Exhibit 2.i.2
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement") is entered into as of May 12, 2001 (the "Effective Date") by and
between AMERICAN CAPITAL STRATEGIES, LTD., a Delaware corporation (the
"Company"), and XXXX XXXXXXXXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and the Employee entered into an Amended and
Restated Employment Agreement dated as of June 7, 1999 (the "Old Agreement")
pursuant to which the Company employed the Employee on the terms and conditions
set forth therein; and
WHEREAS, Employee has requested that his duties as an officer of the
Company be adjusted; and
WHEREAS, as a result thereof and in connection therewith, the Company
and the Employee desire to amend and restate the Old Agreement in its entirety,
on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1. DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the following terms shall have the
following respective meanings:
"Annual Bonus Plan" shall have the meaning specified in Section 3.2.
"Base Salary" shall have the meaning specified in Section 3.1.
"Board of Directors" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Compensation Committee" shall mean the Compensation and Compliance
Committee of the Board of Directors or such other entity as may be designated
for a particular function by the Board of Directors.
"Confidential Information" shall have the meaning specified in Section
5.1(a).
"Disability" shall mean a physical or mental condition of Employee
that, in the good faith judgment of not less than a majority of the entire
membership of the Board of Directors, prevents Employee from being able to
perform the services required under this Agreement and which results in the
Employee becoming eligible for long-term disability benefits (if such benefits
are provided by the Company). If any dispute arises as to whether a Disability
has occurred, or whether a Disability has ceased and the Employee is able to
resume duties, then such dispute shall be referred to a licensed physician
appointed by the president of the Medical Society or similar organization in
Washington, D.C., at the request of either party. The Employee shall submit to
such examinations and provide information as such physician may request and the
determination of such physician as to the Employee's physical or mental
condition shall be binding and conclusive on the parties. The Company shall pay
the cost of any such physician and examination.
"Dispute" shall have the meaning specified in Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expiration Date" shall have the meaning specified in Section 2.2.
"Notice of Discontinuance" shall have the meaning specified in Section
2.2.
"Notice of Employment Continuation" shall mean a notice delivered in
accordance with Section 4.5.
"Notice of Termination" shall mean a notice purporting to terminate
Employee's employment in accordance with Section 4.1 or 4.2. Such notice shall
specify the effective date of such termination, which date shall not be less
than 2 or more than 10 days after the date such notice is given.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust and an unincorporated organization.
"Target Bonus" shall have the meaning specified in Section 3.2.
"Term" shall have the meaning specified in Section 2.2.
"Termination Date" shall mean the termination date specified in a
Notice of Termination delivered in accordance with this Agreement.
1.2. INTERPRETATIONS
(a) In this Agreement, unless a clear contrary intention appears, (i)
the words "herein," "hereof" and "hereunder" and other words of similar import
refer to this
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Agreement as a whole and not to any particular Article, Section or other
subdivision, (ii) reference to any Article or Section, means such Article or
Section hereof, (iii) the words "including" (and with correlative meaning
"include") means including, without limiting the generality of any description
preceding such term, and (iv) where any provision of this Agreement refers to
action to be taken by either party, or which such party is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such party.
(b) The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
ARTICLE 2
EMPLOYMENT: TERM, POSITIONS AND DUTIES, ETC.
2.1. EMPLOYMENT
The Company agrees to employ Employee and Employee agrees to accept
employment with the Company, in each case on the terms and conditions set forth
in this Agreement.
2.2. TERM OF EMPLOYMENT
Unless sooner terminated pursuant to Article IV, the term of Employee's
employment under this Agreement (the "Term") shall commence on the Effective
Date and shall continue until the fifth anniversary of the Effective Date (the
"Expiration Date"); provided, however, that on the third anniversary of the
Effective Date, and on each anniversary thereafter (each such anniversary being
an "Extension Anniversary"), the Expiration Date shall be automatically extended
one additional year unless, at least six months prior to an Extension
Anniversary, (i) either party shall give written notice to the other (a "Notice
of Discontinuance") that no such automatic extension shall occur on the next
succeeding Extension Anniversary and each Extension Anniversary thereafter, or
(ii) either party shall give a Notice of Termination to the other party pursuant
to Section 4.1 or 4.2, as the case may be. No Notice of Discontinuance given by
the Company shall be effective unless given pursuant to instructions set forth
in a resolution duly adopted by the affirmative vote of a least a majority of
the entire membership of the Board of Directors.
2.3. POSITIONS AND DUTIES
(a) While employed hereunder, Employee shall serve as a Vice Chairman
of the Company, and shall have and may exercise all of the powers, functions,
duties and responsibilities normally attributable to such office, including
(without limitation) such duties and responsibilities as are set forth with
respect to such office in the Company's Certificate of Incorporation and By-laws
(as from time to time in effect). While employed hereunder, Employee shall (i)
report directly to the Chairman of the Company or such other person as may be
designated by the Chairman or the Board of Directors and
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(ii) observe and comply with all lawful policies, directions and instructions of
the Chairman which are consistent with the foregoing provisions of this
paragraph (a).
(b) If requested by the Company, Employee shall serve as a member of
the Board of Directors and a member of its Executive Committee (if such a
committee exists) during the Term and of the Investment Committee of the
Company. Employee shall also serve on up to two boards of directors of the
Company's portfolio companies at the request of the Company.
(c) While employed hereunder, Employee shall devote such business time,
attention, skill and efforts as is necessary to permit the faithful and
efficient performance of his duties hereunder. Notwithstanding the foregoing,
Employee may engage in the following activities so long as they do not interfere
in any material respect with the performance of Employee's duties,
responsibilities and obligations hereunder: (i) participate in other business
ventures; (ii) serve on corporate, civic, religious, educational or charitable
boards or committees; and (iii) manage his personal investments.
