EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the ____ day of ______, 1998, by and between ECO-AIR PRODUCTS, INC., a
California corporation ("Eco-Air" or the "Company"), and XXXXXXX X. XXXXXX
(hereinafter referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, Flanders Corporation, a North Carolina corporation
("Flanders"), has contemporaneously herewith acquired one hundred percent (100%)
of the issued and outstanding stock of Eco-Air and Eco-Air is now a wholly owned
subsidiary of Flanders;
WHEREAS, the Executive is currently employed as the President of
Eco-Air; and
WHEREAS, the continued employment of the Executive is a condition of
the purchase of Eco-Air by Flanders, and Flanders and Eco-Air desire to have the
benefit of the Executive's efforts and services.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "Accrued Benefits" shall mean the amount payable not later
than ten (10) days following an applicable Termination Date and which
shall be equal to the sum of the following amounts:
i. All salary earned or accrued through the
Termination Date;
ii. Reimbursement for any and all monies advanced in
connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive through the
Termination Date;
iii. Any and all other cash benefits previously
earned through the Termination Date and deferred at the
election of the Executive or pursuant to any deferred
compensation plans then in effect;
iv. The full amount of any stated bonus payable to
the Executive in accordance with Section 6(b);
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v. All other payments and benefits to which the
Executive may be entitled under the terms of any benefit plan
of the Company.
(b) "Act" shall mean the Securities Exchange Act of 1934;
(c) "Affiliate" shall have the same meaning as given to that
term in Rule 12b- 2 of Regulation 12B promulgated under the Act;
(d) "Board" shall mean the Board of Directors of Eco-Air;
(e) "Cause" shall mean any of the following:
i. The engaging by the Executive in fraudulent
conduct, as evidenced by a determination in a binding and
final judgment, order or decree of a court or administrative
agency of competent jurisdiction, in effect after exhaustion
or lapse of all rights of appeal, in an action, suit or
proceeding, whether civil, criminal, administrative or
investigative, which the Board determines, in its sole
discretion, has a significant adverse impact on the Company in
the conduct of the Company's business;
ii. Conviction of a felony, as evidenced by a binding
and final judgment, order or decree of a court of competent
jurisdiction, in effect after exhaustion or lapse of all
rights of appeal, which the Board determines, in its sole
discretion, has a significant adverse impact on the Company in
the conduct of the Company's business;
iii. Neglect, refusal or failure by the Executive to
perform the Executive's duties or responsibilities (unless
significantly changed without the Executive's consent), as
determined by a majority of the Board; or
iv. A significant violation by the Executive of
Eco-Air's established policies and procedures.
Notwithstanding the foregoing, Cause shall not exist under Sections
1(e)iii and 1(e)iv herein unless the Company furnishes written notice
to the Executive of the specific offending conduct and the Executive
fails to correct such offending conduct within the thirty (30) day
period commencing on the receipt of such notice.
(f) "Disability" shall mean a physical or mental condition
whereby the Executive is unable to perform on a full-time basis the
customary duties of the Executive under this Agreement;
(g) "Good Reason" shall mean:
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i. The required relocation of the Executive, without
the Executive's consent, to an employment location which is
more than seventy-five (75) miles from the Executive's
employment location on the day preceding the date of this
Agreement;
ii. The removal of the Executive from or any failure
to reelect the Executive to any of the positions held by the
Executive as of the date of this Agreement or any other
positions to which the Executive shall thereafter be elected
or assigned except in the event that such removal or failure
to reelect relates to the termination by the Company of the
Executive's employment for Cause or by reason of death,
Disability or voluntary retirement;
iii. A significant adverse change, without the
Executive's written consent, in the nature or scope of the
Executive's authority, powers, functions, duties or
responsibilities, or a material reduction in the level of
support services, staff, secretarial and other assistance,
office space and accouterments available to a level below that
which was provided to the Executive on the day preceding the
date of this Agreement and that which is necessary to perform
any additional duties assigned to the Executive following the
date of this Agreement, which change or reduction is not
generally effective for all executives employed by the Company
(or its successor) in the Executive's class or category; or
iv. Breach or violation of any material provision of
this Agreement by the Company;
(h) "Notice of Termination" shall mean the notice described in
Section 14 herein;
(i) "Termination Date" shall mean, except as otherwise
provided in Section 14 herein,
i. The Executive's date of death;
ii. Thirty (30) days after the delivery of the Notice
of Termination terminating the Executive's employment on
account of Disability pursuant to Section 9 herein, unless the
Executive returns on a full-time basis to the performance of
his duties prior to the expiration of such period;
iii. Thirty (30) days after the delivery of the
Notice of Termination if the Executive's employment is
terminated by the Executive voluntarily; and
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iv. Thirty (30) days after the delivery of the Notice
of Termination if the Executive's employment is terminated by
the Company for any reason other than death or Disability;
(j) "Termination Payment" shall mean the payment described in
Section 13 herein.
