EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of this
26th day of August, 1996 (the "Effective Date") by and between The Xxxx Company,
a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx (the
"Executive").
BACKGROUND
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A. The Company is engaged in the manufacturing and marketing of
consumer products for the home, principally sheets, pillowcases, towels and
other bedding and bath accessories, as well as apparel fabrics and other
specially engineered textile products used in making high-pressure hoses and
other industrial products (the "Business").
B. The Company desires to employ Executive, and Executive is willing
to be employed by the Company, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and intending to be legally bound hereby, the parties agree as follows:
TERMS
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SECTION 1. Employment. The Company hereby employs Executive, and
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Executive hereby accepts such employment and agrees to serve as the Company's
President and Chief Executive Officer (the "President and CEO") during the
Employment Period set forth in Section 6, subject to the terms and conditions
hereinafter set forth.
SECTION 2. Management Duties. As President and CEO of the Company
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during the Employment Period, Executive shall carry out such duties as are
applicable to the position of President and Chief Executive Officer as set forth
in the Company's Bylaws, which duties shall however, in all cases be subject to
policies set by, and at the direction and control of, the Company's Board of
Directors. The Company shall, subject to applicable fiduciary duties of the
Company's directors as advised by counsel, nominate the Executive to serve on
the Company's Board of Directors for each election of directors during the
Employment Period (other than elections of directors in which Executive's then-
existing term as a director does not then expire).
SECTION 3. Extent of Services. During the Employment Period,
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Executive shall devote his full working time and attention and give his best
efforts, skills and abilities exclusively to the management and operations of
the Company and
its Business; it being understood and agreed that Executive shall be permitted
to: (a) serve as a director or officer of any trade association, civic,
educational or charitable organization or governmental entity or (b) serve as a
director of any corporation which is not a direct or indirect competitor of the
Company, provided that Executive's service as described in clauses (a) and (b)
does not materially interfere with Executive's performance of his duties
hereunder. Executive shall perform his services hereunder at the Company's
Macon, Georgia and Atlanta, Georgia offices and at such other places as are
required for the effective management of the Company and its Business.
SECTION 4. Compensation and Benefits.
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(a) Executive shall receive, during the Employment Period, as
compensation for his services a salary (the "Base Salary") at the annual rate
of: (i) until the first anniversary of the date hereof, Four Hundred Thousand
Dollars ($400,000) per annum; (ii) on and after the first anniversary of the
date hereof and until the second anniversary of the date hereof, Four hundred
and Twenty-Five Thousand Dollars ($425,000) per annum; and (iii) on and after
the second anniversary of the date hereof, Four Hundred and Fifty Thousand
Dollars per annum. The Base Salary shall be payable in equal installments at
such intervals as the Company pays its employees generally (but in no event less
than once per month).
(b) The Executive shall be eligible to participate in an annual cash
bonus program which shall contain financial performance formulas and criteria to
be agreed upon by the Company and the Executive and pursuant to which the
Company and the Executive intend for Executive to be eligible to earn an amount
equal to from 50% to 100% of the Executive's then-existing Base Salary upon
satisfaction of the specified financial performance formulas and criteria (the
"Bonus Program"); it being understood and agreed that, with respect to the
initial year of the Employment Period, Executive shall receive a cash bonus no
less than 33% of the Executive's then-existing Base Salary. The amount of each
of the three annual cash bonuses to which Executive is entitled shall be
determined and the bonus shall be paid to Executive as soon as the underlying
financial data is available (but in no event later than 70 days following the
end of the year for which the bonus is calculated).
(c) The Company agrees to grant to Executive options (the "Options")
to acquire the Company's shares of common stock (the "Common Stock") as follows:
(A) the Options would apply to
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an amount of shares of Common Stock equal to 2% of the Company's Common Stock as
of the date of grant calculated on a fully-diluted basis; (B) the exercise price
of the Options would be based upon a $100 million aggregate valuation on all of
the Company's shares of Common Stock calculated on a fully-diluted basis; (C)
shares of Common Stock subject to the Options would vest ratably on the first,
second and third anniversary of the date of grant during the Employment Period,
provided that, in the event of a Change in Control (as defined in Section 7(e))
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or in the event of a termination of the Employment Period other than in
accordance with Section 7(a)(iv) or Section 7(a)(v), all shares of Common Stock
subject to the Option would vest immediately; and (D) the Options would be
exercisable commencing immediately upon vesting and ending on the fifth year
after grant of the Options.
