EMPLOYMENT AGREEMENT
Exhibit 10.19
This
Employment Agreement dated as of September , 2005 (this "Agreement") is entered
into by and between Buckeye Ventures, Inc. ("BVI"), a Nevada corporation, and
Xxxxx Xxxxxxxxxx (the "Employee").
WHEREAS,
BVI has this date acquired all of the stock of Heating & Air Services, Inc.
(f/k/a HAC Acquisition Corp.) and intends to operate Heating & Services,
Inc. ("the Company") as a wholly owned subsidiary of BVI; and
WHEREAS,
the Employee has served as an employee of the Company pursuant to an Employment
Agreement dated as of November 6, 2001 and a Non-Competition and Confidentiality
Agreement of the same date (collectively the "Company Agreements");
and
WHEREAS,
BVI intends in the near future to merge with and into World Wide Motion Pictures
Corp. (the "WWMPC Merger") whose shares are publicly traded, so that following
the merger, all of the common capital stock of BVI shall become publicly traded
(the "publicly traded stock");
NOW,
THEREFORE, in consideration of the above recitals and mutual promises contained
herein, the parties agree as follows:
1.
Employment. The
parties agree that they have terminated the Company Agreements and that
the Company has agreed to employ the Employee and the Employee hereby accepts
employment with the Company upon the terms and subject to the conditions set
forth herein. Upon request of BVI, Employee will enter into a separate
employment agreement with the Company on the relevant terms and conditions
hereof without terminating this Agreement (among other things because this
Agreement involves the issuance of the publicly traded stock).
2. Duties and Responsibilities.
The Employee shall initially be employed as a General Manager
of the Company and shall perform the services and functions relating to such
position or otherwise reasonably incident to such position. The Employee shall
be subject to the direction of the President of BVI and the General Manager of
RVI who is in charge of multiple locations of other home service companies
operated by BVI. The Employee will devote his best efforts and his time and
attention to the performance of his duties, except for paid time off and
reasonable absences due to injury or illness as permitted by Company's general
policies. The employment relationship between the parties shall be governed by
the general employment policies and practices of the Company, except that when
the terms of this Agreement differ from or are in conflict with the Company's
general employment policies or practices, this Agreement shall
control.
3. Compensation and Other
Employee Benefits. As compensation for his services
under the terms of this Agreement:
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(a)
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The
Employee shall be paid an annual salary of 5125,000 payable in accordance
with the then-current payroll policies of the Company, but no less
frequently than biweekly (such annual salary is herein referred to as the
"Base Salary").
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(b)
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The
Employee shall be paid additional compensation (the "Additional
Compensation") as follows:
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(i)
Upon the effective date of the WWMPC Merger, BVI shall award Employee with
150,000 shares of the publicly traded stock not subject to restrictions or
vesting of any kind except for restrictions under SEC
Rule
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144
("Rule 144 Stock"); BVI shall issue Employee a W-2 for such shares showing an
estimated value of 20 cents per share subject to a 40% discount for lack of
liquidity and lack of control, and Employee will make a Section 83(b) election
consistent therewith;
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(ii)
Also within 30 days of the end of each fiscal quarter and within 60 days
within the end of each fiscal year during the term of this Agreement, B V1
shall award Employee with shares of Rule 144 Stock on the following terms
and conditions ("Stock Award
Shares"):
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(A) At
Employee's option, exercised by written notice, Employee shall be entitled to
receive $5,000 in either cash or the equivalent value in Rule 144 Stock (at the
mean of the bid and offered price on the business day immediately following the
end of the applicable fiscal year quarter) for each fiscal year
quarter where "pre-tax net profit" (defined below) for such quarter, not subject
to adjustment, exceed 7% ("Quarterly Bonus").
(B) In
addition, if the Company does not exceed 9.9% pre-tax net profit for fiscal year
end 2006, but does not show an operating loss, the Employee shall receive 50,000
shares of Rule 144 Stock ("2006 Annual Profit Bonus").
