EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into
as of December 4, 2000 by and between AMRESCO, INC., a Delaware
corporation (the "Company"), and Xxxxxxxx X. Xxxxx (the
"Executive").
R E C I T A L S
The Company wishes to assure itself of the continued
services of the Executive for the period provided herein and the
Executive wishes to continue in the employ of the Company, on the
terms and conditions hereinafter provided.
A G R E E M E N T
Based on the recitals set forth above and the mutual
promises contained herein, the parties agree as follows:
ARTICLE 1
Employment
1.1 Employment. The Company hereby employs the Executive and
the Executive hereby accepts employment by the Company for the
period and upon the terms and conditions contained herein. The
Executive hereby represents and warrants to the Company that the
execution hereof by the Executive and the Executive's performance
of his duties hereunder will not conflict with, cause a default
under, or give any party a right to damages under any other
agreement to which the Executive is a party or is bound.
1.2 Office and Duties.
(a) Position. The Executive shall serve as the Chairman of the
Board and Chief Executive Officer of the Company. The Executive
shall enjoy and exercise the powers, duties and responsibilities
normally associated with the previously described positions in
accordance with customary industry practices. The Executive may
also serve in such other capacities and with such other
responsibilities and upon such additional terms and conditions as
may be mutually agreed upon from time to time by the Executive
and the Company.
(b) Commitment. Throughout the Term (as hereinafter defined),
the Executive shall devote substantially all of the Executive's
professional time, energy, skill and efforts to the performance
of the Executive's duties hereunder in a manner that will
faithfully and diligently further the business and interests of
the Company and its subsidiaries (the "Subsidiaries").
1.3 Term. The Term (herein so called) hereof shall commence on
the date hereof and shall end at the close of business on
December 4, 2003, unless earlier terminated in accordance with
the terms hereof.
1.4 Compensation.
(a) Base Salary. The Company shall pay the Executive as
compensation, in accordance with the Company's ordinary payroll
and withholding practices, an aggregate salary ("Base Salary") of
Three Hundred Thousand Dollars ($300,000.00) per year during the
Term, or such greater amount as shall be approved by the
Company's Board of Directors (the "Board").
(b) Discretionary Bonus. During the Term, the Executive shall
be eligible to receive an annual bonus in an amount determined in
the discretion of the Board.
(c) Payment and Reimbursement of Expenses. During the Term, the
Company shall pay or reimburse the Executive for all reasonable
travel and other expenses incurred by the Executive in performing
the Executive's obligations hereunder in accordance with the
policies and procedures of the Company for its officers, provided
that the Executive properly accounts therefor in accordance with
the regular policies of the Company.
(d) Fringe Benefits and Perquisites. During the Term, the
Executive shall be entitled to participate in or receive benefits
under any plan or arrangement generally made available by the
Company to its officers and employees, including, but not limited
to, stock option plans and bonus plans, subject to and on a basis
consistent with the terms, conditions and overall administration
of such plans and arrangements.
(e) Vacations. During the Term and in accordance with the
regular policies of the Company, the Executive shall be entitled
to the number of paid vacation days in each calendar year
determined by the Company from time to time for its officers
generally. Unused vacation days shall be forfeited or otherwise
disposed of pursuant to the Company's policy as in effect from
time to time.
1.5 Termination.
(a) By the Company.
(i) Nonperformance due to Disability. The Company may terminate
this Agreement for Nonperformance due to Disability.
"Nonperformance due to Disability" shall exist if because of ill
health, physical or mental disability, or any other reason beyond
the Executive's control, and notwithstanding reasonable
accommodations made by the Company, the Executive shall have been
unable, unwilling or shall have failed to perform the essential
functions of the Executive's job, as determined in good faith by
the Board, for a period of one hundred eighty (180) days in any
three hundred sixty five (365)-day period, irrespective of
whether or not such days are consecutive.