(d) While employed hereunder, Employee shall conduct himself in such a
manner as not to knowingly prejudice, in any material respect, the reputation of
the Company in the fields of business in which it is engaged or with the
investment community or the public at large.
2.4. PLACE OF EMPLOYMENT
Employee's place of employment hereunder shall be at the Company's
offices in the greater New York, New York area or such other area that is
mutually agreeable to both parties.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1. BASE SALARY
(a) For services rendered by Employee under this Agreement, the Company
shall pay to Employee an annual base salary ("Base Salary") of $150,000. The
Compensation Committee shall review the Base Salary at least annually and,
subject to paragraph (b) below, may adjust the amount of the Base Salary at any
time as the Compensation Committee may deem appropriate in their sole
discretion.
(b) The amount of the Base Salary may not be decreased without the
prior written approval of the Employee except that if the Compensation Committee
increases the Base Salary as provided in the last sentence of paragraph (a)
above, the Compensation Committee may thereafter decrease the Base Salary by an
amount not to exceed the aggregate amount of such increases.
(c) The Base Salary shall be payable in accordance with the Company's
payroll practice for Executive Officers as earned.
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3.2. ANNUAL BONUS PLAN
During the Term, the Company shall maintain and the Employee shall be
entitled to participate in an incentive bonus plan (the "Annual Bonus Plan"),
which will be determined by the Compensation Committee and which will provide
for the payment of cash bonuses to eligible employees of the Company at
specified times during the year and within 90 days of the end of each fiscal
year based on the Company's financial performance and other appropriate factors
for that year or a portion thereof. Under the Annual Bonus Plan, Employee shall
be eligible to earn a target bonus (the "Target Bonus") each year equal to 100%
of Employee's Adjusted Base Salary for such year based on criteria established
by the Compensation Committee, and the performance against such criteria. The
establishment of such criteria and of the necessary targets for partial or full
earning of the Target Bonus shall be at the sole reasonable discretion of the
Compensation Committee. During the year in which the Expiration Date occurs, the
Target Bonus that is paid will be determined at the sole discretion of the
Compensation Committee.
3.3. BUSINESS EXPENSES
The Company shall, in accordance with the rules and policies that it
may establish from time to time for senior executives, reimburse Employee for
business expenses reasonably incurred in the performance of Employee's duties.
Requests for reimbursement for such expenses must be accompanied by appropriate
documentation. Examples of reimbursable expenses include parking, mileage
charges, air fares and hotel accommodations while traveling on Company business.
3.4. OTHER BENEFITS
Employee shall be entitled to receive such employee benefits, fringe
benefits and other perquisites that may be offered by the Company to its
employees as a group, including, without limitation, participation by Employee
and, where applicable, Employee's dependents, in the various employee benefit
plans or programs (including, without limitation, pension plans, stock plans,
health plans, life insurance, parking and disability insurance) generally
provided to employees of the Company, subject to meeting the eligibility and
service requirements with respect to each of such benefit plans or programs.
Nothing in this Section 3.6 shall be deemed to prohibit the Company from making
any changes in any of the plans, programs or benefits described herein.
3.5. INDEMNIFICATION
The Company agrees to defend, indemnify and hold harmless the Employee
from and against any liability and expenses arising by reason of Employee's
acting as a director or officer of the Company or any Company subsidiary or
affiliate, or any portfolio company of the Company, in accordance with and to
the fullest extent permitted by law. The Company shall maintain Directors and
Officers liability insurance for the
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Employee in such amounts of coverage as are reasonably available to the Company
and to the extent such is attainable at reasonable cost and are permitted by
law.
ARTICLE 4
TERMINATION OF EMPLOYMENT
4.1. TERMINATION BY EMPLOYEE
Employee may, at any time prior to the Expiration Date, terminate his
employment hereunder for any reason by delivering a Notice of Termination to the
Chairman of the Board of Directors.
4.2. TERMINATION BY THE COMPANY
The Company may, at any time prior to the Expiration Date, terminate
Employee's employment hereunder for any reason by delivering a Notice of
Termination to Employee. The Employee may resign in lieu of being terminated by
the Company, but such resignation shall otherwise be treated as a termination by
the Company for purposes of this Article IV.
4.3. PAYMENT OF ACCRUED BASE SALARY, ETC.
(a) Promptly upon the termination of Employee's employment for any
reason (including death), the Company shall pay to Employee (or his estate) a
lump sum amount for any unpaid Base Salary earned hereunder prior to the
Termination Date and any amounts in respect of which Employee has requested, and
is entitled to, reimbursement in accordance with Section 3.5.
(b) A termination of Employee's employment in accordance with this
Agreement shall not alter or impair any of Employee's accrued rights or benefits
as of the Termination Date under any employee benefit plan or program maintained
by the Company, in each case except as provided therein or in any written
agreement entered into between the Company and Employee pursuant thereto.
4.4. NON-EXCLUSIVITY OF RIGHTS
Nothing in this Agreement shall prevent or limit Employee's continuing
or future participation in any plan, program, policy or practice provided by the
Company for which Employee may qualify, nor shall anything herein limit or
otherwise affect such rights as Employee may have under any other contract or
agreement with the Company. Amounts which are vested benefits or which Employee
is otherwise entitled to receive under any plan, policy, practice or program of
or any contract or agreement with the Company at or subsequent to the
Termination Date shall be payable in accordance with such plan, policy, practice
or program or contract or agreement except as explicitly modified by this
Agreement.
