EXHIBIT 10.9
EMPLOYMENT AGREEMENT DATED FEBRUARY 2, 1998
BETWEEN THE COMPANY AND
XXXXXX X. XXXXXXXX
EXHIBIT (10.9)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") entered into this 2nd day of
February, 1998, but effective as of December 1, 1997, between XXXX FURNITURE
CORPORATION, a Nevada corporation and its successor and assigns (hereinafter
referred to as "Employer"), and XXXXXX X. XXXXXXXX (hereinafter referred to as
"Xxxxxxxx").
WITNESSETH:
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WHEREAS, Xxxxxxxx has served as an employee of Employer for forty-one (41)
years:
WHEREAS, Xxxxxxxx and Employer entered into a written agreement, effective
as of December 1, 1993 as amended by a First Amendment dated August 28, 1995
(the "Prior Agreement");
WHEREAS, in recognition of Xxxxxxxx'x value to Employer and his past
services to Employer, and as an inducement to secure his future services and to
assure continuity of management, Employer wishes to continue to employ Xxxxxxxx
as its Chairman of the Board, President, and Chief Executive Officer until his
retirement and to provide Xxxxxxxx with certain benefits in connection with such
employment;
WHEREAS, Xxxxxxxx wishes to continue in the employ of Employer until his
retirement: and
WHEREAS, the parties, by this writing, have agreed to amend the Prior
Agreement, in full, in accordance with the terms and provisions contained
herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties hereby agree as follows:
1. Employment Conditions.
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(a) Employer hereby agrees to continue to employ Xxxxxxxx as its
Chairman of the Board, President and Chief Executive Officer, and Xxxxxxxx
hereby accepts such employment, upon the terms and conditions hereinafter
set forth.
(b) During the term of his employment, Xxxxxxxx shall devote his
best efforts and entire working time and attention to his employment and
shall perform such duties consistent with his positions as Chairman of the
Board, President
and Chief Executive Officer of Employer as are from time to time
assigned or delegated to him by Employer's Board of Directors and as
are set forth in Employer's By-Laws. Except for the normal travel
requirements of his position, Xxxxxxxx shall not be required to
perform his duties outside a twenty mile radius of Bethesda, Maryland.
Employer shall provide adequate and appropriate working facilities for
Xxxxxxxx, including any necessary secretarial and office personnel.
2. Term. The initial term of this Agreement shall be a period of
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Five years commencing on December 1, 1997. On each anniversary of this
Agreement, the term shall automatically be extended for an additional year
unless at least 90 days prior to such anniversary the Board of Directors of
Employer, by the affirmative vote of at least two-thirds of its membership,
elects not to extend the term and written notice of such action is delivered to
Xxxxxxxx. The initial term plus any extension period is sometimes hereinafter
referred to as the "Term". Xxxxxxxx'x employment is subject to termination as
provided in Paragraph 10 hereof.
3. Compensation. For all services to be rendered by Xxxxxxxx
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pursuant to this Agreement (other than as a Director), Xxxxxxxx shall receive
from Employer the following:
(a) during the Term, a base salary (exclusive of any bonus
payments, fringe benefits, or expense allowances or reimbursements) at
the annual rate of $791,850.00 (the "Base Salary"), at such payment
intervals as are the usual custom of Employer, but in not less than
equal monthly installments;
(b) during the Term, a cumulative annual increase in addition
to the Base Salary, to be paid in the same manner as the Base Salary,
which annual increase for any year during the Term shall be determined,
as of the anniversary date of this Agreement, in the manner set forth
in Paragraph 4 hereof; and
(c) such bonus, if any, as Xxxxxxxx may be awarded from time
to time by Employer's Board of Directors in recognition of any unusual
efforts made by Xxxxxxxx on behalf of Employer, the payment and amount
of any such bonus being in the sole discretion of Employer's Board of
Directors.
4. Cost of Living Expenses.
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(a) As promptly as practicable after November 30th of each year
during the Term, Employer shall compute the increase, if any, in the
cost of living, using as the basis of such computation the "Consumer
Price Index." Urban Wage Earners and Clerical Workers. Washington,
D.C.-Maryland-Virginia. All Items (1967 = 100) or any successor index
published by the Bureau of Labor Statistics of the United States
Department of Labor (hereinafter referred to as the "Index").