2. EMPLOYMENT.
The Company hereby agrees to employ the Executive and the Executive
hereby agrees to serve the Company, on the terms and conditions set forth
herein.
3. TERM.
The Company's employment of the Executive under the provisions of this
Agreement shall commence on the date hereof and shall end on March 31, 2003
unless further extended or sooner terminated as hereinafter provided. On March
31, 2003 and on the last day of each extended employment term thereafter, the
term of the Executive's employment shall, unless sooner terminated as
hereinafter provided, be automatically extended for an additional one (1) year
period from the date thereof unless at least forty-five (45) days before such
date the Company shall have delivered to the Executive or the Executive shall
have delivered to the Company, written notice that the term of the Executive's
employment hereunder will not be extended beyond its existing duration.
4. POSITIONS AND DUTIES.
The Executive shall serve as President and Chief Executive Officer of
Eco-Air and in such additional capacities as set forth in Section 7 herein. In
connection with the foregoing positions, the Executive shall have such duties,
responsibilities and authority as may from time to time be assigned to the
Executive by the Board. The Executive shall devote substantially all the
Executive's working time and efforts to the business and affairs of the Company.
5. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the
Executive shall be based at the principal executive offices of Eco-Air in San
Diego except for required travel on Company business.
6. COMPENSATION AND RELATED MATTERS.
(a) Commencing on the date hereof, the Company shall pay to
the Executive an annualized base salary at a rate of $165,000 in equal
installments, as nearly as practicable, on the 15th and last day of
each month, in arrears. Such annualized base
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salary shall not be reduced during the term of this Agreement, however,
the Company may, but is not obligated to, increase such annualized base
salary, based on an evaluation of Executive's performance, in
accordance with normal business practices of the Company.
(b) The Executive shall receive bonuses as determined by using
the formula set forth in Exhibit A.
(c) The Executive is hereby granted a non-qualified stock
option (the "Option") to purchase 40,000 shares of Flanders' common
stock, at an exercise price equal to the closing price of Flanders'
common stock on the effective date of this Agreement. The Option may be
exercised, in whole or in part, at any time subsequent to the date of
issuance and prior to the expiration date. Flanders and the Executive
shall enter into Flanders' standard form of stock option agreement
evidencing this Option.
(d) During the term of the Executive's employment hereunder,
the Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by the Executive in performing services
hereunder including all traveling and living expenses while away from
home on business at the request of, and in the service of, the Company,
provided that such expenses are incurred and accounted for in
accordance with the policies and procedures presently established by
the Company.
(e) The Executive shall be entitled to the number of vacation
days in each calendar year as determined in accordance with the
Company's vacation plan or policy. The Executive shall also be entitled
to all paid holidays provided by the Company to its Executives.
(f) The Company shall provide the Executive with the same or
comparable benefits as are in place at the Company, as set forth in
Exhibit B, as of the date of this Agreement, except the Executive shall
only be entitled to participate in the Company's 401(k) Employee Stock
Ownership Plan or any other Company profit sharing plan or pension
until the Executive shall be entitled to participate in Flanders'
401(k) Plan.
(g) The Company shall furnish the Executive with office space
and such other facilities and services as shall be suitable to the
Executive's position and adequate for the performance of the
Executive's duties.
