Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of
the 1st of April 2001, between Xxxxxxxx Corporation, a Delaware corporation
(the "COMPANY"), and XXXXXX XXXX.
RECITALS
XXXXXX XXXX agrees to commence employment by the Company effective
April 1, 2001.
This Agreement sets forth in definitive form the terms of XXXXXX
XXXX'x employment by the Company. As such, this Agreement supersedes any
prior employment agreements in entirety.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements of the parties contained herein, the Company and XXXXXX XXXX
hereby agree as follows:
1. EMPLOYMENT. The Company will employ XXXXXX XXXX And XXXXXX
XXXX accepts employment with the Company for a period of three (3) years
beginning April 1, 2001 (the "INITIAL PERIOD"). This Agreement shall
automatically renew for successive one (1) year terms ("Renewal Periods")
unless either party notifies the other six (6) months in advance of the
expiration of the Initial or any Renewal Period. XXXXXX XXXX'x employment may
continue after the Initial or any Renewal Period but he will then be deemed
an employee at will under Texas law. The obligations of the Company and
XXXXXX XXXX set forth in that certain "Noncompetition, Property Rights and
Trade Secrets Agreement" and in that certain "Confidentiality Agreement"
(each as defined in Section 7 and attached as Attachments A and B to this
Agreement) (referring to noncompetition, intellectual property rights and
confidentiality, respectively) and in Section 8 (referring to termination)
will survive termination of XXXXXX XXXX'x employment, regardless of reason,
as provided in such agreements.
2. DUTIES. XXXXXX XXXX Will be employed initially as President
of the Revenue Enhancement division, reporting directly to X.X. Xxxxxxxx,
Xx., Chairman and Chief Executive Officer. XXXXXX XXXX shall be responsible
for the Revenue Enhancement division, participating in the leadership and
direction of the Company; and participating as a member of the Policy
Committee and Administration. A Chief of Staff, Chief Operations Officer or
employee of similar position irrespective of title, will report to XXXXXX
XXXX and will be primarily responsible for managing the day-to-day operations
of the Company's Revenue Enhancement division. XXXXXX XXXX shall have such
authority as Xx. Xxxxxxxx determines is reasonably necessary to perform his
duties, provided that at no time shall XXXXXX XXXX'x duties or authority be
reduced below a level equivalent to head of a division of comparable size and
scope or changed to a different division from the Revenue Enhancement
Division without his consent. XXXXXX XXXX shall not be required to perform
services at any location outside the Dallas, Texas metropolitan area, other
than reasonable business travel.
XXXXXX XXXX agrees that, to the best of his ability and experience,
he will at all times conscientiously perform such duties and obligations as
may be assigned to him in good faith, consistent with his position, by the
Company's Chief Executive Officer.
3. FULL-TIME EMPLOYMENT. XXXXXX XXXX'x employment will be on a
full-time basis, in accordance with standard employee policies of the
Company, including the rules of any employee handbook and all other rules and
policies the Company might announce from time to time. In addition to such
restrictions as are set forth in the Noncompetition, Property Rights and
Trade Secrets Agreement referenced herein, XXXXXX XXXX will not engage in any
other business or render any commercial or professional services, directly or
indirectly, to any other person or organization, whether for compensation or
otherwise, provided that XXXXXX XXXX may (a) provide incidental assistance to
family members on matters of family business; or (b) engage in charitable
activities on behalf of civic, educational or other nonprofit organizations;
(c) serve with or without compensation on advisory boards of directors; and
(d) serve with or without compensation on non-competitor boards of directors;
provided in each case that such activities do not conflict with or interfere
with XXXXXX XXXX'x normal full-time and first priority obligations to the
Company, and provided further that with respect to service on boards of
directors of any type, XXXXXX XXXX shall obtain prior written consent of the
Chairman of the Company, which consent shall not be unreasonably withheld or
delayed. XXXXXX XXXX may make personal investments in non-publicly traded
corporations, partnerships or other entities that, to the knowledge of the
Company, are not at the time of such investment engaged in any business
activities competitive with the Company. Notwithstanding anything to the
contrary contained in this Agreement, XXXXXX XXXX may make personal
investments in publicly traded corporations regardless of the business they
are engaged in, provided that XXXXXX XXXX does not at any time own in excess
of two percent (2%) of the issued and outstanding stock of any such
corporation. The Company acknowledges that the foregoing restrictions do not
apply to any stock that XXXXXX XXXX now or hereafter may own in Exchange
Applications, Inc. (a/k/a "Xchange").
