EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated effective the 25th day
of September, 1997 (the "Effective Date"), is entered into by and between LOONEY
& COMPANY, a Texas corporation ("Looney"), U.S. Legal Support, Inc., a Texas
corporation ("U.S. Legal", and together with Looney, the "Company"), and XXXXX
X. XXXXXX, an individual residing in the State of Texas (the "Employee").The
Company and Employee may sometimes hereinafter be referred to singularly as a
"Party" or collectively as the "Parties." All capitalized terms not otherwise
defined herein shall have the same meaning as contained in that certain
Agreement of Purchase and Sale of Assets executed as of September 25, 1997 (the
"Purchase Agreement"), by and among the Company and the Employee.
W I T N E S S E T H:
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WHEREAS, Employee has been an employee, officer and director of the Seller
and his knowledge of the affairs of the Seller, particularly its business of
providing job placement of attorneys and other legal and other professionals,
are of great value to the Company; and
WHEREAS, pursuant to the terms of the Purchase Agreement the Company has
agreed to purchase from the Seller, and the Seller has agreed to sell to the
Company, all or substantially all of the Assets of the Seller; and
WHEREAS, part of the consideration given to the Seller and the Employee
under the Purchase Agreement included an agreement by the Company to enter into
this Agreement; and
WHEREAS, the Parties would not have entered into the Purchase Agreement
without the execution of this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants, promises
and undertakings herein contained and other consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the Parties hereby undertake
and agree as follows:
1. Employment Term. The Company hereby employs the Employee commencing on
the Effective Date for a term of three (3) years (the "Employment Term"), unless
sooner terminated as hereinafter provided. The term of this Agreement may be
renewed or extended for one or more successive additional one (1) year terms
unless either party gives notice at least 90 days prior to the expiration of the
initial term or any such renewal term that such party desires to terminate this
Agreement. Unless otherwise provided herein, Sections 12 - 26 of this Agreement
shall survive the expiration or termination of this Agreement, for any reason
whatsoever. The Employee accepts such
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employment and agrees to perform the services specified herein, all upon the
terms and conditions hereinafter stated.
2. Duties. The Employee shall serve as the manager of legal staffing for
the Company's operations with the title of Vice President of Legal Placement and
Staffing and shall report to, and be subject to the general direction and
control of the President, Chief Executive Officer and the Board of Directors of
the Company (the "Board"). The Employee shall manage the Company's Texas legal
staffing operations and be responsible for identifying additional legal staffing
acquisitions in addition to performing such management and administrative
duties, consistent with the Employee's position, as are from time to time
assigned to the Employee by the President, Chief Executive Officer and the Board
including developing local, regional, and national customers for the Company and
its Affiliates (defined below). The Employee also agrees to perform, without
additional compensation, such other services for the Company, and for any
parent, subsidiary or affiliate corporations of the Company and any partnerships
in which the Company may from time to time have an interest (herein collectively
called "Affiliates"), as the President, Chief Executive Officer or Board shall
from time to time specify, if such services are of the nature commonly
associated with the position set forth above of a company engaged in activities
similar to the activities engaged in by the Company and to perform such other
activities as are consistent with the Employee's past responsibilities as an
employee of the Seller; provided, that Employee shall not be required to engage
in any business that is not reasonably related to the Business of the Company,
as hereinafter defined. For purposes of this Agreement, the "Business of the
Company" or, alternatively, "Business" shall be defined as the current business
of the Seller, including, but not limited to, the marketing and providing of
legal recruiting and placement services. The term "Company" as used in this
Agreement shall be deemed to include and refer to all such Affiliates.
3. Extent of Service. The Employee shall devote his full business time,
attention and energy to the business of the Company, and shall not be engaged in
any other business activity during the term of this Agreement. The foregoing
shall not be construed as preventing the Employee from making passive
investments in other businesses or enterprises, if (i) such investments will not
require services on the part of the Employee which would in any material way
impair the performance of his duties under this Agreement, (ii) such other
businesses or enterprises are not engaged in any business competitive with the
business of the Company, and (iii) the Employee has complied with Sections 12
and 13 of this Agreement with respect to each such passive investment.