(d) Effective upon the signing of this Agreement, the Company hereby
pays and Executive hereby acknowledges receipt of One Hundred and Twenty-Five
Thousand Dollars ($125,000) to compensate Executive for incentive compensation
forfeited by Executive as a result of his termination of his immediate prior
employment.
(e) During the Employment Period, Executive shall be entitled to
participate in the employee benefit plans and programs, including medical,
health, dental and other plans described on Exhibit A, together with any
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additional plans and programs generally offered to any other senior executive
officers of the Company during the Employment Period.
(f) The Company hereby agrees, during the Employment Period, to
maintain and pay for policy premiums with respect to one or more term life
insurance policies (i) naming Executive's designees as beneficiaries and (ii)
possessing death benefits aggregating no less than 200% of the Executive's then-
existing Base Salary.
(g) Executive shall be entitled to four (4) weeks of paid vacation
per year.
(h) All payments to Executive or his estate made pursuant to this
Agreement shall be subject to such withholding as may be required by any
applicable laws.
SECTION 5. Expense Reimbursements.
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(a) During the Employment Period, the Company shall reimburse
Executive for all reasonable and itemized out-of-pocket
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expenses incurred by Executive in the ordinary course of the Company's business,
provided such expenses are properly reported to the Company in accordance with
its accounting procedures.
(b) The Company shall also reimburse the Executive for: (i) all
relocation expenses from Greensboro, North Carolina to Atlanta, Georgia (or any
location within 50 miles thereof), (ii) reasonable closing costs in connection
with the Executive's purchase of a new home in Atlanta, Georgia (or any location
within 50 miles thereof) made within eighteen months following the execution of
this Agreement; (iii) reasonable lodging expenses in or near Atlanta, Georgia
incurred by Executive and his family during the initial 180 days following the
date hereof; and (iv) up to a maximum of Thirty-Five Thousand Dollars ($35,000)
for actual membership initiation costs incurred by Executive in connection with
his joining a private club in Georgia. The reimbursable relocation expenses
referred to above shall include, but not necessarily be limited to, the
following costs and expenses, for the contemplated relocation: (1) the costs of
packing, transporting and storage (for six months), adequate insurance to cover
all items at 100% of value, costs of unpacking and appliance installation, and
(2) the real estate related costs associated with the relocation including
transaction fees, mortgage loan filing fees, recording and title research and
transfer fees, mortgage points and attorney and legal fees associated with these
expenses and costs. If so requested, the Company shall advance funds to the
Executive in order to enable the Executive to pay all such reimbursable
relocation expenses.
(c) The Company hereby agrees: (i) to purchase, within 30 days after
the Effective Date, the Executive's currently-owned condominium unit located in
Greensboro, North Carolina for $325,000, against delivery by the Executive to
the Company of good, marketable and fee simple title fee to the condominium unit
free and clear of any mortgages, leases, liens and encumbrances (other than the
condominium documents and easements servicing the condominium); and (ii) to
assume all costs associated with or collateral to the foregoing purchase up to
$10,000 in the aggregate.
SECTION 6. Term. The period of Executive's employment under this
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Agreement (the "Employment Period") shall commence as of the date hereof and,
unless sooner terminated pursuant to Section 7 of this Agreement or extended
pursuant to the proviso to this sentence, shall continue until the close of
business on third anniversary of the date of this Agreement, and shall
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terminate at such time; provided however that the Employment Period shall be
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extended for an additional one-year period on the third anniversary of the date
of this Agreement and on each anniversary thereafter, unless either the Company
or the Executive shall have given written notice to the other, no later than 90
days prior to the last day of the then-existing Employment Period, that the term
of this Agreement shall not be so extended.
SECTION 7. Termination and Severance.
