EXHIBIT 10.1
EXECUTION COPY
CHARTWELL INTERNATIONAL, INC.
EMPLOYMENT AGREEMENT
For
XXXX BIBERKRAUT
This Employment Agreement (this "Agreement"), is dated and effective as of
December 5, 2005 (the "Effective Date"), by and between Chartwell International,
Inc. (the "Company" or "Chartwell"), a Nevada corporation, and Xxxx Biberkraut,
an individual with an address at 00 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000-0000 (the "Executive").
WHEREAS, the Company and Executive desire to provide for the employment of
Executive by the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Company and Executive hereby agree as follows:
1. Employment.
1.1 Position and Start Date. The Company hereby employs the Executive, and
the Executive hereby accepts employment, as the Chief Financial and
Administrative Officer of the Company, on the terms and conditions hereinafter
set forth. Executive shall commence employment with the Company no later than
January 16, 2006.
1.2 Duties. The Executive shall serve as the Company's Chief Financial and
Administrative Officer, and shall also serve as the Chief Financial Officer of
E-Rail Logistics, Inc., Chartwell's wholly owned subsidiary, and shall perform
the customary duties and responsibilities of such positions including, without
limitation, being responsible for the general management of the finance and
accounting affairs of the Company as more fully described on Exhibit A attached
hereto. In such capacities the Executive shall report directly to the Board of
Directors of Chartwell (the "Board") and the Chairman of the Board, and to the
President of E-Rail Logistics, Inc. with respect to daily operations at E-Rail
Logistics, Inc. These positions, duties, and responsibilities can be modified as
reasonably required to suit the specific requirements and needs of the Company,
provided that the same shall be commensurate with the Executive's experience and
expertise, and shall not result in the Executive having duties and
responsibilities substantially less senior and more onerous to the Executive
than those set forth on Exhibit A attached hereto, as may be amended from time
to time by the Company. Similarly, the Board may render Executive's services
hereunder on a full-time basis to a subsidiary of the Company, in which case
such subsidiary shall be jointly and severally responsible as, and shall be
treated as, the Company under this Agreement for the period of time the
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Executive performs services for such subsidiary, provided that the obligations
of Section 3 and 5 shall not be duplicated in each instance.
1.3 Time and Effort. During the Term, the Executive shall, except for
vacation periods and personal time as provided for herein, death and reasonable
periods of illness or disability, devote substantially all of the Executive's
working time, attention, abilities, skill, labor and efforts to the performance
of the Executive's obligations hereunder. The Executive shall not, during the
Term of this Agreement (as herein defined), engage in any other business
activity or conduct, whether or not such business activity or conduct is pursued
for gain, profit or other pecuniary advantage, which activity or conduct
adversely affects in any material respect the Executive's ability to perform his
obligations hereunder, except with the prior written consent of the Board.
Notwithstanding the foregoing, the parties recognize and agree that Executive
may engage in personal investments and other business, civic or charitable
activities that do not conflict with the business and affairs of the Company or
interfere in any material respect with Executive's performance of his duties
hereunder. The Executive will at all times perform all of the duties and
obligations required of the Executive by the terms of this Agreement in a loyal
and conscientious manner and to the best of the Executive's ability and
experience. Executive agrees to comply in all material respects with (i) the
written policies and directives of the Company, and (ii) with all applicable
laws and regulations of the countries in which the Company and its Affiliates
(as defined in Section 6.2 below) operate, all as in effect from time to time.
1.4 Office Location. Executive's services hereunder shall be performed at
the Company's offices to be located within 50 miles from Syosset, New York (the
"New York Metropolitan Area"), except for reasonable travel on behalf of the
Company consistent with the requirements of his duties and positions. If the
place of performance is to be moved outside the New York Metropolitan Area, then
the Company will give appropriate notice to Executive and assist with relocation
expenses, consistent with its policies in place from time to time. Executive
will undertake appropriate business travel as reasonably required by the
Company. Notwithstanding the foregoing, Executive may work remotely from
California during the first year of employment, provided that the majority of
time shall be at the Company's office.