4. Compensation. As payment for the services to be rendered by the
Employee hereunder during the initial term, the Employee shall be entitled to
receive:
(a) a salary in the amount of One Hundred Fifty Thousand and No/100
Dollars ($150,000) per year effective as of the date hereof, which shall be
payable monthly or in accordance with the payroll policies of the Company
in effect from time to time if such policies provide for payment of salary
more frequently than monthly, until termination of this Agreement;
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(b) a bonus to be calculated in accordance with Schedule A attached
hereto, payable within ninety (90) days after the end of each fiscal year
of the Company (the "Annual Bonus")
(c) commissions based upon the revenues generated from National
Account (as defined below) sales originated by the Employee. The amount of
commissions payable will be based upon a formula ("Formula") to be
established by the Board of Directors of U.S. Legal. The Formula may be
amended from time to time by U.S. Legal's Board of Directors and the
Employee shall be entitled to receive compensation hereunder based upon the
Formula as it exists on the date of the origination of the National
Account. A "National Account" is any account established with an insurance
or "Fortune 500" company pursuant to which two or more of U.S. Legal's
offices in different geographical areas render services pursuant to an
exclusive contact in those areas. Until notice of a change in the Formula
applicable to the Employee is given to the Employee by U.S. Legal's Board
of Directors, the Formula applicable to the Employee shall be as follows:
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Commission Price Structure of
Percentage of Gross Sales National Account
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3.00% Market price
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2.50% Discount of 5% to less than 10% from
market price rate
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2.00% Discount of 10% to less than 15% from
market price rate
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1.50% Discount of 15% to less than 20% from
market price rate
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1.00% Discount of 20% to less than 25% from
market price rate
-------------------------------------------------------------------------
0.50% Discount of 25% or more from
market price rate
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In certain circumstances, more than one individual may be entitled to
receive commissions based upon sales from a National Account. In such
circumstances, the commissions described above would be shared by the
Employee and the other individual(s) on such a basis as is determined to be
fair by U.S. Legal's Board of Directors. All commissions payable hereunder
will be paid in cash within 45 days of the end of the calendar year in
which they are earned.
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(d) in the event that the Employee provides assistance to U.S. Legal
in connection with U.S. Legal's acquisition of an acquisition candidate,
the Employee shall be entitled to receive, at the closing of such
acquisition, a cash payment equal to 10% of any finder's fees or
commissions payable to any third party by U.S. Legal or its subsidiary in
connection with such acquisition. The Employee shall identify potential
acquisition candidates by giving written notice to U.S. Legal's management
("Acquisition Notice") prior to expending any efforts to effect any such
acquisition and shall only be entitled to compensation hereunder in the
event that U.S. Legal authorizes the Employee to actively pursue such
acquisition. In no event shall U.S. Legal or any subsidiary be obligated to
close any acquisition with regard to any business identified by the
Employee as an acquisition candidate, and no fee shall be payable hereunder
unless and until such acquisition closes. In the event another individual
employed by U.S. Legal or its subsidiaries claims a commission on any
acquisition candidate identified in an Acquisition Notice (which commission
(if paid) would be duplicative of any commission paid to the Employee
hereunder), the Company agrees to negotiate in good faith with the Employee
regarding a fair and reasonable allocation of such commission between the
Employee and such other individual.
5. Expenses. During the term of this Agreement, the Company shall promptly
pay or reimburse the Employee for all reasonable out-of-pocket expenses for
travel, meals, hotel accommodations and similar items incurred by him in
connection with the Business of the Company and approved by the Board or
incurred in accordance with the travel and reimbursement policies of the Company
as the same shall be in effect from time to time, upon submission by him of an
appropriate statement documenting such expenses. The Company shall also pay the
Employee a non-accountable automobile allowance in the amount of $600.00 per
month.
6. Employee Benefits. During the term of this Agreement, the Employee
shall be entitled to participate in all employee benefit plans from time to time
made generally available to the executive employees of the Company, including
any stock option plan, retirement plan, profit-sharing plan, group life plan,
health or accident insurance or other employee benefit plans as the same shall
be maintained in effect, as determined by the Board.