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(a) Notwithstanding anything to the contrary contained herein, the
Employment Period shall terminate upon the earliest to occur of the following
(which may occur at any time as provided below):
(i) the close of business on the last day of the then-existing
Employment Period (as such Employment Period may be extended from time to time
pursuant to Section 6) where either the Company or the Executive has not elected
to extend the Employment Period in accordance with the proviso contained in
Section 6;
(ii) the Executive's death;
(iii) delivery by the Company to Executive of a written notice of
the Company's election to terminate Executive's employment hereunder because of
Executive's Disability (as defined below);
(iv) delivery by the Company to Executive of a written notice of
the Company's election to terminate Executive's employment hereunder for Cause
(as defined below) ;
(v) the close of business which is 90 days after the date on which
Executive delivered to the Company a written notice of Executive's election to
terminate Executive's employment hereunder and such termination is not for Good
Reason (as defined below);
(vi) delivery by the Company to Executive of a written notice of
the Company's election to terminate Executive's employment hereunder and such
termination is not for Cause or as a result of Executive's death or Disability;
or
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(vii) delivery by Executive to the Company of a written notice of
Executive's election to terminate Executive's employment hereunder and such
termination is for Good Reason.
(b) For purposes of this Agreement, "Disability" shall mean that
Executive suffers from an illness or other physical or mental impairment which,
in the judgment of the Board of Directors of the Company, even with reasonable
accommodations prevents Executive from performing his duties hereunder for a
period of one-hundred eighty (180) consecutive days. For the purposes of this
Agreement, the term "Cause" shall mean (i) the willful and continuing failure by
Executive substantially to perform his duties with the Company (other than any
such failure resulting from Disability) under this Agreement, provided that,
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solely with respect to any act or omission by Executive which remains curable
without significant cost to the Company, "Cause" shall not be deemed to exist
under this clause (i) unless Executive has been provided by the Company with at
least thirty (30) days prior written notice to Executive of the Company's
intention to terminate Executive's employment hereunder for Cause and Executive
has not cured or corrected such performance defaults within such thirty-day
period, or (ii) the willful and continuing failure by Executive to perform
Executive's obligations under Section 9 hereunder, or (iii) the commission by
Executive of theft, embezzlement or other felony or misdemeanor crimes against
the Company. For purposes of the foregoing definition of "Cause," no act, or
failure to act, shall be considered "willful" unless done, or omitted to be
done, in bad faith and without reasonable belief that the action or omission was
in the best interest of the Company. Notwithstanding the foregoing or any other
provision hereof, Executive shall not be deemed to have been terminated for
Cause unless there shall have been delivered to Executive a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board of Directors of the Company at a meeting of the Board of
Directors of the Company called and held for such purpose (after reasonable
notice to Executive and an opportunity for the Executive, together with his
counsel, to be heard before the Board), finding that, in the reasonable and good
faith opinion of the Board of Directors of the Company, Executive was guilty of
conduct set forth above and specifying the particulars thereof in reasonable
detail. For purposes of this Agreement, "Good Reason" shall mean (i) the
willful and continuing failure by the Company substantially to perform its
obligations under this Agreement, provided that, solely with respect to any act
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or omission by the Company which remains curable without significant cost to the
Executive, "Good Reason" shall not be deemed to exist
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under this clause (i) unless the Company has been provided by the Executive with
at least thirty (30) days prior written notice to the Company of the Executive's
intention to terminate Executive's employment hereunder for Good Reason and the
Company has not cured or corrected such performance defaults within such thirty-
day period, or (ii) any material alteration or diminution in Executive's
responsibilities to the Company under this Agreement or as delegated to
Executive by the Company's Board of Directors in accordance with the Company's
Bylaws (other than as a result of a reasonable and good faith determination by
the Board of Directors of the Company that such alteration or diminution is in
the best interest of the Company).
(c) Following any termination of Executive's employment hereunder, all
obligations of the Company under this Agreement (other than (x) any obligations
with respect to the payment of accrued and unpaid salary, accrued and unpaid
bonus (including the stipulated bonus for the first year), accrued and unpaid
vacation, and expense reimbursement under Sections 4 and 5 hereof through the
date of Executive's termination of employment hereunder, (y) any of the
obligations of the Company with respect to any Options of Executive that have
vested on or prior to the effective date of such termination, and (z) as set
forth in Section 7(d)and (e)) shall terminate.
(d) In the event of any termination of Executive's employment
hereunder pursuant to Section 7(a)(vi) or Section 7(a)(vii) after the date
hereof but prior to the second anniversary of the date of this Agreement, the
Company shall pay to Executive severance compensation in an amount equal to 200%
of Executive's Base Salary as in effect on the date of such termination and
Executive shall be entitled to continue to be covered by the employee benefit
programs and policies described in Section 4(e) and Section 4(f) for the
remainder of the three-year period following the date hereof (or, if the terms
of such programs and policies do not allow coverage of former employees, the
Company shall provide Executive with cash payments sufficient to enable
Executive to obtain reasonably equivalent coverage from other sources
satisfactory to the Company and the Executive) (such employee benefit programs
and policies, the "Employee Benefits").
