1
EXHIBIT 99.10
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of
________________, 1998, by and among De La Torre Insurance Adjusters, Inc., a
Florida corporation (the "Employer"), Xxxxxx De la Xxxxx (the "Executive") and
GAINSCO, INC., a Texas corporation ("GAINSCO").
RECITALS
Concurrently with the execution and delivery of this Agreement, GAINSCO
is purchasing all of the issued and outstanding shares of capital stock of
National Specialty Lines, Inc., a Florida corporation ("NSL"), Employer, and
Lalande Financial Group, Inc., a Florida corporation ("Lalande") owned by the
Executive pursuant to a Stock Purchase Agreement (the "Stock Purchase
Agreement") dated ______________, 1998, among GAINSCO, Executive, Xxxx De la
Xxxxx, NSL, Employer, and Lalande. Employer and GAINSCO desire the Executive's
continued employment with the Employer, and the Executive wishes to accept such
continued employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the premises, mutual covenants and
agreements set forth and for other good and valuable consideration, the
adequacy, sufficiency and receipt of which are hereby acknowledged, the parties
agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I.
"Basic Compensation"--Salary and Benefits.
"Board of Directors"--the board of directors of the Employer.
"Confidential Information"--information that is used in the Employer's
business and
(a) is proprietary to, about or created by the Employer;
(b) gives the Employer some competitive advantage, the opportunity of
obtaining such advantage or the disclosure of which could be detrimental to the
interests of the Employer;
(c) is not typically disclosed to non-employees by the Employer, or
otherwise is treated as confidential by the Employer; or
2
(d) is designated as Confidential Information by the Employer or from
all the relevant circumstances should reasonably be assumed by the Executive to
be confidential to the Employer.
Confidential Information shall not include (i) information already in
Executive's possession prior to the date of this Agreement and that was not
acquired or obtained from Employer or pursuant to a confidentiality agreement;
(ii) information that is obtained or was previously obtained by the Executive
from a third Person who, insofar as is known to the Executive after reasonable
inquiry, is not prohibited from transmitting the information to the Executive by
contractual, legal or fiduciary obligation to the Employer; or (iii) information
that is, or becomes, generally available to the public other than as a result of
a direct or indirect disclosure by the Executive.
"Effective Date"--the date stated in the first paragraph of the
Agreement.
"Employee Invention"--all discoveries, inventions, improvements,
designs, innovations and works of authorship (including all data and records
pertaining thereto) that relate to the business of Employer, whether or not able
to be patented, copyrighted or reduced to writing, that Employee may discover,
invent or originate during the term of his employment hereunder, and for a
period of six months thereafter, either alone or with others and whether or not
during working hours or by the use of the facilities of Employer.
"Fiscal Year"--the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"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.
ARTICLE II
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 Article VI, the term (the
"Term") of the Executive's employment under this Agreement will be three (3)
years, beginning on the Effective Date and ending on the third anniversary of
the Effective Date.
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
of Employer, and will initially serve as President of Employer. The Executive
will devote his entire business time, attention, skill, and energy exclusively
to the business of Employer, will use his best efforts to promote the success of
Employer's business, and will cooperate fully with the Board of Directors of
Employer
-2-
3
in the advancement of the best interests of 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 fulfill his duties as such director or officer
without additional compensation.
2.4 Travel. Neither the Employer nor GAINSCO will unreasonably require
Executive to travel outside of the Miami-Dade County and Broward County,
Florida, area.
ARTICLE III
COMPENSATION
3.1 Basic Compensation.
(a) Salary. The Executive will be paid an annual salary of $125,000,
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.
(b) Benefits. The Executive will, during the Term, be permitted to
participate in such pension, life insurance, hospitalization, major medical,
disability 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").
3.2 Stock Options. The Executive shall be entitled to participate in
any stock option plan, employee stock ownership plan or similar plan of GAINSCO,
subject to the approval of the Chief Executive Officer of GAINSCO and to the
extent the Executive is eligible under the terms of such plan.
ARTICLE IV
FACILITIES AND EXPENSES
The Employer will furnish the Executive 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 a reasonable automobile allowance to
Executive and 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.
-3-
4
ARTICLE V
VACATIONS AND HOLIDAYS
The Executive will be entitled to eight (8) weeks' paid vacation each
Fiscal Year in accordance with the vacation policies of the Employer in effect
for its executive officers from time to time. Vacation must be taken by the
Executive at such time or times as approved by the Chairman of the Board or
Chief Executive Officer of Employer. The Executive will also be entitled to the
paid holidays set forth in the Employer's policies.