(ii) Cause. The Company may terminate the Executive's employment
for Cause. Termination for "Cause" shall mean termination
because of the Executive's:
(A) indictment for a felony involving moral turpitude or
relating to the Company's or any of the Subsidiaries' assets,
activities, operations or employees;
(B) commission of a material act of fraud, illegality, theft or
dishonesty in the course of the Executive's employment with the
Company and relating to the Company's or any of the Subsidiaries'
assets, activities, operations or employees;
(C) violation of, or failure to comply with, any material
written policy of the Company that is delivered to the Executive;
or
(D) serious or substantial neglect of duty or willful gross
misconduct;
provide, however, that the foregoing clauses (C) and
(D) shall not constitute Cause unless (x) the Company
first notifies the Executive in writing of the
violation or failure to comply, serious or substantial
neglect of conduct or willful gross misconduct
specifying in reasonable detail the basis therefor and
stating that it constitutes grounds for termination for
Cause and (y) the Executive then fails to cease the
actions or inactions that constitute the violation or
failure to comply or the serious or substantial neglect
of conduct or willful gross misconduct within ten (10)
business days after such notice is sent or given
hereunder; provided further, that clause (C) or (D) may
constitute Cause without compliance by the Company with
items (x) and (y) above if the violation or failure to
comply, serious or substantial neglect of conduct or
causes, or is reasonably likely to cause, material harm
to the Company, any of the Subsidiaries or any of the
assets, activities, operations or employees of the
Company, or any of the Subsidiaries.
(iii) Without Cause. The Company may terminate the
Executive's employment Without Cause, subject to the provisions
of subsection 1.6(c) (Termination by the Company Without Cause or
by the Executive for Company Breach). Termination "Without
Cause" shall mean termination of the Executive's employment by
the Company other than termination for Cause.
(b) By the Executive.
(i) Company Breach. The Executive may terminate the Executive's
employment hereunder for Company Breach. For purposes hereof
"Company Breach" shall mean any material breach of Section 1.4
(Compensation) by the Company provided, however, that a material
breach by the Company shall not constitute Company Breach unless
(i) the Executive notifies the Company in writing of the breach,
specifying in reasonable detail the nature of the breach and
stating that such breach constitutes grounds for Company Breach
and (ii) the Company fails to cure such breach within ten (10)
days after such notice is sent or given hereunder.
(ii) Good Reason. The Executive may terminate his employment for
Good Reason. For purposes hereof, Good Reason shall mean:
A. Without his express written consent, the assignment to the
Executive of any duties inconsistent with his positions, duties,
responsibilities and status with the Company, or a change in his
reporting responsibilities, titles or offices, or any removal of
the Executive from, or any failure to re-elect the Executive to,
any of such positions, except in connection with the termination
of his employment for Cause, death, Retirement, Disability or by
the Executive other than for Good Reason;
B. A reduction by the Company in the Executive's base salary as
the same may be increased from time to time;
C. A reduction by the Company in the bonus payable to the
Executive in any year below a percentage of the Executive's then
base salary equal to the average percentage of the Executive's
base salary represented by the bonuses received by the Executive
for the three (3) years immediately preceding the year in which a
termination of employment occurs as percentages of his base
salaries in each of such three (3) years. By way of example, but
not in limitation of the provisions of this paragraph C, assume a
termination of employment occurs in 2001, and the Executive
received bonuses for each of 1998, 1999, and 2000 as follows:
30% of his base salary for 1998; 50% of his base salary for 1999;
and 50% of his base salary for 2000. If the Executive receives a
bonus for 2001 which is less than 43.33% of his 2001 base salary,
the Executive shall have "Good Reason" for terminating his
employment under this Section 1.5;
D. The Company's requiring the Executive to be based anywhere
other than either (i) the Company's offices at which the
Executive is based or the Company's offices which are no more
than fifty (50) miles from the offices at which the Executive is
based, except for required travel on the Company's business to an
extent substantially consistent with his business travel
obligations as of the date hereof, or (ii) in the event the
Executive consents to any relocation beyond such fifty (50)-mile
radius, the failure by the Company to pay (or reimburse the
Executive) for all reasonable moving expenses incurred by him