4. SALARY; POTENTIAL INCENTIVE COMPENSATION; STOCK OPTIONS.
(a) SALARY AND POTENTIAL INCENTIVE COMPENSATION. XXXXXX
XXXX'x annual base salary for the Initial or any Renewal Period will be
$350,000 unless and until increased as set forth below. All base salary will
be payable on the Company's regular payroll dates, less required
withholdings. At least annually, XXXXXX XXXX'x annual base salary shall be
reviewed by the Board of Directors or a committee thereof, and, may, in their
sole discretion, be increased from time to time during the Initial or any
Renewal Period in light of merit, cost of living changes, and base
compensation levels for similar executive positions in the Company's industry.
(b) COMPANY BONUS PLAN. The Company bonus plan operates on
a February 1 through January 31 time frame and will provide XXXXXX XXXX the
opportunity to earn a bonus when the Company meets certain profitability
goals. The target bonus for XXXXXX XXXX'x position for each annual period is
set at 70% of base salary. The Chairman
and Chief Executive Officer in his sole discretion, will determine the actual
amount received. It is possible to receive more than the target percentage
based on the Company exceeding the Incentive Plan and at the discretion of
the Chairman and Chief Executive Officer. XXXXXX XXXX acknowledges that the
Company's Board of Directors has complete and sole discretion (exercisable in
good faith) to establish and revise any and all of the Company's bonus plans
and payout levels; provided, however, that no such action may retroactively
alter or limit the amount of any incentive compensation actually and
previously earned by XXXXXX XXXX.
(c) STOCK OPTIONS. A recommendation will be presented to
the Compensation Committee of the Board of Directors for XXXXXX XXXX to
receive a non-qualified stock option of 110,000 shares of common stock. The
recommended vesting will be a four (4) year schedule, 25% vesting for each
year of continuous service and employment. The per share option price will be
determined as market value (closing price) on the day of grant. Every effort
will be made to coincide the date of grant with XXXXXX XXXX'x first day of
work. If XXXXXX XXXX should receive stock options on a vesting schedule, all
unvested options shall vest immediately upon the occurrence of any of the
following: a Change of Control (as defined below), the termination by the
Company of XXXXXX XXXX'x employment without Cause, XXXXXX XXXX'x resignation
pursuant to Section 8(b) of this Agreement, XXXXXX XXXX'x permanent
disability, or XXXXXX XXXX'x death. Each such option shall be issued under
and pursuant to the Company's Amended and Restated 1994 Long-Term Incentive
Plan, with terms and conditions as provided therein except as expressly
provided herein. XXXXXX XXXX will also be eligible to receive such other
options that the Company's Board of Directors shall, in its sole discretion,
hereafter determine to grant to him.
For purposes of this Agreement, a Change of Control shall
have occurred if, as the result of a completed tender offer, merger,
consolidation, sale of assets, acquisition of shares or contested election,
or any combination of the foregoing transactions, (a) any person (other than
X.X. Xxxxxxxx, his heirs, Crow Family Partnership, L.P., or affiliates of any
of them) shall become the owner, beneficially or of record, of more than
fifty percent (50%) of the aggregate voting power of the Company, or (b)
during any period of two (2) consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election to such board or whose
nomination for election by the shareholders of the Company was approved by
the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease to constitute a majority of the Board of Directors of the
Company, or (c) a merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than fifty
percent (50%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation; PROVIDED, HOWEVER, that a merger or consolidation in which the
Company is the surviving entity (other than as a wholly owned subsidiary of
another entity) and in which the Board of the Company after giving effect to
the merger or consolidation is comprised of a majority of members who are
either (i) directors of the Company immediately preceding the merger or
consolidation, or (ii) appointed to the Board of
the Company by the Company (or its Board) as an integral part of such merger
or consolidation, shall not constitute a Change in Control of the Company; or
(d) the stockholders of the Company approve a plan of complete liquidation of
the Company or the sale or disposition by the Company of all or substantially
all of the Company's assets other than (x) the sale or disposition of all or
substantially all of the assets of the Company to a person or persons who
beneficially own, directly or indirectly, at least fifty percent (50%) or
more of the combined voting power of the outstanding voting securities of the
Company at the time of the sale or (y) pursuant to a dividend in kind or
spin-off type transaction, directly or indirectly, of such assets to the
stockholders of the Company.