2. Term. The term (the "Term") of this Agreement shall commence on the
Effective Date and shall terminate two (2) years thereafter on the close of
business on January 16, 2008 (the "Termination Date"), unless earlier terminated
in accordance with the provisions of Section 6 hereof.
3. Compensation.
3.1 Base Salary. The Company agrees to pay the Executive, and Executive
agrees to accept, a base cash salary (the "Base Salary"), in accordance with the
Company's normal payroll procedures applicable to executives, payable at least
monthly. The Base Salary shall initially be payable at the rate of $180,000 per
annum and shall increase, at the discretion of the board, from zero to 15% of
the base salary in effect from
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time to time on an annual basis. Notwithstanding the foregoing, the Board is
under no obligation to increase Base Salary annually. All compensation payments
to be made to the Executive will be subject to required withholding of federal,
state and local income and employment taxes.
3.2. Annual Review. During the month preceding each anniversary of the
Effective Date, or at such other time as the Company may establish in its
discretion, the Board will review the Executive's compensation and the Company's
financial circumstances and needs and determine in good faith if any increase is
merited based upon Executive's performance and the total cash compensation paid
by comparable companies to executives with comparable experience and
responsibilities. The Company shall not be required to increase the Executive's
Base Salary, but may do so at its discretion. Any such increase in Base Salary
agreed to pursuant to the preceding sentence will become effective as of the
upcoming anniversary of the Effective Date and the Base Salary will in no event
be reduced.
3.3 Bonus Plan. Initially, Executive shall be paid a signing bonus of
$10,000 on January 16, 2006, and $10,000 on July 15, 2006. The Executive will
also be entitled to participate and receive payments under a cash management
incentive bonus plan limited to senior executives of the Company to be
established by the Board within six (6) months after the Effective Date.
Payments under such plan shall be subject to achievement of certain specified
personal and corporate objective standards, such as the Company's and its
subsidiaries' consolidated revenues, free cash flow, and net income, with
maximum bonuses payable in a fiscal year limited to 50% of the aggregate base
compensation payable to the Executive.
3.4 Compensation from Other Sources. Any proceeds that Executive receives
by virtue of qualifying for disability insurance, disability benefits, or health
or accident insurance shall belong exclusively to Executive.
3.5 Source of Payments. All payments under this Agreement shall be paid
for by and from the accounts of the Company. In the event of breach of this
Agreement for failure to compensate the Executive as provided herein or as
required by law, the Executive's sole remedy shall be against the Company, and
no other Affiliates (as defined in Section 6.2 hereof) of the Company. The
Executive shall have no right, title or interest pursuant to this Agreement in
and to any investments undertaken by the Company to meet its financial
obligations.
3.6 Equity Incentive Plan. Chartwell will create an equity incentive
compensation plan (the "Plan") within six (6) months of the Effective Date. Key
elements of the Plan may include: (i) having the most favorable tax structure as
determined by the Chartwell's Board of Directors with assistance from the
Company's accountants and legal counsel; (ii) capital stock issuable under the
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Plan shall not exceed twenty percent (20%) of the issued and outstanding shares
of the Chartwell's common stock on a fully diluted and as-converted basis; (iii)
capital stock issuable under the Plan shall be restricted and subject to vesting
in accordance with standard industry practice. Executive will be granted 25,000
shares of restricted stock upon signing this Agreement which shall vest one-half
on January 16, 2006, and one-half on July 15, 2006, and shall also be awarded
150,000 options to acquire shares upon shareholder and Board approval of the
Equity Incentive Plan, currently scheduled for February 8, 2006. The options
will vest in two equal amounts, one-half on January 16, 2007, and one-half on
January 16, 2008, and exercisable for a period of three years following vesting.
The exercise for such options shall be the closing market price for the
Company's common stock on the date of grant.