7. Vacation. During the term of this Agreement, the Employee shall be
entitled to annual vacation time determined in accordance with the vacation
policies of the Company in effect from time to time but not less than four (4)
weeks per year, during which time his compensation shall be paid in full.
Unused vacation time shall not accrue from year to year, unless otherwise
required by law.
8. Covenants of Employee. For and in consideration of the employment
herein contemplated and the consideration paid or promised to be paid by the
Company, the Employee does hereby covenant, agree and promise that during the
term hereof and thereafter to the extent specifically provided in this
Agreement:
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(a) Except as otherwise specifically permitted by this Agreement,
during the term of this Agreement, Employee will not actively engage,
directly or indirectly, in any other business other than that of Company,
except at the direction or approval of the Company.
(b) The Employee will truthfully and accurately make, maintain and
preserve all records and reports that the Company may from time to time
request or require .
(c) The Employee will fully account for all money, records, goods,
wares and merchandise or other property belonging to the Company of which
the Employee has custody, and will pay over and deliver same promptly
whenever and however he may be reasonably directed to do so by the Company.
(d) The Employee will obey all rules, regulations and special
instructions of the Company applicable to him, and will be loyal and
faithful to the Company at all times.
(e) The Employee will make available to the Company any and all of
the information of which he has knowledge relating to the Business of the
Company, and will make all suggestions and recommendations which he feels
will be of mutual benefit to the Parties.
(f) The Employee agrees that upon termination of his employment
hereunder he will immediately surrender and turn over to the Company all
books, records, forms, specifications, formulae, data, processes, papers
and writings related to the Business of the Company and all other property
belonging to the Company, together with all copies of the foregoing, it
being understood and agreed that the same are the sole property of the
Company.
(g) The Employee agrees that all ideas, concepts, processes,
discoveries, devices, machines, tools, materials, designs, improvements,
inventions and other things of value relating to the Business of the
Company (hereinafter collectively referred to as "intangible rights"),
whether patentable or not, which are conceived, made, invented or suggested
by him alone or in collaboration with others during the term of his
employment, and whether or not during regular working hours, shall be
promptly disclosed in writing to the Company and shall be the sole and
exclusive property of the Company. The Employee hereby assigns all of his
right, title and interest in and to all such intangible rights to the
Company, and its successors or assigns. In the event that any of such
intangible rights shall be deemed by the Company to be patentable or
otherwise registerable under any federal, state or foreign law, the
Employee further agrees that, at the expense of the Company, he will
execute
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all documents and do all things reasonably necessary, advisable or proper
to obtain patents therefor or registration thereof, and to vest in the
Company full title thereto.
9. Mutual Covenants of the Company and the Employee. For and in
consideration of the employment herein contemplated and the compensation,
covenants, conditions and promises herein recited, the Company and the Employee
do hereby mutually agree that during the term hereof:
(a) The Employee shall not, by reason of this Agreement, have any
vested interest in, or right, title or claim to, any land, buildings,
equipment, machinery, processes, systems, products, contracts, goods,
wares, merchandise, business assets or other things of value belonging to
or which may hereafter be acquired or owned by the Company.
(b) In carrying out his duties as specified above, the Employee shall
primarily be responsible for making day-to-day decisions for the Legal
Staffing Division of the Company in the ordinary course of business ,
subject to possible review by the President, Chief Executive Officer and/or
the Board. The responsibility for the Company's plans, properties,
contracts, methods, and policies shall be vested in the Board and the
Company may, in its sole and absolute discretion, give, sell, assign,
transfer or otherwise dispose of any or all of its assets or businesses in
whole or in part, to any person, firm or corporation, whether or not such
person, firm or corporation is in any manner owned by or associated with or
affiliated with the Company.
(c) The Employee acknowledges that because of the nature of the
position for which he has been employed, the Employee may be called upon to
perform such duties and render such services as are required of him
hereunder irregularly, and agrees to perform to the best of his abilities
such duties as the business may reasonably demand, and acknowledges that
the number of hours per day or per week may vary. Notwithstanding the
foregoing, the Employee shall work in a manner that is consistent with his
prior customary practice on behalf of the Seller.