(b) The Index number entitled "All Items" for the month of
December 1997 shall be the "Base Index Number" and the corresponding
Index number for the month of December on each anniversary of this
Agreement thereafter shall be the "Current Index Number." The
percentage increase in the cost of living on each such anniversary of
this Agreement shall be determined by dividing the Current Index Number
(CIN) by the Base Index Number (BIN), and subtracting the integer I
from the quotient, all in accordance with the following formula:
Percentage of increase in cost of living .= (CIN) - I.(BIN)
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The percentage of increase in the cost of living multiplied by the Base
Salary for the previous year, as adjusted pursuant to Subparagraph 3(b)
hereof, shall be additional compensation payable to Xxxxxxxx for the
employment year commencing on December 1st in the particular year for
which the then Current Index Number is used in determining the
percentage increase in the cost of living.
(c) Appropriate adjustments shall be made promptly in the
event there is a published amendment of the Index figures upon which
the computation set forth in this Paragraph 4 is based.
(d) If the publication of the above-designated Index is
discontinued, the parties agree to accept comparable statistics on the
cost of living for the same geographic region, as computed and
published by an agency of the United States or by a responsible
financial periodical of recognized authority.
5. Deferral of Compensation Not Deductible by Employer. In the
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event that Xxxxxxxx'x aggregate compensation (including compensatory benefits
which are deemed remuneration for purposes of (S)162(m) of the Internal Revenue
Code of 1986, as amended) from Employer and its subsidiaries for any calendar
year exceeds the
greater of: (a) One Million Dollars ($1,000,000); or (b) the maximum amount of
compensation deductible by Employer in any calendar year under (S)162(m) of the
Internal Revenue Code of 1986, as amended (the "maximum allowable amount"), then
any such amount in excess of the maximum allowable amount shall be mandatorily
deferred with interest thereon at 8% per annum to a calendar year such that the
amount to be paid to Xxxxxxxx in such calendar year, including deferred amounts
and interest thereon, does not exceed the maximum allowable amount. Subject to
the foregoing, deferred amounts including interest thereon shall be payable at
the earliest time permissible. Notwithstanding the foregoing, upon any
termination of Xxxxxxxx'x employment for any reason whatsoever all deferred
amounts plus accrued interest thereon shall be paid to Xxxxxxxx (or his estate,
if he is not then living) not later than the January 3rd next following the date
of termination. If the date of such payment would take place more than sixty
days after the date of termination, then within five days after receipt by
Employer of a written election from Xxxxxxxx or his estate, Employer shall
transfer to the Trust established pursuant to the Trust Agreement for the Xxxx
Furniture Corporation Employment Agreement and SERP Waiver with Xxxxxx X.
Xxxxxxxx dated September 29, 1995 (the "Trust Agreement") cash in amount equal
to the then accumulated deferred amounts plus accrued interest thereon and the
Trustee of the Trust will invest the funds received as directed by Employer with
Employer being responsible for the earnings shortfall (below 8% per annum) and
realizing the benefit of excess earnings (above 8% per annum) from and after the
date of receipt of such funds by the Trustee of the Trust through the day next
preceding the January 3rd distribution date. Any earnings shortfall shall be
paid by Employer to the Trust on the day next preceding the January 3rd
distribution date. Any excess earnings shall be returned by the Trust to
Employer on the January 3rd distribution date. On each date that funds are
tendered by Employer to the Trust pursuant to the provisions of this Paragraph
5, Employer shall deliver to the Trustee of the Trust a Payment Schedule (as
defined in the Trust Agreement) consistent with the provisions hereof. Employer
agrees to cause the Trust Agreement to be amended at the earliest practicable
time to provide for substitution of this Agreement for the Prior Agreement and
for such other changes that are necessary or appropriate to implement the terms
and provisions of this Agreement as they apply to the Trust Agreement and the
Trust established thereby.