5. BENEFITS. XXXXXX XXXX will also be entitled to insurance,
vacation and other employee benefits commensurate with his position (and
reasonably consistent with the benefits afforded other executive officers of
the Company) in accordance with the Company's standard employee policies in
effect from time to time. XXXXXX XXXX acknowledges receipt of a summary of
the Company's standard employee benefits policies in effect as of the date of
this Agreement.
6. REIMBURSEMENT OF SPECIAL EXPENSES AND NORMAL BUSINESS
EXPENSES. The Company agrees to reimburse Xx. Xxxx'x out-of-pocket expenses
for monthly dues to a mutually agreed upon country club for entertainment and
networking.
The Company will, in accordance with the Company's policies in
effect from time to time, reimburse XXXXXX XXXX for all other out-of-pocket
reasonable business expenses incurred by XXXXXX XXXX in connection with the
performance of his duties under this Agreement, upon submission of the
required documentation required pursuant to the Company's standard policies
and record-keeping procedures. Reasonable business expenses shall include
business use of a cellular phone and annual Admiral's Club membership. In
addition, from the effective date of this Agreement through the first
anniversary date of this Agreement, upon XXXXXX XXXX'x submission of expense
documentation in accordance with the Company's standard policies and
record-keeping procedures, the Company shall reimburse XXXXXX XXXX up to the
amount of $2,200 per calendar quarter to cover the cost of life insurance
policy(ies).
7. INTELLECTUAL PROPERTY. Simultaneously with the execution of
this Agreement and as a condition of his employment, XXXXXX XXXX agrees to
execute and deliver (if he has not done so already) that certain Senior Staff
Non-Competition Agreement between him and the Company, a copy of which is
attached to this Agreement as Attachment A ("Noncompetition Agreement"), and
that certain Senior Staff Confidentiality and Intellectual Property Ownership
Agreement between him and the Company, a copy of which is attached to this
Agreement as Attachment B ("Confidentiality Agreement").
8. TERMINATION.
(a) BY THE COMPANY. Notwithstanding Section 1, the Company
may terminate XXXXXX XXXX'x employment at any time during the Initial or any
Renewal Period
with or without Cause (as defined below), provided that the Company shall
provide XXXXXX XXXX six months written notice for termination without Cause.
Unless otherwise expressly provided in this Agreement, the Company shall not
be required to provide notice for a termination with Cause.
(b) BY XXXXXX XXXX. During the Initial or any Renewal
Period, XXXXXX XXXX may terminate his employment if (i) the Company is in
material breach of this Agreement provided, however, that such material
breach shall permit such termination only if the Company shall have been
provided at least 30 days' prior notice and opportunity to cure such material
breach. or (ii) there occurs a material reduction in Employee's position, any
reporting relationship of Employee other than to the Chairman or CEO of the
Company, or any change in the duties that are materially different from
heading the Revenue Enhancement division ("Reduction in Position"), provided
however, that no Reduction in Position shall be deemed to occur until the
expiration of thirty (30) days following written notice being provided to
Company by Employee specifying the nature of such Reduction in Position and
such Reduction continuing during such thirty (30) day period. In the event of
any termination by Employee pursuant to this Section 8(b)(i), Employee shall
be entitled to receive the severance pay, bonuses and benefits provided in
Section 8(c) as if on the effective date of such termination by Employee, the
Employee had been terminated by Company without Cause pursuant to Section
8(a). In the event of any termination by Employee pursuant to this Section
8(b)(ii) or otherwise without Cause, Employee shall be entitled to receive
the severance pay, prorated bonus for the period worked only and benefits
provided in Section 8(c) as if on the effective date of such termination by
Employee, the Employee had been terminated by Company without Cause pursuant
to Section 8(a).
Without limitation, a failure by the Company to pay to XXXXXX XXXX
any undisputed amounts due under this Agreement in accordance with the terms
hereof shall be deemed a material breach.
(c) REMEDY.