(C) In
addition, if the Company does not exceed 9.9% pre-tax net profit for fiscal year
end 2007, but does not show an operating loss, the Employee shall receive 50,000
shares of Rule 144 Stock ("2007 Annual Profit Bonus").
(D) In
addition, if the Company exceeds 9.9% pre-tax net profit for the end of its 2006
fiscal year, at BVI's option, the Employee shall receive $75,000 in cash or
shares of Rule 144 Stock equal to $75,000 (calculated as the average of the mean
of the bid and offered price on the first four business days immediately
following the end of the fiscal year) ("2006 Extra Profit Bonus").
(E) In
addition, if the Company exceeds 9.9% pre-tax net profit for the end of its 2007
fiscal year, at the Company's option, the Employee shall receive $75,000 in cash
or shares of Rule 144 Stock equal to $75,000 (calculated as the average of the
mean of the bid and offered price on the first four business days immediately
following the end of the fiscal year) ("2007 Extra Profit Bonus").
(F) For
purposes of this Agreement, "pre-tax net profit" shall mean the net profit of
the Company before taxes, interest on any intercompany or institutional debt,
and depreciation, calculated in accordance with generally accepted accounting
principles, and consistent with the calculation of such net profit for the three
fiscal years ended prior to the WWMPC Merger.
(G)
Furthermore, if the Term (as defined below) expires without renewal or extension
of the Agreement, all Additional Compensation that Employee has earned prior to
the Expiration Date (as defined below) shall be paid to the Employee on the
dates he would have received such payments if his employment had been
extended.
(H)
Notwithstanding anything to be construed to the contrary herein, all Stock Award
Shares shall be subject to increase or decrease or conversion into other
securities in proportion to increases or decreases or conversion to or of the
publicly traded stock as a result of corporate reorganization, merger, stock
split or reduction, and the like.
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(iii)
Company paid vehicle that is equivalent to or better than a 2005 Ford
FI50, FX4, 4-door, pick-up truck ("Company Vehicle") to he used primarily
for business.
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(c)
Subject
to the right of BVI to amend or terminate any employee and/or group benefit
and/or stock option plan or program (collectively "Benefit Plans"), and to the
terms and conditions of such Benefit Plans, provided that such amendments,
terminations, terms and conditions are consistent with this Agreement, the
Employee shall be entitled to receive the following employee
benefits:
(i)
The Employee shall have the right to participate in such medical and
dental plans (including, without limitation, disability, accident, medical, life
insurance and hospitalization plans which are normal and customary) as are
maintained by BVI and are available to the persons who are in charge of its
operating companies, be they entitled general managers, location managers,
presidents or whatever ("Location Managers");
(ii)
The
Employee shall have the right to participate in all stock option plans as are
maintained by BVI and are available to its Location Managers, all in accordance
with BVI's regular practices with respect to such persons;
(iii)
The
Employee shall be entitled to reimbursement from the Company for reasonable,
business-related out-of-pocket expenses incurred by him in the course of the
performance of his duties hereunder, upon the submission of reasonable
documentation in accordance with Company's practices and policies;
and
(iv)
The
Employee shall be entitled to paid time off and holiday pay in accordance with
the policies applicable to BVI's Location Managers.
(v)
For
purposes of this Agreement, the employee and/or group benefit and/or stock
option plans and programs of BVI may include such plans and programs of BVI, to
the extent applicable to its Location Managers in accordance with BVI's regular
practices with respect to such employees of its subsidiaries.
(vi)
In the event that Employee has a less advantageous or lower level or scope of
benefits in the Benefit Plans in which he participates compared to the level or
scope afforded to any other Location Manager, BVI agrees to negotiate in good
faith with the Employee reasonable improvements in such level and scope or other
ways in which 13VI and/or the Company may make tip the
difference.
4. Term.
Subject to earlier termination as provided in this Agreement, the term of the
Employee's
employment under this Agreement shall be for a term commencing on the date of
this Agreement and ending on December 31, 2007 ("Expiration Date"), subject to
extension thereafter by mutual agreement of BVI and the Employee. The period
commencing on the date of this Agreement and expiring on the Expiration Date
(including any extension of such date) is referred to herein as the
"Term."
