GABRIEL TECHNOLOGIES CORPORATION EMPLOYMENT AGREEMENT
Exhibit
10.1
XXXXXXX
TECHNOLOGIES CORPORATION
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is
made effective on the 1st day of
February,
2007 by and between Xxxxxxx Technologies LLC, a Delaware limited liability
company having its principal place of business in Omaha, Nebraska,
(“Xxxxxxx”) and the undersigned
(“Officer”).
WHEREAS,
Xxxxxxx intends to employ Officer as President, and Officer
intends to be so employed by Xxxxxxx, all subject to the terms and conditions
of
this Agreement;
WHEREAS,
Gabriel’s parent corporation, Xxxxxxx Technologies Corporation, a Delaware
corporation (“GTC”) is
currently discussing a merger transaction with Stonebridge Holdings, LLC
representing one of its clients (the “Stonebridge
Transaction”).
NOW
THEREFORE, in ‘consideration of the employment of Officer by Xxxxxxx and the
mutual covenants and agreements herein set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties agree as follows:
1. Position
and Duties. Xxxxxxx hereby employs Officer as
President. Officer shall report to the COO of GTC
and shall perform all of the duties incident to the position of
President as set forth in Gabriel’s Operating Agreement as
communicated to Officer from time to time and as otherwise directed by the
Board
of Directors of GTC (the “Board”) in
writing. Officer shall serve on such committees of Xxxxxxx and/or GTC
as directed by the Board. During the term hereof, except for periods
of absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Officer shall devote substantially all of his business
time,
attention, skill, and efforts to the performance of his duties
hereunder. Officer shall perform his duties to the best of his
ability and incompliance with the directions of the President, the Board
and
with state and federal law. Officer may, with the prior approval of
the Board, serve on the boards of directors of, and hold any other offices
or
positions in, companies or organizations, which, in the Board’s judgment, will
not present any conflict of interest with Xxxxxxx, or materially affect the
performance of Officer’s duties pursuant to this Agreement.
2. Term. The
term of the Agreement (the “Term”) shall
begin on February 1, 2007, and shall continue until January 31st, 2012 (the
“Anniversary Date”). Commencing on the
Anniversary Date and on each February 1st thereafter, the Term of this Agreement
shall automatically renew for 1 additional year unless Notice of Termination
is
given to Officer at least 60 days prior to such Anniversary Date or any such
February 1st as
the case may be, that the Term of this Agreement shall expire effective as
of
the next January 31st. The
Term of this Agreement may be-terminated at any time during the Term as
hereinafter provided.
3. Compensation
and Reimbursement.
3.1 Base
Salary. Compensation under this Agreement shall include
the salary and benefits described herein. Xxxxxxx agrees to pay Officer a
salary
of not less than $150,000 per year (“Base
Salary”). The Base Salary shall be payable in 26
equal bi-weekly installments each year, beginning on February 1,
2007. During the term of this Agreement, the Base Salary shall be
reviewed by the Board at least annually or at the request of
Officer.
3.2 Executive
Benefits. Xxxxxxx shall provide to Officer employee
benefit plans substantially equivalent to those offered to other executive
officers of GTC, as modified from time to time, including without limitation,
retirement plans, supplemental retirement plans, pension plans, 401k,
profit-sharing plans, health, disability and accident plans, life insurance,
and
any other employee benefit plan made available by GTC in the future to its
executive officers, subject to and on a basis consistent with the terms,
conditions and administration of such plans.
3.3 Travel
Expenses. Xxxxxxx shall payor reimburse Officer for all
reasonable travel and other reasonable expenses incurred by Officer in
performing his duties under this Agreement upon presentation of receipts
and
explanations according to Gabriel’s expense reimbursement policies in effect
from time to time.