(i) TERMINATION WITHOUT CAUSE. Upon termination of XXXXXX
XXXX'x employment during the Initial or any Renewal Period without
Cause pursuant to Section 8(a) or pursuant to Section 8(b) only (at
which time he shall cease to be an employee of the Company for all
purposes), the Company will (i) pay to XXXXXX XXXX as xxxxxxxxx pay on
the Company's regular payroll dates and less required withholdings, the
base salary at the rate paid to XXXXXX XXXX immediately prior to such
termination, for one (1) year from the effective date of termination;
(ii) pay to XXXXXX XXXX annual bonuses for one (1) year from the
effective date of termination, at such time as the Company pays
bonuses, equal to the bonus to which he would have been entitled under
Section 4(b) had (x) he not been terminated and (y) the Company's
profitability through the fiscal quarter ended immediately prior to the
effective date of termination continued at the same rate throughout the
applicable bonus period; and (iii) provide XXXXXX XXXX with the
opportunity to purchase major medical health and dental insurance
reasonably comparable to employee benefits then provided to the
Company's senior officers in accordance with Consolidated Omnibus
Budget Reconciliation Act ("COBRA"). Further, to the extent XXXXXX XXXX
would otherwise be entitled to a bonus under Section 4(b), the Company
will pay XXXXXX XXXX a prorated bonus, for that portion of the relevant
fiscal year during which he worked, at such time as the Company pays
bonuses, or portions thereof, to other senior executives of the
Company. The Company's obligation to reimburse XXXXXX XXXX'x monthly
country club dues and related fees and business expenses (to the extent
incurred following the effective date of his termination) as provided
in Section 6 shall not survive termination.
(ii) TERMINATION WITH CAUSE. If the Company terminates
XXXXXX XXXX'x employment with Cause, none of the foregoing
post-termination payments or benefits, or any other post-termination or
severance payments or benefits, shall be made or provided to XXXXXX
XXXX, and he shall be entitled only to such amounts as have accrued to
him under this Agreement prior to the effective date of termination.
In addition to any other remedies that Employer may
have at law or in equity, the Employer may immediately terminate
Employee's employment under this Agreement upon the occurrence of any
of the following events, any of which shall constitute "Cause":
A. Failure of Employee to perform work and
duties as set forth herein for ten (10) or more consecutive
business days (except during vacation and periods of illness
as set forth herein) without giving prior written notice to
the Chairman or CEO or his designee and receiving his or her
approval of such absence, which approval shall not be
unreasonably withheld;
B. The substantial, material and continuing
failure of Employee, after reasonable notice thereof, to
render services to the Company or any subsidiary in accordance
with the terms or requirements of this Agreement, other than
as a result of disability, as determined by the Chairman or
CEO in his reasonable discretion, provided, however, that
failure to meet financial goals shall not be deemed Cause;
C. Employee's commission of an act of
embezzlement, fraud, dishonesty, gross negligence, willful
misconduct, unlawful discrimination, breach of fiduciary duty
to the Company, disloyalty or material theft (whether within
the workplace or elsewhere) as determined by the Company in
its reasonable discretion, provided that reasonable
disagreements or bona fide errors in expense accounts shall
not be deemed Cause;
D. Employee's using for his own benefit or the
benefit of any third party in violation of the Noncompetition
Agreement or the Confidentiality Agreement any material,
non-public information, confidential information or
proprietary information of Employer or its respective
successors and assigns, or willfully or through gross
negligence divulging any such information to third parties
that is or may be, in either case, materially harmful to the
Employer without the prior written consent of Xx. Xxxxxxxx or
his designee, or any violation by Employee of any of his
obligations under the Noncompetition Agreement or of Section 2
of the Confidentiality Agreement which is materially harmful
to the Employer; or which the Xx. Xxxxxxxx or his designee
determines in his or her reasonable judgment presents a risk
of being materially harmful to Employer provided that such
violations by Employee with the intent of furthering the
business of XXXXXXXX or in the performance of Employee's
duties for XXXXXXXX shall not be deemed Cause.;
E. Employee's habitual drunkenness or use of
illegal substances or illegal drugs or the use, possession,
distribution or being under the influence of alcohol or
illegal substances or illegal drugs in the workplace. The only
exception is that Employee may consume alcohol reasonably and
responsibly, if he or she so chooses, at events and functions
including legitimate business events and/or functions where
alcohol is legally available; and
F. Employee's continuous failure or refusal to
comply, after notice of and a reasonable opportunity to cure
such failure or refusal if capable of cure, with the
reasonable, nondiscriminatory policies, standards,
regulations, instructions, or directions of Employer as they
currently exist or as they may be modified from time to time
consistent with the terms and conditions of this Agreement
(provided that such instructions are made in good faith, are
not arbitrary or capricious and do not require Employee to
subject himself to criminal liability or material civil
liability against which he is not indemnified under the
Company's then-existing Officer and Director insurance policy
to the same extent as other officers of the Company).