5. Competition and
Confidentiality.
(a)
During the period the Employee is employed by the Employer and for a period of
two (2) years after the Employee ceases to be employed by the Employer for any
reason other than Constructive Termination (defined below) the Employee shall
not:
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(i)
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Directly
or indirectly accept employment with, or render any service to or on
behalf of, any person, firm or corporation that is engaged in a business
competitive with the plumbing, heating, ventilating, air conditioning
business or any related business (a "Competitive Business") anywhere
within a fifty (50) mile radius of the principal office of the Company at
the date of termination of this Agreement (the
"Territory");
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(ii)
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Directly
or indirectly own, manage, operate, finance or control or participate in
the ownership, management, operation, financing or control of, or be
connected as a principal, agent, representative, consultant, advisor,
investor, owner, partner, financier, manager or joint venturer with, or
permit his name to be used by or in connection with, any Competitive
Business anywhere in the Territory (provided, however,
that the Employee may (A) invest as an investor In the voting
securities of any person that is a reporting company under the Securities
Exchange Act of 1934, as amended, so long as (1) the aggregate amount of
such securities that the Employee owns directly or indirectly is less than
two percent (2%) of the total outstanding voting securities of such
person, and (2) the Employee has no other affiliation with such person,
and (B) own shares of stock of BVI;
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(iii)
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Contact,
deal with or in any way solicit any person or entity that at any time
during the period of three (3) years before the date of the Employee's
termination was a customer of the Company or any other subsidiary of BVI
with which the Employee had contact while in the employ of the Company or
which was a customer of the Company in an effort to cause or induce such
person or entity to purchase or otherwise obtain the benefit or use of any
products or services provided by the Company or such other
subsidiary or BVI;
or
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(iv)
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Solicit
the employment of any person who, within one (1) year before or after the
date of the Employee's termination, is employed by the Company on a full
or part-time basis.
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Notwithstanding
the foregoing, the term "Competitive Business" shall include in any event any
business that the Employee knows is conducted in any material respect in the
Territory by the Company. The Employee acknowledges that the Company will have a
business location at the date hereof in West Bridgewater, Massachusetts. The
Employee further acknowledges and agrees that the Company currently provides, or
has or will have the ability to provide, either currently or during the twelve
months after the date of this
Agreement, goods and services to customers within the Territory. Notwithstanding Section 5(a)(i) above or to the extent
applicable solely as a result of being an employee Section
5(a)(ii) above, BVI and the Employee agree that Employee may accept
employment with and render services for a regional or national company or its
affiliates which have operations within the Territory so long as the Employee
does not directly or indirectly provide any services that are the same as the
services that the Employee has been providing for the Company pursuant hereto
for the benefit of or with respect to any existing or potential business doing
business anywhere within the Territory.
(b) It is the desire and
intent of each of the parties that the provisions of Section 5(a)
of this Agreement shall be enforced to the fullest extent permissible
under applicable law. Accordingly, if any particular portion of Section
5(a) shall be adjudicated to be invalid or unenforceable, Section
5(a) shall be deemed
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amended
to (i) reform the particular portion to provide for such maximum restrictions as
will be valid and enforceable, or if that is not possible, then (ii) delete
therefrom the portion thus adjudicated to be invalid or
unenforceable.
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(c)
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During
the period during which the Employee is employed by the Company and
thereafter (regardless of the reason for termination of employment), the
Employee will not divulge or appropriate to his own use or to the use of
others any secret, confidential or proprietary information pertaining to
the business of, or acquired from the Company (including, without
limitation, trade secrets, business strategies. or plans, pricing,
acquisition target lists, customer lists and marketing methods, plans or
strategies) obtained by the Employee as a consequence of his affiliation,
agreements or position with the Company. For purposes of this Agreement,
the term secret, proprietary or confidential information does not include
any information that (i) is or becomes generally available to and known by
the public (other than as a result of an unpermitted disclosure directly
or indirectly by the Employee), or (ii) is required to be disclosed by
legal or administrative process or stock exchange
rule.