10. Termination of Employment for Cause. The Company may terminate
the employment of the Employee if the Company suffers or may reasonably be
expected to suffer any material adverse effect as a result of the Employee (any
such termination being a termination for "Cause"):
(a) Breaching any material provision of this Agreement and failing to
cure such breach within ten (10) days after receipt of written notice
thereof;
(b) Misappropriating funds or property of the Company;
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(c) Securing any personal profit not thoroughly disclosed to and
approved by the Company in connection with any transaction entered into on
behalf of the Company;
(d) Engaging in conduct, even if not in connection with the
performance of his duties hereunder, which would reasonably be expected to
result in a material adverse effect to the interest of the Company if he
was retained as an employee, such as his commission of a felony or a crime
of moral turpitude;
(e) Becoming and remaining "Disabled," as hereinafter defined (either
physically, mentally or otherwise) for a period of one hundred thirty-five
(135) days during any consecutive twelve-month time period;
(f) Failing to carry out and perform the duties assigned to the
Employee in accordance with the terms hereof and failing to cure such
breach within ten (10) days after written notice thereof; or
(g) Failing to comply with consistently applied corporate policies of
the Company that are promulgated from time to time and made known to
Employee and failing to cure such breach within ten (10) days after written
notice thereof.
In the event of the death of the Employee, such occurrence shall
immediately constitute a termination for Cause. Except as provided in item (e)
above, no termination for Cause shall be effective if the Employee is Disabled.
In the event the Employee is terminated for Cause because he is Disabled,
the Employee may be permitted to participate in any disability insurance policy
the Company then has in effect.
In the event of termination of his employment for Cause, the Employee shall
be entitled to receive his compensation, as determined in Section 4 of this
Agreement, due or accrued on a pro rata basis to the date of termination. Any
salary or remuneration owed as of the date of termination shall be paid less the
amount of damages, if any, caused to the Company by such breach, but no such
damages offset shall extend beyond any compensation due and owing under this
Agreement.
Notwithstanding the cure provisions provided in Sections 10(a), 10 (f) and
10(g), the Employee shall not have the opportunity to cure any violation of
these subsections if such violation cannot reasonably be expected to be cured.
In such event, the Company shall be required to furnish the Employee notice of
the violation, but the Employee shall not be furnished an opportunity to cure.
"Disabled" shall mean the continuous inability, whether mental or physical,
of Employee to perform his normal job functions as determined by at least two of
three medical physicians selected as follows: the Employee or his legal designee
shall be entitled to appoint one physician, the Company shall be entitled to
appoint one physician, and such two appointed physicians shall mutually
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appoint a third physician. Notwithstanding the foregoing, the Employee, or his
designee, and the Company may mutually agree that he is "Disabled" within the
meaning of this Agreement.
11. Termination By the Company Without Cause or By the Employee With Good
Reason. The Company may terminate the employment of Employee for any reason
other than those for Cause, in which event such termination shall be deemed a
"Termination Without Cause." In addition, the Employee shall have the right to
terminate this Agreement for any material breach of this Agreement by the
Company, which shall include but not be limited to materially changing the
duties assigned to Employee beyond those contemplated in Section 2 of this
Agreement or requiring the Employee to relocate his primary residence outside of
the Houston, Texas area; provided that the Company shall be furnished ten (10)
days notice of such breach and an opportunity to cure (any such termination
constituting a "Termination By Employee With Good Reason"). Notwithstanding the
cure provisions provided in the preceding sentence, the Company shall not have
the opportunity to cure any violation of this Agreement if such violation cannot
reasonably be expected to be cured, but the Employee shall still furnish notice
to the Company of such violation. In the event of a Termination Without Cause
or a Termination with Good Reason by the Employee, the Company shall continue
making payments to Employee in an amount equal to the compensation of the
Employee, as determined in Section 4 of this Agreement, as if he was still
employed for a period equal to the lesser of (i) one (1) year, or (ii) the
remaining term of this Agreement, which amount, in the event of a Termination
Without Cause or a Termination By Employee With Good Reason, shall constitute
the full and total amount of liquidated damages that the Employee shall be
entitled to receive from the Company and its Affiliates for any contractual or
tort claims arising out of his employment relationship with the Company.