(iii) LIQUIDATED DAMAGES. The Company's obligation to
make payments (and provide COBRA benefits), if any, pursuant to this Section
8(c) is in lieu of any damages and any other payment or other benefits that
the Company might otherwise be obligated to pay XXXXXX XXXX as a result of
the termination of XXXXXX XXXX'x employment with the Company (including for
claims of employment discrimination, wrongful termination or breach of this
Section 8). The Company and XXXXXX XXXX agree that, in view of the nature of
the issues likely to arise in the event of such termination, it would be
impracticable or extremely difficult to fix the actual damages resulting from
such termination and proving actual damages, causation and foreseeability in
the case of such termination would be costly, inconvenient and difficult. In
requiring the Company to make the payments (and provide the COBRA benefits)
as set forth herein, it is the intent of the parties to provide, as of the
date of this Agreement, for a liquidated amount of damages to be paid by the
Company to XXXXXX XXXX. Such liquidated amount shall be deemed full and
adequate damages for such termination and is not intended by either party to
be a penalty.
(d) UPON DEATH. Except as otherwise provided for in this
Agreement, if XXXXXX XXXX dies during the term of this Agreement, then the
Company will pay his estate an amount equal to all earned and unpaid salary,
prorated bonuses (if any) for that portion of the year of his death during
which he worked, other bonuses (if any) accrued and payable, and accrued
benefits, all as of the date of his death.
(e) SURVIVAL. XXXXXX XXXX'x and the Company's obligations under
Sections 7, 8 and 9(h) of this Agreement and, to the extent that any
allowable expenses have not been reimbursed as of the effective date of such
termination, under Section 6 of this Agreement, will survive the termination
of XXXXXX XXXX'x employment with the Company.
9. BOARD OF DIRECTORS. The Company will identify XXXXXX XXXX
to the Board of Directors as a potential director during the first year of
this Agreement.
10. MISCELLANEOUS.
(a) NOTICES. Any and all notices permitted or required
to be given under this Agreement must be in writing. Notices will be deemed
given (i) when personally received or when sent by facsimile transmission (to
the receiving party's facsimile number), (ii) on the first business day after
having been sent by commercial overnight courier with written verification of
receipt, or (iii) on the third business day after having been sent by
registered or certified mail from a location on the United States mainland,
return receipt requested, postage prepaid, whichever occurs first, at the
address set forth below or at any new address, notice of which will have been
given in accordance with this Section 10(a):
(i) If to the Company: Xxxxxxxx Corporation
0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
(ii)If to XXXXXX XXXX: 0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) AMENDMENTS. This Agreement, including the Attachments
hereto, contains the entire agreement and supersedes and replaces all prior
agreements between the Company and XXXXXX XXXX concerning XXXXXX XXXX'x
employment and employment benefits (including, without limitation, the letter
agreement referenced in the recitals to this Agreement). This Agreement may
not be changed or modified in whole or in part except by a writing signed by
the party against whom enforcement of the change or modifications is sought.
(c) SUCCESSORS AND ASSIGNS. This Agreement will not be
assignable by either XXXXXX XXXX or the Company, except that the rights and
obligations of the Company under this Agreement may be assigned to a
corporation which succeeds the Company as the result of a merger or other
corporate reorganization and which continues the business of the Company, or
a subsidiary of the Company, provided that the Company guarantees the
performance by such assignee of the Company's obligations hereunder.
(d) GOVERNING LAW. The laws of the State of Texas (without
regard to its choice of law principles that might apply the law of another
jurisdiction) will govern the validity of this Agreement, the construction of
its terms, the interpretation and enforcement of the rights and duties of the
parties, and any other issues that might arise with respect to hereto.
(e) NO WAIVER. The failure of any party to enforce any of the
provisions of this Agreement will not be construed to be a waiver of the
right of such party thereafter to enforce such provisions. The waiver by any
party of the right to enforce any of the provisions of this Agreement on any
occasion will not be construed to be a waiver of the right of such party to
enforce such provisions on any other occasion.