ARTICLE VI
TERMINATION
6.1 (a) Disability. Employer may terminate this Agreement for
Disability. "Disability" shall exist if because of ill health, physical or
mental disability, or any other reason beyond his control, and notwithstanding
reasonable accommodations made by Employer, the Executive shall have been
unable, unwilling or shall have failed to perform his duties under this
Agreement, as determined in good faith by the Chairman of the Board of GAINSCO,
for a period of 180 consecutive days, or if, in any 12-month period, the
Executive shall have been unable or unwilling or shall have failed to perform
his duties for a period of 270 days, irrespective of whether or not such days
are consecutive.
(b) Cause. Employer may terminate the Executive's employment for Cause.
Termination for "Cause" shall mean termination because of the Executive's (i)
gross incompetence, (ii) willful gross misconduct that causes material economic
harm to Employer or GAINSCO or that brings substantial discredit to Employer's
or GAINSCO's reputation, (iii) failure to follow directions of the Board of
Directors that are consistent with his duties under this Agreement, (iv) final,
nonappealable conviction of a felony involving moral turpitude, or (v) material
breach of any provision of this Agreement. Items (i), (iii) and (v) of this
subsection shall not constitute Cause unless Employer notifies the Executive
thereof in writing, specifying in reasonable detail the basis therefor and
stating that it is grounds for Cause, and unless the Executive fails to cure
such matter within 60 days after such notice is sent or given under this
Agreement. The Executive shall be permitted to respond and to defend himself
before the Board of Directors or any appropriate committee thereof within a
reasonable time after written notification of any proposed termination for Cause
under item (i), (ii), (iii) or (v) of this subsection.
(c) Without Cause. During the Term, Employer may terminate the
Executive's employment Without Cause, subject to the provisions of subsection
6.2(d). Termination "Without Cause" shall mean termination of the Executive's
employment by Employer other than termination for Cause or for Disability.
-4-
5
(d) Employer Breach. The Executive may terminate his employment
hereunder for Employer Breach. For purposes of this Agreement "Employer Breach"
shall mean (i) the relocation of the Executive outside of the Miami-Dade County
and Broward County, Florida, area or (ii) any material breach of this Agreement
by Employer, including without limitation any material reduction Executive's
Salary or in the authority, duties and responsibilities that the Executive has
on the date of this Agreement; provided, however, that a material breach of this
Agreement by Employer shall not constitute Employer Breach unless the Executive
notifies Employer in writing of the breach, specifying in reasonable detail the
nature of the breach and stating that such breach is grounds for Employer
Breach, and unless Employer fails to cure such breach within 60 days after such
notice is sent or given under this Agreement.
(e) Without Good Reason. During the Term, the Executive may terminate
his employment Without Good Reason. Termination "Without Good Reason" shall mean
termination of the Executive's employment by the Executive other than
termination for Employer Breach.
(f) Explanation of Termination of Employment. Any party terminating
this Agreement shall give prompt written notice ("Notice of Termination") to the
other party hereto advising such other party of the termination of this
Agreement. Within thirty (30) days after notification that the Agreement has
been terminated, the terminating party shall deliver to the other party hereto a
written explanation, which shall state in reasonable detail the basis for such
termination and shall indicate whether termination is being made for Cause,
Without Cause or for Disability (if Employer has terminated the Agreement) or
for Employer Breach or Without Good Reason (if the Executive has terminated the
Agreement).
(g) Date of Termination. "Date of Termination" shall mean the date on
which Notice of Termination is sent or given under this Agreement.
6.2 Compensation During Disability or Upon Termination.
(a) During Disability. During any period that the Executive fails to
perform his duties hereunder because of ill health, physical or mental
disability, or any other reason beyond his control, he shall continue to receive
his full Basic Compensation until the Date of Termination.
(b) Termination for Disability. If Employer shall terminate the
Executive's employment for Disability, Employer's obligation to pay Basic
Compensation shall terminate, except that Employer shall pay the Executive (i)
accrued but unpaid Basic Compensation through the Date of Termination, and (ii)
the benefits set forth in Section 6.2(e).
(c) Termination for Cause or Without Good Reason. If Employer shall
terminate the Executive's employment for Cause or if the Executive shall
terminate his employment Without Good Reason, then Employer's obligation to pay
Basic Compensation shall terminate, except that Employer shall pay the Executive
his accrued but unpaid Basic Compensation through the Date of Termination.
