EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
February 20, 2000 ("Effective Date") between XCEL MANAGEMENT, INC., a Utah
corporation with its principal offices located at 0000 Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000 (the "Company"), and Xxxxx X. Xxxxx, III, a resident of
Washington (the "Employee").
In consideration of the promises and the terms and conditions set forth in
this Agreement, the parties agree as follows:
1. Position. During the term of this Agreement, the Company will employ
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the Employee, and the Employee will serve the Company in the capacity of Chief
Technical Officer. The Employee will report directly to Xxxx X. Xxxxx, the
Company's Chief Executive Officer and Chairman.
2. Duties. The Employee will perform duties described in Exhibit "A,"
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attached to this Agreement and incorporated by this reference, together with
such additional duties assigned by the Chief Executive Officer or Board of
Directors.
3. Exclusive Service. The Employee will devote substantially all his
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working time and efforts to the business and affairs of the Company. The
foregoing shall not, however, preclude the Employee: (a) from engaging in
appropriate civic, charitable or religious activities; (b) from serving on the
boards of directors of other entities, with the consent of the Company, which
consent shall not be unreasonably withheld; or (c) from providing incidental
assistance to family members on matters of family business, so long as the
foregoing activities and service do not conflict with the Employee's
responsibilities to the Company.
4. Term of Agreement.
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4.1 Initial Term. The Company agrees to continue the Employee's
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employment, and the Employee agrees to remain in the employ of the Company,
pursuant to the terms of this Agreement for a period of three (3) years after
the Effective Date, unless the Employee's employment is earlier terminated
pursuant to the provisions of this Agreement.
4.2 Renewal. The term of this Agreement shall be extended
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automatically, without further action of either party, as of three (3) years
after the Effective Date and on each succeeding anniversary of that date, for
terms of one (1) year, unless on or before ninety (90) days prior to the last
day of the term of this Agreement or any extension thereof, the Company or
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the Employee shall notify the other in writing of its intention not to renew
this Agreement, in which case the Employee's employment shall terminate at the
end of the original term or any extension thereof. If either party notifies the
other of its intention not to renew this Agreement less than ninety (90) days
prior to the end of the term of this Agreement or any extension thereof, then
such termination shall be effective ninety (90) days from such notice. No notice
of non-renewal may be given by either party after a renewal term has commenced.
Any such renewal shall be upon such terms and conditions set forth in this
Agreement, unless otherwise agreed between the Company and the Employee. The
notice of non-renewal by either party shall in no way constitute a breach of
this Agreement.
5. Compensation and Benefits.
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5.1 Base Salary. The Employee's initial base annual salary will be no
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less than $105,000 per year plus $8,000 bonus for the first year of his
employment with the Company. The Employee's base salary will be reviewed by the
Chief Executive Officer and/or Board of Directors at least annually and will be
increased to no less than $130,000 per year effective on the first anniversary
of the Effective Date and to no less than $150,000 per year effective on the
second anniversary of the Effective Date. Employee's salary will be payable as
earned in accordance with the Company's customary payroll practice.
5.2 Additional Benefits. The Employee will be eligible to participate
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in the Company's employee benefit plans of general application, including
without limitation pension and profit-sharing plans, stock option, incentive or
other bonus plans, life, health, disability, accident, vision and dental
insurance programs, paid vacations and sabbatical leave plans, and similar plans
or programs, in accordance with the rules established for individual
participation in any such plan. The Employee will also be entitled to reasonable
holidays and illness days with full pay in accordance with the Company's policy
from time to time in effect. The Employee will be entitled to the same benefits
extended to members of the senior executive staff of the Company, including but
not limited to vacation accrual.