relating to a change of his principal residence in connection
with such relocation and to indemnify the Executive against any
loss (defined as the difference between the actual sale price of
such residence and the higher of (x) his aggregate investment in
such residence or (y) the fair market value of such residence as
determined by a real estate appraiser designated by the Executive
and reasonably satisfactory to the Company) realized on the sale
of the Executive's principal residence in connection with any
such change of residence;
E. The failure by the Company to continue in effect any benefit
or compensation plan (including, but not limited to, any stock
option plan, pension plan, life insurance plan, health and
accident plan or disability plan) in which the Executive is
participating as of the date hereof (or plans providing
substantially similar benefits), the taking of any action by the
Company which would adversely affect the Executive's
participation in or materially reduce his benefits under any of
such plans or deprive him of any material fringe benefit enjoyed
by him, or the failure by the Company to provide the Executive
with the number of paid vacation days to which he is then
entitled on the basis of years of service with the Company in
accordance with the Company's normal vacation policy as of the
date hereof then in effect;
F. Any failure of the Company to obtain the assumption of, or
the agreement to perform, this Agreement by any successor as
contemplated in Section 1.8;
G. Any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 1.5(c); and for purposes
hereof, no such purported termination shall be effective; or
H. Any termination of employment by the Executive for any
reason (other than Retirement) during the thirty (30) day period
beginning on the first anniversary date on which a Change of
Control occurs. For purposes hereof, a "Change of Control" shall
mean any one of the following: (i) Continuing Directors (The
term "Continuing Director" means any individual who is a member
of the Board on the date hereof or was nominated for election as
a director by, or whose nomination as a director was approved by,
the Board with the affirmative vote of a majority of the
Continuing Directors.) no longer constitute a majority of the
Board; (ii) any person or group of persons (as defined in Rule
13d05 under the Securities Exchange Act of 1934, as amended {Rule
130d}), together with his or its affiliates, becomes the
beneficial owner, directly or indirectly, of 25% or more of the
Company's then outstanding securities entitled generally to vote
for the election of the Company's directors; (iii) the merger or
consolidation of the Company with any other entity if the Company
is not the surviving entity and any person or group of persons
(as defined in Rule 13d-5), together with his or its affiliates,
is the beneficial owner, directly or indirectly, of 25% or more
of the surviving entity's then outstanding securities entitled
generally to vote for the election of the surviving entity's
directors; or (iv) the sale of all or substantially all of the
assets of the Company or the liquidation or dissolution of the
Company.
(iii) Without Good Reason. During the Term, the Executive
may terminate the Executive's employment Without Good Reason.
Termination "Without Good Reason" shall mean termination of the
Executive's employment by the Executive other than termination
for Company Breach or for Good Reason.
(c) Explanation of Termination of Employment. Any party
terminating this Agreement shall give prompt written notice
("Notice of Termination") to the other party hereto advising such
other party of the termination hereof. Within thirty (30) days
after notification that the Agreement has been terminated, the
terminating party shall deliver to the other party hereto a
written explanation, which shall state in reasonable detail the
basis for such termination and shall indicate whether termination
is being made for Cause, Without Cause or for Nonperformance due
to Disability (if the Company has terminated the Agreement) or
for Company Breach, Good Reason or Without Good Reason (if the
Executive has terminated the Agreement).
(d) Date of Termination. "Date of Termination" shall mean the
date on which Notice of Termination is sent or given hereunder or
the date of the Executive's death.
1.6 Compensation Upon Termination.
(a) Termination by the Company for Nonperformance due to
Disability. If the Company terminates the Executive's employment
for Nonperformance due to Disability, then the Company's
obligation to pay salary and benefits pursuant to Section 1.4
(Compensation) shall terminate, except that the Company shall pay
the Executive and, if applicable, the Executive's heirs (i)
accrued but unpaid salary and benefits pursuant to Sections
1.4(a) (Base Salary), 1.4(b) (Discretionary Bonus) and 1.4(c)
(Payment and Reimbursement of Expenses) through the Date of
Termination and (ii) the benefits set forth in Section 1.6(d)
(Severance Benefits).