(e) In the event of any termination of Executive's employment
hereunder pursuant to Section 7(a)(vi) or Section 7(a)(vii) after the second
anniversary of the date of this Agreement, the Company shall pay to Executive
severance compensation in an amount equal to 100% of Executive's Base
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Salary as in effect on the date of such termination and Executive shall be
entitled to continue to be covered by the Employee Benefits; provided, however,
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if a Change of Control occurs between the second and third anniversary of the
date of this Agreement and Executive's employment hereunder is terminated
pursuant to Section 7(a)(vi) or Section 7(a)(vii) following such a Change of
Control, then the Company shall pay to Executive severance compensation in an
amount equal to 200% of Executive's Base Salary as in effect on the date of such
termination and Executive shall be entitled to continue to be covered by the
Employee Benefits. For purposes of this Agreement, "Change in Control" means (i)
any sale of all or substantially all of the Company's assets to any person or
entity (a "Person"), or (ii) any sale or series of related sales which, in the
aggregate, transfer 80% or more of the voting shares of the Company to any
Person or group of Persons (as the term "group" is defined in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended), or (iii) any merger of the
Company with any other Person following which the Company is not the surviving
entity; it being understood and agreed that "Change of Control" shall not
include (x) any sale, merger or consolidation with or to any Person in which the
shareholders of the Company immediately prior to such sale, merger or
consolidation own or obtain controlling voting power of such Person immediately
following such transaction, or (y) any merger by and between the Company and
Newco as more specifically described in the Company's Disclosure Statement dated
June 10, 1996 to holders of the Company's Old Subordinated Notes and Old Equity
Interests.
(f) All cash severance compensation amounts owed pursuant to Section
7(d) and 7(e) shall be paid within thirty (30) days following the effective date
of Executive's termination, as applicable. The Company shall be responsible for
ensuring that any successor to the Company, as a result of a Change in Control,
fully honors the Company's obligations under this Agreement.
(g) Any termination by the Company or by Executive of Executive's
employment hereunder shall be communicated by written notice which shall
indicate the specific termination provision in this Agreement relied upon.
(h) Any severance compensation granted in Section 7 of the Agreement
shall be the sole and exclusive compensation or benefit due to Executive upon
termination of Executive's employment.
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(i) Notwithstanding anything to the contrary contained herein, the
parties understand and agree that this Agreement shall be subject to, and the
effectiveness of this Agreement shall be conditioned upon, approval by the
United States Bankruptcy Court for the District of Delaware (the "Approval").
In the event the Approval is sought through the filing of a motion, the parties
further understand and agree that the Company shall review the Motion with
Executive prior to filing and shall not mention the name of the Executive
without the consent of the Executive. The Debtor agrees to promptly seek the
Approval. In the event that the Approval is not obtained by September 30, 1996,
this Agreement shall be null and void.
SECTION 8. Representations, Warranties and Acknowledgments of
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Executive.
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(a) Executive represents and warrants that he is not a party to or
otherwise subject to or bound by the terms of any contract, agreement or
understanding (including without limitation any contract, agreement or
understanding containing terms and provisions similar in any manner to those
contained in Section 9 hereof) which in any manner would limit or otherwise
affect his ability to perform his obligations hereunder. Executive further
represents and warrants that his employment with the Company will not require
him to disclose or use any confidential information belonging to prior employers
or other persons or entities.
(b) Executive represents and warrants that he acknowledges the
Company's belief that it would cause the Company serious and irreparable injury
and cost if Executive were to use his ability and knowledge in competition with
the Company or to otherwise breach the obligations contained in Section 9.