4.5. EMPLOYMENT CONTINUATION
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If the Employee has a "Purchase Note" outstanding under the Exercise
Agreement or the "Unamortized Premium Payment" under the Split Dollar Agreement
is greater than zero, the Employee shall have the right either (i) in lieu of
delivering a Notice of Termination in accordance with Section 4.1 or (ii) within
thirty (30) days of the Company's delivery of a Notice of Termination in
accordance with Section 4.2, to deliver a "Notice of Employment Continuation."
Upon the delivery of a Notice of Employment Continuation, this Agreement shall
terminate and be of no further force or effect and Employee's employment with
the Company shall be governed instead by a Supplemental Employment Agreement in
the form of Exhibit 4.5 hereto that will be executed and delivered by the
Company and the Employee immediately upon the delivery of such Notice of
Employment Continuation.
ARTICLE 5
CONFIDENTIAL INFORMATION AND NON-COMPETITION
5.1. CONFIDENTIAL INFORMATION
(a) Employee recognizes that the services to be performed by him
hereunder are special, unique, and extraordinary and that, by reason of his
employment with the Company, he may acquire Confidential Information concerning
the operation of the Company, the use or disclosure of which would cause the
Company substantial loss and damages which could not be readily calculated and
for which no remedy at law would be adequate. Accordingly, Employee agrees that
he will not (directly or indirectly) at any time, whether during or after his
employment hereunder, (i) knowingly use for an improper personal benefit any
Confidential Information that he may learn or has learned by reason of his
employment with the Company or (ii) disclose any such Confidential Information
to any Person except (A) in the performance of his obligations to the Company
hereunder, (B) as required by applicable law, (C) in connection with the
enforcement of his rights under this Agreement, (D) in connection with any
disagreement, dispute or litigation (pending or threatened) between Employee and
the Company or (E) with the prior written consent of the Board of Directors. As
used herein, "Confidential Information" includes information with respect to the
Company's products, facilities and methods, research and development, trade
secrets and other intellectual property, systems, patents and patent
applications, procedures, manuals, confidential reports, product price lists,
customer lists, financial information, business plans, prospects or
opportunities; provided, however, that such term, shall not include any
information that (x) is or becomes generally known or available other than as a
result of a disclosure by Employee or (y) is or becomes known or available to
Employee on a non-confidential basis from a source (other than the Company)
which, to Employee's knowledge, is not prohibited from disclosing such
information to Employee by a legal, contractual, fiduciary or other obligation
to the Company.
(b) Employee confirms that all Confidential Information is the
exclusive property of the Company. All business records, papers and documents
kept or made by Employee while employed by the Company relating to the business
of the Company shall be and remain the property of the Company at all times.
Upon the request of the Company at any time, Employee shall promptly deliver to
the Company, and shall retain
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no copies of, any written materials, records and documents made by Employee or
coming into his possession while employed by the Company concerning the business
or affairs of the Company other than personal materials, records and documents
(including notes and correspondence) of Employee not containing proprietary
information relating to such business or affairs. Notwithstanding the foregoing,
Employee shall be permitted to retain copies of, or have access to, all such
materials, records and documents relating to any disagreement, dispute or
litigation (pending or threatened) between Employee and the Company.
5.2. NON-COMPETITION
(a) While employed hereunder and for a period of two (2) years
thereafter (the "Restricted Period"), Employee shall not, unless he receives the
prior written consent of the Board of Directors, own an interest in, manage,
operate, join, control, lend money or render financial or other assistance to or
participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, (A) any Person (x) that competes with the
Company in investing or consulting with small and medium sized businesses in the
United States with regard to change of control transactions in which the
transaction utilizes employee stock ownership plans, or (y) that provides or
proposes to provide services to or owns an investment in or proposes to make an
investment in any Person that is a client of the Company as of the Termination
Date or to which the Company has outstanding loans or in which the Company then
has investments (including warrants or options), or (B) any potential client of
the Company with which the Company has discussed a client, loan or investment
relationship within 12 months prior to, as applicable, the end of Employee's
employment or the Termination Date.
(b) Employee has carefully read and considered the provisions of this
Section 5.2 and, having done so, agrees that the restrictions set forth in this
Section 5.2 (including the Restricted Period, scope of activity to be restrained
and the geographical scope) are fair and reasonable and are reasonably required
for the protection of the interests of the Company, its officers, directors,
employees, creditors and shareholders. Employee understands that the
restrictions contained in this Section 5.2 may limit his ability to engage in a
business similar to the Company's business, but acknowledges that he will
receive sufficiently high remuneration and other benefits from the Company
hereunder to justify such restrictions.
(c) During the Restricted Period, Employee shall not, whether for his
own account or for the account of any other Person (excluding the Company),
intentionally (i) solicit, endeavor to entice or induce any employee of the
Company to terminate his employment with the Company or accept employment with
anyone else or (ii) interfere in a similar manner with the business of the
Company.
(d) In the event that any provision of this Section 5.2 relating to the
Restricted Period or the areas of restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, the Restricted Period or areas of restriction
deemed reasonable and enforceable by the court shall become and thereafter be
the maximum time period and/or areas.
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(e) The Company recognizes that the Employee maintains his contacts on
the computer system and that the list of contacts will remain the exclusive
ownership of the employee.
5.3. STOCK OWNERSHIP
Nothing in this Agreement shall prohibit Employee from acquiring or
holding any issue of stock or securities of any Person that has any securities
registered under Section 12 of the Exchange Act, listed on a national securities
exchange or quoted on the automated quotation system of the National Association
of Securities Dealers, Inc. so long as (i) Employee is not deemed to be an
"affiliate" of such Person as such term is used in paragraphs (c) and (d) of
Rule 145 under the Securities Act of 1933, as amended, and (ii) Employee and
members of his immediate family do not own or hold more than 3% of any voting
securities of any such Person.