5.3 Additional Stock Options. On the Effective Date, the Employee
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shall be granted a compensatory stock option for 390,000 shares of the Company's
restricted Common Stock at an exercise price per share of $1.00 for the first
25,000 shares and $2.00 per share for the next 365,000 shares (the "Initial
Option"). The Initial Option shall be vested as to 25,000 shares on the
Effective Date. As to the remaining 365,000 shares and provided the Employee
continues to be engaged under this Agreement on each of the vesting dates, the
remainder of the Initial Option shall vest in the following manner: 121,666
shares on the one year anniversary of the Effective Date (February 20, 2001),
and thereafter 1/24 of the remaining shares subject to the Initial Option each
month the Employee continues to be engaged under this Agreement. The Initial
Option shall be fully vested on the third anniversary of the Effective Date. The
Initial Option cannot be transferred by the Employee except in the event of his
death, and must be exercised by the Employee (or in the event of his death, by
his estate or such other designee) within ten (10) years from the Effective
Date. Forms of permissible consideration to purchase the shares of restricted
common stock on exercise of the Initial Option shall be cash, cashless exercise
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(also called net zero transaction), recourse promissory note and such other
forms of consideration with which other executives have or are given the
opportunity to purchase shares. In the event that the number of outstanding
shares of the Company's common stock is changed by a stock dividend,
recapitalization, stock split or similar change in the capital structure of the
Company without consideration, then the number of shares subject to the Initial
Option will be proportionately adjusted.
5.4 Legal Expenses. The Company shall promptly reimburse the Employee
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for all reasonable legal expenses incurred by the Employee in connection with
the preparation of this Agreement, up to a maximum of $500.
5.5 Expenses. The Company will reimburse (monthly) the Employee for
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all reasonable and necessary expenses incurred by the Employee in connection
with the Company's business.
6. Termination.
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6.1 Events of Termination. The Employee's employment with the Company
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shall terminate upon any one of the following:
(a) Thirty (30) days after the date of a written notice sent to the
Employee stating the Company's determination made in good faith that it is
terminating the Employee for "Cause" as defined under Section 6.2 below
("Termination for Cause"); or
(b) Thirty (30) days after the date of a written notice sent to the
Employee stating the Company's determination made in good faith that, due to a
mental or physical incapacity, the Employee has been unable to perform his
duties under this Agreement for a period of not less than six (6) consecutive
months ("Termination for Disability"); or
(c) Upon the Employee's death ("Termination Upon Death"); or
(d) Upon the date of a written notice sent to the Company stating the
Employee's determination made in good faith of "Constructive Termination" by the
Company, as defined under Section 6.3 below ("Constructive Termination"); or
(e) Thirty (30) days after the date of a notice sent to the Employee
stating that the Company is terminating his employment, without Cause, which
notice can only be given by the Company at any time after the Effective Date at
the Company's sole discretion, for any reason or for no reason ("Termination
Without Cause"); or
(f) The date of a notice sent to the Company from the Employee
stating that the Employee is electing to terminate his employment with the
Company ("Voluntary Termination").
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6.2 "Cause" Defined. For purposes of this Agreement, "Cause" for the
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Employee's termination will exist at any time after the occurrence of one or
more of the following events:
(a) Any willful act or acts of dishonesty undertaken by the Employee
intended to result in substantial gain or personal enrichment of the Employee at
the expense of the Company; or
(b) Any willful act of gross misconduct which is materially and
demonstrably injurious to the Company. No act, or failure to act, by the
Employee shall be considered "willful" if done, or omitted to be done, by him in
good faith and in the reasonable belief that his act or omission was in the best
interest of the Company and/or required by applicable law.
6.3 "Constructive Termination" Defined. "Constructive Termination"
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shall mean:
(a) A material reduction in the Employee's salary or benefits not
agreed to by the Employee;
(b) A material change in the Employee's responsibilities not agreed
to by the Employee;
(c) The Company's failure to comply in any material respect with any
material term of this Agreement after thirty (30) days written notice of the
Employee's claim of such failure; or
(d) A requirement that the Employee relocate to an office that would
increase the Employee's one-way commute distance by more than thirty (30) miles.