7. OFFICES.
(a) The Executive agrees to serve without additional
compensation, if elected or appointed thereto, as a member of the Board
of Directors of the Company, a member of the Board of Flanders, or any
subsidiary of the Company or Flanders; provided,
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however, that the Executive is indemnified for serving in any and all
such capacities on a basis no less favorable than is currently provided
in the Company's bylaws, or otherwise.
(b) Upon execution of this Agreement, the Company agrees to
appoint the Executive to the Board and to propose Executive's
re-election as a director at the expiration of his initial term.
8. TERMINATION AS A RESULT OF DEATH.
If the Executive shall die during the term of this Agreement, the
Executive's employment shall terminate on the Executive's date of death and the
Executive's surviving spouse, or the Executive's estate if the Executive dies
without a surviving spouse, shall be entitled to the Executive's Accrued
Benefits as of the Termination Date and any applicable Termination Payment
described in Section 13(a).
9. TERMINATION FOR DISABILITY.
If, as a result of the Executive's Disability, the Executive shall have
been unable to perform the Executive's duties hereunder on a full-time basis for
three (3) consecutive months and within sixty (60) days after the Company
provides the Executive with a Termination Notice, the Executive shall not have
returned to the performance of the Executive's duties on a full-time basis, the
Company may terminate the Executive's employment, subject to Section 14 herein.
During the term of the Executive's Disability prior to termination, the
Executive shall continue to receive all salary and benefits payable under
Section 6 herein, including participation in all benefit plans, programs and
arrangements in which the Executive was entitled to participate immediately
prior to the Disability; provided, however, that the Executive's continued
participation in any such plan, program or arrangement is barred as the result
of such Disability, the Executive shall be entitled to receive an amount equal
to the contributions, payments, credits or allocations which would have been
paid by the Company to the Executive, to the Executive's account or on the
Executive's behalf under such plans, programs and arrangements. In the event the
Executive's employment is terminated on account of the Executive's Disability in
accordance with this Section 9, the Executive shall receive the Executive's
Accrued Benefits as of the Termination Date and shall remain eligible for all
benefits provided by any long-term disability programs of the Company in effect
at the time of such termination. The Executive shall also be entitled to the
Termination Benefit described in Section 13(a).
10. TERMINATION FOR CAUSE.
If the Executive's employment is terminated by the Company for Cause,
subject to the procedures set forth in Section 14 herein, the Executive shall be
entitled to receive the Executive's Accrued Benefits as of the Termination Date.
The Executive shall not be entitled to receipt of any Termination Payment.
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11. OTHER TERMINATION BY COMPANY.
If the Executive's employment with the Company is terminated by the
Company other than by reason of death, Disability or Cause, subject to the
procedures set forth in Section 14 herein, the Executive (or in the event of the
Executive's death following the Termination Date, the Executive's surviving
spouse or the Executive's estate if the Executive dies without a surviving
spouse) shall receive the applicable Termination Payment. The Executive shall
not, in connection with any consideration receivable in accordance with this
Section 11, be required to mitigate the amount of such consideration by securing
other employment or otherwise and such consideration shall not be reduced by
reason of the Executive securing other employment or for any other reason.
12. VOLUNTARY TERMINATION BY EXECUTIVE.
From and after June 30, 1999, provided that the Executive furnishes
thirty (30) days prior written notice to the Company, the Executive shall have
the right to voluntarily terminate this Agreement at any time. If the
Executive's voluntary termination is without Good Reason, the Executive shall
receive the Executive's Accrued Benefits as of the Termination Date and shall
not be entitled to any Termination Payment. If the Executive's voluntary
termination is for Good Reason, the Executive (or in the event of the
Executive's death following the Termination Date, the Executive's surviving
spouse or the Executive's estate if the Executive dies without a surviving
spouse) shall receive the applicable Termination Payment. The Executive shall
not, in connection with any consideration receivable in accordance with this
Section 12, be required to mitigate the amount of such consideration by securing
other employment or otherwise and such consideration shall not be reduced by
reason of the Executive securing other employment or for any other reason.
13. TERMINATION PAYMENT.
(a) If the Executive's employment is terminated by the
Executive for Good Reason or by the Company as a result of Executive's
death or Disability or for any reason other than death, Disability or
Cause, the Termination Payment payable to the Executive by the Company
shall be equal to two hundred percent (200%) of the Executive's then
current annual base salary;
(b) The Termination Payment shall be payable in a lump sum not
later than ten (10) days following the Executive's Termination Date.
