate set forth in
Paragraph X.1 hereof.
2. BONUS: A bonus or other incentive or contingent compensation, if
any, pursuant to Paragraph X.2 hereof, and the bonus set forth in
Paragraph X.4, hereof.
3. FRINGE BENEFITS: The then current fringe benefits generally
provided by Company to all of its Executives. Such benefits may
include but not be limited to the use of a Company-leased car or a
car allowance, group health benefits, long-term disability
benefits, group life insurance, sick leave and vacation, and a
service award.
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EXHIBIT 10.58 2
benefit. Each of these fringe benefits is subject to the
applicable Company policy at all times. Company reserves the right
to add, increase, reduce or eliminate any fringe benefit at any
time, but no such benefit or benefits shall be reduced or
eliminated as to Executive unless generally reduced or eliminated
as to comparable executives within the Company.
G. PAYMENT OR REIMBURSEMENT OF BUSINESS EXPENSES: Company shall pay directly
or reimburse Executive for reasonable business expenses of Company
incurred by Executive in connection with Company business, and approved
in writing by the person(s) with the title set forth in Paragraph C
hereof, upon presentation to such person(s) by Executive within sixty
(60) days after incurring such expense of an itemized request for payment
including the date, nature, recipient, purpose and amount of each such
expense, accompanied by receipts for all such expenses in excess of
Twenty-Five Dollars ($25) each.
H. BUSINESS CONDUCT: Executive shall make reasonable best efforts to comply
with all applicable laws pertaining to the performance of this Agreement,
and with all lawful and ethical rules, regulations, policies, procedures
and instructions of Company, including but not limited to the following:
1. GOOD FAITH: Executive shall not act in any way contrary to the
best interest of Company.
2. BEST EFFORTS: During all full-time employment hereunder, Executive
shall devote full working time and attention to Company, and shall
not at any time be directly or indirectly employed by, own,
operate, assist or otherwise be involved, invested or associated
in any business that is similar or competitive to any business of
Company; except that Executive may own up to five percent (5%) of
any such publicly-held business(es), provided that Executive: (a)
shall give Company notice(s) of such ownership in accordance with
Paragraph W hereof, and (b) shall not at any time be directly or
indirectly employed by or operate, assist, or otherwise be
involved or associated with any such business(es).
3. VERACITY: Executive shall make no claims or promises to any
employee, supplier, contractor, customer or sales prospect of
Company that are unauthorized by Company or are in any way untrue.
4. DRIVER'S LICENSE: Executive shall have and carry a valid driver's
license issued by the State of Employment hereunder and a driver's
permit issued by the Company whenever Executive is driving any
motor vehicle in connection with Company business. Executive
agrees to immediately notify Company in writing if Executive's
driver's license is lost, expired, restricted, suspended or
revoked for any reason whatsoever.
I. NO CONFLICT: Executive represents to Company that Executive is not bound
by any contract with a previous employer or with any other business that
might prevent Executive from entering into this Agreement or disclosing
information about any previous employer or any other business to Company,
or might otherwise interfere with Executive's employment hereunder.
J. COMPANY PROPERTY: Company shall, from time to time, entrust to the care,
custody and control of Executive certain of Company's property, such as
motor vehicles, equipment, supplies and documents. Such documents may
include, but shall not be limited to customer lists, financial
statements, cost data, price lists, invoices, forms, electronic files and
media, mailing lists, contracts, reports, manuals, personnel files or
directories, correspondence, business cards, copies or notes made from
Company documents and documents compiled or prepared by Executive for
Executive's use in connection with Company business. Executive
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EXHIBIT 10.58 3
specifically acknowledges that all such documents are the property of
Company, notwithstanding their preparation, care, custody, control or
possession by Executive at any time(s) whatsoever.
K. GOODWILL & PROPRIETARY INFORMATION: In connection with Executive's
employment hereunder:
1. Executive agrees to utilize and further Company's goodwill
("Goodwill") among its customers, sales prospects and employees,
and acknowledges that Company may disclose to Executive and
Executive may disclose to Company, proprietary trade secrets and
other confidential information not in the public domain
("Proprietary Information") including but not limited to specific
customer data such as: (a) the identity of Company's customers and
sales prospects, (b) the nature, extent, frequency, methodology,
cost, price and profit associated with their services and products
purchased from Company, (c) any particular needs or preferences
regarding their service or supply requirements, (d) the names,
office hours, telephone numbers and street addresses of their
purchasing agents or other buyers, (e) their billing procedures,
(f) their credit limits and payment practices, and (g) their
organization structure.