3.4 Performance
Bonus. For purposes of this Section 3.4, each full 6
month period during the Term shall commence on each February 1 SI (beginning
with February 1, 2007)and August 1st (each,
a
“Bi-annual Period”). Xxxxxxx will
pay Officer a’ performance bonus equal to 3% of gross sales of Xxxxxxx if sales
during a Bi-annual Period during the Term exceed $500,000 (the
“Sales Floor”), subject to increase for
subsequent Bi-annual periods as hereafter provided. Such performance
bonus will be computed upon sales in excess of the Sales Floor for the
Biannual Period and will be deemed earned by Officer for each Bi-annual
Period ending during his continued employment hereunder. Any
performance bonus earned will be paid within 30 calendar days after the end
of
such Bi-annual Period, even if Officer’s employment terminates after the end of
such Bi-annual Period. The Sales Floor will remain in effect for at
least the first 2 Bi-annual Periods hereunder and may be increased by the
Board
for any subsequent 2 Bi-annual periods, but not above the actual sales during
the Bi-annual period immediately preceding such change. The Board
will meet with Officer within 30 days after the commencement of any Bi-annual
Period for which the Board intends to impose a new Sales Floor and must notify
Officer of any such change not later than 45 days after the commencement
of such
Bi-annual Period. If officer does not receive timely notice, the
Sales Floor remains the same as the prior period. In addition,
Officer will be entitled to compensation related to his direct impact on
sales
growth in circumstances where Officer has performed the functions of a sales
agent and no commission is payable to another employee or sales
agent. This additional compensation will be 5% of sales made by
Officer in the prior Bi-annual Period, paid within 30 calendar days after
the
end of such Bi-annual Period.
3.5 Stock
Shares and Options. Officer shall be entitled to participate in any
stock plan adopted by GTC to the extent determined by the Board. Officer
will be
entitled to receive a certificate for 250,000 shares of GTC common stock
(GWLK)
upon execution of this Agreement (the “Initial
Shares”) and Xxxxxxx will deliver a certificate
representing such Initial Shares to Officer within 5 days of contract being
executed. The certificate will bear restrictive legends reflecting
(i) that such Initial Shares are not registered and may only be sold in
compliance with Rule 144 or pursuant to some other exemption from registration
(a “Rule 144
Legend”) and
(ii) GTC’s
Repurchase Option as hereafter described. GTC will be entitled to repurchase
a
pro-rata
portion of such Initial Shares at a price equal
to $.01 per share (the “Repurchase
Option”) if Officer’s employment is terminated, for
cause, at any time during the first year of the Term. For example, one-half
of
such Initial Shares would be subject to repurchase by GTC if Officer’s
employment terminates, for cause, during the 7th month
of the first
year of the Term. GTC will notify Officer within 30 days of such
termination of employment, if it occurs, of its election to repurchase and
will
tender the repurchase price, as well as a stock certificate for any shares
not
so repurchased, bearing only a Rule 144 Legend, in return for the aforementioned
certificate. GTC will remove the legend regarding the Repurchase
Option within 10 days of Officer’s submitting the certificate to GTC (i) anytime
after February 1, 2008 or (ii) earlier if Officer’s employment is terminated
hereunder for any reason other than by Xxxxxxx for cause or if Officer’s
employment is terminated hereunder by Xxxxxxx for cause but GTC fails to
timely
notify Officer of its election to repurchase the Initial Shares. An
option for an additional 250,000 shares of GTC common stock will be granted
to
Officer once Xxxxxxx has achieved $2,000,000 in gross sales over a consecutive
12 month period (the “Incentive
Option”). Such Incentive Option will be fully vested
and exercisable upon grant at a price as provided in the stock plan in effect
at
the time of grant or, in the absence of such a plan, at fair market value
per
share as reasonably determined by the Board on the date of the grant
(“Incentive Option
Price”). Such Incentive Option instrument will
be delivered to Officer within 5 business days of the end of the 12 month
period
during which the $2,000,000 in gross sales were achieved. The term of
the Incentive Option will be as directed in the stock plan, or if not so
directed, for a term of 10 years (“Incentive Option
Term”). The certificate issuable on exercise
of the Incentive Option will bear restrictive legends as provided in the
plan,
including in any event a Rule 144 Legend. The Rule 144 Legend on the
Initial Shares or the Incentive Option will be removed promptly upon submission
of the certificate for removal accompanied by an opinion of counsel, reasonably
satisfactory to GTC securities counsel, to the effect that removal of such
legend is in compliance with law.