12. Covenant Not to Compete. The Employee recognizes that the Company has
business goodwill and other legitimate business interests which must be
protected in connection with and in addition to the Information (as defined
hereinafter), and therefore, in exchange for access to the Information, the
specialized training and instruction which the Company will provide, the
Company's agreement to employ the Employee on the terms and conditions set forth
herein, the Company's agreement to execute and consummate the Purchase
Agreement, and the promotion and advertisement by the Company of Employee's
skill, ability and value in the Company's business, subject to the provisions of
the next full paragraph of this Section 12, the Employee agrees that (a) from
and after the consummation of the transactions contemplated by the Purchase
Agreement and thereafter during the remaining term of this Agreement, except as
otherwise specifically permitted herein, Employee will not actively engage,
directly or indirectly, in any other business other than that of the Company and
(b) in the event (i) Employee is terminated for Cause, or (ii) Employee leaves
the employ of the Company other than a Termination By Employee With Good Reason
prior to expiration of the term of the Agreement, or (iii) upon the expiration
of the term of this Agreement, then for a period of (i) four and one-half
(4-1/2) years after the date of this Agreement (if such period extends beyond
the date the Employee's service hereunder is terminated),:
(a) Employee will not in any capacity or relationship enter into,
engage in, or be connected with any business or business operation or
activity within a fifty (50)
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mile radius of any office location then operated by the Company at the time
of such termination, which consists in whole or in part of the Business of
the Company; and
(b) Employee will not call upon any customer whose account is
serviced in whole or in part by the Company or its Affiliates at the time
of the termination of Employee's employment, with the purpose of selling or
attempting to sell to any such customer any services included within that
offered by the Company or its Affiliates; and
(c) Employee will not intentionally divert, solicit or take away any
customer, supplier or employee of the Company or its Affiliates, or the
patronage of any customer or supplier of the Company or its Affiliates, or
otherwise interfere with or disturb the relationship existing between the
Company or its Affiliates and any of their respective customers, suppliers
or employees, directly or indirectly.
In addition, the foregoing restrictive covenants shall also apply to the
Employee in the event of his Termination Without Cause or in the event of
Termination By Employee With Good Reason by the Employee, but only for a period
of one (1) year.
In the event the Company ceases operation of the Business of the Company
other than in a merger, consolidation, or similar transaction, or upon the
filing of a bankruptcy or receivership proceeding against the Company, or upon
the appointment of a liquidator for the Company, the provisions of this Section
12 shall not be applicable to the conduct of Employee subsequent thereto.
It is mutually understood and agreed that if any of the provisions relating
to the scope, time or territory in this Section 12 are more extensive than is
enforceable under applicable laws or are broader than necessary to protect the
good will and legitimate business interests of the Company, then the Parties
agree that they will reduce the degree and extent of such provisions by whatever
minimal amount is necessary to bring such provisions within the ambit of
enforceability under applicable law.
The Parties acknowledge that the remedies at law for breach of Employee's
covenants contained in this Section 12 are inadequate, and they agree that the
Company shall be entitled, at its election, to injunctive relief (without the
necessity of posting bond against such breach or attempted breach), and to
specific performance of such covenants in addition to any other remedies at law
or equity that may be available to the Company.
13. Business Opportunities. Except for passive investments by the Employee
in publicly traded entities, or investments in private ventures which do not
compete with, or are not in the same business as, the Company and which come to
the attention of the Employee outside of the scope of his employment, for as
long as the Employee shall be employed by the Company and thereafter with
respect to any business opportunities learned about during the time of
Employee's employment by the Company, the Employee agrees that with respect to
any future business opportunity or other new and future business proposal which
is offered to, or comes to the attention of, the Employee and which
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is in any way related to, or connected with, the Business of the Company, the
Company shall have the right to take advantage of such business opportunity or
other business proposal for its own benefit. The Employee agrees to promptly
deliver notice to the Board in writing of the existence of such opportunity or
proposal and the Employee may take advantage of such opportunity only if the
Company does not elect to exercise its right to take advantage of such
opportunity.