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(d)
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The
Employee acknowledges that Section 5(a)
and Section 5(c)
of this Agreement are expressly t'or the benefit of the Employer,
that the Employer would be irreparably injured by a violation of Section 5(a) or
Section 5(c).
and that the Employer would have no adequate remedy at law in the
event of such violation. Therefore, the Employee acknowledges and agrees
that, in addition to any other remedies available, injunctive relief,
specific performance or any other appropriate equitable remedy (without
any
bond or other security being required) are appropriate remedies to
enforce compliance with Section 5(a)
and Section
5(c).
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(e)
The provisions of this Section 5 shall
continue in effect, notwithstanding the expiration
of the Term or any other termination of this Agreement, except as
otherwise provided herein.
6. Termination of
Employment
(a)
For Due Cause.
Nothing herein shall prevent 13VI from terminating, without prior notice, the
Employee for "Due Cause"
(as hereinafter defined); in which event the Employee shall be entitled
to receive his Base Salary on a pro rata basis to the date of termination, but
not any Additional Compensation that may be due the Employee except for any such
Additional Compensation that the Employee earned prior to the event constituting
Due Cause that BVI or the Company has failed to pay or deliver to the Employee.
In the event of such termination for Due Cause, all other rights and benefits
the Employee may have under the Benefit Plans shall be determined in accordance
with the terms and conditions of such Plans.
The term "Due Cause" shall mean (i) the Employee has (A) committed a
willful serious act, such as fraud, embezzlement or theft, (B) committed any
willful act against the Employer intending to enrich himself at the expense of
the Employer, or (C) made an unauthorized use or disclosure of secret or
confidential information pertaining to the business of the Employer, (ii) the
Employee has been convicted of a felony or commits an act constituting a felony,
(iii) the Employee has engaged in conduct which has caused demonstrable and
serious injury, monetary or otherwise, to the Employer, (iv) the Employee, in
carrying out his duties hereunder, has been guilty of gross negligence or
willful misconduct that has
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resulted
in a material detriment to the Employer and such conduct continues after written
notice has been given by the Employer to the Employee. (v) the Employee has
violated in any material way any of the Employer's rules, policies or procedures
that are not inconsistent herewith, or (vi) the Employee has otherwise
materially breached this Agreement (including, without limitation, any failure
to perform the duties assigned to him in accordance with this Agreement) and,
with respect to clauses (v) and (vi) hereof, has not remedied such breach within
five days after receipt of written notice from BVI specifying in reasonable
detail the nature of the violation or breach.
(b)
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Due to Death.
In the event of the death of the Employee. this Agreement shall
terminate on the date of death and the estate of the Employee shall be
entitled to receive the Employee's Base Salary and any Additional
Compensation that has been earned by the Employee but not yet paid, (on a
pro rata basis calculated and paid as if there was a Constructive
Termination as defined below) through the end of the month in which he
died. In the event of such termination due to death, all other rights and
benefits the Employee (or his estate) may have under the Benefit Plans
shall be determined in accordance with the terms and conditions of such
Plans.
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(c)
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Disability. In
the event the Employee suffers a "Disability" (as hereinafter defined),
this Agreement shall terminate on the date on which the Disability occurs
and the Employee shall be entitled to receive his Base Salary and any
Additional Compensation that has been earned by the Employee but not yet
paid, (on a pro rata basis calculated and paid as if there was a
Constructive Termination as defined below) through the end of the month in
which his employment is terminated due to the Disability. In the event of
such termination due to Disability, all other rights and benefits the
Employee may have under the Benefit Plans shall be determined in
accordance with the terms and conditions of such Plans. For purposes of
this Agreement, "Disability" shall mean the inability or incapacity (by
reason of a medically determinable physical or mental impairment) of the
Employee to perform the duties and responsibilities related to the job or
position with the Employer described in Section 2 of
this Agreement for a period that lasts more than 180 days. Such inability
or incapacity shall be documented to the reasonable satisfaction of the
Employer by appropriate correspondence from registered physicians
reasonably satisfactory to the Employer, and the Employee agrees to submit
to an examination by the Employer's physicians for the purpose of making
such determination.