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3.6 Employee
Benefits. In addition to the Base Salary, Xxxxxxx shall
provide to Officer additional benefits during the Term such as a cell phone
and
related monthly expenses, lap top computer and a car allowance of $650.00
per
month, plus gas.
3.7 Personal
Time. Officer shall be entitled each year to a total of
15 days of vacation and personal time away from Xxxxxxx during which time
his
compensation will be paid in full; provided, however, no more than 2 weeks
may
be taken consecutively without the written .consent of the COO of
GTC. In addition, Officer shall be entitled to such paid holidays as
provided by Xxxxxxx for its full-time employees.
4. Payments
upon Termination.
4.1 Events
ReQuirinl! Severance Pay. Officer shall be entitled to
receive the Severance Pay provided in Section 4.2 upon the occurrence of
one or
more of the following events (a “Termination
Event”):
A. The
Term of this Agreement is terminated by Xxxxxxx other than for Cause;
or
B. Termination
of this Agreement occurs pursuant to Section 7.1 or 7.2; or
C. Officer
resigns from his employment hereunder by reason of any of the following actions
taken by the Board, unless such action is taken for Cause or otherwise agreed
to
or waived by Officer: (i) failure by the Board to elect or reelect or to
appoint
or reappoint Officer as President; (ii) material change in Officer’s function,
duties or responsibilities which would cause Officer’s position to become one of
lesser responsibility, importance or scope from the position thereof described
in Section 1; (iii) relocation by Xxxxxxx of Officer’s principal place of
employment to an area other than the Des Moines, Iowa or Omaha, Nebraska
metropolitan areas; (iv) liquidation or dissolution of Xxxxxxx other than
a
liquidation or dissolution that is caused by a reorganization that does not
affect the position of Officer described in Section 1; or (v) material breach
of
this Agreement by Xxxxxxx that is not remedied within 30 days after written
notice from Officer. For purposes of clarity, a Termination for Cause as
provided in Section 7.3 or a resignation of Officer except as provided in
Section 4.1.C shall not be’ a Termination Event entitling Officer to Severance
Pay hereunder.
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4.2 Payment
upon Termination. In the event of the occurrence of a
Termination Event as described in Section 4.1, then on the Termination Date,
as
defined in Section 7, Xxxxxxx shall be obligated to pay Officer, as severance
pay, in addition to any performance bonus or commissions earned pursuant
to the
provisions of Section 3.4 above through the Termination Date. For
purposes of clarity, the following Severance Pay provisions of Sections 4.2.A
and 4.2.B are in the alternative and are the Severance Pay payments referred
to
in Section 4.3 and are not in addition thereto.
A. If
the Termination Event occurs during the pendency of the Stone bridge Transaction
or on or before the date 30 days after the closing of the Stone bridge
Transaction (the “Stonebridge Period”), a sum
equal to $75,000, or if, at the date of such Termination Event Officer’s Base
Salary has been increased hereunder, one-half year’s salary at the then
effective Base Salary (the “Severance
Pay”). At the election of Xxxxxxx, which election is
to be made within 14 days of the Termination Date, Payment of the Severance
Pay
shall be made in a lump sum or paid in equal monthly installments during
a
period of up to 6 months following the Termination Date. In the event
that no election is made, such payment will be made in a lump sum within
14 days
of the Termination Date. If a Termination Event occurs under this
section and the Stonebridge Transaction does not close, Xxxxxxx and GTC agree
to
pay Officer the Severance Pay under this section 4.2(A) and the difference
between the Severance Pay paid (or payable, if it has not yet been paid)
to
Officer under this section 4.2.(A) and the Severance Pay under section 4.2.(B)
within 10 calendar days of the date that there is reasonable evidence that
the
Stonebridge Transaction is not viable.