-5-
6
(d) Termination Without Cause or for Employer Breach. If Employer shall
terminate the Executive's employment Without Cause or if the Executive shall
terminate his employment for Employer Breach, then Employer shall pay to the
Executive, as severance pay in a lump sum on the 15th day following the Date of
Termination, the following amounts:
(i) his then-unpaid Salary through the Date of Termination at
the rate in effect as of the Date of Termination; and
(ii) in lieu of any further Salary for periods subsequent to
the Date of Termination, an amount equal to the balance of Executive's
Base Salary through the remainder of the Term.
If the Executive terminates his employment for Employer Breach based upon a
material reduction by Employer of the Executive's Salary, then for purposes of
this subsection 6.2(d), the Executive's Salary as of the Date of Termination
shall be deemed to be the Executive's Salary immediately prior to the reduction
that the Executive claims as grounds for Employer Breach.
(e) Employee Benefits. Unless Employer terminates the Executive's
employment for Cause or the Executive terminates his employment Without Good
Reason, Employer shall maintain in full force and effect (to the extent
consistent with past practice), for the continued benefit of the Executive and,
if applicable, his wife and children, the Benefits that Executive was entitled
to receive immediately prior to the Date of Termination (subject to the general
terms and conditions of the plans and programs under which he receives such
benefits) for twelve months or the balance of the Term, whichever is shorter,
provided that his continued participation or, if applicable, the participation
of his wife and children, is possible under the general terms and conditions of
such plans and programs.
(f) No Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for in this Section 6.2 by seeking other
employment or otherwise.
6.3 Death of Executive. If the Executive dies prior to the expiration
of this Agreement, the Executive's employment and other obligations under this
Agreement shall automatically terminate and all compensation, to which the
Executive is or would have been entitled hereunder (including without limitation
under Section 3.1), shall terminate as of the end of the month in which the
Executive's death occurs; provided, however, that for the balance of the Term,
the Executive's wife and children shall be entitled to receive the Benefits that
they were entitled to receive immediately prior to the death of the Executive
(subject to the general terms and conditions of the plans and programs under
which they receive such benefits) for twelve months or the balance of the Term,
whichever is shorter, provided that their continued participation is possible
under the general terms and conditions of such plans and programs.
-6-
7
ARTICLE VII
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 Acknowledgments by the Executive. The Executive acknowledges that
(a) during the Term 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 technical 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) GAINSCO has required that the
Executive make the covenants in this Article VII as a condition to GAINSCO's
purchase of the shares of capital stock of NSL, Employer and Lalande owned by
Executive, pursuant to the Stock Purchase Agreement; and (e) the provisions of
this Article VII 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 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 Term, 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.
(ii) Any trade secrets of the Employer will be entitled to all
of the protections and benefits under 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.
(iii) None of the foregoing obligations and restrictions
applies 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 a direct or indirect 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 while traveling, or
except as otherwise specifically authorized by the Employer) any
document, record, notebook, plan, model, component, device, or computer
software or
-7-
8
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 Term, 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 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 patents 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 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 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.
ARTICLE VIII
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 national in scope
-8-
9
and its services and products are 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) GAINSCO has required that the Executive make the
covenants set forth in this Article VIII as a condition to GAINSCO's purchase of
the shares of capital stock of NSL, Employer and Lalande owned by Executive,
pursuant to the Stock Purchase Agreement; and (e) the provisions of this Article
VIII are reasonable and necessary to protect the Employer's business.