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(d)
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Voluntary
Termination. The Employee may voluntarily terminate his employment
under this Agreement at any time by providing at least thirty days' prior
written notice to the Employer. In such event, the Employee shall be
entitled to receive his Base Salary until the date his employment
terminates and any Additional Compensation that has been earned by the
Employee but not yet paid and all other benefits the Employee may have
under the Benefit Plans shall he determined in accordance with the terms
and conditions of such Plans. The Additional Compensation shall be
calculated on a pro rated basis, based on the number of months of his
employment during the fiscal year from the beginning of the month in which
his termination is effective if such date is prior to the 15th
of the month and through the end of the month in which his termination is
effective if such date is from the 15th
to the end of the month. Such Additional Compensation shall be paid when
due hereunder as if the
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6
employment
had not been terminated. For example, if the effective date of termination was
April 15, 2007, and pre-tax net profits for the first fiscal quarter of 2007
exceeded 7% and for the full fiscal year of 2007 exceeded 9.9%, the Additional
Compensation to which the Employee would be entitled would be one-third (4 out
of 12 months) of the Quarterly Profit Bonus for the first quarter of 2007;
one-third of the 2007 Annual Profit Bonus and one-third of the 2007 Extra Profit
Bonus. The Employee would receive such Additional Compensation in accordance
with Section 3(b)(ii) hereof.
(e) Constructive Termination
Prior to Expiration of Term.
(i) If, prior to the expiration of the Term, BVI directly or
indirectly:
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A)
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terminates
the employment of the Employee other than (1) for Due Cause, (2) as a
result of the death of the Employee or (3) because of a
Disability;
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B)
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decreases
the Employee's Base Salary below the level provided for by the terms of
Section
3(a) of this Agreement or materially reduces the employee benefits
below the level provided for by the terms of Section 3(c) of
this Agreement (other than as a result of any amendment or termination of
any employee and/or group benefit and/or stock option plan, which
amendment or termination is applicable to all executive exempt employees
of BVI, as the case may be, eligible to participate in such plan prior to
its termination);
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C)
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materially
breaches any payment provision of this Agreement and such breach is not
cured by BVI within five (5) days after receipt of written notice from the
Employee specifying in reasonable detail the nature of such breach or
materially breaches any other provision of this Agreement and such breach
is not cured by BVI within thirty (30) days after receipt of written
notice from the Employee specifying in reasonable detail the nature of
such breach; or
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D)
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moves
the principal office of the Company to a location that is not within a
fifty (50) mile radius of West Bridgewater, Massachusetts;
or
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E)
fails to effect the WWMPC Merger or imposes restrictions on the Stock
Award Shares;
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then such
action by BVI, unless consented to in writing by the Employee, shall be deemed
to be a constructive termination by the Company of the Employee's employment
("Constructive Termination");
(ii) In the event of a Constructive Termination:
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A)
the Employee may terminate his employment without being in breach hereof,
and the Company and BVI shall pay the Employee within thirty (30) days
after the date the effective date of
the
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termination of employment: (w) any
Additional Compensation that has been earned by the Employee
but not yet paid; and (x) the greater of his Base Salary through the
balance of the Term, or 50% of his Base Salary; and (y) an
amount equal to the average monthly cost to the Company of the
Company Vehicle (calculated on the basis of the average cost over
the 3 full months prior to the effective date of termination) times
the number of months (including any part of a month) in the
balance of the Term: and (z) cumulative amounts of the Stock
Award Shares payable under Section 3(h) as if the Employee had
been employed through the balance of the Term. hereof as follows:
(I) if the effective date of termination is within the first quarter
of the fiscal year and there are pretax net profits for such quarter
12,500 shares of Rule 144 Stock; (II) if such termination is