4. Expenses. The Company will pay or reimburse Executive for all
necessary out-of-pocket transportation, hotel, and other expenses reasonably
incurred by Executive on business trips outside the New York Metropolitan Area,
and for all other reasonable out-of-pocket expenses actually incurred by
Executive in the conduct of the business of the Company upon submission of such
itemized vouchers, receipts or other documentation with respect to any such
expenses as shall be reasonably requested by the Company, and, in any event, in
accordance with the guidelines of the Company, if any, published from time to
time; provided, however, any expenses in excess of $2,000 shall require written
pre-approval of the Company's Acting President, who in the interim is Xxxx
Xxxxxxx, until the Company hires a permanent Chief Executive Officer.
Notwithstanding the foregoing, the Company shall during the first year of
Executive's employment assist with relocation by paying one-half of Employee's
air fare to allow Executive to commute from California to the New York office,
provided such Company reimbursed travel shall not exceed $6,000. Company shall
further pay Executive's housing expense for 21 days at the rate of $130 per day
while executive secures permanent housing.
5. Benefits. During the Term, the Company shall provide the Executive and
his eligible dependents: spouse and children under the age of 21, living with
the Executive, at the Company's expense, with all benefits currently in place or
to be established by the Company, or in the absence of such plan, any existing
benefits Executive currently receives through COBRA, and until such time as the
Company has established plans for health, dental, vision and other benefits as
the Board may deem appropriate. Executive shall be entitled to (i) four weeks of
paid vacation in each calendar year, and (ii) paid days off for illness,
religious observance and personal reasons (which shall, in any event, be at
least six days), all in accordance with the Company's policy in effect from time
to time. The timing of such vacation and personal days shall be scheduled in a
reasonable manner by Executive such that under no circumstances shall the
majority of senior executives of the Company schedule vacation at the same time.
At the end of each calendar year, all unused and accrued vacation and personal
time shall be paid in cash; provided, however, that Executive will be entitled
to roll-over until the next calendar year a maximum of 10 days of unused
vacation time. In addition to the foregoing, Executive shall be entitled to
reimbursement for professional education and dues up to $3,000 per year.
Further, the Company shall pay during the Term the annual premium for
Executive's long term disability coverage in the amount of $1,800 per year,
provided the Company does not offer other long term disability coverage.
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6. Termination.
6.1 Termination Events. The Term shall terminate on the earliest to occur
of the following:
(i) the expiration of the Term;
(ii) the death of the Executive;
(iii) upon thirty days' written notice from the Company in the event
of the Executive's Disability (as used herein, "Disability" means (A) the
physical or mental disability which prevents the Executive from performing his
obligations under this Agreement in substantially the same manner as performed
immediately before the applicable event for a period of six consecutive months
or an aggregate of 180 days during any period of 365 consecutive days) or (B) a
written determination by a licensed medical doctor selected by the Company and
reasonably acceptable to the Executive that the Executive has incurred a
physical or mental disability from which he will not be able to recover
sufficiently to return to full-time active employment hereunder within 365 days
of the determination (a "Permanent Disability"). The Executive shall cooperate
with and permit examination by any licensed medical doctor retained by the
Company and reasonably acceptable to Executive to evaluate whether he has
suffered a Permanent Disability (but in no event shall Executive be required to
submit to any invasive or painful procedures);
(iv) upon written notice from the Company to Executive that
Executive's employment is being terminated for Cause, as herein defined, the
giving of which notice shall be authorized by vote of the Board. As used herein,
"Cause" shall be limited to the Executive's: (A) embezzlement or willful
misappropriation of funds of the Company, (B) willful misconduct that causes
material harm to the Company or any of its Affiliates; (C) conviction or
commission of, or plea of nolo contendere by, Executive of any felony,
misdemeanor or other illegal conduct involving an act of moral turpitude or
otherwise relating directly or indirectly to the business or reputation of the
Company; (D) habitual drug or other substance abuse that interferes in any
material respects with the performance of Executive's duties under this
Agreement; (E) debarment by any federal agency that would limit or prohibit
Executive from serving in his prescribed capacity for the Company under this