Such lump sum payment shall not be reduced by any present value or
similar factor. Further, the Executive shall not be required to
mitigate the amount of such payment by securing other employment or
otherwise and such payment shall not be reduced by reason of the
Executive securing other employment or for any other reason.
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14. TERMINATION NOTICE AND PROCEDURE.
Any termination by the Company or the Executive of the Executive's
employment during the employment period shall be communicated by written Notice
of Termination to the Executive, if such Notice of Termination is delivered by
the Company, and to the Company, if such Notice of Termination is delivered by
the Executive, all in accordance with the following procedures:
(a) The Notice of Termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances alleged to provide a
basis for termination;
(b) Any Notice of Termination by the Company shall be approved
by a resolution duly adopted by a majority of the Board then in office;
(c) If the Executive shall in good faith furnish a Notice of
Termination for Good Reason and the Company notifies the Executive that
a dispute exists concerning the termination, within the fifteen (15)
day period following the Company's receipt of such notice, the
Executive shall continue the Executive's employment during such
dispute. If it is thereafter determined that (i) Good Reason did exist,
the Executive's Termination Date shall be the earlier of (A) the date
on which the dispute is finally determined, either by mutual written
agreement of the parties or pursuant to Section 19 herein, or (B) the
date of the Executive's death, and the Executive's Termination Payment,
if applicable, shall reflect events occurring after the Executive
delivered the Executive's Notice of Termination; or (ii) Good Reason
did not exist, the employment of the Executive shall continue after
such determination as if the Executive had not delivered the Notice of
Termination asserting Good Reason;
(d) If the Executive gives notice to terminate his employment
for Good Reason and a dispute arises as to the validity of such
dispute, and the Executive does not continue his employment during such
dispute, and it is finally determined that the reason for termination
set forth in such Notice of Termination did not exist, if such notice
was delivered by the Executive, the Executive shall be deemed to have
voluntarily terminated the Executive's employment other than for Good
Reason;
(e) The Board's determination of whether or not the Executive
has Good Reason for terminating such Executive's employment hereunder,
shall not prevent the Executive from disputing this determination and
resolving the disagreement by mediation or arbitration as defined under
Sections 28 and 29.
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15. NONDISCLOSURE OF PROPRIETARY INFORMATION.
Recognizing that the Company is presently engaged, and may hereafter
continue to be engaged, in the research and development of processes, the
manufacturing of products or performance of services, which involve experimental
and inventive work and that the success of its business depends upon the
protection of the processes, products and services by patent, copyright or by
secrecy and that the Executive has had, or during the course of his engagement
may have, access to Proprietary Information, as hereinafter defined, of the
Company or other information and data of a secret or proprietary nature of the
Company which the Company wishes to keep confidential and the Executive has
furnished, or during the course of his engagement may furnish, such information
to the Company, the Executive agrees that:
(a) "Proprietary Information" shall mean any and all methods,
inventions, improvements or discoveries, whether or not patentable or
copyrightable, and any other information of a similar nature related to
the business of the Company disclosed to the Executive or otherwise
made known to him as a consequence of or through his engagement by the
Company (including information originated by the Executive) in any
technological area previously developed by the Company or developed,
engaged in, or researched, by the Company during the term of the
Executive's engagement, including, but not limited to, trade secrets,
processes, products, formulae, apparatus, techniques, know-how,
marketing plans, data, improvements, strategies, forecasts, customer
lists, and technical requirements of customers, unless such information
is in the public domain to such an extent as to be readily available to
competitors.
(b) The Executive acknowledges that the Company has exclusive
property rights to all Proprietary Information and the Executive hereby
assigns all rights he might otherwise possess in any Proprietary
Information to the Company. Except as required in the performance of
his duties to the Company, the Executive will not at any time during or
after the term of his engagement, which term shall include any time in
which the Executive may be retained by the Company as a consultant,
directly or indirectly use, communicate, disclose or disseminate any
Proprietary Information or any other information of a secret,
proprietary, confidential or generally undisclosed nature relating to
the Company, its products, customers, processes and services, including
information relating to testing, research, development, manufacturing,
marketing and selling.