B. If
the Termination Event occurs after the expiration of the Stonebridge Period
or
on a date that there is reasonable evidence that the Stonebridge Transaction
is
not viable, a sum equal to one year’s salary at the then effective Base Salary
together with an amount equal to the lesser of (A) $100,000 and (B) the amount
of any performance bonuses for the immediate past 2 Bi-annual Periods, as
provided in Section 3.4 (the “Severance
Pay”). At the election of Xxxxxxx, which
election’ is to be made within 14 days of the Termination Date, payment of the
Severance Pay shall be made in a lump sum or paid in equal monthly installments
during a period of up to one year following the Termination Date. In the
event
that no election is made, such payment will be made in a lump sum within
14 days
of the Termination Date.
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4.3 Change
in Control.
A. For
purposes of this Agreement, (i) a “Xxxxxxx Change in
Control” shall mean a Change of Control of Xxxxxxx
within the meaning of a transfer that causes the acquirer to own more than
50%
of the voting power, (ii) a “GTC Change in
Control” shall mean the sale of all or substantially
all of the assets of GTC or the merger, consolidation or other combination
of
Xxxxxxx with another entity whereby the shareholders of GTC immediately prior
to
the transaction own or control less than 50% of the voting power of the
resulting entity immediately after the transaction; provided that the closing
of
the Stonebridge Transaction shall not be a GTC Change in Control or a Xxxxxxx
Change in Control.
B. Upon
the closing of the Stonebridge Transaction, the Repurchase Option will
terminate and GTC will remove any restrictive legend describing the Repurchase
Option from the certificate representing the Initial Shares within 14 days
of
the operative event. In addition, Officer shall be entitled to the
Severance Pay provided in Section 4.2.A upon the termination of his employment
at any time during the Stonebridge Period if such termination results from:
(i)
the voluntary resignation by Officer, provided such resignation occurs for
reasons described in Section 4.1.C; (ii) dismissal, unless such termination
is a
termination for Cause; (iii) disability, or (iv) death. At the
election of Officer, which election is to be made within 30 days of the
Termination Date, payment of such Severance Pay may be made in a lump sum
within
30 days of the Termination Date or paid in 6 equal monthly installments.
In the
event that no election is made, payments to Officer will be made on a monthly
basis.
C. Upon
the occurrence of a GTC Change in Control or a Xxxxxxx Change in Control
during
the Term or a Xxxxxxx or GTC Change in Control that occurs within 6 months
after
a Termination Event and unless Officer is entitled to the benefits of Section
4.3.B above, (i) the Repurchase Option will terminate and GTC will remove
any
restrictive legend describing the Repurchase Option from the certificate
representing the Initial Shares, and (ii) the Incentive Option will be issued
by
GTC at the Incentive Option Price and for the Incentive Option Term, regardless
of whether $2,000,000 in gross sales were achieved during the preceding 12
months. Both of these actions will be completed within 14 days of the
operative event. In addition, and unless Section 4.3.B above applies,
Officer shall be entitled to the Severance Pay provided in Section 4.2.B
upon
the subsequent termination of his employment at any time during the Term
if such
termination results from: (i) the voluntary resignation by Officer, provided
such resignation occurs within 1 year of a Change in Control and is for reasons
described in Section 4.1.C; (ii) dismissal, unless such termination is a
termination for Cause; (iii) disability, or (iv) death. At the election of
Officer, which election is to be made within 30 days of the Termination Date,
payment of such Severance Pay may be made in a lump sum within 60 days of
the
Termination Date or paid in 12 equal monthly installments. In the event that
no
election is made, payment to Officer will be made on a monthly
basis.
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5. Retirement
or Disability Plans. Xxxxxxx currently does not offer
any retirement or disability plans. However, if such a plan is adopted, Officer
shall be entitled to participate therein.