Agreement; (F) continuing failure to communicate and fully disclose any and all
information related to the business, operations, management and accounting of
the Company and/or its Affiliates to the Board, the failure of which would
adversely impact the Company or may result in a violation of state or federal
securities laws; (G) [omitted]; (H) continuing willful and intentional failure
to perform his duties as stated herein or as reasonably requested by the Board
of Directors of the Company; or (I) dishonesty towards, fraud upon, or
deliberate injury or attempted injury to the Company or any of its Affiliates;
or
(v) upon written notice from the Executive to the Company that the
Executive is terminating his employment for Good Reason, as herein defined,
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provided that the Executive may not terminate his employment pursuant to this
clause unless he has given the Company written notice of the grounds
constituting Good Reason in reasonable detail and the Company persists for 90
days thereafter in the conduct giving rise to such right of termination for Good
Reason. As used herein, "Good Reason" means (A) if the Company, without
Executive's prior written consent thereto which may be given or withheld in
Executive's sole and absolute discretion, significantly reduces Executive's
compensation or benefits as provided in this Agreement (15% being deemed
significant for this purpose only), (B) Executive's employment shall be
involuntarily terminated for any reason other than for Cause within 6 months
after the occurrence of a Change in Control, as herein defined, (C) any material
breach by the Company of this Agreement or (D) if the Company files any petition
for voluntary bankruptcy or if such case be commenced against the Company, and
it remains undischarged, undismissed or unbonded for a period of 180 days;
provided, however, this Subsection (v) is subject to the terms of Subsection
(iv) which shall take precedence for the purposes of any termination payments in
accordance with Section 6.3 hereof.
6.2 Changes in Control. For all purposes hereof, "Change in Control" shall
mean the occurrence during the Term of this Agreement, of any one of the
following events:
(i) An acquisition of any shares of Common Stock of the Company or
other securities entitled to vote, or convertible into or exercisable for
securities entitled to vote, in the election of directors (such Common Stock and
other securities hereinafter being referred to as the "Voting Securities") of
the Company by any Person (as specified in Section 3(a)(9) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and used in Sections
13(d) and 14(d) thereof), including for purposes of this Section the Company or
its Affiliates, immediately after which such Person has Beneficial Ownership (as
defined below) of fifty one percent (51%) or more of the combined voting power
of the Company's then outstanding Voting Securities; provided, however, a Change
in Control shall not be deemed to have occurred by reason of an acquisition of
fifty percent (50%) or more of the Company's Voting Securities by an employee
benefit plan maintained by the Company or any of its Affiliates; or
(ii) The consummation of:
(A) A merger, consolidation or reorganization with or into the
Company or in which securities of the Company are issued (a
"Merger");
(B) A liquidation or dissolution of the Company; or
(C) The sale or other disposition of all or substantially all of
the assets of the Company to any Person (other than a transfer to
an employee benefit plan or Affiliate of the Company).
"Affiliate" shall mean any individual, corporation, partnership,
firm, joint venture, limited liability company, association,
joint-stock company, trust, unincorporated organization or
governmental entity directly or indirectly
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controlling, controlled by or under common control with the
Company, including all officers and directors of the Company.
6.3 Termination Payments.
(a) Except as otherwise set forth herein, upon termination for any
reason specified in 6.1 (i) through (v) above, the Company's obligations to
Executive shall terminate, subject to prompt payment within 30 days of all
monies due hereunder up to the date of termination including unpaid Base
Salary and reimbursement of expenses as well as continuation of any
applicable benefits prescribed under the applicable plans and payment of
the proceeds of any applicable disability or other insurance policy
relating to Executive; provided, however, that the Company shall pay an
amount equal to the Executive's Base Salary, pro rated per pay periods,
then in effect for a period of three months as severance in the event of
termination pursuant to 6.1 (iv) only. In the event this Agreement is
terminated pursuant to subsections 6.1 (v) above, the Company shall also
pay the Executive (or his estate in the event of his death), within such 30
day period, an amount equal to the Executive's Base Salary, pro rated per
pay periods, then in effect for a period of six months unless Executive has
materially breached any provision of this Agreement.