5.4. INJUNCTIVE RELIEF
Employee acknowledges that a breach of any of the covenants contained
in this Article 5 may result in material irreparable injury to the Company for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach, any payments remaining under the terms of this Agreement shall cease and
the Company shall be entitled to obtain a temporary restraining order or a
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Article 5 or such other relief as may required to
specifically enforce any of the covenants contained in this Article 5. Employee
agrees to and hereby does submit to in personam jurisdiction before each and
every such court for that purpose.
ARTICLE 6
DISPUTE RESOLUTION
In the event a dispute shall arise between the parties as to whether
the provisions of this Agreement have been complied with (a "Dispute"), the
parties agree to resolve such Dispute in accordance with the following
procedure:
(a) A meeting shall be held promptly between the Parties, attended by
(in the case of the Company) by one or more individuals with decision-making
authority regarding the Dispute, to attempt in good faith to negotiate a
resolution of the Dispute.
(b) If, within 10 days after such meeting, the parties have not
succeeded in negotiating a resolution of the Dispute, the parties agree to
submit the Dispute to mediation in accordance with the Commercial Mediation
Rules of the American Arbitration Association except that Disputes with regard
to the existence of a Disability shall be resolved in accordance with the
definition of the term "Disability" above.
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(c) The parties will jointly appoint a mutually acceptable mediator,
seeking assistance in such regard from the American Arbitration Association if
they have been unable to agree upon such appointment within 10 days following
the 10-day period referred to in clause (b) above.
(d) Upon appointment of the mediator, the parties agree to participate
in good faith in the mediation and negotiations relating thereto for 15 days.
(e) If the parties are not successful in resolving the Dispute through
mediation within such 15-day period, the parties agree that the Dispute shall be
settled by arbitration in accordance with the Expedited Procedures of the
Commercial Arbitration Rules of the American Arbitration Association.
(f) The fees and expenses of the mediator/arbitrators shall be borne
solely by the non-prevailing party or, in the event there is no clear prevailing
party, as the mediator/arbitrators deem appropriate.
(g) The Company shall reimburse Employee, on a current basis, for 50%
of all reasonable legal fees and expenses, if any, incurred by Employee in
connection with any Dispute; provided, however, that in the event the resolution
of such Dispute in accordance with this Article 6 includes a finding denying, in
all material respects, Employee's claims in such Dispute, Employee shall be
required to reimburse the Company, over a period not to exceed 12 months from
the date of such resolution, for all sums advanced to Employee with respect to
such Dispute pursuant to this paragraph (g).
(h) Except as provided above, each party shall pay its own costs and
expenses (including, without limitation, attorneys' fees) relating to any
mediation/arbitration proceeding conducted under this Article 6.
(i) All mediation/arbitration conferences and hearings will be held in
the greater Washington, D.C. area.
(j) In the event there is any disputed question of law involved in any
arbitration proceeding, such as the proper legal interpretation of any provision
of this Agreement, the arbitrators shall make separate and distinct findings of
all facts material to the disputed question of law to be decided and, on the
basis of the facts so found, express their conclusion of the question of law.
The facts so found shall be conclusive and binding on the parties, but any legal
conclusion reached by the arbitrators from such facts may be submitted by either
party to a court of law for final determination by initiation of a civil action
in the manner provided by law. Such action, to be valid, must be commenced
within 20 days after receipt of the arbitrators' decision. If no such civil
action is commenced within such 20-day period, the legal conclusion reached by
the arbitrators shall be conclusive and binding on the parties. Any such civil
action shall be submitted, heard and determined solely on the basis of the facts
found by the arbitrators. Neither of the parties shall, or shall be entitled to,
submit any additional or different facts for consideration by the court. In the
event any civil action is commenced under this
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paragraph (b), the party who prevails or substantially prevails (as determined
by the court) in such civil action shall be entitled to recover from the other
party all costs, expenses and reasonable attorneys' fees incurred by the
prevailing party in connection with such action and on appeal.
(k) Except as limited by paragraph (b) above, the parties agree that
judgment upon the award rendered by the arbitrators may be entered in any court
of competent jurisdiction. In the event legal proceedings are commenced to
enforce the rights awarded in an arbitration proceeding, the party who prevails
or substantially prevails in such legal proceeding shall be entitled to recover
from the other party all costs, expenses and reasonable attorneys' fees incurred
by the prevailing party in connection with such legal proceeding and on appeal.
(l) Except as provided above, (i) no legal action may be brought by
either party with respect to any Dispute and (ii) all Disputes shall be
determined only in accordance with the procedures set forth above.
ARTICLE 7
MISCELLANEOUS
7.1. NO MITIGATION OR OFFSET
The provisions of this Agreement are not intended to, nor shall they be
construed to, require that Employee mitigate the amount of any payment provided
for in this Agreement by seeking or accepting other employment, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by Employee as the result of employment by another employer
or otherwise. Without limitation of the foregoing, the Company's obligations to
make the payments to Employee required under this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Employee, except that the Company may deduct from any
amount required to be reimbursed to the Company by Employee under Article VI(a)
the amount of any payment that the Company is then required to make to Employee
hereunder.
7.2. ASSIGNABILITY
The obligations of Employee hereunder are personal and may not be
assigned or delegated by Employee or transferred in any manner whatsoever, nor
are such obligations subject to involuntary alienation, assignment or transfer.
The Company shall have the right to assign this Agreement and to delegate all
rights, duties and obligations hereunder as provided in Section 7.5.
7.3. NOTICES
All notices and all other communications provided for in the Agreement
shall be in writing and addressed (i) if to the Company, at its principal office
address or such
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other address as it may have designated by written notice to Employee for
purposes hereof, directed to the attention of the Chairman with a copy to the
Compliance Officer of the Company and to Xxxxxx X. Xxxx, Esq., Xxxxxx & Xxxxxx,
000 00xx Xxxxxx, XX, Xxxxxxxxxx, X.X. 00000, and (ii) if to Employee, at his
residence address on the records of the Company or to such other address as he
may have designated to the Company in writing for purposes hereof. Each such
notice or other communication shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return receipt requested,
postage prepaid, except that any notice of change of address shall be effective
only upon receipt.