(c) Executive recognizes and acknowledges that: (i) in the course of
Executive's employment by the Company it will be necessary for Executive to
acquire information which could include, in whole or in part, information
concerning the Company's experimental and development plans, trade secrets,
secret procedures, information relating to ideas, improvements, and inventions,
disclosures, processes, systems, formulas, composition, patents, patent
applications, machinery, materials research activities and plans, customers or
vendors and prospective customers, the Company's product costs, the Company's
prices, profits and volume of sales, and future business plans, and other
confidential or proprietary information belonging to the Company or relating to
the Company's affairs, even if such
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information has been disclosed to one or more third parties pursuant to
distribution agreements, joint research agreements or other agreements entered
into by the Company or any of its affiliates (collectively, such information is
referred to herein as the "Confidential Information"); (ii) the Confidential
Information is the property of the Company; (iii) the use, misappropriation or
disclosure of the Confidential Information would cause irreparable injury to the
Company; and (iv) it is essential to the protection of the Company's good will
and to the maintenance of the Company's competitive position that the
Confidential Information be kept secret and that Executive not disclose the
Confidential Information to others or use the Confidential Information to
Executive's own advantage or the advantage of others (except as may be necessary
for the performance of Executive's duties hereunder).
(d) Executive further recognizes and acknowledges that his duties at
the Company may include the preparation of materials, including written or
graphic materials, and that any such materials conceived or written by him shall
be done as "work made for hire" as defined and used in the Copyright Act of
1976, 17 U.S.C. (S) 1 et seq. In the event of publication of such materials,
-- ---
Executive acknowledges that since the work is "work made for hire," the Company
will solely retain and own all rights in said materials, including right of
copyright.
SECTION 9. Executive's Covenants and Agreements.
------------------------------------
(a) Executive agrees to hold and safeguard the Confidential
Information in trust for the Company, its successors and assigns and agrees that
he shall not, without the prior written consent of the Board of Directors of the
Company, disclose or make available to anyone for use outside the Company's
organization at any time, either during his employment with the Company or
subsequent to the termination of his employment with the Company for any reason,
any of the Confidential Information, whether or not developed by Executive,
except as required in the performance of Executive's duties to the Company.
Notwithstanding anything to the contrary contained herein, the foregoing
confidentiality obligations of the Executive shall not apply to any information
or data that is generally available within the public domain or otherwise
publicly accessible through legal means (in no event, in any case, as a result
of Executive's breach of his obligations hereunder).
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(b) Upon the termination of Executive's employment with the Company
for any reason Executive shall promptly deliver to the Company all
correspondence, drawings, blueprints, manuals, letters, notes, notebooks,
reports, flow-charts, programs, proposals, price lists, customer lists, company
credit cards, company vehicles and any documents concerning the Company's
customers or concerning products or processes used by the Company and, without
limiting the foregoing, will promptly deliver to the Company any and all other
documents or materials containing or constituting Confidential Information.
(c) Executive covenants and agrees that during the period of
Executive's employment hereunder and, if applicable, during the Non-Compete
Period, Executive shall not, anywhere in the world, directly or indirectly,
engage (whether as principal, agent, officer, director, employee, consultant,
shareholder, or otherwise, whether alone or in association with any other
person, corporation or other entity) in any business or other enterprise which
sells or attempts to sell in competition with the Company any products or
services which are the same as or substantially similar to the products or
services sold or proposed to be sold by the Company at any time during the last
two (2) years prior to the termination of Executive's employment hereunder. For
purposes of this Agreement, "Non-Compete Period" means the following period of
time after any termination of Executive's employment by Executive pursuant to
Section 7(a)(v): the shorter of (x) two (2) years immediately following the
termination of Executive's employment by Executive under this Agreement, and (y)
the amount of time otherwise remaining in the three-year period ending on the
third anniversary of the date of this Agreement.
(d) Executive agrees that during his employment with the Company he
shall not, directly or indirectly, solicit the trade of, or trade with, any
customer, prospective customer or supplier of the Company for any purpose other
than for the benefit of the Company.
(e) Executive agrees that, for two (2) years following termination of
Executive's employment with the Company hereunder for any reason, Executive
shall not, directly or indirectly, solicit or induce, or attempt to solicit or
induce, any employee of the Company to leave the employ of the Company for any
reason whatsoever nor shall Executive offer or provide employment (whether such
employment is with the Executive or any other business or enterprise), either on
a full-time basis or part-time or consulting basis, to any person who then
currently is, or who
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within one year prior thereto had been, employed by the Company or any of its
subsidiaries.