(b) In addition, the Company shall pay, continue or maintain benefits
vested in Executive on the termination date through the end of the month in
which the termination date occurs, but shall continue hospitalization,
disability, medical, dental, vision, and health insurance coverage for
Executive and his immediate family for a period of 1 month following the
end of the month that includes the termination date, at the Company's sole
cost and expense (notwithstanding that such period would otherwise extend
beyond the Term of this Agreement).
(c) In the event that the payments pursuant to this Section 6 above,
when considered in conjunction with any other payments payable hereunder
after the termination date (collectively, "Post-Termination Payments")
constitute "an excess parachute payment" within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended from time to time (the
"Code"), then the Company shall pay to Executive, in addition to the
payments required by this Section 6 above, an additional amount (the
"Additional Amount") which, after reduction for income taxes and excise
taxes on the Additional Amount, is sufficient to provide for the payment of
any excise tax imposed by Section 4999 of the Code, or applicable successor
thereto ("Section 4999") that may be due by Executive on the
Post-Termination Payments. With respect to any payment that is made to
Executive under the terms of this Agreement in the year of his termination
of employment and on which an excise tax under Section 4999 will be
assessed, the payment determined under this Subsection shall be made to
Executive not later than thirty (30) days following the termination date.
With respect to any payment made under the terms of this Agreement in any
other year and on which an excise tax under Section 4999 will be assessed,
the payment under this Subsection shall be made to Executive not later than
December 31st of the year in which the payment on which such excise tax
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will be assessed is made to Executive or, if earlier, prior to the date on
which such tax is required to be remitted to the Internal Revenue Service.
(d) Notwithstanding anything contained herein or at law to the
contrary, the amount payable to Executive pursuant to this Section 6.3
shall not be reduced or otherwise affected by any sums earned or that could
be earned by Executive pursuant to any employment arrangement or other
business activity in which the Executive may or could possibly participate
after the termination date. The Company and Executive agree that amounts
payable to Executive under this Section 6.3 are reasonable liquidated
damages with respect to wrongful or early termination of this Agreement,
and shall be absolutely and unconditionally payable to Executive as
provided herein without proof of actual damages and without regard to
Executive's efforts to mitigate damages.
(e) Upon termination of this Agreement, the provisions of Sections
3.5, 7, 8, 9, 10, 12 and 13.10 shall survive the termination of this
Agreement for a period of five (5) years.
7. Confidential Information of Company. Executive acknowledges that
Executive has been exposed to the Company's confidential and proprietary
information prior to the Effective date and during the performance of his duties
hereunder Executive will be handling financial, accounting, statistical,
marketing and personnel information of customers of the Company ("Confidential
Information"). All such Confidential Information is confidential and shall not
be disclosed, directly or indirectly, or used by Executive in any way, either
during the Term of this Agreement or for five years thereafter except as
required in the course of Executive's employment with the Company and/or its
Affiliates. Confidential information will not include information which: (a) is
now, or hereafter becomes, through no act or failure to act on the part of
Executive, public information; (b) was acquired by Executive before receiving
such information from the Company and without restriction as to use or
disclosure; (c) is hereafter rightfully furnished to the Executive by a third
party, without restriction as to use or disclosure; (d) is required to be
disclosed pursuant to law including, without limitation, to any governmental
authority or in response to a subpoena, provided the Executive uses reasonable
efforts to give the Company reasonable advance notice of such required
disclosure; or (e) is disclosed with the prior written consent of the Company.