6.4 "Termination Without Cause" shall mean:
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(a) Termination of the Employee's employment with the Company for any
reason other than Cause; or
(b) Termination of the Employee's employment with the Company for any
reason following a Change in Control. "Change in Control" shall mean the
occurrence of any of the following events: (i) a merger or consolidation
involving the Company in which the shareholders of the Company immediately prior
to such merger or consolidation own less that fifty percent (50%) of the voting
power of the surviving corporation; (ii) the sale of all, or substantially all,
of the assets of the Company; (iii) any "person" or "group" (as defined in the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) becoming the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly of securities representing more than fifty percent (50%) of the
voting power of the Company then outstanding; or (iv) less than a majority of
the Board of Directors are persons who were either nominated for election by the
Board of Directors or were elected by the Board of Directors.
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7. Effect of Termination.
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7.1 Termination for Cause or Voluntary Termination. In the event of
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any termination of the Employee's employment pursuant to Section 6.1(a) or
Section 6.1(f), the Company shall immediately pay to the Employee the
compensation and benefits accrued and otherwise payable to the Employee under
Section 5 through the date of termination. The Employee's rights under the
Company's benefit plans of general application shall be determined under the
provisions of those plans.
7.2 Termination for Disability. In the event of termination of
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employment pursuant to Section 6.1(b):
(a) The Company shall immediately pay to the Employee the
compensation and benefits accrued and otherwise payable to the Employee under
Section 5 through the date of termination;
(b) For three (3) months after the termination of the Employee's
employment, the Company shall pay the Employee: (i) his salary under Section 5.1
above at the Employee's then-current salary, less applicable withholding taxes,
payable on the Company's normal payroll dates during that period; (ii)
healthcare premium for a period of three months;
(c) The Employee shall receive other benefit payments as provided in
the Company's standard benefit plans, and
(d) The Employee shall become fully and immediately vested in the
entire balance of his Initial Option under Section 5.3 above.
7.3 Termination Upon Death. In the event of termination of employment
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pursuant to Section 6.1(c), all obligations of the Company and the Employee
shall cease, except the Company shall immediately pay to the Employee (or to the
Employee's estate) the compensation and benefits accrued and otherwise payable
to the Employee under Section 5 through the date of termination, and the
Employee shall become fully and immediately vested in the entire balance of his
Initial Option under Section 5.3 above.
7.4 Constructive Termination or Termination Without Cause. In the
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event of any termination of this Agreement pursuant to Section 6.1(d) or
Section 6.1(e):
(a) The Company shall immediately pay to the Employee the
compensation and benefits accrued and otherwise payable to the Employee under
Section 5 through the date of termination;
(b) For three (3) months after the termination of the Employee's
employment, the Company shall pay the Employee: (i) his salary under Section 5.1
above at the Employee's
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then-current salary, less applicable withholding taxes, payable on the Company's
normal payroll dates during that period; (ii) healthcare premium for a period of
three months.
(c) If the termination occurs within the first (12) twelve months
following the Effective Date, in addition to the option for 25,000 shares vested
on the Effective Date, the Employee shall be vested in such number of shares of
the Initial Option provided in Section 5.3 equal to the product of 121,666
multiplied by the result of dividing the number of months the Employee has
provided services to the Company by twelve.
(d) If the termination occurs for any reason after a Change in
Control, then in addition to the foregoing benefits, the remainder of the
Initial Option provided in Section 5.3 shall, as of the date of employment
termination, be immediately vested in full and shall remain exercisable for the
periods specified in Section 5.3; provided, that if the total amount of the
benefits available to the Employee under this Section 7.4, either alone or
together with other payments which the Employee has the right to receive from
the Company, would constitute a "parachute payment" as defined in Section 280G
of the Internal Revenue Code (the "Code"), then the Employee will receive
whichever provides him with the greater economic benefit: (i) the total amount
of such benefits; or (ii) the largest amount that would result in no portion of
such benefits being subject to the excise tax imposed by Section 4999 of the
Code. The determination of which of the foregoing would provide the greatest
economic benefit to the Employee shall be made by an independent accounting firm
the fees for which determination shall be paid by the Company.
