(d)(18)
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of
December 5, 2000, by and between UMSI Acquisition Co., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive upon the
terms and conditions set forth herein;
WHEREAS, the Executive is willing and able to accept such
employment on such terms and conditions; and
WHEREAS, the Company and the Executive intend that this
Agreement shall supersede and replace in its entirety any prior agreement
relating to the terms of employment of the Executive with any predecessor in
interest to the Company (a "Prior Agreement") and that, on and after the date
hereof, any such Prior Agreement shall be of no further force or effect.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the Company and the Executive hereby agree as follows:
1. Effective Date; Employment Period; Prior Agreement.
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(a) Subject to the provisions of this Section 1 and the provisions
of Section 4 hereof, the term of this Agreement shall commence
as of the consumattion date of the Asset Purchase Agreement
(the "Asset Purchase Agreement") by and among Union Espanola
de Explosivos S.A., Union Espanola de Explosivos-MSI
International, S.A., the Company, and Mining Services
International Corporation (the "Effective Date") and shall end
on the second anniversary thereof, provided that, subject to
Section 4 hereof, commencing on the second anniversary of the
Effective Date, and on each anniversary of the Effective Date
thereafter, the term of this Agreement shall automatically be
extended for an additional year unless, not later than ninety
(90) days prior to each such date, the Company or the
Executive shall have given notice not to extend the term of
this Agreement. This Agreement will become effective only upon
the consummation of the Asset Purchase Agreement. Until this
Agreement becomes effective, this Agreement will have no force
and effect, and no party shall have any right, interest,
duties, obligations or liabilities hereunder. If the Asset
Purchase Agreement is not consummated, this Agreement will be
null and void and have no force and effect, and no party shall
have any right, interest, duties, obligations or liabilities
hereunder. The obligations of the Company and the Executive
under this Agreement which by their nature may require either
partial or total performance after the expiration of the term
of this Agreement shall survive such expiration. All periods
during which the Executive is employed hereunder shall
hereinafter be referred to as the "Employment Period."
(b) Effective as of the Effective Date, this Agreement shall
supersede and replace any Prior Agreement, and any Prior
Agreement shall be of no further force or effect.
2. Positions and Duties.
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(a) During the Employment Period, the Company will employ the
Executive, and the Executive agrees to serve and accept
employment, as the Vice President and Legal Counsel Company,
reporting directly to the Chief Executive Officer of the
Company or other ultimate executive authority of the Company
or such person as the CEO delegates (the "CEO"). As Vice
President and Legal Counsel, the Executive shall perform the
customary duties of such position, subject to the direction
and control of the CEO, and shall perform such other duties,
not inconsistent with such position, as the CEO or the Board
of Directors of the Company (the "Board") may require. The
Executive's responsibilities shall include legal matters,
business development, tax planning and management of
Turon-MSI's operations. The Executive shall have assignments
on the Boards of Eastern Mining Services, Turon-MSI and
Suministros y Servicios Mineros de Colombia Ltda.
(b) During the Employment Period, the Executive shall devote all
of his working time to such employment, shall devote his best
efforts to advance the interests of the Company and shall not
engage in any other business activities, as an employee,
director, consultant or in any other capacity, whether or not
he receives any compensation therefor, without the prior
written consent of the Board. It shall not be a violation of
this Agreement for the Executive to serve on civic or
charitable boards or committees, or on those corporate boards
or committees on which the Executive is serving as of the
Effective Date (each of which have been disclosed by the
Executive to the Company in writing and are attached hereto as
Exhibit A), provided that such activities do not materially
interfere with the performance of the Executive's duties
hereunder. It shall also not be a violation of this Agreement
for the Executive to have passive investments in entities that
do not in any way compete with the Company provided that such
activities do not materially interfere with the performance of
the Executive's duties hereunder.
(c) During the Employment Period, the Executive shall not cause
the Company to enter into any contract with any related party
without the prior written consent of the CEO. For purposes of
this subsection (c), a related party is any entity in which
the Executive or his immediate family has any ownership
interest. For purposes of this Agreement immediate family
members are an individual's parents, spouse, children and
other dependents living in the individual's home.