within the second quarter, and there are pretax net profits for such
quarter 25,000 of such shares; (III) if such termination is within the
third quarter, and there are pretax net profits for such quarter,
37,500 such shares; and (IV) if such termination is within the fourth
quarter and there are pretax net profits for the fiscal year, 50,000
such shares; plus (V) if the effective date of termination is within the first
quarter of the fiscal year
and the pretax net profits for such quarter exceed 9.9% without adjustment, at BVI's option
$25,000 in cash or shares of Rule 144 Stock equal to $25,000 (calculated
as the average of the mean of the bid and offered price on the first business
days immediately following the fiscal quarter); (VI) if the effective date of termination is within
the second quarter of the fiscal year and the pretax net profits
for such quarter exceed 9.9% without adjustment, at BVI's option
$37,500 in cash or shares of Rule 144 Stock equal to $37,500 (calculated
as the average of the mean of the bid and offered price on the first business
day immediately following the end of the fiscal quarter); (VII) if the effective date of termination is
within the third quarter of the fiscal year and the pretax net
profits for such quarter exceed 9.9% without adjustment, at BVI's
option $56,250 in cash or shares of Rule 144 Stock equal to $56,250
(calculated as the average of the mean of the bid and offered price on the first
business days immediately following the fiscal quarter);(VIII) if
the effective date of termination
is within the fourth quarter of the fiscal year and the
pretax net profits for such fiscal year exceed 9.9% without adjustment, at BVI's
option $75,000 in cash
or shares of Rule
144 Stock equal to $75,000 (calculated
as the average of the mean of the bid and offered price on the first four
business days immediately following the end of the fiscal year); and (VIII) if
the pretax net profits exceed 7% in any of the quarters prior to the effective
date of termination and in the quarter in which such date occurs, at Employee's
option, $5,000 in cash or the equivalent value in Rule 144 Stock (calculated at
the mean of the bid and offered price on the first business day immediately
following the end of the applicable fiscal year quarter) for all such
quarters.
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B)
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all
cash amounts and Stock payable pursuant to Section 6(e)(ii) (A) above
shall be paid on the dates that the Company and BVI would be obligated to
pay Employee if there had been no Constructive Termination; provided that
in the event BVI or the Company fails to make any such payment, at any
time after thirty (30) clays after written notice to the Company and BVI,
Employee shall have the right to obtain the unpaid amount or stock and
accelerate all future payments that may become due, thereby requiring
Company and BVI to make a lump sum payment of such accelerated amount
within five (5) business days after the date of the acceleration
notice.
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C)
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all
other rights and
benefits the Employee may have under the Benefit Plans shall be
determined in accordance with the terms and conditions of such Plans;
and
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D)
the Employee shall not be subject to Sections 5(a)(i), 5(a)(ii), 5(b),
5(e) hereof or Section 5(a)(iii) hereof with respect to any prohibition on
the Employee's contacting or dealing with any customer of the Company or
any other subsidiary of BVI provided that Employee has not solicited such
customer for the purpose of causing or inducing such customer to purchase
of otherwise obtain the benefit or use of any products or services
provided by the Company or such other subsidiary of
BVI.
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(iii)
In the event of the death or Disability of the Employee following a
Constructive Termination, the amounts set forth in Section
6(e)(ii) of this Agreement shall continue to be owing and shall be
paid to the estate of the Employee or to the Employee, as
applicable.
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(iv)
The Employer agrees that, in the event of a Constructive Termination, the
Employee shall not be required to seek other employment or to attempt in
any way to reduce any amount payable to the Employee by the
Employer pursuant to this Agreement, and that any amounts due to the
Employee hereunder shall not he reduced by any compensation earned by the
Employee as a result of employment by another employer or by any
retirement benefits paid to the
Employee.
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(f)
Notwithstanding anything that may be construed to the contrary herein, upon
termination of this Agreement for any reason, any unpaid obligations of BVI that
have not been paid prior to the effective date of termination shall be paid upon
such date unless this Agreement expressly provides otherwise, and such
obligations shall survive the termination of this Agreement.