8. Unfair Competition; Non-Solicitation.
8.1 Unfair Competition. During the Term of this Agreement, Executive shall
not, directly or indirectly, whether as a partner, employee, director, creditor,
stockholder, or otherwise, promote, participate, or engage in any activity or
other business which is competitive with the Company's business. The obligation
of Executive not to compete with Company shall not prohibit Executive from
owning or purchasing any securities that are regularly traded on a recognized
stock exchange or on the over-the-counter market subject to relevant federal and
state securities laws. In order to protect the trade secrets of Company, after
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the expiration of the Term, or upon earlier due termination of this Agreement in
accordance with its terms, and provided that the Company has and continues to
comply with all of its payment obligations hereunder, Executive shall not,
directly or indirectly, either as an employee, employer, consultants, agent,
principal, partner, stockholder, corporate officer, director, or any other
individual or representative capacity, engage or participate in any business
that is directly engaged in a Competing Business for a period of one (1) years
from the date of such termination or the expiration of this Agreement, whichever
first occurs ("Non-Compete Period"); provided, however, in the event this
Agreement is terminated for Good Reason as provided by Section 6.1(v), such
Non-Compete Period shall be six (6) months from the date of such termination.
For the purposes of this Section, "Competing Business" shall mean an individual,
business, corporation, association, firm, undertaking, partnership, joint
venture, organization or other entity that operates non-hazardous solid waste
landfills, short-line railroads, non-hazardous solid waste collection, waste
transportation services (except trucking), trans-loading and/or intermodel
businesses or similar facilities or businesses within a 500-mile radius of any
of the off-loading, trans-loading and landfills or similar facilities of the
Company, or any Affiliate thereof. Should any portion of this Section be deemed
unenforceable because of the scope, duration or territory encompassed by the
undertakings of the Executive hereunder, and only in such event, then the
Executive and the Company consent and agree to such limitation on scope,
duration or territory as may be finally adjudicated as enforceable by a court of
competent jurisdiction after the exhaustion of all appeals.
8.2 Non-Solicitation of Customers. While employed by the Company, and for
a period of one (1) years thereafter, Executive agrees not to divert or attempt
to divert (by solicitation or other means), whether directly, or indirectly, the
Company's or its Affiliate's customers existing at the time his employment
terminates; provided, however, that the foregoing shall in no way restrict
Executive's obligations of confidentiality as stated herein.
8.3 Non-Solicitation of Employees. During the term of Executive's
employment with the Company, and for a period of one (1) years thereafter,
Executive shall not directly or indirectly solicit or encourage, or cause others
to solicit or encourage, any employees of Company or its Affiliates to terminate
their employment with the Company. However, this obligation will not affect any
responsibility Executive may have as an employee of the Company with respect to
the bona fide hiring and firing of the Company's personnel.
8.4 Non-Disparagement. Upon termination of Executive's employment with the
Company, Executive agrees to not make any disparaging remarks about the Company,
or its Affiliates, or any officers, directors, employees, consultants or
independent contractors of or to any of the foregoing.
9. Trade Secrets. Executive shall not disclose to any others, or take or
use for Executive's own purposes or purposes of any others, during the term of
this Agreement or at any time thereafter, any of Company's trade secrets,
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including without limitation, Confidential Information, customer lists, computer
programs or computer software of Company. Executive agrees that these
restrictions shall also apply to (i) trade secrets belonging to third parties in
Company's possession and (ii) trade secrets conceived, originated, discovered or
developed by Executive during the Term of this Agreement relating to the affairs
of the Company. Information of Company shall not be considered a trade secret
and its disclosure or use by Executive will be permitted if it falls within any
of the provisions of Section 7 above, or incident to the performance of
Executive's duties.