3. Compensation. In consideration of the performance by the Executive of
his duties hereunder, during the Employment Period the Company shall
pay or provide to the Executive the following compensation which the
Executive agrees to accept in full satisfaction for his services, it
being understood that necessary withholding taxes, FICA contributions
and any other standard Company deductions shall be deducted from such
compensation:
(a) Base Salary. The Executive shall receive a base salary equal
to one hundred and thirty thousand dollars ($130,000) per
annum (the "Base Salary"), which Base Salary shall be paid in
accordance with the Company's generally applicable payroll
practices and procedures (or in such other manner as the
Executive and the Company may otherwise agree). The Base
Salary shall be reviewed for adjustment by the Board annually
(commencing on or about January 1, 2002, and on or about each
January 1 thereafter during the Employment Period).
(b) Bonuses. For each fiscal year of the Company beginning on or
after January 1, 2001, the Executive shall be eligible for an
annual bonus of between 0% and 30% of his Base Salary based
upon attainment of reasonable performance goals as follows:
upon achievement of role performance objectives
established for the Executive;
upon achievement of performance objectives
established for the Company as a whole; and
upon the extent of the Executive's contributions to
the creation of long-term Company shareholder value.
The performance goals shall be established (and the
determination of whether the goals have been attained shall be
made) in good faith by the CEO, in his sole discretion after
consultation with the Executive, and shall be based on
reasonable objective targets consistent with the Company's
business plan. Any amount payable to the Executive for a year
pursuant to this subsection (b) shall be paid on or before
March 15 of the following year.
(c) Employee Benefits. The Executive shall be entitled to
participate in the retirement, health and life insurance and
other welfare and fringe benefit plans and programs that are
generally made available by the Company to its executive
officers from time to time. For purposes of (i) the Company's
401(k) program, (ii) the Company's vacation programe and (iii)
the Company's sick leave program, the Executive's service as
an employee of Mining Services International shall count as
years of service with the Company. Such benefits shall be, as
of the Effective Date, similar to those provided to the
Executive by Mining Services International immediately before
the Effective Time, including without limitation medical
benefits and a "401(k)" savings plan with an employer matching
contribution of at least 3%. In addition to such benefit plans
and programs, the Executive shall have the following benefits:
(i) Holidays. The Executive shall be entitled to the
following 10 (ten) holidays per year:
New Year's Day Day after Thanksgiving
Memorial Day Day before Christmas
Independence Day Christmas Day
Labor Day 2 Floating Holidays
(one could be used
for Statehood Day
if desired)
Thanksgiving Day
(ii) Medical Insurance. The medical insurance shall be
offered through Blue Cross Blue Shield of Utah (the
"Medical Insurance"). The Executive shall be entitled
to choose between the two following plans: (1) a full
plan which has a higher premium to the individual
family and (2) a PPO plan which has lower premiums.
The Executive shall have an additional benefit of up
to $3,000 per year to cover deductibles and other
out-of-pocket costs not covered under the normal
plans. The Medical Insurance also covers a dental
plan, life insurance coverage and drug card.
(ii) Automobile Policy. The Executive shall be entitled to
either use a company owned vehicle or receive a
vehicle allowance depending on the circumstances as
approved by the CEO. The vehicle dollar limits are
adjusted each year by the CEO.
(iii) Office and Communication Equipment. On a needs basis,
the Executive may be provided a lap top computer,
mobile phones and other technology to enhance work
performance.
(d) Expenses. During the Employment Period, the Company shall
reimburse the Executive for reasonable and customary expenses
with respect to vehicle usage, travel, meals, business-related
entertainment, cellular phone usage and similar items incurred
in connection with the Company's business, pursuant to the
expense reimbursement policies of the Company then in effect.
Provided he has valid need the Executive may be authorized for
the use of a Company credit card. The Executive is responsible
for paying the monthly xxxx and maintaining such credit card
account.
(e) Vacation. The Executive shall be entitled to four weeks of
annual paid vacation, which shall be forfeited to the extent
that it is not taken in the year for which it is granted
(unless the failure to take the vacation is attributable to
the duties of the Executive with respect to the Company in
which case it shall be carried forward to the next succeeding
year). The Executive shall not be eligible for remuneration
for forfeited vacation.