8.2 Covenants of the Executive. In consideration of the acknowledgments
by the Executive, 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 Term, except in the course of his employment hereunder,
directly or indirectly, 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, services or
activities compete in whole or in part with the products, services or activities
of the Employer, GAINSCO or any affiliate thereof anywhere in the world;
provided, however, that the Executive may purchase or otherwise acquire up to
(but not more than) five percent (5%) of any class of securities of any
enterprise involved in the Business (but without otherwise participating in the
activities of such enterprise), other than GAINSCO, 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; and further provided
that Executive may purchase securities of GAINSCO in those purchase windows
authorized for GAINSCO's officers by the chief executive officer of GAINSCO;
(b) during the Post-Agreement Period (as defined below), directly or
indirectly, 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, services or activities are
involved in, directly or indirectly or in whole or in part, the Business (as
defined below) in the geographical areas in which Employer, GAINSCO or any
affiliate thereof is involved in the Business as of the date of termination of
Executive's employment hereunder and during the Post-Employment Period;
provided, however, that the Executive may purchase or otherwise acquire,
directly or indirectly, up to (but not more than) five percent of any class of
securities of any enterprise involved in the Business (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;
(c) whether for the Executive's own account or for the account of any
other Person, at any time during the Term and the Post-Agreement 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;
-9-
10
(d) whether for the Executive's own account or the account of any other
Person (i) at any time during the Term and the Post-Agreement 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 Term 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 Term and the Post-Agreement Period, interfere with the Employer's
relationship with any Person, including any Person who at any time during the
Term was an employee, agent, insurer, or customer of the Employer; or
(e) at any time during or after the Term, disparage the Employer or any
of its shareholders, directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Agreement Period" means the
period beginning on the date of termination of the Executive's employment with
the Employer, plus the remainder of the Term, if any, not fulfilled by Executive
due to the termination of this Agreement by Employer for Cause or by Executive
Without Good Reason, plus three years; provided, however, that, notwithstanding
anything to the contrary in this Agreement or the Stock Purchase Agreement, in
the event of a Change of Control Trigger (as defined in the Stock Purchase
Agreement), the "plus three years" tail of the Post-Agreement Period shall be
reduced in proportion to the Earnout Consideration (as defined in the Stock
Purchase Agreement) not received by the Seller (as defined in the Stock Purchase
Agreement). The three-year period will be defined as 36 months which will then
be multiplied by a fraction, the numerator of which is the total of all payments
received by Seller under Section 2.3 of the Stock Purchase Agreement, and the
denominator of which is the Earnout Consideration, and rounded to the next whole
month. By way of example, but not of limitation, if a Change of Control Trigger
occurs during the first Earnout Period (as defined in the Stock Purchase
Agreement), and as a result thereof, Seller received $2,000,000 out of a total
possible Earnout Consideration of $10,000,000 to be received by Seller, the
36-month period of the Post-Agreement Period shall be reduced so that it equals
two-tenths of 36 months rounded to the next whole month, or 8 months; and
provided further that in no event shall the tail period be reduced to fewer than
six months.
For purposes of this Section 8.2, the term "Business" means the business of
writing, underwriting, selling, claims adjusting, premium financing or acting as
an agent with respect to nonstandard private passenger automotive insurance.
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.
-10-
11
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. GAINSCO or 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.
ARTICLE IX
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 Articles VII and
VIII) 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.
9.2 Covenants of Articles VII and VIII Are Essential and Independent
Covenants. The covenants by the Executive in Articles VII and VIII are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, GAINSCO would not have purchased the capital stock of NSL,
Employer and Lalande owned by Executive under the Stock Purchase Agreement and
the Employer would not have entered into this Agreement or employed or continued
the employment of the Executive. The Employer and the Executive have
independently consulted their respective 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 Articles VII and VIII are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise, or against GAINSCO, will not excuse the
Executive's breach of any covenant in Articles VII or VIII.
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 Articles VII and
VIII.
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
-11-
12
a default under, any agreement to which the Executive is a party or by which the
Executive is or may be bound.
9.4 Obligations Contingent on Performance. The obligations of the
Employer hereunder, including its obligation to pay the compensation provided
for herein, are contingent upon the Executive's performance of the Executive's
obligations hereunder.
9.5 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.
9.6 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.
9.7 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 registered 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:
De La Torre Insurance Adjusters, Inc.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: President
Facsimile No.: (000) 000-0000
-12-
13
Executive:
Xxxxxx De la Xxxxx
000 Xxxxxxxxx 000xx Xxxxxx
Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx X. Stamen
Packman, Neuwahl & Xxxxxxxxx
0000 Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
GAINSCO:
GAINSCO, INC.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxx
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
9.8 Entire Agreement; Amendments. This Agreement, the Stock Purchase
Agreement, and the documents executed in connection with the Stock Purchase
Agreement, contain the entire agreement between the parties with respect to the
subject matter hereof and supersede 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.
9.9 Governing Law. This Agreement will be governed by the laws of the
State of Florida without regard to conflicts of laws principles.
9.10 Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement shall be
brought against either of the parties in
-13-
14
the courts of the State of Florida, County of Miami-Dade, or, if it has or can
acquire jurisdiction, in the United States District Court for the Southern
District of Florida, 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. Process in any action
or proceeding referred to in the preceding sentence may be served on either
party anywhere in the world.
9.11 Section and Article Headings, Construction. The headings of
Sections and Articles in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" and "Article" or "Articles" refer to the corresponding Section or
Sections and Article or Articles of this Agreement unless otherwise specified.
All words used 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.
9.12 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. 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.
9.13 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.
9.14 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL
IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EXECUTIVE:
--------------------------------------------
Xxxxxx De la Torre
GAINSCO, INC.
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
-14-
15
DE LA TORRE INSURANCE ADJUSTERS, INC.
By:
-----------------------------------------
Name: Xxxxxx De la Xxxxx
Title: President
-15-