8. Nondisclosure. The Employee acknowledges that during the course of his
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employment by the Company, the Company will provide, and the Employee will
acquire, knowledge of special and unique value with respect to the Company's
business operations, including, by way of illustration, the Company's existing
and contemplated product line, trade secrets, compilations, business and
financial methods or practices, plans, hardware and software technology
products, systems, programs, projects and know-how, pricing, cost of providing
service and equipment, operating and maintenance costs, marketing and selling
techniques and information, customer data, customer names and addresses,
customer service requirements, supplier lists, and confidential information
relating to the Company's policies, employees, and/or business strategy (all of
such information herein referenced to as the "Confidential Information"). The
Employee recognizes that the business of the Company is dependent upon
Confidential Information and that the protection of the Confidential Information
against unauthorized disclosure or use is of critical importance to the Company.
The Employee agrees that, without prior written authorization of the Chief
Executive Officer of the Company, the Employee will not, during his employment,
divulge to any person, directly or indirectly, except to the Company or its
officers and agents or as reasonably required in connection with the Employee's
duties on behalf of the Company, or make any independent use of, except on
behalf of the Company, any of the Company's Confidential Information, whether
acquired by the Employee during his employment or not. The Employee further
agrees that the Employee will not, at any time after his employment has ended,
use or divulge to any person directly or indirectly any Confidential
Information, or use any Confidential Information in subsequent employment of any
nature. If the
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Employee is subpoenaed, or is otherwise required by law to testify concerning
Confidential Information, the Employee agrees to notify the Company upon receipt
of a subpoena, or upon belief that such testimony shall be required. This
nondisclosure provision shall survive the termination of this Agreement for any
reason. The Employee acknowledges that the Company would not employ the Employee
but for his covenants and promises contained in this Section 8.
9. Return of Documents. The Employee agrees that if the Employee's
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relationship with the Company is terminated (for whatever reason), the Employee
shall not remove or take with the Employee, but will leave with the Company or
return to Company, all Confidential Information, records, files, data,
memoranda, reports, customer lists, customer information, product information,
price lists, documents and other information, in whatever form (including on
computer disk), and any and all copies thereof, or if such items are not on the
premises of the Company, the Employee agrees to return such items immediately
upon the Employee's termination or the request of the Company. The Employee
acknowledges that all such items are and remain the property of the Company.
10. No Interference or Solicitation. The Employee agrees that during his
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employment, and for a period of six (6) months following the termination of his
employment (for whatever reason), that neither he nor any individual,
partner(s), limited partnership, corporation or other entity or business with
which he is in any way affiliated, including, without limitation, any partner,
limited partner, director, officer, shareholder, employee, or agent of any such
entity or business, will: (i) request, induce or attempt to influence, directly
or indirectly, any employee of the Company to terminate their employment with
the Company; or (ii) employ any person who as of the date of this Agreement was,
or after such date is or was, an employee of the Company. The Employee further
agrees that during the period beginning with the commencement of the Employee's
engagement with the Company and ending six (6) months after the termination of
the Employee's employment with the Company (for whatever reason), he shall not,
directly or indirectly, as an employee, agent, consultant, stockholder,
director, partner or in any other individual or representative capacity of the
Company or of any other person, entity or business, solicit or encourage any
present or future customer, supplier, contractor, partner or investor of the
Company to terminate or otherwise alter his, his or its relationship with the
Company. This provision shall survive the termination of this Agreement for any
reason.