4. Termination.
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(a) Termination by the Company for Cause. The Company shall have
the right at any time to terminate the Executive's employment
hereunder for "Cause". "Termination for Cause" shall mean
termination of the Executive's employment by the Company or
any of its subsidiaries due to (i) the Executive's conviction
for a felony as defined by Applicable Law, (ii) gross
negligence in performance of the Executive's duties, (iii)
dishonesty adversely affecting the Company, (iv) willful
failure to perform his duties and obligations after being
given detailed notice of his inadequate performance and a
reasonable opportunity to cure which will not exceed 30 days,
(v) recklessness in performance of the Executive's duties
which results in a material adverse effect on the Company or
(vi) fraud.
(b) Termination by the Company for Death or Disability. The
Executive's employment hereunder shall terminate automatically
upon the death of the Executive. The Company shall have the
right at any time to terminate the Executive's employment
hereunder upon the Executive's "Disability" or "Death".
"Termination Due to Disability" shall mean termination of the
Executive's employment by the Company or any of its
subsidiaries because the Executive has been incapable for a
six month period of substantially fulfilling the positions,
duties, responsibilities and obligations set forth in his/her
employment agreement because of physical, mental or emotional
incapacity resulting from injury, sickness or disease.
"Termination Due to Death" shall mean a termination of the
Executive's employment by the Company or any of its
subsidiaries because the Executive has died.
(c) Termination by the Company without Cause. The Company shall
have the right at any time to terminate the Executive's
employment hereunder without Cause. "Termination Without
Cause" shall mean any termination by the Company or any of its
subsidiaries of the Executive's employment other than (i)
Termination Due to Disability, (ii) Termination Due to Death,
(iii) Termination Due to Retirement or (iv) Termination for
Cause.
(d) Termination by the Executive Without Good Reason. The
Executive shall be entitled voluntarily to terminate his
employment hereunder "Without Good Reason" upon no less than
ninety (90) days' prior written notice to the Company.
"Termination Without Good Reason" shall mean any termination
of the Executive's employment with the Company or any of its
subsidiaries by the Executive other than (i) a Termination Due
to Death, (ii) a Termination Due to Retirement, (iii) a
Termination for Good Reason, (iv) Termination for Failure to
Relocate or (v) a Termination Due to Disability. "Termination
Due to Retirement" shall mean termination of the Executive's
employment with the Company or any of its subsidiaries by the
Executive because the Executive has reached or surpassed (i)
the age of 65 or (ii) the age of 60 provided that the
Executive has been employed by the Company for at least five
years from the Effective Date.
(e) Termination by the Executive for Good Reason. The Executive
shall be entitled voluntarily to terminate his employment for
"Good Reason" upon no less than ninety (90) days' prior
written notice to the Company, provided that the Company does
not cure the condition providing the basis for Good Reason
within thirty (30) days following the provision for the
Executive's Notice of Termination in accordance with
subsection (g), below. "Termination for Good Reason" shall
mean termination of the Executive's employment with the
Company or any of its subsidiaries by the Executive due to (i)
a material reduction in the Executive's responsibilities,
duties and positions, (ii) a material reduction of the
Executive's annual base salary and bonus potential, (iii) a
material breach by the Company of this Agreement, (iv) a
willful and intentional request by the Company that the
Executive violate the Foreign Corrupt Practices Act or (v) a
Change of Control (as hereafter defined), and if, not later
than the date of the Change of Control, the Executive is not
offered a similar position with the Company for at least one
year with compensation and responsibilities substantially
similar to those of the Executive's for the eighteen (18)
months preceding the Change of Control.
(f) Termination by the Executive for Failure to Relocate. The
Executive shall be entitled voluntarily to terminate his
employment for "Failure to Relocate" upon no less than ninety
(90) days' prior written notice to the Company. "Termination
for Failure to Relocate" shall mean termination of the
Executive's employment with the Company or any of its
subsidiaries by the Executive through his refusal to relocate
from his current geographic location of employment to another
geographic location more than fifty miles from the current
location upon such request by the Company or any of its
affiliates.