14. Confidential Information. The Employee acknowledges that in the
course of his employment with the Company, he will receive certain trade
secrets, know-how, lists of customers, employee records and other confidential
information and knowledge concerning the Business of the Company (hereinafter
collectively referred to as "Information") which the Company desires to protect.
The Employee understands that such Information is confidential and he agrees
that he will not reveal such Information to anyone outside the Company except
(i) for information already known to the public, now or in the future, or (ii)
in connection with any legal proceeding regarding this Agreement, the Purchase
Agreement or the transactions contemplated thereby or as otherwise required by
law or judicial order. The Employee further agrees that during the term of this
Agreement and thereafter he will not use such Information in competing with the
Company. Upon termination of his employment hereunder, the Employee shall
surrender to the Company all papers, documents, writings and other property
produced by him or coming into his possession by or through his employment
hereunder and relating to the information referred to in this Section 14, which
are not general knowledge in the industry, and the Employee agrees that all such
materials will at all times remain the property of the Company.
15. Notices. All notices, consents, demands or other communications
required or permitted to be given pursuant to this Agreement shall be deemed
sufficiently given when delivered personally with a written receipt
acknowledging delivery or telefaxed with receipt confirmed, or three (3)
business days after the posting thereof by United States first class, registered
or certified mail, return receipt requested, with postage fee prepaid and
addressed as follows:
If to the Company: Looney & Company
0000 Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telefax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
If to the Employee: Xxxxx X. Xxxxxx
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000
Any Party may change its address for notice hereunder by providing written
notice of such change to the other Party hereto.
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16. Specific Performance. The Employee acknowledges that a remedy at
law for any breach or attempted breach of Sections 12, 13 or 14 of this
Agreement will be inadequate, the Employee agrees that the Company shall be
entitled to specific performance and injunctive and other equitable relief in
case of any such breach or attempted breach, and further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or any other equitable relief.
17. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective to the extent
of such provision or invalidity only, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
18. Assignment. This Agreement may not be assigned by the Employee.
Neither the Employee, his spouse nor their estates shall have any right to
encumber or dispose of any right to receive payments hereunder, it being
understood that such payments and the right thereto are nonassignable and
nontransferable.
19. Binding Effect. Subject to the provisions of Section 18 of this
Agreement, this Agreement shall be binding upon and inure to the benefit of the
Parties hereto, the Employee's heirs and personal representatives, and the
successors and assigns of the Company.
20. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Texas.
21. Prior Employment Agreements. Employee represents and warrants to
the Company that he has fulfilled all of the terms and conditions of all prior
employment agreements to which he may be or have been a party, and at the time
of execution of this Agreement is not a party to any other employment agreement.
22. Parol Evidence. This Agreement constitutes the sole and complete
agreement between the Parties hereto with respect to the subject matter hereof,
and no verbal or other statements, inducements or representations have been made
to or relied upon by either Party, and no modification hereof shall be effective
unless in writing signed and executed in the same manner as this Agreement,
provided, however, the amount of compensation to be paid Employee for services
to be performed for Company may be changed from time to time by the Parties
hereto by written agreement without in any other way modifying, changing or
affecting this Agreement and the performance by the Employee of any of the
duties of his employment with the Company. Written notification of any
modification of compensation paid or payable to the Employee for his services
shall be conclusively deemed to be a ratification and confirmation of this
Agreement amended by such change in compensation unless the Employee shall
object in writing with ten (10) days after such written notification from the
Company.
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23. Waiver. Any waiver to be enforceable must be in writing and executed
by the Party against whom the waiver is sought to be enforced.