SECTION 10. Remedies. Executive acknowledges that his promised
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services hereunder are of a special, unique, unusual, extraordinary and
intellectual character, which give them peculiar value the loss of which cannot
be reasonably or adequately compensated in an action of law, and that, in the
event there is a breach hereof by Executive, the Company will suffer irreparable
harm, the amount of which will be impossible to ascertain. Accordingly, the
Company shall be entitled, if it so elects, to institute and prosecute
proceedings in any court of competent jurisdiction, either at law or in equity,
to obtain damages for any breach or to enforce specific performance of the
provisions or to enjoin Executive from committing any act in breach of this
Agreement. The remedies granted to the Company in this Agreement are cumulative
and are in addition to remedies otherwise available to the Company at law or in
equity. If the Company is obliged to resort to the courts for the enforcement
of any of the covenants of Executive contained in Section 9 hereof, each such
covenant shall be extended for a period of time equal to the period of such
breach, if any, which extension shall com mence on the later of (i) the date on
which the original (unex tended) term of such covenant is scheduled to terminate
or (ii) the date of the final court order (without further right of appeal)
enforcing such covenant.
SECTION 11. Waiver of Breach. The waiver by the Company or Executive
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of a breach of any provision of this Agreement by the other party (the
"Breaching Party") shall not operate or be construed as a waiver of any other or
subsequent breach by the Breaching Party of such or any other provision. No
delay or omission by the Company or Executive in exercising any right, remedy or
power hereunder or existing at law or in equity shall be construed as a waiver
thereof, and any such right, remedy or power may be exercised by the Company or
Executive from time to time and as often as may be deemed expedient or necessary
by the Company or Executive in its or his sole discretion.
SECTION 12. Notices. All notices required or permitted hereunder
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shall be made in writing by hand-delivery, certified or registered first-class
mail, or air courier guaranteeing overnight delivery to the other party at the
following addresses:
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To the Company:
The Xxxx Company
000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attention: Board of Directors
To Executive:
Xxxxxxx X. Xxxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
or to such other address as either of such parties may designate in a written
notice served upon the other party in the manner provided herein. All notices
required or permitted hereunder shall be deemed duly given and received when
delivered by hand, if personally delivered; on the third day next succeeding the
date of mailing if sent by certified or registered first-class mail; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
SECTION 13. Severability. If any term or provision of this Agreement
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or the application thereof to any person or circumstance shall, to any extent,
be held invalid or unenforceable by a court of competent jurisdiction, the
remainder of this Agreement or the application of any such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law. If any of the provisions contained in this Agreement shall for any reason
be held to be excessively broad as to duration, scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be valid and
enforceable to the extent compatible with the applicable law or the
determination by a court of competent jurisdiction.
SECTION 14. Governing Law. The implementation and interpretation of
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this Agreement shall be governed by and enforced in accordance with the laws of
the State of Georgia without giving effect to the conflicts of law provisions
thereof.
SECTION 15. Binding Effect and Assignability. The rights and
--------------------------------
obligations of both parties under this Agreement shall inure to the benefit of
and shall be binding upon their heirs, successors and assigns. Neither party's
rights under this
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Agreement shall, in any voluntary or involuntary manner, be assignable and may
not be pledged or hypothecated without the prior written consent of the other
party; it being understood that no merger or consolidation involving the Company
shall be deemed an assignment.
SECTION 16. Attorneys' Fees; Costs. If a party hereto prevails in a
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proceeding for damages or injunctive relief, that party, in addition to other
relief, shall be entitled to reasonable attorneys' fees, costs and the expenses
of litigation incurred by such party in securing the relief granted by the
Court.
SECTION 17. Counterparts; Section Headings. This Agreement may be
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executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. The section headings of this Agreement are for convenience of
reference only.
SECTION 18. Survival. Notwithstanding the termination of this
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Agreement or Executive's employment hereunder for any reason, Sections 8, 9, 10,
14, 16 and 18 hereof (and any other provisions that explicitly contemplate
extending beyond the termination of this Agreement or the Employment Period)
shall survive any such termination.
SECTION 19. Entire Agreement. This instrument constitutes the entire
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agreement with respect to the subject matter hereof between the parties hereto
and replaces and supersedes as of the date hereof any and all prior oral or
written agreements and understandings between the parties hereto. This
Agreement may only be modified by an agreement in writing executed by both
Executive and the Company.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement the
date and year first written above.
Company:
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The Xxxx Company
By: /s/ A. Xxxxxxx Xxx
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Executive:
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/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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