6. Vacation and Other Benefits. Xxxxxxxx shall be entitled to a
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reasonable paid vacation each year of his employment with Employer, as well as
to any other employment benefits given to Employer's officers or other
executives. The benefits to which Xxxxxxxx shall be entitled shall include, but
not be limited to, the following:
(a) Beginning December 1, 1997, and at the beginning of every second year
of the Term thereafter, Employer shall provide Xxxxxxxx a new luxury automobile,
comparable to the automobile last furnished to Xxxxxxxx by Employer, for use in
the performance by Xxxxxxxx of his responsibilities for Employer and his
promotion of Employer's business. Employer shall pay for, or reimburse Xxxxxxxx
for, the gasoline, maintenance, insurance, and any other expenses incurred in
the business use of any automobile furnished by Employer to Xxxxxxxx.
(b) Employer shall reimburse Xxxxxxxx for all reasonable expenses incurred
by Xxxxxxxx in the performance of his responsibilities for Employer and his
promotion of Employer's business. Xxxxxxxx shall submit to Employer periodic
statements of all expenses so incurred. Subject to such audits as Employer may
deem appropriate, Employer shall promptly reimburse Xxxxxxxx for the full amount
of any such expenses advanced by Xxxxxxxx in the ordinary course of his duties.
(c) Unless otherwise agreed to by the parties, Xxxxxxxx shall be entitled
to participate in "any employee benefit plan" (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended) maintained by
Employer.
(d) Upon the termination of Xxxxxxxx'x employment for any reason
whatsoever other than a Termination for Cause pursuant to Subparagraph 10(b)
hereof, Employer shall provide to Xxxxxxxx and his spouse for their respective
lifetimes, at the sole cost of Employer, health insurance and health coverage
reimbursement equivalent to whatever is in effect for the benefit of Xxxxxxxx
and his spouse immediately prior to the date of Xxxxxxxx'x employment
termination or a Change in Control (as hereinafter defined), whichever benefits
would be more beneficial to Xxxxxxxx and/or his spouse as determined by Xxxxxxxx
(or if he is not then living, by his spouse), including but not limited to,
major medical health plan benefits and supplemental executive medical plan
benefits ("Post-Separation Health Benefits"). The Post-Separation Health
Benefits shall be primary coverage and not secondary to medicare or medicaid
coverage or benefits.
The Post-Separation Health Benefits are vested rights and Xxxxxxxx'x spouse
shall be a third beneficiary thereof.
7. Disability Insurance. So long as Xxxxxxxx is employed by Employer, he
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shall be entitled to participate in Employer's group disability insurance
program. Xxxxxxxx shall pay the premiums for the coverage provided him under
such program. In the event of Xxxxxxxx'x total disability, as defined in
Subparagraph 10(a) hereof, such insurance shall provide Xxxxxxxx monthly
disability benefits of not less than $20,000.00 until the expiration of the Term
or the termination of Xxxxxxxx'x employment in connection or following a Change
in Control, whichever shall First occur.
8. Termination of Rights under SERP. The parties agree that any and all
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of Xxxxxxxx'x rights under the Amended and Restated Supplemental Executive
Retirement Plan entered into between Xxxxxxxx and Employer on April 2, 1990,
(the "SERP") have been terminated as of November 27, 1993, pursuant to the terms
of a Waiver Agreement dated December 1, 1993.
9. Noncompetition and Confidentiality Agreement.
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(a) Provided that Employer is not in material default to Xxxxxxxx on
any of its obligations under this Agreement, Xxxxxxxx agrees, during the period
of his employment with Employer and for a period of two (2) years after the date
of termination of Xxxxxxxx'x employment with Employer (but in the event of a
Change in Control only during the period after employment termination that
Xxxxxxxx is receiving liquidated damages pursuant to Section 10(f)(ii) below),
not to, directly or indirectly do any of the following:
(i) induce or attempt to influence any employee of Employer to
terminate his employment with Employer;
(ii) engage in (as principal, partner, director, officer, agent,
employee, consultant, or otherwise) or be financially interested in or
associated with any Competing Business, as defined below in this
Subparagraph 9(a); provided, however, that the foregoing restriction shall
not prohibit Xxxxxxxx from purchasing or holding stock or other securities
of any corporation, trust, or partnership (regardless of the business of
such entity) that shall have securities listed upon
any recognized securities exchange or traded on a recognized market in the
United States or Canada: or
(iii) at any time disclose to any one not legally entitled thereto
any information of a confidential nature relative to any facet of the
business of Employer, specifically including but not limited to customer
lists, furniture designs, and wood cutting patterns.