11. Non-Competition. In consideration of the numerous mutual promises
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contained in the Agreement between the Company and the Employee, including,
without limitation, those involving Confidential Information, and in order to
protect the Company's Confidential Information and to reduce the likelihood of
irreparable damage which would occur in the event such information is provided
to or used by a competitor of the Company, the Employee agrees that during his
employment and for an additional period of six (6) months immediately following
the termination of his employment, whether voluntary or involuntary (the "Non-
Competition Term"), not to, directly or indirectly, either through any form of
ownership or as a director, officer, principal, agent, employee, employer,
adviser, consultant, shareholder, partner, or in any individual or
representative capacity whatsoever, without the prior written consent of the
Company (which consent may be withheld in its sole discretion): (i) compete for
or solicit business related to application service provider services for or on
behalf of any person or business entity with a place of business in the United
States or Canada; (ii) own, operate,
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participate in, undertake any employment with or have any interest in any entity
with a place of business in the United States or Canada in the business of
marketing and selling of application service provider services to persons or
business entities, except owning publicly traded stock for investment purposes
only in which the Employee owns less than 5%; (iii) compete for or solicit
application service provider services business from any customer of the Company
(or its successors by merger); or (iv) use in any competition, solicitation, or
marketing effort any Confidential Information, any proprietary list, any
information concerning customers of the Company.
If, during any period within the Non-Competition Term, the Employee is not
in compliance with the terms of this Section 11, the Company shall be entitled
to, among other remedies, compliance by the Employee with the terms of this
Section 11 for an additional period equal to the period of such noncompliance.
For purposes of this Agreement, the term "Non-Competition Term" shall also
include this additional period. The Employee hereby acknowledges that the
geographic boundaries, scope of prohibited activities and the time duration of
the provisions of this Section 11 are reasonable and are no broader than are
necessary to protect the legitimate business interests of the Company.
This non-competition provision shall survive the termination of the
Employee's employment and can only be revoked or modified by a writing signed by
the parties which specifically states an intent to revoke or modify this
provision. The Employee acknowledges that the Company would not employ him but
for his covenants or promises contained in this Section 11.
12. Reformation of Section 11. The Company and the Employee agree and
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stipulate that the agreements and covenants not to compete contained in Section
11 hereof are fair and reasonable in light of all of the facts and
circumstances of the relationship between the Employee and the Company; however,
the Employee and the Company are aware that in certain circumstances courts have
refused to enforce certain agreements not to compete. Therefore, in furtherance
of, and not in derogation of the provisions of Section 11, the Company and the
Employee agree that in the event a court should decline to enforce the
provisions of Section 11, that Section 11 shall be deemed to be modified or
reformed to restrict the Employee's competition with the Company or its
affiliates to the maximum extent, as to time, geography and business scope,
which the court shall find enforceable; provided, however, in no event shall the
provisions of Section 11 be deemed to be more restrictive to the Employee than
those contained herein.
12. Injunctive Relief. The Employee acknowledges and agrees that the
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agreements and covenants contained in this Agreement are essential to protect
the Confidential Information, business, and goodwill of the Company. The
Employee further acknowledges that the breach of any of the agreements contained
herein, including, without limitation, the confidentiality covenants specified
in Section 8, the non-solicitation covenants specified in Section 10, and the
non-competition covenants contained in Section 11, will give rise to irreparable
injury to the Company, inadequately compensable in damages. Accordingly, the
Company shall be entitled to injunctive relief to prevent or cure breaches or
threatened breaches of the provisions of this
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Agreement and to enforce specific performance of the terms and provisions hereof
in any court of competent jurisdiction, in addition to any other legal or
equitable remedies which may be available. The Employee further acknowledges and
agrees that in the event of the termination of the Employee's employment with
the Company, whether voluntary or involuntary, that the enforcement of a remedy
hereunder by way of injunction shall not prevent the Employee from earning a
reasonable livelihood. The Employee further acknowledges and agrees that the
covenants contained herein are necessary for the protection of the Company's
legitimate business interests and are reasonable in scope and content.
13. Miscellaneous
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13.1 Indemnification and Errors and Omissions Insurance. The Company
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agrees to indemnify and defend the Employee on terms no less favorable than any
indemnification agreement the Company has at any time during the term of this
Agreement with an executive or officer of the Company.
13.2 Arbitration. The Employee and the Company shall submit to
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mandatory binding arbitration in any controversy or claim arising out of, or
relating to, this Agreement or any breach hereof. Such arbitration shall be
conducted in accordance with the commercial arbitration rules of the American
Arbitration Association in effect at that time, and judgment upon the
determination or award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator is hereby authorized to award to the
prevailing party the costs (including reasonable attorneys' fees and expenses)
of any such arbitration.