(c) All documents, records, notebooks, notes, memoranda and
similar repositories of, or containing, Proprietary Information or any
other information of a secret, proprietary, confidential or generally
undisclosed nature relating to the Company or its operations and
activities made or complied by the Executive at any time or made
available to him prior to or during the term of his engagement by the
Company, including any and all copies thereof, shall be the property of
the Company, shall be held by him in trust solely for the benefit of
the Company, and shall be delivered to the Company by him on the
termination of his engagement or at any time on the request of the
Company.
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(d) The Executive will not assert any rights under any
inventions, copyrights, discoveries, concepts or ideas, or improvements
thereof, or know-how related thereto, as having been made or acquired
by him prior to his being engaged by the Company or during the term of
his engagement if based on or otherwise related to Proprietary
Information.
16. ASSIGNMENT OF INVENTIONS.
(a) For purposes of this Paragraph 16, the term "Inventions"
shall mean discoveries, concepts, and ideas, whether patentable or
copyrightable or not, including but not limited to improvements,
know-how, data, processes, methods, formulae, and techniques, as well
as improvements thereof or know-how related thereto, concerning any
past, present or prospective activities of the Company which the
Executive makes, discovers or conceives (whether or not during the
hours of his engagement or with the use of the Company's facilities,
materials or personnel), either solely or jointly with others during
his engagement by the Company or any Affiliate and, if based on or
related to Proprietary Information, at any time after termination of
such engagement. All Inventions shall be the sole property of the
Company, and Executive agrees to perform the provisions of this
paragraph 16 with respect thereto without the payment by the Company of
any royalty or any consideration therefor other than the regular
compensation paid to the Executive in the capacity of an Executive or
consultant.
(b) The Executive shall maintain written notebooks in which he
shall set forth, on a current basis, information as to all Inventions,
describing in detail the procedures employed and the results achieved
as well as information as to any studies or research projects
undertaken on the Company's behalf. The written notebooks shall at all
times be the property of the Company and shall be surrendered to the
Company upon termination of his engagement or, upon request of the
Company, at any time prior thereto.
(c) The Executive shall apply, at the Company's request and
expense, for United States and foreign letters patent or copyrights
either in the Executive's name or otherwise as the Company shall
desire.
(d) The Executive hereby assigns to the Company all of his
rights to such Inventions, and to applications for United States and/or
foreign letters patent or copyrights and to United States and/or
foreign letters patent or copyrights granted upon such Inventions.
(e) The Executive shall acknowledge and deliver promptly to
the Company, without charge to the Company, but at its expense, such
written instruments (including applications and assignments) and do
such other acts, such as giving testimony in support of the Executive's
inventorship, as may be necessary in the opinion of the Company to
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obtain, maintain, extend, reissue and enforce United States and/or
foreign letters patent and copyrights relating to the Inventions and to
vest the entire right and title thereto in the Company or its nominee.
The Executive acknowledges and agrees that any copyright developed or
conceived of by the Executive during the term of Executive's employment
which is related to the business of the Company shall be a "work for
hire" under the copyright law of the United States and other applicable
jurisdictions.
(f) The Executive represents that his performance of all the
terms of this Agreement and as an Executive of or consultant to the
Company does not and will not breach any trust prior to his employment
by the Company. The Executive agrees not to enter into any agreement
either written or oral in conflict herewith and represents and agrees
that he has not brought and will not bring with him to the Company or
use in the performance of his responsibilities at the Company any
materials or documents of a former employer which are not generally
available to the public, unless he has obtained written authorization
from the former employer for their possession and use, a copy of which
has been provided to the Company.
(g) No provisions of this Section shall be deemed to limit the
restrictions applicable to the Executive under Section 15.
17. SHOP RIGHTS.
The Company shall also have the royalty-free right to use in its
business, and to make, use and sell products, processes and/or services derived
from any inventions, discoveries, concepts and ideas, whether or not patentable,
including but not limited to processes, methods, formulas and techniques, as
well as improvements thereof or know-how related thereto, which are not within
the scope of Inventions as defined in Paragraph 16 but which are conceived or
made by the Executive during the period he is engaged by the Company or with the
use or assistance of the Company's facilities, materials or personnel.