(g) Notice of Termination. Any termination of the Executive's
employment hereunder (other than upon the death of the
Executive) shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 9
hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which (i) indicates
the specific termination provision in this Agreement relied
upon, (ii) if the termination is by the Company for Cause or
by the Executive for Good Reason, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis
for termination of the Executive's employment, and (iii) sets
forth the date on which such termination shall be effective
(the "Date of Termination"). The failure by the Company to set
forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Cause shall not waive any
right of the Company hereunder or preclude the Company from
asserting such fact or circumstance in enforcing its rights
hereunder.
5. Effect of Termination of Employment.
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(a) For Cause. If the Executive's employment hereunder is
Terminated for Cause, the Executive's Base Salary and other
benefits specified in Section 3 hereof (other than any bonus)
shall be paid or provided through but not after the Date of
Termination, and the Company shall have no further obligations
under this Agreement.
(b) Without Cause/For Good Reason. If the Executive's employment
hereunder is Terminated Without Cause or Terminated for Good
Reason, (i) the Executive's Base Salary and other benefits
specified in Section 3 hereof (other than any bonus) shall be
paid or provided through the Date of Termination, (ii) the
Company shall pay the Executive, within ten days following the
Date of Termination, (x) a cash amount equal to 100% of his
then Base Salary and, (y) the Earned Bonus (as defined below),
if any, provided that (1) a full calendar year has been
completed (the "Prior Year") and the Executive has already
earned his full bonus for the Prior Year (the "Earned Bonus")
and (2) the Executive's employment is terminated by the
Company without Cause or by the Executive for Good Reason in
the year after the Prior Year but before the Earned Bonus has
been paid to the Executive.
(c) Failure to Relocate. If the Executive's employment hereunder
is Terminated for Failure to Relocate, (i) the Executive's
Base Salary and other benefits specified in Section 3 hereof
(other than any bonus) shall be paid or provided through the
Date of Termination, (ii) the Company shall pay the Executive,
within ten days following the Date of Termination, (x) a cash
amount equal to 100% of his then Base Salary and, (y) the
Earned Bonus, if any, provided that (1) a Prior Year has been
completed and the Executive has already earned the Earned
Bonus and (2) the Executive's employment is terminated by the
Executive for Failure to Relocate in the year after the Prior
Year but before the Earned Bonus has been paid to the
Executive.
(d) Without Good Reason. If the Executive's employment hereunder
is Terminated Without Good Reason, the Executive's Base Salary
and other benefits specified in Section 3 hereof (other than
any bonus) shall be paid or provided through but not after the
Date of Termination, and the Company thereafter shall have no
further obligations under this Agreement.
(e) Due to Death or Due to Disability. If the Executive's
employment hereunder is Terminated Due to Death or Terminated
Due to Disability, the Executive's Base Salary and other
benefits specified in Section 3 hereof shall be paid or
provided to the Executive (or the Executive's estate, if
applicable) through but not after the Date of Termination, and
the Company shall have no further obligations under this
Agreement.
(f) In addition to the benefits provided to the Executive pursuant
to the foregoing provisions of this Section 5, unless the
Company elects to waive the provisions of Sections 6(b)
through 6(d), below, the Company shall pay to the Executive
following the termination of the Executive's employment (for
any reason other than death, by reason of Disability or
Termination for Cause (as defined in the Stockholders
Agreement) one (1) times his Base Salary (as determined as of
his Date of Termination) for each year of the Non-Competition
Period (as hereafter defined) as such period shall be selected
by the Company. The payments shall be made within twenty (20)
days following the first and second, as applicable,
anniversary of his Date of Termination.