2. Executive agrees that such Proprietary Information and Goodwill
have unique value to Company, are not generally known or readily
available to Company's competitors, and could only be developed by
others after investing significant time and money. Company would
not make such Proprietary Information and Goodwill available to
Executive unless Company is assured that all such Proprietary
Information and Goodwill will be held in trust and confidence by
Executive. Executive hereby acknowledges that to use this
Proprietary Information and Goodwill except for the benefit of
Company would be improper and unfair to Company.
L. RESTRICTIVE COVENANTS: In recognition of Paragraph K hereof, Executive
hereby agrees that during the Initial Term and the Extended Term, if any,
of this Agreement, and thereafter for as long as it shall be enforceable:
1. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly solicit or otherwise encourage or
arrange for any employee to terminate employment with Company.
2. Except in the proper performance of this Agreement, Executive
shall not directly or indirectly disclose or deliver to any other
person or business, any Proprietary Information obtained directly
or indirectly by Executive from, or for, Company.
3. Executive shall not seek, solicit, divert, take away, obtain or
accept the patronage of any customer or sales prospect of Company
through the direct or indirect use of any Proprietary Information
of Company, or by any other unfair or unlawful business practice.
4. Executive agrees that for a reasonable time after the termination
of this Agreement, which Executive and Company hereby agree to be
one (1) year, Executive shall not directly or indirectly, for
Executive or for any other person or business, seek, solicit,
divert, take away, obtain or accept any site-specific customer
account or site-specific sales prospect with which Executive had
direct business involvement on behalf of Company within the one
(1) year period prior to termination of this Agreement.
5. Nothing in this Agreement shall be binding upon the parties to the
extent it is void or unenforceable for any reason in the State of
Employment, including, without limitation, as a result of any law
regulating competition or proscribing unlawful business practices.
M. MODIFICATION OF EMPLOYMENT: At any time during the then current Initial
or Extended Term, as applicable, of this Agreement, a majority of the
Board of Directors of
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EXHIBIT 10.58 4
Company shall have the absolute right, with or without cause and without
terminating this Agreement or Executive's employment hereunder, to modify
the nature of Executive's employment for the remainder of the then
current Initial or Extended Term, as applicable, of this Agreement, from
that of a full-time employee to that of a part-time employee
("Modification Period"). The Modification Period shall commence
immediately upon Company giving Executive written notice of such change.
1. Upon commencement of the Modification Period: (a) Executive shall
immediately resign as a full-time employee of Company and as an
officer and/or director of Company, as applicable, (b) Executive
shall promptly return all Company property in Executive's
possession to Company, including but not limited to any motor
vehicles, equipment, supplies and documents set forth in Paragraph
J hereof, and (c) Company shall pay Executive all previously
earned and vested but as yet unpaid, salary, prorated bonus or
other contingent compensation, reimbursement of business expenses
and fringe benefits.
2. During the Modification Period: (a) Company shall continue to pay
Executive's monthly salary pursuant to Paragraph F.1 hereof, and
to the extent available under the Company's group insurance
policies, continue to provide Executive with the same group health
and life insurance (subject to Executive continuing to pay the
employee portion of any such premium) to which Executive would be
entitled as a full-time employee, with the understanding and
agreement that such monthly salary and group insurance, if
available, shall constitute the full extent of Company's
obligation to compensate Executive, (b) Executive shall not be
eligible or entitled to receive or participate in any bonus or
fringe benefits other than the aforementioned group insurance, if
available, (c) in the alternative, Executive may exercise rights
under COBRA to obtain medical insurance coverage as may be
available to Executive, (d) Executive shall be deemed a part-time
employee and not a full-time employee of Company, (e) Executive
shall provide Company with such occasional executive or managerial
services as reasonably requested by the persons with the title set
forth in Paragraph C hereof, except that failure to render such
services by reason of any physical or mental illness or disability
other than Total Disability or death as set forth in Paragraph O.2
hereof, or unavailability because of absence from the State of
Employment hereunder, shall not affect Executive's right to
receive such salary and (f) Company shall pay directly or
reimburse Executive in accordance with the provisions of Paragraph
G hereof for reasonable business expenses of Company incurred by
Executive in connection with such services requested by the
persons with the title set forth in Paragraph C hereof.