10. Inventions; Ownership Rights. Executive agrees that all ideas,
techniques, inventions, systems, formulas, designs, discoveries, technical
information, programs, prototypes and similar developments ("Inventions")
developed, created, discovered, made, written or obtained by Executive in the
course of or as a result of performance of his duties hereunder, and all related
industrial property, copyrights, patent rights, trade secrets and other forms of
protection thereof, shall be and remain the sole property of the Company and its
assigns. Executive shall promptly disclose to Company, or any persons designated
by it, all Inventions, made or conceived or reduced to practice or learned by
Executive, either alone or jointly with others, during the Term which are
related to or useful in the business of the Company, or result from tasks
assigned to Executive by the Company, or result from use of premises owned,
leased or contracted by the Company. Such disclosure shall continue for one year
after termination of employment with respect to anything that would be an
Invention if made, conceived, reduced to practice or learned prior to
termination of employment. Executive agrees to execute or cause to be executed
such assignments and applications, registrations and other documents and to take
such other action as may be reasonably requested by the Company to enable the
Company to protect its rights to any such Inventions. If the Company requires
Executive's assistance in executing or causing to be executed such assignments
and applications, registrations and other documents under this Section (all of
which shall be prepared at the expense of the Company) after termination of this
Agreement, Executive shall do so at mutually convenient times and places and be
compensated for his time actually spent in providing such assistance at a
reasonable hourly rate as agreed upon by the parties. and be reimbursed for any
necessary expenses, including reasonable attorney's fees, reasonably incurred in
doing so. In the event that the Company is unable for any reason whatsoever to
secure Executive's signature to any lawful and necessary document required to
apply for or execute any such documents with respect to Inventions (including
renewals, extension, continuations, divisions or continuations in part thereof),
Executive hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents, as Executive's agents and attorneys-in-fact to
act for and in his behalf and instead of him, to execute and file any such
application and document and to do all other lawfully permitted acts with
respect thereto with the same legal force and effect as if executed by
Executive. As a matter of record Executive has identified beneath his signature
hereto a complete list of all inventions or improvements relevant to the subject
matter of his employment by the Company which have been made or conceived or
first reduced to practice by him alone or jointly with others prior to his
employment by the Company ("Prior Inventions") which Executive desires to remove
from the operation of this Agreement; and Executive covenants that such list is
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complete. Executive agrees and acknowledges that in further consideration of his
employment under this Agreement, in the absence of such list of Prior
Inventions, all Prior Inventions shall be the sole and exclusive property of the
Company and Executive agrees to execute or cause to be executed such assignments
and applications, registrations and other documents and to take such other
action as may be reasonably requested by the Company to enable the Company to
protect its rights to any such Prior Inventions.
11. Indemnification. [omitted]
12. Liability Insurance. The Company shall maintain liability insurance
coverage covering Executive, in his capacity as an officer of the Company and
any other capacity in which Executive serves at the request of the Company, in
amounts customary for similarly situated companies and with insurers reasonably
acceptable to Executive, against liabilities arising as a result thereof;
provided, however, that such insurance need not provide coverage in respect of
claims asserted by stockholders of the Company for breaches of duty by the
Executive in such aforesaid capacities. All policies for such coverage shall
provide for insurance on an "occurrence" (versus "claims made") basis. The
obligations of this Section shall survive for a period of one (1) year following
Executive's termination of employment with the Company.
13. Miscellaneous.
13.1 Assignment. It is hereby agreed that Executive's rights and
obligations under this Agreement are personal and may not be delegated or
assigned. No assignment by the Company shall be effective unless the assignee
expressly agrees in writing to become bound by the terms and conditions hereof;
provided, however, Company may assign this Agreement to its subsidiaries.
13.2 Binding Effect. The obligations of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, the parties hereto,
their legal representatives, administrators, executors, heirs, legatees,
distributees, successors and permitted assigns, and upon transferees by
operation of law, whether or not any such person or entity shall have signed
this Agreement.
13.3 Notices. Any notice permitted, required or given hereunder shall be
in writing and shall be delivered (i) personally, (ii) by any prepaid overnight
courier delivery service then in general use, (iii) mailed, by registered or
certified mail, return receipt requested, or (iv) transmitted by fax and then
confirmed within three business days by any other method set forth above, to the
addresses designated on the first page hereof or at such other address as may be
designated by notice duly given hereunder. A notice provided in the manner
required herein shall be deemed given : (i) if delivered personally, upon
delivery; (ii) if sent by overnight courier, on the first business day after it
is sent; (iii) if mailed, three business days after mailing; and (iv) if sent by
fax, upon actual receipt of the fax or confirmation thereof (whichever is
first).