6. Confidential Information; Restrictive Covenants.
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(a) The Executive acknowledges that the non-public information,
knowledge and data (including any trade secrets or similar
proprietary information) obtained by him during the course of
his employment with the Company, concerning the business or
affairs of the Company and its affiliates (the "Business
Entities") are the property of the Company. Therefore, the
Executive will not at any time (whether during or after his
employment with the Company) disclose or use for his own
benefit or purposes or the benefit or purposes of any other
person, entity or enterprise, other than a Business Entity,
any trade secrets, information, data, or other confidential
information relating to customers, development programs,
costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, manufacturing or other
processes, financing methods, plans or the business and
affairs of any Business Entity; provided that the foregoing
shall not apply to information which is not proprietary to the
Business Entities or which has become public other than as a
result of the Executive's breach of this covenant. The
Executive agrees that, during the Employment Period, he will
use his best efforts to maintain in good condition all
memoranda, books, papers, plans, information, letters and
other data, and all copies thereof or therefrom, in any way
relating to the business of the Business Entities, and that
upon termination of his employment with the Company for any
reason, he will return all such materials (together with any
other property of the Company) to the Company immediately. The
Executive shall not at any time (whether during or after his
employment with the Company), without the prior written
consent of the CEO, participate in any public conference,
publish any document, or otherwise make any public statement
that could reasonably be expected to affect the image of the
Business Entities.
(b) The Executive agrees that during the Non-Competition Period,
he will not, directly or indirectly, alone or as a partner,
joint venturer, officer, director, employee, consultant,
agent, independent contractor or stockholder of any company or
business, engage (for anyone other than the Company) in any
Competitive Enterprise. For the purpose hereof, a "Competitive
Enterprise" shall mean any company, corporation or other
entity with any activities directly or indirectly related to
the civil explosives business or the initiation systems
business. Ownership of less than two percent of the total
outstanding equity securities by the Executive of shares of
stock of any corporation having a class of equity securities
actively traded on a national securities exchange or on The
NASDAQ Stock Market shall not be deemed, in and of itself, to
violate the prohibitions of this subsection (b) provided that
the Executive own less than two percent of such class of
equity securities. The "Non-Competition Period", if any, is
either one (1) or two (2) years from the Date of Termination
at the option of the Company.
(c) The Executive agrees during the Non-Competition Period not to
knowingly take any action having the purpose or effect of
interfering with or otherwise damaging in any material respect
the Company's business relationship with any of its principal
suppliers and customers.
(d) The Executive agrees that during the Non-Competition Period,
he shall not, other than in connection with employment for the
Company, directly or indirectly, employ, or knowingly permit
any company or business organization directly or indirectly
controlled by the Executive to employ any person who is
employed by the Company, or in any manner seek to induce any
such person to leave his or her employment with the Company.
(e) If the Executive materially breaches any of the provisions of
this Section 6 (the "Restrictive Covenants"), (A) the
Executive shall be required to pay to the Company, within five
(5) days following written demand by the Company, any amount
paid to the Executive pursuant to Section 5(e) hereof, and (B)
the Company shall have the following additional rights and
remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of
which rights and remedies shall be in addition to, and not in
lieu of, any other rights and remedies available to the
Company under law or equity:
(i) the right and remedy to have the Restrictive
Covenants specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed
that any such breach or threatened breach will cause
irreparable injury to the Company and that money
damages will not provide an adequate remedy to the
Company; and
(ii) the right to discontinue the payment of any amounts
or benefits owing to the Executive under this
Agreement.
(f) The Executive hereby acknowledges and agrees that all of the
Restrictive Covenants are reasonable and valid.
(g) If any court determines that any of the Restrictive Covenants,
or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be
affected and shall be given full effect, without regard to the
invalid portion. In addition, if any court construes any of
the Restrictive Covenants, or any part thereof, to be
unenforceable because of the duration of such provision or the
area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its
reduced form, such provision shall then be enforceable and
shall be enforced. The Executive agrees that the Restrictive
Covenants, as so amended, shall be valid and binding as though
any invalid or unenforceable provision had not been included
herein.
(h) For purposes of this Section 6 and Section 7 hereof, the
"Company" refers to the Company and any of its parents,
subsidiaries, subdivisions or affiliates.