3. The Modification Period shall continue until the earlier of: (a)
Total Disability or death as set forth in Paragraph O.2 hereof,
(b) termination of this Agreement by Company for "just cause" as
hereinafter defined, (c) Executive accepting employment or
receiving any other compensation from operating, assisting or
otherwise being involved, invested or associated with any business
that is similar to or competitive with any business in which
Company is engaged on the commencement date of the Modification
Period, or (d) expiration of the then current Term of this
Agreement.
N. EXTENSION OF EMPLOYMENT: Absent at least ninety (90) days written Notice
of Termination from either party to the other party prior to expiration
of the then Initial or Extended Term, as applicable, of this Agreement,
employment hereunder shall continue for an Extended Term (or another
Extended Term, as applicable) of three (3) years, by which Executive and
Company intend that all terms and conditions of this Agreement shall
remain in full force and effect for another thirty-six (36) months,
except that the highest base salary specified in Paragraph X.1.a shall be
increased annually as set forth in Paragraph X.1.b for each year of the
Extended Term. Company has the option, without terminating this Agreement
or Executive's employment hereunder, of placing Executive on a leave of
absence at the full
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EXHIBIT 10.58 5
compensation set forth in Paragraph F hereof for any or all of such
ninety (90) day period in lieu of the aforementioned Notice of
Termination.
O. TERMINATION OF EMPLOYMENT:
1. a. Termination of employment at the expiration of the then
current Initial or Extended Term shall be effective with or
without cause.
b. Except as provided in Paragraph O.1.a, the Company shall have
the right to terminate Executive's employment hereunder at
any time during the then current Initial or Extended Term, as
applicable, of this Agreement, without notice subject only to
a good faith determination by a majority of the Board of
Directors of Company of "just cause." "Just cause" includes
but is not limited to any theft or other dishonesty, or any
material: (i) neglect of employment duties, (ii) inability or
unwillingness to perform employment duties, (iii)
insubordination, (iv) abuse of alcohol or other drugs, (v)
breach of this Agreement; or for (vi) other misconduct,
unethical or unlawful activity.
c. At any time during the then current Initial or Extended Term,
as applicable, of this Agreement, with or without cause,
Executive may terminate employment hereunder by giving
Company ninety (90) days prior written notice.
2. Employment hereunder shall automatically terminate upon the total
disability ("Total Disability") or death of Executive. Total
Disability shall be deemed to occur on the ninetieth (90th)
consecutive or non-consecutive calendar day within any twelve (12)
month period that Executive is unable to perform the duties set
forth in Paragraph C hereof because of any physical or mental
illness or disability. Company shall pay when due to Executive or
his estate, as applicable, all prorated salary, bonus or other
contingent compensation, reimbursement of business expenses and
fringe benefits which would have otherwise been payable to
Executive under this Agreement, through the end of the month in
which Total Disability or death occurs.
3. Upon termination of employment hereunder, Executive shall
immediately resign as an employee of Company and as an officer
and/or director of Company, as applicable. Executive shall
promptly return all Company property in Executive's possession to
Company, including but not limited to, any motor vehicles,
equipment, supplies and documents set forth in Paragraph J hereof.
Company shall pay Executive, when due, all previously earned and
vested but as yet unpaid, salary, bonus or other contingent
compensation, reimbursement of business expenses and fringe
benefits.
4. Nothing contained in this Agreement shall entitle Executive to
receive a bonus or other incentive or contingent compensation from
Company based on any sales or profits made by Company after
termination of employment hereunder.
P. GOVERNING LAW: This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Employment hereunder.
Q. ARBITRATION CLAUSE:
1. Except for the interpretation and enforcement of injunctive relief
pursuant to Paragraph R hereof (which, at Company's option, shall
be subject to litigation in any court having proper jurisdiction),
any claim or dispute related to or arising from this Agreement
(whether based in contract or tort, in law or equity) including,
but not limited to, claims or disputes between Executive and
Company or its directors, officers, employees and agents regarding
Executive's employment or termination of employment hereunder, or
any other business of Company, shall be resolved by mandatory,
final, binding
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EXHIBIT 10.58 6
arbitration in accordance with the rules of the American
Arbitration Association; provided, however, that no party shall be
entitled to an award of general or punitive damages hereunder.