7.4. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
7.5. SUCCESSORS: BINDING AGREEMENT
(a) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form and substance
reasonable acceptable to Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement. As used herein, the term
"Company" shall include any successor to its business and/or assets as aforesaid
which executes and delivers the Agreement provided for in this Section 7.5 or
which otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall inure to
the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees. If Employee should die while any amounts would be payable
to him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee, or other designee or, if there be no such designee,
to Employee's estate.
7.6. TAX MATTERS
The Company shall withhold from all payments hereunder all applicable
taxes (federal, state or other) which it is required to withhold therefrom
unless Employee has otherwise paid (or made other arrangements satisfactory) to
the Company the amount of such taxes.
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7.7. AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Employee and such member of the Board of Directors as may be specifically
authorized by the Board of Directors. No waiver by either party hereto at any
time of any breach by the other party hereto of, or in compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
7.8. ENTIRE AGREEMENT, TERMINATION OF OTHER AGREEMENTS
This Agreement is an integration of the parties' agreement and no
agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement.
7.9. GOVERNING LAW
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD
TO ITS CONFLICT OF LAWS PROVISION.
7.10. COUNTERPARTS
This Agreement may be executed in or more counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
AMERICAN CAPITAL STRATEGIES, LTD.
By:
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Xxxxx Xxxxxx
Chief Executive Officer
EMPLOYEE:
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Xxxx Xxxxxxxxxx
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EXHIBIT 4.5
SUPPLEMENTAL EMPLOYMENT AGREEMENT
THIS SUPPLEMENTAL EMPLOYMENT AGREEMENT (this "Agreement") is entered
into as of ____________ (the "Effective Date") by and between AMERICAN CAPITAL
STRATEGIES, LTD., a Delaware corporation (the "Company"), and XXXX XXXXXXXXXX
(the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and the Employee are parties to a Second Amended
and Restated Employment Agreement dated as of May 9, 2001 (the "Old Agreement")
pursuant to which the Company employed the Employee on the terms and conditions
set forth therein; and
WHEREAS, the Employee delivered a Notice of Employment Continuation
pursuant to the Old Agreement and pursuant thereto the Old Agreement was
terminated and this Agreement became effective and the parties desire to amend
and restate the Old Agreement in its entirety, on the terms and conditions
herein set forth; and
WHEREAS, the parties hereto are also parties to an Option Exercise
Agreement dated as of June 7, 1999 (the "Option Exercise Agreement"), and a
Split Dollar Agreement dated as of _______, 1999 (the "Split Dollar Agreement").
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1. DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the following terms shall have the
following respective meanings:
"Base Salary" shall have the meaning specified in Section 3.1.
"Board of Directors" shall mean the Board of Directors of the Company.
"Compensation Committee" shall mean the Compensation Committee of the
Board of Directors or such other entity as may be designated for a particular
function by the Board of Directors.
"Confidential Information" shall have the meaning specified in Section
5.1(a).
"Continuation Period" shall have the meaning specified in Section
4.4(a).
"Dispute" shall have the meaning specified in Article 6.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expiration Date" shall have the meaning specified in Section 2.2.
"ISO Plan" shall have the meaning specified in Section 3.3.
"Misconduct" shall mean the commission by Employee of acts that are
dishonest and demonstrably injurious to the Company (monetarily or otherwise) in
any material respect. For purposes of this definition, no act or failure to act
on Employee's part shall be considered "Misconduct" if done or omitted to be
done by Employee in good faith and in the reasonable belief that such act or
failure to act was in the best interest of the Company or in furtherance of
Employee's duties and responsibilities described in Section 2.3.
"Notice of Termination" shall mean a notice purporting to terminate
Employee's employment in accordance with Section 4.1 or 4.2. Such notice shall
specify the effective date of such termination, which date shall not be less
than ten (10) days (one (1) day in the case of a termination by the Company for
Misconduct).
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust and an unincorporated organization.
"Term" shall have the meaning specified in Section 2.2.
"Termination Date" shall mean the termination date specified in a
Notice of Termination delivered in accordance with this Agreement.
1.2. INTERPRETATIONS
(a) In this Agreement, unless a clear contrary intention appears, (i)
the words "herein," "hereof" 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, (ii) reference to any Article or Section, means such Article
or Section hereof, (iii) the words "including" (and with correlative meaning
"include") means including, without limiting the generality of any description
preceding such term, and (iv) where any provision of this Agreement refers to
action to be taken by either party, or which such party is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such party.
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(b) The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
ARTICLE 2
EMPLOYMENT: TERM, POSITIONS AND DUTIES, ETC.
2.1. EMPLOYMENT
The Company agrees to employ Employee and Employee agrees to accept
employment with the Company, in each case on the terms and conditions set forth
in this Agreement.
2.2. TERM OF EMPLOYMENT
Unless sooner terminated pursuant to Article 4, the term of Employee's
employment under this Agreement (the "Term") shall commence on the Effective
Date and continue until the later to occur of (i) repayment in full of all
Payment Notes (as defined in and issued pursuant to the Option Exercise
Agreement), and (ii) such date as the Employer's Interest in the Policy (as such
terms are defined in the Split Dollar Agreement) is zero.
2.3. POSITIONS AND DUTIES
(a) While employed hereunder, Employee shall serve as an Assistant
Secretary of the Company. The Employee's duties as Assistant Secretary shall be
limited to providing consulting services to the Company with regard to matters
previously attended to by the Employee as an employee of the Corporation.