The term "Competing Business" means any business conducted in the continental
United States that is or subsequently becomes engaged in competition with the
principal business activity of Employer. The term "principal business activity"
means the trade in which Employer is substantially engaged (i.e.. to the extent
of more than fifty percent (50%) of its total sales) (a "Suspect Trade"),
reduced to the principal product lines (i.e., those product lines accounting for
more than twenty percent (20% of Employer's total sales) within such Suspect
Trade, as of the date of Xxxxxxxx'x termination of employment. Total sales shall
include the sales made by Employer and all of its subsidiaries, if any, as of
the November 30th nearest date of Xxxxxxxx'x termination of employment.
(b) Xxxxxxxx specifically acknowledges that Employer's remedy at
law for any breach by Xxxxxxxx of the restrictions contained in Subparagraph
9(a) hereof may not be adequate and that Employer shall be entitled to pursue
all remedies as set forth in Subparagraph 9(c) hereof.
(c) Xxxxxxxx acknowledges that, in view of the nature of the
business in which Employer is engaged, the restrictions contained in
Subparagraph 9(a) hereof are reasonable and necessary in order to protect the
legitimate interests of Employer and that any violation thereof could result in
irreparable and substantial harm to Employer for which Employer may not have an
adequate remedy at law, and Xxxxxxxx therefore acknowledges that, in the event
of his violation of any of these restrictions. Employer shall be entitled to
seek from any court of competent jurisdiction temporary, preliminary, and
permanent injunctive relief, as well as damages and an equitable accounting of
all earnings, profits, and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which Employer may be entitled.
(d) If the period of time or the area specified in Subparagraph 9(a)
hereof, or both, should be adjudged unreasonable in any proceeding, then the
period of time shall be reduced by such number of months or the area shall be
reduced by the elimination of such portion thereof, or both, so that such
restrictions may be enforced in such area and for such time as is adjudged to be
reasonable.
10. Termination, Severance, Liquidated Damages, etc.
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(a) The employment of Xxxxxxxx under this Agreement may be terminated
at any time prior to a Change in Control by action of Employer's Board of
Directors on thirty days' written notice in the event of Xxxxxxxx'x "total
disability" (which shall be defined in the manner provided under the group
disability insurance contract maintained by Employer), and Xxxxxxxx shall be
paid the relevant portion of his Base Salary, as adjusted pursuant to
Subparagraph 3(b) hereof, for any period subsequent to the date of termination
that precedes the date on which the First payment is due to him pursuant to the
disability insurance referred to in Paragraph 7 hereof. Further, if the amount
of the monthly disability insurance benefits payable to Xxxxxxxx pursuant to
Paragraph 7 herein is less than sixty percent (60%) of Xxxxxxxx'x monthly Base
Salary, as adjusted pursuant to Subparagraph 3(b) hereof, net of Federal income
taxes, in effect for the period immediately preceding his termination due to his
total disability. Employer shall pay to Xxxxxxxx an additional monthly amount
such that the payments to be received by Xxxxxxxx each month under Paragraph 7
and this Subparagraph 10(a) shall equal one-twelfth (1/12) of sixty percent
(60%) of such Base Salary, as adjusted pursuant to Subparagraph 3(b) hereof, net
of Federal income taxes, for the remainder of the Term. In addition, any
benefits provided to Xxxxxxxx under any employee benefit plan referred to in
Subparagraph 6(c) hereof shall immediately vest, and Xxxxxxxx and his spouse
shall be entitled to the Post-Separation Health Benefits.