2. Any such arbitration must be requested in writing within one (1)
year from the date the party initiating the arbitration knew or
should have known about the claim or dispute, or all claims
arising from that dispute are forever waived. Any such arbitration
(or court proceeding as applicable hereunder) shall be held in the
County of Employment. Judgment upon the award rendered through
such arbitration may be entered and enforced in any court having
proper jurisdiction.
R. REMEDIES & DAMAGES:
1. The parties agree that, in the event of a material breach or
threatened material breach of Paragraph L hereof, the damage or
imminent damage to the value of Company's business shall be
inestimable, and therefore any remedy at law or in damages shall
be inadequate. Accordingly, the parties hereto agree that Company
shall be entitled to the immediate issuance of a restraining order
or an injunction against Executive in the event of such breach or
threatened breach, in addition to any other relief available to
Company pursuant to this Agreement or under law.
2. Executive agrees that the actual amount of damages resulting from
any material breach of any of the provisions of Paragraph L hereof
would be impractical or impossible to ascertain. It is therefore
agreed that the damages resulting from any such breach which
involves any customer of Company shall be liquidated damages, not
a penalty, in an amount equal to four (4) times the lost monthly
revenue to the Company based on the average monthly revenue which
was payable by that customer to Company during the four (4) months
immediately preceding such breach. This provision for liquidated
damages is in addition to any other relief available to Company
pursuant to this Agreement or under law.
3. To the full extent permitted under the laws of the State of
Employment hereunder, Executive authorizes Company to withhold
from Executive's compensation and from any other funds held for
Executive's benefit by Company, any damages or losses sustained by
Company as a result of any material breach or other material
violation of this Agreement by Executive, pending arbitration
between the parties as provided for herein.
S. NO WAIVER: Failure by either party to enforce any term or condition of
this Agreement at any time shall not preclude that party from enforcing
that provision, or any other provision of this Agreement, at any later
time.
T. SEVERABILITY: The provisions of this Agreement are severable. If any
arbitrator (or court as applicable hereunder) rules that any portion of
this Agreement is invalid or unenforceable, the arbitrator's or court's
ruling shall not affect the validity and enforceability of other
provisions of this Agreement. It is the intent of the parties that if any
provision of this Agreement is ruled to be overly broad, the arbitrator
or court shall interpret such provision with as much permissible breadth
as is allowable under law rather than to consider such provision void.
U. SURVIVAL: All terms and conditions of this Agreement which by reasonable
implication are meant to survive the termination of this Agreement,
including but not limited to, the Restrictive Covenants and Arbitration
Clause herein, shall remain in full force and effect after the
termination of this Agreement.
V. CONSTRUCTION: This Agreement was negotiated in good faith by the parties
hereto, who
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EXHIBIT 10.58 7
hereby agree to share the responsibility for any ambiguities,
uncertainties or inconsistencies herein. Paragraph headings are used
herein only for ease of reference, and shall not in any way affect the
interpretation or enforcement of this Agreement.
W. NOTICES:
1. Any notice required or permitted to be given pursuant to this
Agreement shall be in writing and delivered in person, or sent
prepaid by certified mail, bonded messenger or overnight express,
to the party named at the address set forth below or at such other
address as either party may hereafter designate in writing to the
other party:
EXECUTIVE: XXXXXX X. XXXXXXXXX
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
COMPANY: ABM INDUSTRIES INCORPORATED
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chairman of the Board
COPY: ABM INDUSTRIES INCORPORATED
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
2. Any such notice shall be assumed to have been received when
delivered in person, or forty-eight (48) hours after being sent in
the manner specified above.
X. SPECIAL PROVISIONS:
1. SALARY:
a. Six Hundred Fifty Thousand Dollars ($650,000) per year
effective 11/1/00 through 10/31/2001 at the monthly rate of
$54,166.67 payable semi-monthly.
b. Effective 11/1/01 through 10/31/02, and for each year of
the then current Initial or Extended Term of this
Agreement, as applicable, the Salary in Paragraph X.1a will
be adjusted upward annually to reflect the percentage
increase change in the American Compensation Association
("ACA") Index for the Western Region ("ACA Index") with a
(6%) maximum increase. The adjustment, if any, shall be
based upon the projected ACA Index as published for the ACA
fiscal year ending on the June 30th immediately preceding
the effective date of the proposed increase hereunder.