Nothing herein shall obligate the Employee to spend more than 10 hours per year
on Company business. While employed hereunder, Employee shall report to the
Board of Directors or such person as is designated by the Board of Directors.
(b) The Company agrees to use its reasonable best efforts to cause
Employee to be elected or appointed as an Assistant Secretary of the Company.
(c) While employed hereunder, Employee shall be entitled to undertake
other employment not otherwise in violation of the terms of this Agreement.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1. BASE SALARY
For services rendered by Employee under this Agreement, the Company
shall pay to Employee an annual base salary ("Base Salary") of $200.
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3.2. OTHER BENEFITS
Employee shall not be entitled to receive any employee benefits, fringe
benefits and other perquisites that may be offered by the Company to its
officers or employees except as specifically provided herein except that
Employee shall be entitled to continue participation in the benefits provided
under the Split Dollar Agreement and Option Exercise Agreement.
3.3. INDEMNIFICATION
The Company agrees to defend, indemnify and hold harmless the Employee
from and against any liability and expenses arising by reason of Employee's
acting as an officer of the Company, in accordance with and to the fullest
extent permitted by law. The Company shall maintain directors and officers
liability insurance for the Employee in such amounts of coverage as are
reasonably available to the Company and to the extent such is attainable at
reasonable cost and are permitted by law.
3.4. PAYMENT OF ACCRUED BASE SALARY VACATION PAY, ETC.
The Company shall pay to Employee a lump sum amount for (i) any unpaid
Adjusted Base Salary earned under the Old Agreement prior to the Effective Date,
(ii) all unused vacation time accrued by Employee as of the Effective Date in
accordance with Section 3.4 of the Old Agreement, (iii) all unpaid benefits
earned or vested, as the case may be, by Employee as of the Effective Date under
any and all incentive or deferred compensation plans or programs of the Company
and (iv) any amounts in respect of which Employee has requested, and is entitled
to, reimbursement in accordance with Section 3.5 of the Old Agreement as of the
Effective Date.
ARTICLE 4
TERMINATION
4.1. TERMINATION OF EMPLOYEE
Employee may, at any time prior to the Expiration Date, terminate his
employment hereunder for any reason by delivering a Notice of Termination to the
Chairman of the Board of Directors.
4.2. TERMINATION OF THE COMPANY
The Company may, at any time prior to the Expiration Date, terminate
Employee's employment hereunder for any reason by delivering a Notice of
Termination to Employee; provided, however, such notice may be delivered only if
the Employee has committed Misconduct.
4.3. COMPANY TO PAY BENEFITS DURING PENDENCY OF DISPUTE
The Employee, within ten (10) days after its receipt of a Notice of
Termination given by the Company, provide notice to the Company that a dispute
exists concerning
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the occurrence of Misconduct, in which event such dispute shall be resolved in
accordance with Article 6. Notwithstanding the pendency of any such dispute and
notwithstanding any provision herein to the contrary, the Company will (i)
continue to pay Employee all salary in effect when the notice giving rise to the
dispute was given and (ii) continue Employee as a participant in all
compensation and benefit plans in which Employee was participating when the
notice giving rise to the dispute until the dispute is finally resolved. If such
dispute is finally resolved in favor of the Company in accordance with Article
6, the Employee shall be required to repay to the Company amounts paid to
Employee under this Section 4.3 (including the value of benefits received).
4.4. NON-EXCLUSIVITY OF RIGHTS
Nothing in this Agreement shall prevent or limit Employee's continuing
or future participation in any plan, program, policy or practice provided by the
Company for which Employee may qualify, nor shall anything herein limit or
otherwise affect such rights as Employee may have under any other contract or
agreement with the Company. Amounts that are vested benefits or that Employee is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company at or subsequent to the Effective
Date shall be payable in accordance with such plan, policy, practice or program
or contract or agreement except as explicitly modified by this Agreement.
ARTICLE 5
CONFIDENTIAL INFORMATION AND NON-COMPETITION
5.1. CONFIDENTIAL INFORMATION
(a) Employee recognizes that the services to be performed by him
hereunder are special, unique, and extraordinary and that, by reason of his
employment with the Company, he may acquire Confidential Information concerning
the operation of the Company, the use or disclosure of which would cause the
Company substantial loss and damages which could not be readily calculated and
for which no remedy at law would be adequate. Accordingly, Employee agrees that
he will not (directly or indirectly) at any time, whether during or after his
employment hereunder, (i) knowingly use for an improper personal benefit any
Confidential Information that he may learn or has learned by reason of his
employment with the Company or (ii) disclose any such Confidential Information
to any Person except (A) in the performance of his obligations to the Company
hereunder, (B) as required by applicable law, (C) in connection with the
enforcement of his rights under this Agreement, (D) in connection with any
disagreement, dispute or litigation (pending or threatened) between Employee and
the Company or (E) with the prior written consent of the Board of Directors. As
used herein, "Confidential Information" includes information with respect to the
Company's products, facilities and methods, research and development, trade
secrets and other intellectual property, systems, patents and patent
applications, procedures, manuals, confidential reports, product price lists,
customer lists, financial information, business plans, prospects
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or opportunities; provided, however, that such term, shall not include any
information that (x) is or becomes generally known or available other than as a
result of a disclosure by Employee or (y) is or becomes known or available to
Employee on a non-confidential basis from a source (other than the Company)
which, to Employee's knowledge, is not prohibited from disclosing such
information to Employee by a legal, contractual, fiduciary or other obligation
to the Company.
(b) Employee confirms that all Confidential Information is the
exclusive property of the Company. All business records, papers and documents
kept or made by Employee while employed by the Company relating to the business
of the Company shall be and remain the property of the Company at all times.