5.1 Retirement. Upon
termination of this Agreement by reason of Officer’s Retirement, Officer shall
be entitled to all benefits under any retirement plan of Xxxxxxx to which
Officer is a party. For purposes of this Agreement,
“Retirement” shall mean termination in
accordance with any retirement arrangement proposed by Xxxxxxx and approved
by
Officer.
5.2 Disability. Upon
termination of this Agreement by reason of a Disability, Officer shall be
entitled to all benefits under any disability plan of Xxxxxxx to which Officer
is a party according to the terms of such plan.
6. Payments. Xxxxxxx
shall pay to Officer any benefits due Officer as described in Section 4 so
long
as he is living and to his personal representative, estate, heirs or designated
beneficiaries upon his death. Any payments made to Officer or others
pursuant to this Agreement are subject to and conditioned upon the compliance
of
such payments with any applicable federal and state laws and/or rules and
regulations.
7. Termination.
7.1 Termination
due to Death. The “Termination
Date” of this Agreement in the event of termination
due to the death of Officer shall be the date that Xxxxxxx receives notice
of
Officer’s death.
7.2 Termination
due to Disability. For the purposes hereof and
notwithstanding any contrary or conflicting definition in any policy of
disability insurance or disability plan of Xxxxxxx,
“Disability” shall mean Officer’s
inability to perform the essential functions of his job as defined under
this
Agreement, with or without reasonable accommodation, due to physical or mental
incapacity, for a period of 3 months in a consecutive 12 month
period. For the purposes of this Agreement, the determination of
whether Disability has occurred shall be made by the Board. The
“Termination Date” of this Agreement in
the event of termination due to the Disability of Officer shall be the date
that
Notice of Termination for Disability is given.
7.3 Termination
for Cause. This Agreement may be terminated at anytime
for Cause, subject to the requirements of Section 8.2. The
“Termination Date” of this Agreement in
the event of termination for Cause shall be the date that Notice of Termination
is given. For purposes of this Agreement, the term “Cause”
shall mean termination by Xxxxxxx for anyone or more of
the following
reasons:
A. Personal
dishonesty, moral turpitude, willful misconduct, material breach of fiduciary
duty whether or not involving personal profit;
B. Willful
violation of any law, rule or regulation the violation of which may have
a
material adverse effect upon Xxxxxxx;
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C. A
willful and material breach of any provision of this Agreement;
D. Willful
or material failure by Officer to perform the duties hereunder; or
E. Violation
of the policies set forth in any employee handbook then in effect, or as
otherwise adopted by Xxxxxxx, as long as communicated in writing to Officer,
including but not limited to violation of Gabriel’s harassment policies or other
similar misconduct.
For
purposes of this Section 7.3, no act or failure to act on the part of Officer
shall be considered “willful” if done, or omitted to be done, in good faith and
upon a reasonable belief that the act or omission was in the best interest
of
Xxxxxxx.
7.4 Any
Other Termination. The “Termination
Date” of this Agreement in the event of termination
for any reason other than as set forth in the preceding subsections of this
Section 7 shall be the date that Notice of Termination is given by Xxxxxxx
or
Officer.
8. Notice.
8.1 Addresses. Any
notice required to be given under this Agreement shall be in writing and
shall
be deemed given when personally delivered or on the day mailed by certified
mail, return receipt requested, postage prepaid, to the following addresses
or
such other addresses as may be given by notice to the other party pursuant
to
this Agreement:
A. If
to Xxxxxxx: Xxxxxxx
Technologies Corporation
0000
Xxxxx 000xx
Xxxxxx
Xxxxx,
XX. 00000
B. If
to
Officer: 0000
Xxxxx Xxx Xxxxx Xxxxx
Xxxx
Xxx Xxxxxx,
XX. 50266
8.2 Notice
of Termination. Any termination of this Agreement by
Xxxxxxx or by Officer shall be communicated by Notice of Termination to the
other party. A “Notice of
Termination” shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon
and
set forth in reasonable detail the facts and circumstances claimed to provide
a
basis for termination; provided that if Cause exists, the failure of Xxxxxxx
to
set forth such cause or to adequately describe the same shall not result
in such
termination by Xxxxxxx being other than for Cause.