7. Withholding. All
payments and benefits under this Agreement for which withholding is required
under applicable law will be made subject to the required
withholding.
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8. Notices. All
notices, requests, demands and other communications given 9 under or
by reason of this Agreement shall be in writing and shall be deemed given when
delivered in person or when received if mailed by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a)
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If
to the Employer, addressed to it at:
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0000
Xxxx Xxxx Xxx
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Xxxxxxx
Xxxxx, XX 00000
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Attn:
President
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with a copy to its Legal
Department
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(b)
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If
to the Employee, addressed to him at: Xxxxx
Xxxxxxxxxx
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00
Xxxxxxxxxxx Xxxxx
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Xxxxx
Xxxxxx, XX 00000
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with
a copy to:
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Xxxxxxx
X. Xxxxxx, Esq.
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Xxxxx
Xxxxxx LLP
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000
Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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9. Controlling Law. The
execution, validity, interpretation and performance of
this Agreement shall be
governed by and construed in accordance with the internal laws (and not the conflicts of law provisions) of the Commonwealth of
Massachusetts.
10. Additional
Instruments. The Employee and the Employer shall execute and deliver any
and all additional instruments and agreements that may be necessary or proper to
carry out the purposes of this Agreement.
11. Entire Agreement:
Amendments: Waivers. This Agreement contains the entire agreement of the
Employee and the Employer relating to the matters contained herein and
supersedes all prior agreements and understandings, oral or written, between the Employee and the
Employer with respect to the subject matter hereof. This Agreement may be
amended, modified or supplemented, but only in writing signed by each of the
parties hereto. Any term of this Agreement may be waived only with the written
consent of the party sought to be bound, and the waiver by either party to this
Agreement of a breach of any provision of the Agreement by the other
party shall not operate or be construed as a waiver by such party of any
subsequent breach by such other party.
12. Reformation and
Severability. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, it shall, to the extent possible, be modified in such
manner as to be valid,
legal and enforceable but so as to most nearly retain the intent of the
parties, and if such modification is not possible, such provision shall he
severed from this Agreement, and in either case the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
13. Assignments. The
Employer may assign this Agreement to any affiliate of the Employer or any
person or entity succeeding to
all or substantially all of the business interests of BVI or the Employer
by merger or otherwise. The rights and obligations of the Employee under this
Agreement are personal to him, and no such rights, benefits or obligations shall
be subject to voluntary or involuntary alienation, assignment or transfer,
except as otherwise contemplated hereby.
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14. Effect of Agreement.
Subject to the provisions of Section 13 of this
Agreement with respect to assignments, this Agreement shall be binding upon the
Employee and his heirs, executors, administrators, legal representatives and
assigns and upon the Employer and its respective successors and assigns, except
as otherwise contemplated hereby.
15. Exercise of Rights and
Remedies. No delay of or omission in the exercise of any right, power or
remedy accruing to any party as a result of any breach or default by any other
party under this Agreement shall impair any such right, power or remedy, nor
shall it be construed as a waiver of or acquiescence in any such breach or
default, or of any similar breach or default occurring later.
16. Attorneys'
Fees. If any legal proceeding is necessary to enforce or interpret the terms of
this Agreement, or to recover damages for breach hereof, the prevailing party
shall be entitled to reasonable attorneys' fees, as well as costs and
disbursements, in addition to any other relief to which he or it may be
entitled.
17. WAIVER
OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY 1N ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING 1'0 THIS AGREEMENT OR THE RELATIONSHIP CONTEMPLATED
HEREBY.
18.
Execution. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute but
one and the same instrument.
IN WITNESS WHEREOF', the
parties have executed this Agreement effective as of the date first above
written.
Employee:
|
|||
/s/
Xxxx Xxxxx
|
/s/ Xxxxx Xxxxxxxxxx | ||
Xxxx Xxxxx, President | Xxxxx xxxxxxxxxx |
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