(b) Termination by the Company for Cause or by the Executive
Without Good Reason. If the Company terminates the Executive's
employment for Cause or if the Executive terminates the
Executive's employment Without Good Reason, then the Company's
obligation to pay salary and benefits pursuant to Section 1.4
(Compensation) shall terminate except that the Company shall (i)
pay the Executive's accrued but unpaid salary and benefits
pursuant to Sections 1.4(a) (Base Salary) and 1.4(c) (Payment and
Reimbursement of Expenses) through the Date of Termination and
(ii) pay the Executive and, if applicable the Executive's heirs,
the benefits set forth in Section 1.6(d) (Severance Benefits).
(c) Termination by the Company Without Cause or by the Executive
for Company Breach or for Good Reason.
(i) Prior to Change of Control. If the Company terminates the
Executive's employment Without Cause or if the Executive
terminates his employment for Company Breach or for Good Reason
prior to a Change of Control, then (i) for the thirty six (36)
full months following such termination (or, if the Term would
have expired in less than thirty six (36) months, then for such
shorter period), the Company shall continue to pay the Executive
and, if applicable, the Executive's heirs, pursuant to Sections
1.4(a) (Base Salary) and 1.4(b) (Discretionary Bonus) (provided
that the annual bonus (if any) payable to the Executive pursuant
to Section 1.4(b) (Discretionary Bonus) after such termination
shall be the average annual bonus received by the Executive for
the three (3) years prior to such termination) and (ii) the
Executive and, if applicable, the Executive's heirs, shall
receive the benefits set forth in Section 1.6(d) (Severance
Benefits).
(ii) After a Change of Control. If the Company terminates the
Executive's employment Without Cause or if the Executive
terminates his employment for Company Breach or for Good Reason
after a Change of Control, then (i) for the remainder of the Term
or twenty four (24) months, whichever is greater, the Company
shall continue to pay the Executive and, if applicable, the
Executive's heirs, pursuant to Sections 1.4(a) (Base Salary) and
1.4(b) (Discretionary Bonus) (provided that the annual bonus (if
any) payable to the Executive pursuant to Section 1.4(b)
(Discretionary Bonus) after such termination shall be the average
annual bonus received by the Executive for the three (3) years
prior to such termination) and (ii) the Executive and, if
applicable, the Executive's heirs, shall receive the benefits set
forth in Section 1.6(d) (Severance Benefits).
(d) Severance Benefits. Upon termination of the Executive's
employment during the Term, the Company shall permit the
Executive and, if applicable, the Executive's heirs, to continue
to participate in the Company's employee benefit plans, to the
extent required by law and subject to the terms and conditions of
such employee benefit plans
(e) No Mitigation. The Executive shall not be required to
mitigate the amount of any payment provided for in this Section
1.6 (Compensation Upon Termination) by seeking other employment
or otherwise.
1.7 Death of Executive. If the Executive dies prior to the
expiration of the Term, then the Executive's employment and other
obligations hereunder shall automatically terminate and the
Company's obligation to pay salary and benefits pursuant to
Section 1.4 (Compensation) shall terminate, except that (a) the
Company shall pay the Executive's estate the accrued but unpaid
salary and benefits pursuant to Section 1.4 (Compensation)
through the end of the month in which the Executive's death
occurs and (b) the Executive's heirs will be eligible to receive
the benefits set forth in Section 1.6(d) (Severance Benefits).
1.8 Company Successors. The Company will require and cause any
successor to all or substantially all of the business or assets
of the Company (whether direct or indirect by purchase, merger,
consolidation, reorganization, liquidation or otherwise), by
written agreement, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had
taken place.