9. Confidential
Information. Xxxxxxx is currently and may become in the
future affiliated with other enterprises with partial or common ownership
and
control by GTC and may function through partially or fully owned subsidiary
entities (each, a “Xxxxxxx Entity” and
collectively, the “Xxxxxxx Entities”). Officer recognizes and
acknowledges that Confidential Information is a valuable, special, unique
and
proprietary asset of the business of Xxxxxxx and the Xxxxxxx Entities, and
agrees as follows:
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9.1 Confidential
Information. “Confidential
Information” means any proprietary
information, owned or controlled by Xxxxxxx or any other Xxxxxxx Entity,
including without limitation, research, product plans, products, services,
suppliers, customers, customer lists, customer information, markets, software,
developments, inventions, marketing information, accounting or financial
information and projections, or other business information disclosed to Officer
by any Xxxxxxx Entity, either directly or indirectly, orally or in
writing. Confidential Information does not include any of the
foregoing items which (i) has become publicly known and made generally available
through no wrongful act of Officer; or (ii) has been rightfully received
by
Officer from a third party who is authorized to make such disclosure and
who
Officer knows is under no obligation to Xxxxxxx, any Xxxxxxx Entity or any
of
their respective customers with respect to the confidentiality of such
information.
9.2 Non-Use
and Non-Disclosure of Confidential Information. Officer
will not, during the Term of Officer’s employment by Xxxxxxx or any Xxxxxxx
Entity, or at any time thereafter, use any Confidential Information disclosed
to
Officer for Officer’s own use or for any purposes except to carry out the duties
of Officer as an employee of Xxxxxxx or any Xxxxxxx Entity. Officer
will not publish or disclose any Confidential Information to third parties
or to
employees of any Xxxxxxx Entity except such employees as are required to
have
the Confidential Information in order to carry out their duties as employees
of
a Xxxxxxx Entity. Officer agrees to take all reasonable measures to
protect the secrecy of, and avoid disclosure or use of, Confidential Information
in order to prevent it from falling into the public domain or the possession
of
persons other than those authorized to have Confidential
Information.
9.3 Return
of Materials. Any materials or documents that have been
furnished by Xxxxxxx, any other Xxxxxxx Entity or any of their respective
customers to Officer will be promptly returned to Xxxxxxx, accompanied by
all
copies of such documentation, upon termination of the employment of Officer
or
at any other time upon request by Xxxxxxx. No copies of any
Confidential Information may be made unless approved in writing by
Xxxxxxx.
10. Remedies.
10.1 Confidential
Information. Officer agrees that the
obligations of Officer provided in Section 9 are necessary and reasonable
in
order to protect Xxxxxxx and the Xxxxxxx Entities, and their respective
customers, and Officer expressly agrees that monetary damages may be inadequate
to compensate Xxxxxxx or any Xxxxxxx Entity for any breach by Officer of
the
covenants and agreements set forth herein. Accordingly, Officer
agrees and acknowledges that any such violation or threatened violation of
the
provisions of Section 9 may cause irreparable injury to Xxxxxxx or any Xxxxxxx
Entity and that, in addition to any other remedies that may be available
at law,
in equity or otherwise, Xxxxxxx or any Xxxxxxx Entity shall be entitled to
injunctive relief against the threatened breach of the provisions of Section
9
of this Agreement or the continuation of any such breach by Officer, without
the
necessity of proving actual damages provided that Xxxxxxx or any Xxxxxxx
Entity
can otherwise establish their right to such relief.
10.2 Waiver;
Election of Remedies. Failure to
enforce any provision of this Agreement shall not constitute a waiver of
any
term hereof. Nothing herein shall be construed as prohibiting
Xxxxxxx or any Xxxxxxx Entity from pursuing any other remedies available
to
Xxxxxxx or any Xxxxxxx Entity for such breach or threatened breach.