Upon the request of the Company at any time, Employee shall promptly deliver to
the Company, and shall retain no copies of, any written materials, records and
documents made by Employee or coming into his possession while employed by the
Company concerning the business or affairs of the Company other than personal
materials, records and documents (including notes and correspondence) of
Employee not containing proprietary information relating to such business or
affairs. Notwithstanding the foregoing, Employee shall be permitted to retain
copies of, or have access to, all such materials, records and documents relating
to any disagreement, dispute or litigation (pending or threatened) between
Employee and the Company.
(c) The Company recognizes that the Employee maintains his contacts on
the computer system and that the list of contacts will remain the exclusive
ownership of the employee.
5.2. NON-COMPETITION
(a) At the election of the Employee, for one (1) year after the
Effective Date (the "Restricted Period"), Employee shall not, unless he receives
the prior written consent of the Board of Directors, own an interest in, manage,
operate, join, control, lend money or render financial or other assistance to or
participate in or be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, (A) any Person (x) that competes with the
Company in investing or consulting with small and medium sized businesses in the
United States with regard to change of control transactions in which the
transaction utilizes employee stock ownership plans, or (y) that provides or
proposes to provide services to or has invested or proposes to invest in any
Person that is a client of the Company as of the Termination Date or to which
the Company has outstanding loans or in which the Company then has investments
(including warrants or options), or (B) any potential client of the Company with
which the Company has discussed a client, loan or investment relationship within
12 months prior to or the Effective Date. The Employee may only elect to be
subject to this Section 5.2 by providing written notice of such election to the
Company before the Effective Date or within thirty (30) days thereafter and such
effectiveness may be renewed for successive additional one (1) year periods by
providing written notice to the Company not less than twenty (20) days before
the expiration of the Restricted Period then effect.
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(b) Employee has carefully read and considered the provisions of this
Section 5.2 and, having done so, agrees that the restrictions set forth in this
Section 5.2 (including the Restricted Period, scope of activity to be restrained
and the geographical scope) are fair and reasonable and are reasonably required
for the protection of the interests of the Company, its officers, directors,
employees, creditors and shareholders. Employee understands that the
restrictions contained in this Section 5.2 may limit his ability to engage in a
business similar to the Company's business, but acknowledges that he will
receive sufficiently high remuneration and other benefits from the Company
hereunder to justify such restrictions.
(c) During the Restricted Period, Employee shall not, whether for his
own account or for the account of any other Person (excluding the Company),
intentionally (i) solicit, endeavor to entice or induce any employee of the
Company to terminate his employment with the Company or accept employment with
anyone else or (ii) interfere in a similar manner with the business of the
Company.
(d) In the event that any provision of this Section 5.2 relating to the
Restricted Period or the areas of restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or areas such court
deems reasonable and enforceable, the Restricted Period or areas of restriction
deemed reasonable and enforceable by the court shall become and thereafter be
the maximum time period and/or areas.
5.3. STOCK OWNERSHIP
Nothing in this Agreement shall prohibit Employee from acquiring or
holding any issue of stock or securities of any Person that has any securities
registered under Section 12 of the Exchange Act, listed on a national securities
exchange or quoted on the automated quotation system of the National Association
of Securities Dealers, Inc. so long as (i) Employee is not deemed to be an
"affiliate" of such Person as such term is used in paragraphs (c) and (d) of
Rule 145 under the Securities Act of 1933, as amended, and (ii) Employee and
members of his immediate family do not own or hold more than 3% of any voting
securities of any such Person.
5.4. INJUNCTIVE RELIEF
Employee acknowledges that a breach of any of the covenants contained
in this Article 5 may result in material irreparable injury to the Company for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach, any payments remaining under the terms of this Agreement shall cease and
the Company shall be entitled to obtain a temporary restraining order or a
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Article 5 or such other relief as may required to
specifically enforce any of the covenants contained in this Article 5. Employee
agrees to and hereby does submit to in personam jurisdiction before each and
every such court for that purpose.
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ARTICLE 6
DISPUTE RESOLUTION
In the event a dispute shall arise between the parties as to whether
the provisions of this Agreement have been complied with (a "Dispute"), the
parties agree to resolve such Dispute in accordance with the following
procedure:
(a) A meeting shall be held promptly between the Parties, attended by
(in the case of the Company) by one or more individuals with decision-making
authority regarding the Dispute, to attempt in good faith to negotiate a
resolution of the Dispute.
(b) If, within 10 days after such meeting, the parties have not
succeeded in negotiating a resolution of the Dispute, the parties agree to
submit the Dispute to mediation in accordance with the Commercial Mediation
Rules of the American Arbitration Association except that Disputes with regard
to the existence of a Disability shall be resolved in accordance with the
definition of the term "Disability" above.
(c) The parties will jointly appoint a mutually acceptable mediator,
seeking assistance in such regard from the American Arbitration Association if
they have been unable to agree upon such appointment within 10 days following
the 10-day period referred to in clause (b) above.
(d) Upon appointment of the mediator, the parties agree to participate
in good faith in the mediation and negotiations relating thereto for 15 days.
(e) If the parties are not successful in resolving the Dispute through
mediation within such 15-day period, the parties agree that the Dispute shall be
settled by arbitration in accordance with the Expedited Procedures of the
Commercial Arbitration Rules of the American Arbitration Association.
(f) The fees and expenses of the mediator/arbitrators shall be borne
solely by the non-prevailing party or, in the event there is no clear prevailing
party, as the mediator/arbitrators deem appropriate.