(b) The employment of Xxxxxxxx under this Agreement may be terminated
at any time prior to a Change in Control by action of the affirmative vote of at
least two-thirds of Employer's Board of Directors based upon Xxxxxxxx'x fraud,
dishonesty or other deliberate injury to Employer in the performance of his
duties ("Termination for Cause" or "Terminated for Cause"). Notwithstanding the
foregoing, Xxxxxxxx shall not be deemed to have been Terminated for Cause unless
and until there shall have been delivered to him a copy of a resolution, duly
adopted by the
affirmative vote of not less than two-thirds of the entire membership of
Employer's Board of Directors at a meeting duly called and held for such purpose
(after reasonable notice to Xxxxxxxx and an opportunity for Xxxxxxxx, together
with his counsel, to be heard before Employer's Board of Directors), stating
that in the good faith opinion of Employer's Board of Directors, Xxxxxxxx has
engaged in conduct constituting cause as described in the preceding sentence and
specifying the particulars thereof in detail. In the event of a Termination for
Cause pursuant to this Subparagraph 10(b). Xxxxxxxx shall receive his Base
Salary, as adjusted pursuant to Subparagraph 3(b) hereof, and other benefits
under this Agreement through the date of termination.
(c) In the event of the death of Xxxxxxxx while employed but not in
connection with or following a Change in Control, his estate shall be entitled
to receive a single lump sum payment, within thirty days following the date of
his death, in an amount equal to his Base Salary as adjusted pursuant to
Subparagraph 3(b) hereof that Xxxxxxxx would have been entitled to receive had
he continued to be employed during the lesser of (x) 18 months after the date of
death or (y) the balance of the Term, plus his Base Salary, as adjusted pursuant
to Subparagraph 3(b) hereof, and other benefits under this Agreement through the
date of termination. In addition, any benefits provided to Xxxxxxxx under any
employee benefit plan referred to in Subparagraph 6(c) shall immediately vest
and his spouse shall be entitled to the Post Separation Health Benefits.
Notwithstanding the foregoing, in the event that Xxxxxxxx shall die while
employed but after Employer's Board of Directors approves a proposed transaction
(subject to shareholder approval) pursuant to which Employer will cease to be an
independent publicly-owned company or for a sale or other disposition of all or
substantially all of the assets of Employer, then his death shall be deemed to
have occurred in connection with a Change in Control if the proposed transaction
is completed within eight months after his death and his estate shall be
entitled to receive the benefits described in Subparagraph 10(f)(i) below at the
time of the consummation of such transaction instead of the benefits described
in this Subparagraph 10(c). If the proposed transaction is not consummated
within said eight month period, then the entitlement of his estate shall be
governed by this Subparagraph 10(c) as opposed to Subparagraph 10(f)(i) below.
(d) In the event of voluntary termination by Xxxxxxxx of this
employment with Employer without Good Reason (as hereinafter defined) prior to a
Change in Control, he shall be paid his Base Salary, as adjusted pursuant to
Subparagraph 3(b) hereof, and other benefits under this Agreement through the
date of termination. He and his spouse shall also be entitled to the Post-
Separation Health Benefits.
(e) In the event of the involuntary termination of Xxxxxxxx'x
employment (but specifically excluding termination pursuant to Subparagraph
10(a), (b) or (c) hereof) or Xxxxxxxx terminates his employment for Good Reason,
in either case not in connection with or following a Change in Control, then
Xxxxxxxx, or if he is not then living his estate, shall be entitled to receive
from Employer the full amount of compensation which he would have otherwise been
paid under Subparagraphs 3(a) and 3(b) for remainder of the Term in installments
consistent with prior practice. In addition, any benefits provided to Xxxxxxxx
under any employee benefit plan referred to in Subparagraph 6(c) shall
immediately vest, and he and his spouse shall be entitled to the Post-Separation
Health Benefits. The term "Good Reason" means the occurrence, without Xxxxxxxx'x
express written consent, of a diminution of or interference with his duties,
responsibilities or benefits, including (without limitation) any of the
following circumstances:
(i) a requirement that Xxxxxxxx be based at any location not within
twenty miles of Bethesda, Maryland, or that he substantially increase his
travel on Employer business;
(ii) the failure to elect Xxxxxxxx as the Chairman of the Board,
President and Chief Executive of Employer, and in the case of a Change in
Control described in Subparagraph 10(g)(iii) hereof, the failure to elect
Xxxxxxxx to the same positions at the ultimate parent company of the
Employer.