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10.3 Limitation
of Damages. Officer waives and releases, to the maximum
extent permitted by law, any special, incidental, indirect or consequential
damages of any kind in connection with this Agreement and agrees that the
payments provided for in Section 3.4,3.5 and 4, along with all benefit plans
and
programs, are Officer’s exclusive remedies for a Termination Event hereunder,
other than attorney’s fees, costs, and interest as awarded by an arbitrator or
court pursuant to Section 12.
10.4 Indemnity:
Director and Officer Insurance. Xxxxxxx will indemnify,
hold harmless and defend Officer for all actions done, or omitted to be done,
in
good faith and upon a reasonable belief that the act or omission was in the
best
interest of Xxxxxxx. Xxxxxxx will use its commercially reasonable
efforts to assure that Officer is covered under any “Errors or Omissions” or
“Officer and Director Liability” insurance policy covering officers and
directors of Xxxxxxx or GTC.
11. Governing
Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of
Nebraska. The federal and state courts within the state of Nebraska
shall have exclusive jurisdiction to adjudicate any dispute arising by reason
of
this Agreement or any disclosure of Confidential Information.
12. Arbitration:
Dispute Resolution.
12.1 Arbitration. Any
dispute, controversy or claim arising out of or in relation to or connection
to
this Agreement, including without limitation any dispute as to the construction,
validity, interpretation, enforceability or breach of this Agreement, including
a claim for indemnification under Section 10.4, shall be resolved either
as
provided by applicable law, or, at the option of either party, by impartial
binding arbitration. In the event that either Xxxxxxx or Officer
demands arbitration, Officer and the Xxxxxxx agree that such arbitration
shall
be the exclusive, final and binding forum for the ultimate resolution of
such
claims, subject to any rights of appeal that either party may have under
the
Federal Arbitration Act and/or under applicable state law dealing with the
review of arbitration decisions.
12.2 Arbitrator. Arbitration
shall be heard and determined by one arbitrator, who shall be impartial and
who
shall be selected by mutual agreement of the parties.
12.3 Demand
for Arbitration. In the event that Officer or Xxxxxxx
initially elects to file suit in any court, the other party will have 60
days
from the date that it is formally served with a summons and a copy of the
suit
to notify the party filing the suit of the non-filing party’s demand for
arbitration. In that case, the suit must be dismissed by consent of
the parties or by the court on motion, and arbitration commenced with the
arbitrator. In situations where suit has not been filed, either
Officer or Xxxxxxx may initiate arbitration by serving a written demand for
arbitration upon the other party. Such a demand must be served within
twelve months of the events giving rise to the dispute. Any claim
that is not timely made will be deemed waived.
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12.4 Proceedings. Unless
otherwise expressly agreed in writing by the parties to the arbitration
proceedings:
A. The
arbitration proceedings shall be held in Omaha, Xxxxxxx County, Nebraska
and at
a site chosen by mutual agreement of the parties or, if the parties cannot
reach
agreement on a location within 30 days of the appointment of the arbitrator,
then at a site chosen by the arbitrator;
B. The
arbitrator shall be and remain at all times wholly independent and
impartial;
C. Except
as otherwise provided herein, the arbitration proceedings shall be conducted
in
accordance with the Employment Arbitration Rules of the American Arbitration
Association, as amended from time to time;
D. Any
procedural issues not determined under the arbitral rules selected pursuant
hereto shall be determined by the law of the State of Nebraska, other than
those
laws which would refer the matter to another jurisdiction;
E. The
costs of the arbitration proceedings (including attorneys’ fees and costs) shall
be borne in the manner determined by the arbitrator;
F. The
arbitrator may grant any remedy or relief that would have been available
to the
parties had the matter been heard in court;
G. The
decision of the arbitrator shall be reduced to writing; final and binding
without the right of appeal; the sole and exclusive remedy regarding any
claims,
counterclaims, issues or accounting presented to the arbitrator; made and
promptly paid in United States dollars free of any deduction or offset; and
any
costs or fees incident to enforcing the award shall to the maximum extent
permitted by law, be charged against the party resisting such
enforcement;
H. The
award shall include interest from the date of any breach or violation of
this
Agreement, as determined by the arbitral award, and from the date of the
award
until paid in full, at 6% per annum; and
J. Judgment
upon the award may be entered in any court having jurisdiction over the person
or the assets of the party owing the judgment or application may be made
to such
court for a judicial acceptance of the award and an order of enforcement,
as the
case may be.