7. Secret Processes.
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(a) If at any time or times during the Employment Period, the
Executive (either alone or with others) makes, conceives,
discovers or reduces to practice any invention, modification,
discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data,
technique, know-how, secret or intellectual property right
whatsoever or any interest therein (whether or not patentable
or registrable under copyright or similar statutes or subject
to analogous protection) (the "Developments") that (i) relates
to the business of the Company or any customer of or supplier
to the Company or any of the products or services being
developed, manufactured or sold by the Company or which may be
used in relation therewith, (ii) results from tasks assigned
to the Executive by the Company or (iii) results from the use
of premises or personal property (whether tangible or
intangible) owned, leased or contracted for by the Company
when used for Company purposes and not for incidental personal
purposes, such Developments and any benefits thereof shall
immediately become the sole and absolute property of the
Company and its assigns, and the Executive shall promptly
disclose to the Company (or any persons designated by it) each
such Development or benefit and hereby assigns any rights the
Executive may have or acquire in the Developments and related
benefits and/or rights resulting therefrom to the Company and
its assigns without further compensation and shall
communicate, without cost or delay, and without publishing the
same, all available information relating thereto (with all
necessary plans and models) to the Company.
Upon disclosure of each Development to the Company, the
Executive will, during the Employment Period and at any time
thereafter, at the request and cost of the Company, sign,
execute, make and do all such deeds, documents, acts and
things as the Company and duly authorized agents may
reasonably require:
(x) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs) letters
patent, copyrights or other analogous protection in any
country throughout the world and when so obtained or vested to
renew and restore the same; and
(y) to defend any opposition proceedings in respect
of such applications and any opposition proceedings or
petitions or applications for revocation of such letters
patent, copyright or other analogous protection.
In the event the Company is unable, after reasonable effort,
to secure the Executive's signature on any letters patent,
copyright or other analogous protection relating to a
Development, whether because of the Executive's physical or
mental incapacity or for any other reason whatsoever, the
Executive hereby irrevocably designates and appoints the
Company and its duly authorized officers and agents as its
agent and attorney-in-fact, to act for and in the Executive's
behalf and stead to execute and file any such application or
applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent,
copyright or other analogous protection thereon with the same
legal force and effect as if executed by the Executive;
provided, however, that (subject to resolution of the dispute
in accordance with Section 16 hereof) the Company may not
exercise any rights under this paragraph if the Executive or
his designee notifies the Company, in writing, that the
Executive disputes any claim made by the Company under this
Section 7 .
(b) The Executive hereby acknowledges and agrees that the
provisions of this Section 7 are reasonable and valid.
8. Special Provisions Regarding a Change of Control.
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(a) If there is a Change of Control (as defined in subsection (b),
below), and, not later than the date of such Change of
Control, the Executive is not offered a similar position with
the Company (or any successor in interest to the Company)
immediately following the Change of Control for at least a one
year term with compensation and responsibilities substantially
similar to those of the Executive at the Company for the
eighteen (18) months preceding the Change of Control, the
Company shall pay to the Executive with respect to any Change
of Control that occurs on or before the Change of Control a
cash amount equal to 100% of his Base Salary.
(b) For purposes of this Agreement, "Change of Control" shall mean
the acquisition by an entity other than Union Espanola de
Explosivos S.A. or any of its related companies, subsidiaries
or affiliates, of (i) more than 50% of the outstanding equity
interests of Union Espanola de Explosivos-MSI International,
S.A., a Spanish S.A. (the "ETVE") or the Company or (ii) all
or substantially all of the assets of the ETVE or the Company.
(d) Unless otherwise agreed by the parties hereto in writing, the
provisions contained in this Section 8 shall be valid only
with respect to any Change of Control that occurs on or before
December 31, 2005 at which time this Section 8 shall become
null and void.
9. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) upon confirmation of receipt when such notice or other
communication is sent by facsimile or telex, (c) one day after timely
delivery to an overnight delivery courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail. The addresses
for such notices shall be as follows:
For notices and communications to the Company:
Union Espanola de Explosivos S.A.
Av. Del Partenon, 16-5a Xx.
Xxxxx xx xxx Xxxxxxxx
00000 Xxxxxx, Xxxxx
Attention: Xxxx Xxxxxxxx Xxxxxxx-Xxxxx
and
Xxxxxx Xxxxxxxxxx
Telephone: 00-00-000-0000
Telecopy: 00-00-000-0000
with a copy (which shall not constitute notice) to :
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
and
Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
For notices and communications to the Executive:
Xxxxx X. Xxxx
0000 X. Xxxxxx Xxxxx Xx.
Xxxxx, XX 00000
With a copy (which shall not constitute notice) to :
Any party hereto may, by a written notice to the other, change its
address for receipt of notices hereunder.