(f) SEVERABILITY. XXXXXX XXXX and the Company recognize that
the limitations contained in this Agreement are reasonably and properly
required for the adequate protection of the interests of the Company. If for
any reason a court of competent jurisdiction or an arbitrator in a binding
arbitration proceeding finds any provision of this Agreement, or the
application thereof, to be unenforceable, then the remaining provisions of
this Agreement will be interpreted so as best to reasonably effect the intent
of the parties. The parties further agree that the court or arbitrator shall
replace any such invalid or unenforceable provisions with valid and
enforceable provisions designed to achieve, to the extent possible, the
business purposes and intent of such unenforceable provisions.
(g) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and
the same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, bear the signatures of
both parties reflected hereon as signatories.
(h) DISPUTE RESOLUTION.
(i) ARBITRATION OF DISPUTES. Any dispute under this
Agreement shall be resolved by arbitration in Dallas, Texas and, except as
herein specifically stated, in accordance with the commercial arbitration
rules of the American Arbitration Association ("AAA Rules") then in effect,
except that depositions and documentary discovery shall be freely permitted.
However, in all events, these arbitration provisions shall govern over any
conflicting rules that may now or hereafter be contained in the AAA Rules.
Any judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction over the subject matter thereof. The arbitrator
shall have the authority to grant any equitable and legal remedies that would
be
available in any judicial proceeding instituted to resolve such dispute, and
may, in his or her discretion, award attorneys' fees, expenses and costs.
(ii) COMPENSATION OF ARBITRATOR. Any such arbitration
will be conducted before a single arbitrator who will be compensated for his
or her services at a rate to be determined by the parties or by the American
Arbitration Association, but based upon reasonable hourly or daily consulting
rates for the arbitrator if the parties are not able to agree upon his or her
rate of compensation.
(iii) SELECTION OF ARBITRATOR. The American Arbitration
Association will have the authority to select an arbitrator from a list of
arbitrators who are lawyers familiar with Texas contract law; provided,
however, that such lawyers cannot work for a firm then performing services
for either party, that each party will have the opportunity to make such
reasonable objection to any of the arbitrators listed as such party may wish
and that the American Arbitration Association will select the arbitrator from
the list of arbitrators as to whom neither party makes any such objection. If
the foregoing procedure is not followed, then each party will choose one
person from the list of arbitrators provided by the American Arbitration
Association (provided that such person does not have a conflict of interest),
and the two persons so selected will select from the list provided by the
American Arbitration Association the person who will act as the arbitrator.
(iv) PAYMENT OF COSTS. The Company and XXXXXX XXXX will
each pay 50% of the initial compensation to be paid to the arbitrator in any
such arbitration and 50% of the costs of transcripts and other normal and
regular expenses of the arbitration proceedings.
(v) BURDEN OF PROOF. For any dispute submitted to
arbitration, the burden of proof will be as it would be if the claim were
litigated in a Texas judicial proceeding.
(vi) AWARD. Upon the conclusion of any arbitration
proceedings hereunder, the arbitrator will render findings of fact and
conclusions of law and a written opinion setting forth the basis and reasons
for any decision reached and will deliver such documents to each party to
this Agreement along with a signed copy of the award.
(vii) TERMS OF ARBITRATION. The arbitrator chosen in
accordance with these provisions will not have the power to alter, amend or
otherwise affect the terms of these arbitration provisions or the provisions
of this Agreement.
(viii) NATURE OF REMEDY. Except as specifically otherwise
provided below, arbitration will be the sole and exclusive remedy of the
parties for any dispute arising out of this Agreement.
(ix) EQUITABLE REMEDY. Notwithstanding the provisions
of this Section 10(h) and the arbitration provided for herein, actions
initiated or maintained by the parties for injunctive or similar equitable
relief are not subject to arbitration, and may be brought by the parties in
any court that has jurisdiction, and, should the party bringing any such
action prevail,
all costs and expenses (including legal fees) shall be borne by the party
against whom such action was brought.
(i) CONSTRUCTION. This Agreement is a result of arms length
negotiation between the parties during which each has been represented by
counsel of its choice. Its terms shall not be construed for or against either
party.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first set forth above.
XXXXXXXX CORPORATION EMPLOYEE
By: /s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxx
----------------------------------- --------------------
Xxxxxx Xxxx XXXXXX XXXX
Senior Vice President
and Managing Director