(iii) a reduction in the number or seniority of personnel reporting
to Xxxxxxxx or a material reduction in the frequency with which, or in the
nature of the matters with respect to which such personnel are to report to
Xxxxxxxx, other than as part of an Employer-wide reduction in staff:
(iv) a reduction in Xxxxxxxx'x Base Salary, as adjusted pursuant to
Subparagraph 3(b) hereof, or an adverse change in Xxxxxxxx'x perquisites,
benefits, contingent benefits or vacation, other than as part of an overall
program
applied uniformly and with equitable effect to all members of the senior
management of Employer and the senior management of any ultimate parent
company following a Change in Control described in Subparagraph 10(g)(iii)
hereof, or
(v) a material increase in the required hours of work or the
workload of Xxxxxxxx; Xxxxxxxx'x continued employment shall not constitute
consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason herein.
(f) In the event of the termination of Xxxxxxxx'x employment for any
reason whatsoever in connection with or following a Change in Control he shall
be entitled to the following:
(i) his Base Salary, as adjusted pursuant to Subparagraph 3(b)
hereof and other benefits under this Agreement through the date of
termination; any benefits provided to Xxxxxxxx under any employee benefit
plan referred to in Subparagraph 6(c) hereof shall immediately vest; he and
his spouse shall be entitled to the Post-Separation Health Benefits; and on
the date of termination an amount equal to 299% of Xxxxxxxx'x "base amount"
as determined under 280G of the Internal Revenue Code of 1986, as amended,
payable by Employer in a single cash lump sum; and
(ii) if such termination is an involuntary termination (excluding
death or total disability of Xxxxxxxx) or a termination by Xxxxxxxx for
Good Reason and Xxxxxxxx offers to continue to provide services as
contemplated by this Agreement (with Employer and its ultimate parent
company, if applicable, curing all grounds for termination by Xxxxxxxx for
Good Reason) and such offer is declined, then, subject to provisions of
Subparagraph 10(f)(iii) immediately below, Employer shall, during the
lesser period of the date of termination through the remaining Term or two
years following the date of termination, as liquidated damages, pay to
Xxxxxxxx monthly 1/12 of his Base Salary, as adjusted pursuant to
Subparagraph 3(b) hereof plus 1/12 of the average annual amount of cash
bonus and cash incentive compensation of Xxxxxxxx based on the average
amounts of such bonus and incentive compensation earned by Xxxxxxxx for the
two full Fiscal years preceding the Change in Control; provided
(iii) if Xxxxxxxx becomes entitled to liquidated damages pursuant to
Subparagraph 10(f)(ii) above, Employer's obligation thereunder with respect
to cash damages shall be reduced by the amount of Xxxxxxxx'x income, if
any, earned from providing personal services other than to Employer or its
corporate affiliates during the period of the lesser of the date of
termination through the remaining Term or two years following the date of
termination.
(g) For purposes of this Agreement, each of the events specified in the
following clauses (i) through (iii) of this Subparagraph 10(g) shall be deemed a
"Change in Control":
(i) any third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, becomes the beneficial
owner of shares of Employer with respect to which twenty-five percent (25%)
or more of the total number of votes for the election of the Board of
Directors of Employer is eligible to be cast;
(ii) as a result of, or in connection with, any cash tender offer,
merger, or other business combination, sale of assets, or contested
election, or combination of the foregoing, the persons who were Directors
of Employer immediately prior to such event cease to constitute a majority
of the Board of Directors of Employer; or
(iii) the shareholders of Employer approve an agreement providing
either for a transaction in which Employer will cease to be an independent
publicly-owned company or for a sale or other disposition of all or
substantially all of the assets of Employer.
(h) In the event of the termination of Xxxxxxxx'x employment for any
reason whatsoever, Employer shall make payments to the Trust under the Trust
Agreement in strict compliance with the provisions of Paragraph 5 hereof.
Moreover, in the event of the termination of Xxxxxxxx'x employment pursuant to
Subparagraph 10(c), (e) or (f) hereof.