10. Governing Law; Interpretation. This Agreement shall be construed under
and governed by the laws of the State of Delaware, without reference to
its conflict of laws principles. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect.
11. Withholding; Payment. Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this
Agreement (i) all federal, state, local, and foreign taxes that are
required to be withheld by applicable laws or regulations, and (ii) all
standard Company deductions. All cash amounts required to be paid
hereunder shall be paid in United States dollars.
12. Amendment; Waiver. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended, and the terms hereof may be waived,
only by a written instrument executed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of the breach of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such breach, or a waiver of the
breach of any other term or covenant contained in this Agreement.
13. Successors and Assigns. This Agreement shall be binding upon the
Executive, without regard to the duration of his employment by the
Company or reasons for the cessation of such employment, and inure to
the benefit of his administrators, executors, heirs and assigns,
although the obligations of the Executive are personal and may be
performed only by him. This Agreement shall also be binding upon and
inure to the benefit of the Company and its subsidiaries, successors
and assigns, including any corporation with which or into which the
Company or its successors may be merged or which may succeed to their
assets or business.
14. Non-Exclusivity of Rights. Except as may otherwise be specifically
provided in this Agreement, nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its
affiliated companies for which the Executive may qualify. Vested
benefits and other amounts that the Executive is otherwise entitled to
receive under any other plan, policy, practice, or program of, or any
contract or agreement with, the Company or any of its affiliated
companies on or after the Date of Termination shall be payable in
accordance with the terms of each such plan, policy, practice, program,
contract, or agreement, as the case may be, except as explicitly
modified by this Agreement.
15. No Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this
Agreement, and the amount of any payment or benefit provided for in
this Agreement shall not be reduced by any compensation or benefits
earned by the Executive as the result of employment by another
employer.
16. Settlement of Disputes. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by
arbitration, conducted before one arbitrator in the Executive's state
of residency, except if such state is California in which case it shall
be conducted in New York, in accordance with the commercial arbitration
rules of the American Arbitration Association then in effect. Judgement
may be entered on the arbitrator's award in any court having
jurisdiction. Notwithstanding the foregoing, the Company shall have the
right, without prejudice to any other rights or remedies it might have
under the law, which are reserved, to obtain injunctive relief in a
court of competent jurisdiction to restrain any breach or threatened
breach by the Executive of this Agreement or otherwise to specifically
enforce any provision of this Agreement, including without limitation
Sections 6 and 7 hereof; provided that such right to injunctive relief
does not preclude the Company from seeking monetary damages for a
breach by the Executive of this Agreement; provided further that, in
the event of a breach by the Executive of any representation, warranty,
covenant or agreement contained in this Agreement, the Company shall be
entitled to suspend any payments or benefits under this Agreement not
yet paid or provided to the Executive after providing the Executive
notice of such breach, and the Company shall be permanently relieved of
the Company's obligations in respect thereof if the Executive does not
cure such breach within 30 days of the date the Company provided such
notice to the Executive; and provided further that, in the event the
Company's obligations hereunder are suspended or relieved pursuant to
the preceding proviso, the Company shall not be precluded from seeking
monetary damages from the Executive that exceed the amount of the
Company's obligations hereunder.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but which together shall
constitute one and the same instrument.
18. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force and
effect.
19. Entire Agreement. This Agreement constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations, discussions, writings and agreements
between them.
20. Parental Guaranty. In the event the Company fails to fulfill its
payment obligations under this Agreement, the ETVE shall pay the
amounts due by the Company to the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
UMSI ACQUISITION CO.
By:
-------------------------------------------
Name:
Title:
XXXXX X. XXXX
Solely for purposes of Section 20 hereof
UNION ESPANOLA DE EXPLOSIVOS-MSI INTERNATIONAL, S.A.,
-------------------------------
Exhibit A
Trustee of Bayhorse Foundation
Bishopric Member of the Church of Xxxxx Xxxxxx of Latter Day Saints
Assists in planning of 2002 Winter Olympics with focus on Native American Issues
Board Member of Cottonwood Hills Condominium Association