13.4 Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver, file, record and publish such certificates, instruments,
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agreements and other documents, and to take all such further action as may be
required by law or which either party deems reasonably necessary or useful in
furtherance of the purposes and objectives and intentions underlying this
Agreement and not inconsistent with its terms.
13.5 Entire Agreement. This Agreement incorporates the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior agreements and understandings of the parties, whether written or oral,
with respect to its subject matter.
13.6 Amendments; Waiver. Except as expressly provided herein, neither this
Agreement nor any provision hereof may be terminated, modified or amended unless
in writing signed by both parties hereto. No waiver by any party, whether
express or implied, of any provision of this Agreement, or of any breach or
default, shall constitute a waiver of a breach of any similar or dissimilar
provision or condition or shall be effective unless in writing signed by the
party against whom enforcement is sought.
13.7 Severability; Captions. If any provision of this Agreement or the
application thereof to any person or circumstances shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other parties or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law. The
headings in this Agreement are inserted for convenience and identification only.
13.8 Actions Contrary to Law. Nothing contained in this Agreement shall be
construed to require the commission of any act contrary to law, and whenever
there is any conflict between any provision of this Agreement and any statute,
law, ordinance, or regulation, contrary to which the parties have no legal right
to contract, then the latter shall prevail; but in such event, the provisions of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements.
13.9 Attorneys' Fees. If the services of an attorney are required by any
party to secure the performance hereof or otherwise upon the breach or default
of another party to this Agreement, or if any judicial remedy or arbitration is
necessary to enforce or interpret any provision of this Agreement or the rights
and duties of any person in relation thereto, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and other expenses, in addition to
any other relief to which such party may be entitled.
13.10 Governing Law; Arbitration. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Nevada without
giving effect to its principles of conflicts of law. Any dispute or controversy
between the Company and Executive, arising out of or relating to this Agreement,
the breach of this Agreement, or otherwise, shall be settled by binding
arbitration in Charleston, West Virginia administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules then
in effect. The parties irrevocably agree to submit to the jurisdiction of the
federal and state courts within the County of Kanawha, West Virginia for any
injunctive relief and in connection with any suit arising out of the
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confirmation or enforcement of any award rendered by the arbitrator, and waive
any defense based on forum non convenes or improper venue with respect thereto.
No remedy conferred in this Agreement upon the Executive or the Company is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy conferred
herein or now or hereafter existing at law or in equity or by statute or
otherwise.
13.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and together shall
constitute a single document.
13.12 Tax Advice. The Executive acknowledges that the Executive has not
relied and will not rely upon the Company or the Company's counsel with respect
to any tax consequences related to the terms and conditions of this Agreement.
The Executive assumes full responsibility for all such consequences and for the
preparation and filing of all tax returns and elections which may or must be
filed in connection with this Agreement.
13.13 Representation. The parties to this Agreement, and each of them,
acknowledge, agree, and represent that it: (a) has directly participated in the
negotiation and preparation of this Agreement; (b) has read the Agreement and
has had the opportunity to discuss it with counsel of its own choosing; (c) it
is fully aware of the contents and legal effect of this Agreement; (d) has
authority to enter into and sign the Agreement; and (e) enters into and signs
the same by its own free will.
13.14 Drafting. The parties to this Agreement acknowledge that each of them
have participated in the drafting and negotiation of this Agreement. For
purposes of interpreting this Agreement, each provision, paragraph, sentence and
word herein shall be deemed to have been jointly drafted by both parties. The
parties intend for this Agreement to be construed and interpreted neutrally in
accordance with the plain meaning of the language contained herein, and not
presumptively construed against any actual or purported drafter of any specific
language contained herein.
[Signatures on following page.]
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IN WITNESSETH WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Chartwell International, Inc.
By:
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman of Board of Directors
-------------------------------------
Xxxx Biberkraut
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