Employer shall within 14 days after such termination of employment transfer to
the Trust under the Trust Agreement sufficient cash to fully fund Employer's
obligations under this Agreement which have not theretofore been paid to
Xxxxxxxx, his spouse or estate.
11. Severability. The provisions of this Agreement are severable and if
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any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provisions to the extent enforceable in any jurisdiction shall
nevertheless be binding and enforceable.
12. Binding Agreement. The rights and obligations of Employer under this
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Agreement shall inure to the benefit of, and shall be binding upon, Employer and
its successors and assigns and the rights and obligations of Xxxxxxxx under this
Agreement shall inure to the benefit of, and shall be binding upon, Xxxxxxxx and
his heirs and estate.
13. Arbitration. Any dispute or controversy arising under or in connection
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with this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitrator or arbitrators shall be deemed to
possess the powers to issue mandatory orders and restraining orders in
connection with such arbitration; provided, however, that nothing in this
Paragraph 13 shall be construed so as to (a) deny Employer the right and power
to seek and obtain injunctive relief in a court of equity for any breach or
threatened breach by Xxxxxxxx of any of his covenants contained in Subparagraph
9(a) hereof or (b) deny Xxxxxxxx the right to seek specific performance of
Employer's obligations under this Agreement during the pendancy of any dispute
or controversy. Any arbitration to be undertaken pursuant to this Paragraph 13
shall take place in Fairfax, Virginia.
14. Reimbursement of Expenses. In the event any dispute or controversy
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shall arise between Xxxxxxxx, his spouse or estate and Employer as to the terms
or interpretation of this Agreement, including but not limited to, any action
taken by Xxxxxxxx, his spouse or estate under Paragraph 13 or this Paragraph 14
or in defending against any action taken by Employer, Employer shall reimburse
Xxxxxxxx, his spouse or estate for all costs and expenses incurred by any of
them, including actual attorney's fees, as and when such costs and expenses are
incurred, in an amount not to exceed $75,000. Reimbursement of expenses shall be
paid within ten days of Xxxxxxxx, his spouse or estate furnishing to Employer
written evidence, which may be in the form, among other things, of a canceled
check or receipt, of any costs or expenses incurred by any of them.
15. Notices. Any notice to be given under this Agreement shall be
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personally delivered in writing, or shall be deemed to have been duly given when
received, after it is posted in the United States mails, postage prepaid,
registered or certified, return receipt requested. If mailed to Employer, it
shall be addressed to Employer at its principal place of business, Attention:
Secretary, and if mailed to Xxxxxxxx, it shall be addressed to him at his home
address last known on the records of Employer, or at such other address or
addresses as either Employer or Xxxxxxxx may hereafter designate in writing to
the other.
16. Survival. The obligations of Employer under this Agreement to
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Xxxxxxxx, his spouse and estate shall survive any termination of Xxxxxxxx'x
employment and the expiration of the Term hereof.
17. Waiver. The failure of either party to enforce any provision or
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provisions of this Agreement shall not in any way be construed as a waiver of
such provision or provisions as to any future violations thereof nor prevent
that party thereafter from enforcing each and every other provision of this
Agreement. The rights granted the parties herein are cumulative and the waiver
of any single remedy shall not constitute a waiver of such party's right to
assert any other legal remedies available to it or him under the circumstances.
18. Miscellaneous. This Agreement supersedes all prior agreements and
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understandings between the parties with respect to the subject matter hereof and
may not be modified or terminated orally. No modification, termination, or
attempted waiver of this Agreement shall be valid unless made in writing and
signed by the party against whom the same is sought to be enforced. This
Agreement may be executed in multiple counterparts, each of which shall be an
original and all of which, when taken together, shall constitute one and the
same document. This Agreement shall be governed by and construed according to
the laws of the Commonwealth of Virginia.
19. Captions and Paragraph Headings. Captions and paragraph headings used
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herein are for convenience only, are not a part of this Agreement, and shall not
be used in construing it.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year First set forth above.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
XXXX FURNITURE CORPORATION
a Nevada Corporation
ATTEST:
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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SECRETARY