Notwithstanding the foregoing, there shall be no annual
increase in Salary for any such year unless the Company's
earning per share ("EPS") for the fiscal year of the
Company (commencing November 1, and ending October 31st)
("Fiscal Year") then ending are equal to or greater than
the Company's EPS for the previous Fiscal Year. There shall
be no downward adjustment in salary in the event the ACA
Index shows a decrease from the prior Fiscal Year.
2. BONUS: Subject to proration in the event of modification or
termination of employment hereunder and further subject to the
potential prospective re-set provisions set forth in Paragraph
X.2.c, Executive shall be paid a bonus ("Bonus") based on the
profit ("Profit") for each Fiscal Year, or partial Fiscal Year, of
employment hereunder during the Term, and during the Extended
Term, if any, of this Agreement:
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EXHIBIT 10.58 8
a. Such Bonus for each Fiscal Year shall be: (i) 0.1298% of
the Company's Profit, plus (ii) 1.2117% of the amount of
any increase in the Company's Profit over the previous
Fiscal Years Profit, all on a pro-rata basis.
b. Profit is defined as the consolidated income before income
taxes of Company, excluding: (i) gains or losses on sales
or exchanges of real property or on sales or exchanges of
all or substantially all of the stock or assets of a
subsidiary corporation or any other business unit of
Company, (ii) gains or losses on the discontinuation of any
business unit of Company, and (iii) the discretionary
portion of any contributions made to any profit sharing,
service award, employee retirement or savings or similar
plan.
c. Subject to proration in the event of modification or
termination of employment under this Agreement, and further
subject to a re-set in the event Executive's Bonus for any
Fiscal Year has been limited as hereinafter provided,
Executive's maximum Bonus for each Fiscal Year shall be one
hundred percent (100%) the Salary for that year set forth
in Paragraph X.1 herein. If, however, in any completed
Fiscal Year, the Bonus which might have been earned by
Executive for that year exceeds said one hundred percent
(100%) maximum, Executive's Salary and Bonus for the next
year shall be re-computed as follows: (i) notwithstanding
the six percent (6%) maximum set forth hereinabove, the
Salary set forth in Paragraph X.1 shall be adjusted to
equal seventy-five percent (75%) of the prior Fiscal Year's
combined Salary and Bonus, plus an amount equal to the
increase, if any, set forth in Paragraph X.1 based upon
said ACA Index; and (ii) the Bonus percentage set forth in
Paragraph X.2.a shall be adjusted by multiplying the prior
Fiscal Year's combined Salary and Bonus by twenty-five
percent (25%), and dividing that product by the actual
Profit earned in the prior Fiscal Year.
d. Executive shall have the right to obtain an advance against
such Bonus at the end of each month of each Fiscal Year in
an amount equal to fifty percent (50% of, or 0.5 times) the
projected amount of such Bonus based on the Profit at that
time.
e. The independent public accounting firm for the Company
shall determine the Profit and Bonus for each Fiscal Year.
Company shall pay Executive the Bonus for the Fiscal Year
(or the balance thereof after any advances) when such
accounting firm has made such determination, but no later
than ninety (90) days after the end of each Fiscal Year.
The Bonus for any partial Fiscal Year shall be prorated for
the fraction of the Fiscal Year for which such Bonus is
payable. Absent bad faith or material error, the
conclusions of such accounting firm or department with
respect to the amounts of the Profits and Bonuses shall be
conclusive upon Executive and Company.
f. Notwithstanding the foregoing, no Bonus for any Fiscal Year
of the Company shall be payable unless the Company's net
income per share for the Fiscal Year then ending is equal
to or greater than eighty percent (80%) of the Company's
net income per share for the previous Fiscal Year of the
Company.