18. NON-COMPETE.
The Executive hereby agrees that during the term of this Agreement and
for the period of two (2) years from the termination hereof, the Executive will
not:
(a) Within any jurisdiction or marketing area in the United
States in which the Company or any subsidiary thereof is doing
business, own, manage, operate or control any business of the type and
character engaged in and competitive with the Company or any subsidiary
thereof. For purposes of this paragraph, ownership of securities of not
in excess of five percent (5%) of any class of securities of a public
company shall not be considered to be competition with the Company or
any subsidiary thereof; or
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(b) Within any jurisdiction or marketing area in the United
States in which the Company or any subsidiary thereof is doing
business, act as, or become employed as, an officer, director,
executive, consultant or agent of any business of the type and
character engaged in and competitive with the Company or any of its
subsidiaries; or
(c) Solicit any similar business to that of the Company's for,
or sell any products that are in competition with the Company's
products to, any company in the United States, which is, as of the date
hereof, a customer or client of the Company or any of its subsidiaries,
or was such a customer or client thereof within two (2) years prior to
the date of this Agreement; or
(d) Solicit the employment of, or hire, any full-time employee
employed by the Company or its subsidiaries as of the date of
termination of this Agreement.
19. REMEDIES.
The Executive hereby acknowledges and agrees that a breach of the
agreements contained in this Agreement will cause irreparable harm and damage to
the Company, that the remedy at law for the breach or threatened breach of the
agreements set forth in this Agreement will be inadequate, and that, in addition
to all other remedies available to the Company for such breach or threatened
breach (including, without limitation, the right to recover damages), the
Company shall be entitled to injunctive relief for any breach or threatened
breach of the agreements contained in this Agreement.
20. ASSIGNMENT.
Neither the Executive nor the Company shall assign this Agreement or
its rights and duties hereunder, or any interest herein, without prior written
consent of the other party.
21. SUCCESSORS; BINDING AGREEMENT.
The terms, covenants and conditions of this Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto and their
respective successors and permitted assignees.
22. SEVERABILITY.
If it is determined by a court of competent jurisdiction that the
provisions of this Agreement are partially or totally invalid or unenforceable
because of the duration or scope hereof or because of the scope of activities
prohibited hereby, or for any other reason, these provisions shall be deemed
modified to the extent necessary to render them valid and enforceable, or shall
be excised from this Agreement, as circumstances may require, and the provisions
of this Agreement subsequent to such modification or deletion, shall be enforced
to the maximum extent and scope permitted by the laws of such jurisdiction.
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23. NOTICE.
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, by overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder. Notice
shall be deemed properly given on the date of delivery.
To the Executive: Xxxxxxx X. Xxxxxx
00000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
To the Company Eco-Air Products, Inc.
0000 Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxx
Flanders Corporation
0000 00xx Xxxxxx Xxxxx
P. X. Xxx 0000
Xx. Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxx
Xxxxx & Xxxxxx L.L.P.
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
24. NO WAIVER.
No waiver by either party at any time of any breach by the other party
of, or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
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25. HEADINGS.
The headings herein contained are for reference only and shall not
affect the meaning or interpretation of any provision of this Agreement.
26. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
27. AMENDMENT OR TERMINATION.
This Agreement may not be amended or terminated during its term, except
by written instrument executed by the Company and the Executive.
28. MEDIATION.
Any claim, dispute, or controversy between the parties arising in
connection with or relating to this Agreement or the making, performance or
interpretation thereof shall, if not settled by negotiation, be submitted to
non-binding mediation under the Procedure for Mediation of Business Disputes of
the Center for Public Resources, Inc. then in effect. Any demand for mediation
shall be made in writing and served upon the other party in the same manner as
otherwise provided for notice in this Agreement. The demand shall set forth with
reasonable specificity the basis of the dispute and the performance or relief
sought. The parties shall, within thirty (30) days of receipt of a demand to
mediate, confer and select a mediator. The mediation shall take place at a time
and location in Carson City, Nevada mutually agreeable to the parties and the
mediator, but not later than sixty (60) days after a demand for mediation is
received. The cost of mediation, other than attorneys' fees, shall be shared
equally by the parties. Each party shall be responsible for payment of its own
legal fees in connection with the mediation.