13. Entire
Agreement. This Agreement contains the entire
understanding between the parties with respect to the subject matter contained
herein and supersedes any previous understandings, commitments or agreements,
oral or written. This Agreement may not be amended or modified unless
such amendment or modification is in writing and signed by both
parties.
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14. Benefits. Officer
understands and agrees that this Agreement is executed not only for the benefit
of Xxxxxxx, but also for the benefit of all Xxxxxxx Entities and that this
Agreement may be enforced by any Xxxxxxx Entity affected by a violation or
breach of this Agreement. Xxxxxxx and GTC understand that this
Agreement is legally binding upon Xxxxxxx, GTC and its successors and assigns,
whether through merger, consolidation or some other combination. In
the event of the sale of all or substantially all of the assets of Xxxxxxx
or
GTC or a business combination which would not result in the obligations
hereunder becoming the obligations of the purchaser or surviving entity as
a
matter of law, then Xxxxxxx and/or GTC shall, as a part of such transaction,
require the successor to expressly assume and agree in writing to perform
this
Agreement in the same manner and to the same extent that Xxxxxxx and GTC
would
be required to perform it if no such succession had taken place. As used
in this
Agreement, “Xxxxxxx” and “GTC” as
hereinbefore defined shall include any successor to their business and/or
assets
as aforesaid which executes and delivers the agreement provided for in this
Section 14 or which otherwise becomes bound by all the terms and provisions
of
this Agreement by operation of law.
15. Severability. If,
for any reason, any provision of this Agreement, or any part of any provision,
is held invalid or unenforceable, such invalidity or unenforceability shall
not
affect any other provision of this Agreement or any part of such provision
not
held so invalid, and each such other provision and part thereof shall, to
the
extent consistent with law, continue in full force and effect.
16. Survival. The
provisions of Sections 3, 4, 9, 10, 11, 12, 14, 15 and 16 herein shall survive
and continue in full force and effect after the expiration or termination
of
this Agreement.
17. Counterparts;
Electronic Delivery. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but
all
of which together shall constitute one and the same instrument, notwithstanding
that both parties are not signatory to the same counterpart. A copy of an
executed counterpart signature page signed by a party to this Agreement may
be
delivered by facsimile or other electronic transmission and, upon such delivery,
a print out of the transmitted signature of such party will have the same
effect
as if a counterpart of the Agreement bearing an original signature of that
party
had been delivered to the other party.
*
* *
Signatures appear on next page * * *
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IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement
effective the day and year first above written.
| Xxxxxx X. Xxxxxx Xx. | Xxxxxxx Technologies LLC | |||
|
/s/
Xxxxxx
X.
Xxxxxx Xx.
|
By:
___________________________________
|
|||
|
Title: __________________________________
|
||||
|
“Officer”
|
“Xxxxxxx”
|
The
Undersigned, Xxxxxxx Technologies Corporation, being the owner of all of
the
issued and outstanding membership interests in Xxxxxxx, hereby agrees and
consents to the provisions of this Agreement and agrees to be a co-obligor
and
jointly and severally liable with Xxxxxxx for all obligations
hereunder.
| Xxxxxxx Technologies Corporation | ||||
|
By:
___________________________________
|
||||
|
Title: __________________________________
|
||||
|
“GTC”
|
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