1.9 Tax Withholding. The Company shall deduct or withhold from
any amounts paid to Executive hereunder all federal, state and
local income tax, Social Security, FICA, FUTA and other amounts
that the Company determines are required by law to be withheld.
ARTICLE 2
Miscellaneous
2.1 Period of Limitations. No legal action shall be brought and
no cause of action shall be asserted by or on behalf of the
Executive's spouse, heirs, assigns, executors or personal or
legal representatives (collectively, the "Executive Affiliates")
against the Company or any Company Affiliate (defined below)
after the expiration of two (2) years from the date of accrual of
such cause of action, and any claim or cause of action of the
Executive or any Executive Affiliate shall be extinguished and
deemed released unless asserted by the timely filing of a legal
action within such two (2)-year period.
2.2 Counterparts. This Agreement may be executed in two (2) or
more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
2.3 Indulgences, Etc. Neither the failure nor any delay on the
part of either party to exercise any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of the same or of any right,
remedy, power or privilege, nor shall any waiver of any right,
remedy power, or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.
2.4 Executive's Sole Remedy. The Executive's and the Executive
Affiliates' sole remedy shall be against the Company (or any
assignee or successor to all or substantially all the assets of
the company or any transferee in receipt of material assets of
the Company transferred in fraud of creditors (collectively,
"Assigns")) for any Executive Claim (defined below). The
Executive and the Executive Affiliates shall have no claim or
right of any nature whatsoever against any of the Company's or
any if the Subsidiaries' directors, officers, employees, direct
and indirect stockholders, owners, trustees, beneficiaries or
agents, irrespective of when any such person held such status
(collectively, the "Company Affiliates") (other than Assigns)
arising out of any Executive Claim. The Executive, on his own
behalf and on behalf of the Executive Affiliates, hereby releases
and covenants not to xxx any person other than the Company or its
beneficiaries hereof for purposes of enforcing the terms of this
Section 2.4 (Executive's Sole Remedy) against the Executive and
the Executive Affiliates. Except as set forth in the immediately-
preceding sentence, nothing herein, express or implies, is
intended to confer upon any party, other than the parties hereto,
and the company's assigns, any rights, remedies, obligations or
liabilities under or by reason hereof and no person who is not a
party hereto may rely on the terms hereof.
Upon termination of the Executive's employment, the sole
claim of the Executive and the Executive Affiliates against the
Company and its Assigns for Executive Claims will be for the
amounts described in Section 1.6 (Compensation Upon Termination),
Section 1.7 (Death of Executive) and Section 2.9 (Governing Law)
and the Executive and the Executive Affiliates shall have no
claim against the Company or its Assigns for any Executive Claim,
other than those set forth in Sections 1.6, 1.7 and 2.9, or
against any Company Affiliate (other than Assigns) for Executive
Claims, including without limitation any claim for damages of any
nature, be they actual, direct, indirect, special, punitive or
consequential. The Executive, on his own behalf and on behalf of
the Executive Affiliates, hereby releases and covenants not to
xxx for, collect or otherwise recover any amount against the
Company or its Assigns for any Executive Claim, other than
amounts set forth in Sections 1.6, 1.7 and 2.9, or against any
Company Affiliate (other than Assigns) for any Executive Claim.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE LIMITATIONS ON THE
EXECUTIVES REMEDIES EXPRESSED IN THIS SECTION 2.4 (EXECUTIVES
SOLE REMEDY) APPLY WITHOUT LIMITATION TO EXECUTIVE CLAIMS
RELATING TO NEGLIGENCE.
"Executive Claim" shall mean any claim, liability or
obligation of any nature whatsoever arising out of this Agreement
or an alleged breach hereof or for any other claim arising out of
the Executive's employment by the Company or the termination
thereof; provided, however, that the term "Executive Claim" shall
not include (a) claims arising in favor of creditors of the
Company generally, including claims arising out of any fraudulent
conveyance or other transfer of assets in fraud of creditors, or
(b) any claim against any insurance carrier for worker's
compensation benefits.