(g) The Company shall reimburse Employee, on a current basis, for 50%
of all reasonable legal fees and expenses, if any, incurred by Employee in
connection with any Dispute; provided, however, that in the event the resolution
of such Dispute in accordance with this Article 6 includes a finding denying, in
all material respects, Employee's claims in such Dispute, Employee shall be
required to reimburse the Company, over a period not to exceed 12 months from
the date of such resolution, for all sums advanced to Employee with respect to
such Dispute pursuant to this paragraph (g).
(h) Except as provided above, each party shall pay its own costs and
expenses (including, without limitation, attorneys' fees) relating to any
mediation/arbitration proceeding conducted under this Article 6.
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(i) All mediation/arbitration conferences and hearings will be held in
the greater Washington, D.C. area.
(j) In the event there is any disputed question of law involved in any
arbitration proceeding, such as the proper legal interpretation of any provision
of this Agreement, the arbitrators shall make separate and distinct findings of
all facts material to the disputed question of law to be decided and, on the
basis of the facts so found, express their conclusion of the question of law.
The facts so found shall be conclusive and binding on the parties, but any legal
conclusion reached by the arbitrators from such facts may be submitted by either
party to a court of law for final determination by initiation of a civil action
in the manner provided by law. Such action, to be valid, must be commenced
within 20 days after receipt of the arbitrators' decision. If no such civil
action is commenced within such 20-day period, the legal conclusion reached by
the arbitrators shall be conclusive and binding on the parties. Any such civil
action shall be submitted, heard and determined solely on the basis of the facts
found by the arbitrators. Neither of the parties shall, or shall be entitled to,
submit any additional or different facts for consideration by the court. In the
event any civil action is commenced under this paragraph (b), the party who
prevails or substantially prevails (as determined by the court) in such civil
action shall be entitled to recover from the other party all costs, expenses and
reasonable attorneys' fees incurred by the prevailing party in connection with
such action and on appeal.
(k) Except as limited by paragraph (b) above, the parties agree that
judgment upon the award rendered by the arbitrators may be entered in any court
of competent jurisdiction. In the event legal proceedings are commenced to
enforce the rights awarded in an arbitration proceeding, the party who prevails
or substantially prevails in such legal proceeding shall be entitled to recover
from the other party all costs, expenses and reasonable attorneys' fees incurred
by the prevailing party in connection with such legal proceeding and on appeal.
(l) Except as provided above, (i) no legal action may be brought by
either party with respect to any Dispute and (ii) all Disputes shall be
determined only in accordance with the procedures set forth above.
ARTICLE 7
MISCELLANEOUS
7.1. NO MITIGATION OR OFFSET
The provisions of this Agreement are not intended to, nor shall they be
construed to, require that Employee mitigate the amount of any payment provided
for in this Agreement by seeking or accepting other employment, nor shall the
amount of any payment provided for in this Agreement be reduced by any
compensation earned by Employee as the result of employment by another employer
or otherwise. Without limitation of the foregoing, the Company's obligations to
make the payments to Employee required under this Agreement and otherwise to
perform its obligations
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hereunder shall not be affected by any set off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against
Employee, except that the Company may deduct from any amount required to be
reimbursed to the Company by Employee under Section 4.10 or Article 6(a) the
amount of any payment which the Company is then required to make to Employee
hereunder.
7.2. ASSIGNABILITY
The obligations of Employee hereunder are personal and may not be
assigned or delegated by Employee or transferred in any manner whatsoever, nor
are such obligations subject to involuntary alienation, assignment or transfer.
The Company shall have the right to assign this Agreement and to delegate all
rights, duties and obligations hereunder as provided in Section 7.5.
7.3. NOTICES
All notices and all other communications provided for in the Agreement
shall be in writing and addressed (i) if to the Company, at its principal office
address or such other address as it may have designated by written notice to
Employee for purposes hereof, directed to the attention of the Chairman with a
copy to the Compliance Officer of the Company and to Xxxxxx X. Xxxx, Esq.,
Xxxxxx & Xxxxxx, 000 00xx Xxxxxx, XX, Xxxxxxxxxx, X.X. 00000, and (ii) if to
Employee, at his residence address on the records of the Company or to such
other address as he may have designated to the Company in writing for purposes
hereof. Each such notice or other communication shall be deemed to have been
duly given when delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, except that any notice of change of address
shall be effective only upon receipt.
7.4. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
7.5. SUCCESSORS: BINDING AGREEMENT
(a) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form and substance
reasonable acceptable to Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement. As used herein, the term
"Company" shall include any successor to its business and/or assets as aforesaid
which executes and delivers the Agreement provided for in this Section 7.5 or
which
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otherwise becomes bound by all terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of Employee hereunder shall inure to
the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributes,
devisees and legatees. If Employee should die while any amounts would be payable
to him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee, or other designee or, if there be no such designee,
to Employee's estate.
7.6. TAX MATTERS
The Company shall withhold from all payments hereunder all applicable
taxes (federal, state or other) which it is required to withhold therefrom
unless Employee has otherwise paid (or made other arrangements satisfactory) to
the Company the amount of such taxes.
7.7. AMENDMENTS AND WAIVERS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by Employee and such member of the Board of Directors as may be specifically
authorized by the Board of Directors. No waiver by either party hereto at any
time of any breach by the other party hereto of, or in compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
7.8. ENTIRE AGREEMENT, TERMINATION OF OTHER AGREEMENTS
This Agreement is an integration of the parties' agreement and except
with regard to such definitions as are set forth in the Old Agreement and are
specifically referenced herein, no agreement or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party that are not set forth expressly in this Agreement.
7.9. GOVERNING LAW
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD
TO ITS CONFLICT OF LAWS PROVISION.
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7.10. COUNTERPARTS
This Agreement may be executed in or more counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
AMERICAN CAPITAL STRATEGIES, LTD.
By:
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EMPLOYEE:
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Xxxx Xxxxxxxxxx
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