3. POST-EMPLOYMENT CONSULTANCY: After Executive's retirement,
resignation and/or termination from employment with Company, but
commencing no earlier than what is or would have been Executive's
sixty-fifth (65th) birthday and concluding no later than ten (10)
years thereafter ("Consultancy Period"), Company shall pay to
Executive consulting fees ("Consulting Fees") of:
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EXHIBIT 10.58 9
a. 120 equal monthly installments accrued at 1/120th of
$120,000 for each month of employment completed by
Executive from January 1, 1997 through December 31, 2006;
plus
b. 120 equal monthly installments accrued at 1/60th of $30,000
for each month of employment completed by Executive from
March 1, 1998 through February 29, 2003; plus
c. 120 equal monthly installments accrued at 1/60th of
$850,000 for each month of employment completed by
Executive from November 1, 2000 through October 31, 2005.
d. The total amount of all such Consulting Fees shall not
exceed One Million Dollars ($1,000,000).
e. During the Consultancy Period, the Company shall provide
Executive and his spouse with reimbursement for dental
coverage comparable to that provided to other Company
executive officers together with the coverage commonly
known as Medicare Supplement or Medigap Insurance to
supplement Medicare coverage furnished by the federal
government to retirees; provided however that Executive and
his spouse shall pay Company the then current premium
contribution charged by Company to its executive officers
for their medical and dental coverage, and Company's cost
of such reimbursement shall not exceed a combined amount of
$10,000 in any Fiscal Year for Executive and his spouse, or
$5,000 in the event of the death of either.
(i) During the Consultancy Period: (a) Executive shall
provide Company with such occasional executive or
managerial services as reasonably requested by the
person with the title set forth in Paragraph C
hereof, except that failure to render such services
by reason of death or disability, or unavailability
because of absence from the County of Employment,
shall not affect Executive's right to receive such
Consulting Fees, (b) Company shall pay directly or
reimburse Executive for reasonable business expenses
of Company incurred by Executive in connection with
such services requested by the persons with the
title set forth in Paragraph C hereof, upon
presentation to that person by Executive within
sixty (60) days after incurring such expense of an
itemized request for payment including the date,
receipts for all such expenses in excess of
Twenty-Five Dollars ($25) each, (c) Company shall
pay Executive's Consulting Fees pursuant to this
Paragraph X.3 herein, (d) Executive shall not be
eligible or entitled to receive or participate in
any other of the Company's then current fringe
benefits, and (e) Executive shall be deemed an
independent contractor and not an employee of
Company.
(ii) If Executive dies before receiving any or all
payments to Executive of such Consulting Fees, all
unpaid Consulting Fees shall be paid monthly to
Executive's estate or trust continuing or commencing
from the month in which Executive would have reached
Executive's sixty-fifth (65th) birthday.
4. SPECIAL BONUS: On or before January 2, 2001, Company shall pay to
Executive a special, one-time "signing" bonus in the amount of
Fifty Thousand Dollars ($50,000).
Y. SCOPE OF CERTAIN PROVISIONS: All references to Company in Paragraphs H,
I, J, K, L., M, N, O.3, O.4, Q, R and Z in this Agreement shall include
Company, its affiliated and its subsidiary corporations.
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EXHIBIT 10.58 10
Z. ENTIRE AGREEMENT: Unless otherwise specified herein, this Agreement sets
forth every contract, understanding and arrangement as to the employment
relationship between Executive and Company, and may only be changed by a
written amendment signed by both Executive and Company.
1. The parties intend that this Agreement speak for itself, and that
no evidence with respect to its terms and conditions other than
this Agreement itself may be introduced in any arbitration or
judicial proceeding to interpret or enforce this Agreement.
2. It is specifically understood and accepted that this Agreement
supersedes all oral and written employment agreements between
Executive and Company prior to the date hereof, as well as all
applicable provisions of Company's Guidelines For Corporate
Approval and its Personnel Policy & Procedures Manual, including
but not limited to, the termination, discipline and discharge
provisions contained therein. Said Guidelines and Manual are not
an Agreement between Executive and Company, nor shall they be
binding on either party. The purpose and intent of said Guidelines
and Manual are only to suggest guidance for Company managers to
apply as they see fit on a case by case basis.
ZZ. FULL KNOWLEDGE & UNDERSTANDING: Executive and Company hereby acknowledge
that they have carefully read and fully understand all terms and
conditions of this Agreement, and that they are voluntarily entering into
this Agreement with full knowledge of the benefits and burdens, and the
risks and rewards, contained herein.
IN WITNESS WHEREOF, Executive and Company have executed this Agreement as of the
date set forth above:
EXECUTIVE: Signature: /s/ Xxxxxx X. Xxxxxxxxx
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Date: September 5, 2000
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COMPANY: By: Martinn Mandles
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Date: September 5, 2000
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Signature: /s/ Martinn Mandles
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Title: Chairman/CAO
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