29. ARBITRATION.
Any dispute that is not settled by mediation as provided in Paragraph
28 above shall be resolved by arbitration in Carson City, Nevada in accordance
with the Center for Public Resources, Inc. ("CPR") Non-Administered Arbitration
Rules, in effect on the date the above-described demand for mediation is made,
by three independent and impartial arbitrators. Each party shall appoint one of
the arbitrators and CPR shall appoint the third arbitrator, who shall serve as
chairman. The arbitration shall be governed by the Federal Arbitration Act, 9
U.S.C. ss. 1-16, and judgment upon the award rendered by the arbitrators may be
entered by any court having jurisdiction thereof.
(a) The arbitrators shall issue an award in writing specifying
their findings of fact and conclusions of law. The arbitrators are not
empowered to award damages in
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excess of compensatory damages and each party hereby irrevocably waives
any right to recover such damages with respect to the dispute.
(b) Upon the application by either party to a court for an
order confirming, modifying or vacating the award, the court shall have
the power to review whether, as a matter of law based on the findings
of fact determined by the arbitrators, the award should be confirmed,
or should be modified or vacated in order to correct any errors of the
law governing the substance of this Agreement that may have been made
by the arbitrators. In order to effectuate such judicial review limited
to issues of law, the parties agree (and shall stipulate to the court)
that the findings of fact made by the arbitrator(s) shall be final and
binding on the parties and shall serve as the facts to be submitted to
and relied on by the court in determining the extent to which the award
should be confirmed, modified or vacated.
30. ATTORNEYS' FEES.
Should it become necessary for either party to enforce the terms of
this Agreement after any attempt to resolve the dispute through mediation
pursuant to Section 28 is unsuccessful, the prevailing party thereafter shall be
entitled to receive from the non-prevailing party its reasonable attorneys' fees
and costs with respect to the enforcement of the terms of this Agreement.
31. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement between the Executive
and the Company with respect to the subject matter hereof, and supersedes all
prior oral or written agreements, negotiations, commitments and understandings
with respect thereto.
32. GOVERNING LAW.
This Agreement and the Executive's and the Company's respective rights
and obligations hereunder shall be governed by and construed in accordance with
the laws of the State of California without giving effect to the provisions,
principles, or policies thereof relating to choice or conflict laws.
15
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
ECO-AIR PRODUCTS, INC.
By: /s/ Xxxxxxx X'Xxxxx
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Name: Xxxxxxx X'Xxxxx
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Title: Executive V.P.
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EXECUTIVE: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
16
EXHIBIT A
EXHIBIT B
Except as otherwise provided in the Agreement, the Executive shall be
entitled to those benefits (with any new or changed benefits being comparable or
better) that are existing immediately prior to the date of employment which
includes, but are not limited to, those described in the handbook of Eco-Air and
the following:
1. Group and/or individual life insurance policy (or policies) on the
life of the Executive with his choice of beneficiary in the amount of $120,000;
2. Group Medical Insurance Program for the benefit of the Executive and
his dependents;
3. Excess medical program whereby Eco-Air shall pay the medical costs
incurred by the Executive and his dependents which are in excess of the amount
paid by the Group Medical Insurance Program not to exceed $5,000 per year;
provided such excess medical payments will be increased to include all federal
and state tax withholding and are included in the Executive's reportable
compensation;
4. An automobile to use both for company business and for private use
with Eco-Air also paying all expenses of gas, oil and maintenance. Personal use
by the Executive will be declared as required by the Internal Revenue Code and
its regulations and included as additional compensation;
5. Eco-Air shall be entitled to grant the Executive a leave of absence
with or without pay at any time or times upon such terms and conditions as
Eco-Air's board of directors may in its discretion determine;
6. Executive shall be entitled to moving expenses not to exceed $10,000
to relocate household furnishings from Syracuse, New York to San Diego,
California anytime during his employment.