2.5 Notices, Etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by
certified or registered mail, postage prepaid with return receipt
requested, telecopy (with hardcopy delivered by overnight courier
service), or delivered by hand, messenger or overnight courier
service, and shall be deemed given when received at the addresses
of the parties set forth below, or at such other address
furnished in writing to the other parties hereto.
If to Executive: Xxxxxxxx X. Xxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
If to Company AMRESCO, INC.
Suite 1900
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
(000) 000-0000 (fax) (000) 000-0000
2.6 Provisions Separable. The provisions hereof are independent
of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the
fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part. If any provision
hereof, or the application thereof to any situation or
circumstance, shall be invalid or unforceable in whole or in
part, then the parties shall seek in good faith to replace any
such legally invalid provision or portion thereof with a valid
provision that, in effect, will most nearly effectuate the
parties' intentions in entering into this Agreement. If the
parties are not able to agree on a substitute provision within
thirty (30) days after the provision initially is determined to
be invalid or unforceable, then the parties agree that the
invalid or unenforceable provision or portion thereof shall be
reformed pursuant to Section 2.10 (Dispute Resolution) and the
new provision shall be one that, in effect, will most nearly
effectuate the parties' intentions in entering into this
Agreement.
2.7 Entire Agreement. This Agreement the Restricted Stock
Agreements and the Stock Option Agreements between the Company,
and the Executive and the Retention Bonus Agreement dated April
24, 2000 between the Company and the Executive (collectively, the
"Employment Documents") contain the entire understanding between
the parties hereto with respect to employment, compensation and
benefits of the Executive, and supersede all other prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, between the
Executive and the Company, or any of the Subsidiaries relating to
the subject matter of the Employment Documents, which other prior
and contemporaneous agreements and understandings, inducements or
conditions shall be deemed terminated effective immediately. The
express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of
the terms hereof.
2.8 Headings; Index. The headings of paragraphs and Sections
herein are included solely for convenience of reference and shall
not control the meaning or interpretation of any of the
provisions hereof. The words "herein," "hereof," "hereto" and
"hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section
or other subdivision.
2.9 Governing Law; Attorneys' Fees. This Agreement shall be
governed by and construed, interpreted and applied in accordance
with the laws of the State of Texas, excluding any choice-of-law
rules that would refer the matter to the laws of another
jurisdiction.
Subject to Section 2.10 (Dispute Resolution), each party
hereto hereby irrevocably submits to the exclusive jurisdiction
of the United States District Court for the Northern District of
Texas and, if such court does not have jurisdiction, of the
courts of the State of Texas in Dallas County, for the purposes
of any action arising out of this Agreement or the subject matter
hereof brought by any other party.
Subject to Section 2.10 (Dispute Resolution), to the extent
permitted by applicable law, Executive hereby waives and agrees
not to assert, by way of motion, as a defense or otherwise in any
such action, any claim (a) that it is not subject to the
jurisdiction of the above-named courts, (b) that the action is
brought in an inconvenient forum, (c) that it is immune from any
legal process with respect to itself or its property, (d) that
the venue of the suit, action or proceeding is improper or (e)
that this Agreement of the subject matter hereof may not be
enforced in or by such courts.
The prevailing party in any action or proceeding relating to
this Agreement shall be entitled to recover reasonable attorneys'
fees and other costs from the non-prevailing parties, in addition
to any other relief to which such prevailing party may be
entitled.
2.10 Dispute Resolution.
(a) Arbitration. All disputes and controversies of every kind
and nature between the parties hereto arising out of or in
connection herewith or the transactions described herein as to
the construction, validity, interpretation or meaning,
performance, non-performance, enforcement, operation or breach,
shall be submitted to arbitration pursuant to the following
procedures.
(i) After a dispute or controversy arises, either party may, in
a written notice delivered to the other party, demand
arbitration. Such notice shall designate the name of the
arbitrator (who shall be an impartial person) appointed by such
party demanding arbitration, together with a statement of the
matter in controversy.