24. Arbitration. If a dispute arises out of or relates to this Agreement,
or the breach thereof, and if such dispute cannot be settled through
negotiation, the Parties agree first to try in good faith to settle the dispute
by mediation under the Commercial Mediation Rules of the American Arbitration
Association, before resorting to arbitration, litigation, or some other dispute
resolution procedure as required by this Section 24. Failing an adequate
resolution by mediation, any controversy or claim arising out of or relating to
this Agreement or the transactions contemplated hereby, including any
controversy or claim arising out of or relating to the Parties' decision to
enter into this Agreement, shall be settled by binding arbitration. There shall
be one arbitrator to be mutually agreed upon by the Parties involved in the
controversy and to be selected from the National Panel of Commercial Arbitrators
(or successor panel, if any). If within 45 days after service of the demand for
arbitration the Parties are unable to agree upon such an arbitrator who is
willing to serve, then an arbitrator shall be appointed by the American
Arbitration Association in accordance with its rules. Except as specifically
provided in this Section 24, the arbitration shall be conducted in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
The arbitrator shall not render an award of punitive damages. Any arbitration
hereunder shall be held in Houston, Texas. Expenses related to the arbitration,
including counsel fees, shall be borne by the Party incurring such expenses
except to the extent otherwise provided in Section 25 herein. The fees of the
arbitrator and of the American Arbitration Association, if any, shall be divided
equally among the Parties involved in the controversy. Judgment upon the award
rendered by the arbitrator (which may, if deemed appropriate by the arbitrator,
include equitable or mandatory relief with respect to performance of obligations
hereunder) may be entered in any court of competent jurisdiction. The arbitrator
shall award the prevailing Party in any arbitration proceeding recovery of its
attorneys' fees, the arbitrators' fees and other costs in connection with the
arbitration from the non-prevailing Party.
25. Attorney's Fees. If any litigation is instituted to enforce or
interpret the provisions of this Agreement or the transactions described herein,
the prevailing Party in such action shall be entitled to recover its reasonable
attorneys' fees and other costs from the other Party hereto.
26. Drafting. All Parties hereto acknowledge that each was actively
involved in the negotiation and drafting of this Agreement and that no law or
rule of construction shall be raised or used in which the provisions of this
Agreement shall be construed in favor or against any Party hereto because one is
deemed to be the author thereof.
27. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall have the force and effect of an original, and
all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date and year first above written.
THE COMPANY:
LOONEY & COMPANY,
a Texas corporation
/s/ XXXXXXX X. XXXXXX
By: _____________________________________
Xxxxxxx X. Xxxxxx
President
U.S. LEGAL SUPPORT, INC.
a Texas corporation
/s/ XXXXXXX X. XXXXXX
By: _____________________________________
Xxxxxxx X. Xxxxxx
President
THE EMPLOYEE:
/s/ XXXXX X. XXXXXX
_________________________________________
Xxxxx X. Xxxxxx
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SCHEDULE A
CALCULATION OF ANNUAL AND QUARTERLY BONUS
Each year the accountants regularly employed by the Company shall
determine the amount of Net Profit, if any, of the legal staffing business of
the Company during each consecutive twelve (12) month time period ending on the
last day of the fiscal year of the Company ("Annual Bonus") commencing with the
first fiscal year of the Company and continuing each year during the term of
this Agreement. Beginning with the first fiscal year of the Company, to the
extent that the Annual Profits of the current year exceed the Annual Profits of
the prior year, the Employee shall be paid an annual bonus equal to ten percent
(10%) of the amount of such excess, if any; provided that, for the first fiscal
year of the Company (A)(i) the Annual Profits shall be calculated for each full
month of operations and added together, (ii) the Annual Profits for any partial
month of operations shall be divided by the number of actual days in such month
and multiplied by 30 to create a full month and (iii) the sum of (A)(i) and
(A)(ii) shall be added together, that result divided by the number of full and
partial months of operations and the quotient multiplied by 12 to create the
number representing Annual Profits for the first fiscal year and (B) the Annual
Profits of the prior year shall be deemed to be $_________. For purposes of
this calculation, "Net Profit" shall mean earnings before income taxes,
interest, depreciation and amortization, and shall include overhead incurred
with regard to the Company's legal staffing business but shall exclude overhead
applicable to the Company's general business.