13.3 Severability. If any provision of this Agreement shall be found
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by any arbitrator or court of competent jurisdiction to be invalid or
unenforceable, then the parties hereby waive such provision to the extent that
it is found to be invalid or unenforceable and to the extent that to do so would
not deprive one of the parties of the substantial benefit of its bargain. Such
provision shall, to the extent allowable by law and the preceding sentence, be
modified by such arbitrator or court so that it becomes enforceable and, as
modified, shall be enforced as any other provision hereof, all the other
provisions continuing in full force and effect.
13.4 No Waiver. The failure by either party at any time to require
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performance or compliance by the other of any of its obligations or agreements
shall in no way affect the right to require such performance or compliance at
any time thereafter. The waiver by either party of a breach of any provision
hereof shall not be taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind shall be effective or binding, unless it is in writing and is signed by
the party against whom such waiver is sought to be enforced.
13.5 Assignment. This Agreement and all rights hereunder are
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personal to the Employee and may not be transferred or assigned by the Employee
at any time. The Company may assign its rights, together with its obligations
hereunder, to any parent, subsidiary, affiliate or successor, or in connection
with any sale, transfer or other disposition of all or substantially all of
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its business and assets, provided, however, that any such assignee assumes the
Company's obligations hereunder.
13.6 Withholding. All sums payable to the Employee hereunder shall be
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reduced by all federal, state, local and other withholding and similar taxes and
payments required by applicable law.
13.7 Entire Agreement. This Agreement constitutes the entire and only
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agreement between the parties relating to employment of the Employee with the
Company, and this Agreement supersedes and cancels any and all previous
contracts, arrangements or understandings with respect thereto.
13.8 Amendment. This Agreement may be amended, modified, superseded,
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cancelled, renewed or extended only by an agreement in writing executed by both
parties hereto.
13.9 Notices. All notices and other communications required or
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permitted under this Agreement shall be in writing and hand delivered, sent by
telecopier, sent by registered first class mail, postage pre-paid, or sent by
nationally recognized express courier service. Such notices and other
communications shall be effective upon receipt if hand delivered or sent by
telecopier, five (5) days after mailing if sent by mail, and one (1) day after
dispatch if sent by express courier, to the following addresses, or such other
addresses as any party shall notify the other parties:
If to the Company:
XCEL MANAGEMENT, INC.
Attn: Xxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
If to the Employee:
Xxxxx X. Xxxxx, III
0000 Xxxxxxxx Xxxxx XX
Xxxxxx, XX 00000
13.10 Binding Nature. This Agreement shall be binding upon, and inure
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to the benefit of, the successors and personal representatives of the respective
parties hereto.
13.11 Headings. The headings contained in this Agreement are for
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reference purposes only and shall in no way affect the meaning or interpretation
of this Agreement. In this Agreement, the singular includes the plural, the
plural included the singular, the masculine gender includes both male and female
referents, and the word "or" is used in the inclusive sense.
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13.12 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original but all of which,
taken together, constitute one and the same agreement.
13.13 Governing Law. This Agreement and the rights and obligations of
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the parties hereto shall be construed in accordance with the laws of the State
of Washington, without giving effect to the principles of conflict of laws.
13.14 Attorneys' Fees. In the event of any claim, demand or suit
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arising out of or with respect to this Agreement, the prevailing party shall be
entitled to reasonable costs and attorneys' fees, including any such costs and
fees upon appeal.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the date first above written.
"THE COMPANY" "EMPLOYEE"
XCEL MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxx /s/ Xxxxx X. Xxxxx, III
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Xxxx X. Xxxxx Xxxxx X. Xxxxx, III
Chief Executive Officer & Chairman
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EXHIBIT "A"
TO
EMPLOYMENT AGREEMENT
DUTIES OF EMPLOYEE
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