(ii) Within thirty (30) days after receipt of such demand, the
other party shall, in written notice delivered to the other
party, name such party's arbitrator (who shall be an impartial
person). If such party fails to name an arbitrator, then the
second arbitrator shall be named by American Arbitration
Association (the "AAA"). The two (2) arbitrators so selected
shall name a third (3rd) arbitrator (who shall be an impartial
person) within thirty (30) days, or in lieu of such agreement on
a third (3rd)arbitrator by the two (2) arbitrators so appointed,
the third (3rd) arbitrator shall be appointed by the AAA. If any
arbitrator appointed hereunder shall die, resign, refuse or
become unable to act before an arbitration decision is rendered,
then the vacancy shall be filled by the method set forth in this
Section 2.10 (Dispute Resolution) for the original appointment of
such arbitrator.
(iii) Each party shall bear its own arbitration costs and
expenses. The arbitration hearing shall be held in Dallas, Texas
at a location designated by a majority of the arbitrators. The
Commercial Arbitration Rules of the American Arbitration
Association shall be incorporated by reference at such hearing
and the substantive laws of the State of Texas (excluding
conflict of laws provisions) shall apply.
(iv) The arbitration hearing shall be concluded within ten (10)
days unless otherwise ordered by the arbitrators and the written
award thereon shall be made within fifteen (15) days after the
close of submission of evidence. An award rendered by a majority
of the arbitrators appointed pursuant hereto shall be final and
binding on all parties to the proceeding, shall resolve the
question of costs of the arbitrators and all related matters, and
judgement on such award may be entered and enforced by either
party in any court of competent jurisdiction.
(v) Except as set forth in Section 2.10(b) (Emergency Relief),
the parties stipulate that the provisions of this Section 2.10
(Dispute Resolution) shall be a complete defense to any suit,
action or proceeding instituted in any federal, state or local
court or before any administrative tribunal with respect to any
controversy or dispute arising out of this Agreement or the
transactions described herein. The arbitration provisions hereof
shall, with respect to such controversy or dispute, survive the
termination or expiration hereof.
Neither any party hereto nor the arbitrators may disclose
the existence or results of any arbitration hereunder
without the prior written consent of the other party; nor
will any party hereto disclose to any third party any
confidential information disclosed by any other party hereto
in the course of an arbitration hereunder without the prior
written consent of such other party.
(b) Emergency Relief. Notwithstanding anything in this Section
2.10 (Dispute Resolution) to the contrary and subject to the
provisions of Sections 2.9 (Governing Law; Attorneys' Fees),
either party may seek from a court any provisional remedy that
may be necessary to protect any rights or property of such party
pending the establishment of the arbitral tribunal or its
determination of the merits of the controversy.
2.11 Survival. The covenants and agreements of the parties set
forth in this Article 2 (Miscellaneous) are of a continuing
nature and shall survive the expiration, termination or
cancellation hereof, regardless of the reason therefor.
2.12 Binding Effect, Etc. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties
hereto and the Company's successors and assigns, including any
direct or indirect successor by purchase, merger, consolidation,
reorganization, liquidation or otherwise to all or substantially
all of the business or assets of the Company, and the Executive's
spouses, heirs and personal and legal representatives.
2.13 Assignment. The Executive's obligations hereunder are
personal and may not be assigned (whether voluntarily,
involuntarily or by operation of law) without the prior written
consent of the Company. Any such attempted assignment shall be
null and void.
2.14 Amendment. This Agreement may be amended or modified only
by written instrument duly executed by the Company and the
Executive.
2.15 Voluntary Agreement. The Executive acknowledges that he has
had sufficient time and opportunity to read and understand this
Agreement and to consult with his legal counsel and other
advisors regarding the terms and conditions set forth herein.
This Agreement has been executed and delivered as of the
date first written above.
AMRESCO, INC.
By:
L. Xxxxx Xxxxxxxxx
President
Xxxxxxxx X. Xxxxx
Executive
