Exhibit 10.2
CHANGE IN CONTROL SEVERANCE AGREEMENT
This Change in Control Severance Agreement (as modified, amended or
restated from time to time in the manner provided herein, this "Agreement") is
by and between the undersigned individual employee (the "Employee") and SPAR
Group, Inc. (the "Company"). The Employee and the Company may be referred to
individually as a "Party" and collectively as the "Parties".
In consideration of past, present and future employment by the Company,
the mutual covenants below and other good and valuable consideration (the
receipt and adequacy of which are hereby acknowledged), the Employee and Company
hereby agree as follows:
Section 1. Introduction. The Employee is an officer of the Company or one
of the SPAR Affiliates (as hereinafter defined). The Employee and the Company
have entered into this Agreement in order to provide severance payments from the
Company to the Employee under certain circumstances if, pending or following a
Change in Control, the Employee leaves for Good Reason or is terminated other
than in a Termination For Cause (as such terms are hereinafter defined).
However, this Agreement is not intended, and shall not be deemed or construed,
to create any employment term or period, and except as otherwise provided in any
other written agreement with the Employee, the Employee acknowledges and agrees
that the Employee's employment is "at will" and modifiable from time to time and
terminable at any time, for any reason or no reason, and without notice or
benefit of any kind.
Section 2. Certain Definitions. Definitions shall be applicable equally to
the singular and plural forms of the terms defined, each use of a neuter,
masculine, feminine or plural pronoun shall be deemed to refer to the form of
pronoun appropriate to the circumstance, and each other reference to or by
gender shall include reference to each other or neuter gender appropriate to the
circumstance, in each case as the context may permit or require. As used in this
Agreement, the following capitalized terms and non-capitalized words and phrases
shall have the meanings respectively assigned to them:
(a) "Authorized Representative" shall mean, for the Company or any SPAR
Affiliate for whom the Employee works, any of (i) the Board, (ii) the Chairman,
(iii) any other executive officer of the Company or applicable SPAR Affiliate
who directly or indirectly supervises or is responsible for the Employee or (iv)
any other Representative of the Company or applicable SPAR Affiliate who
directly or indirectly supervises or is responsible for the Employee and is
authorized to do so by the Board, the Chairman or any such executive officer, in
each case other than the Employee.
(b) "Beneficial Owner" shall mean any person who beneficially owns (within
the meaning of Rule 13d-3 promulgated under the Securities Exchange Act),
securities issued by the referenced corporation or other entity, whether
directly or indirectly, and whether individually, jointly with any other
person(s) or otherwise.
(c) "Board" shall mean the Board of Directors of the Company or (except
for purposes of a Change in Control) the applicable SPAR Affiliate.
(d) "Chairman" shall mean the Chairman of the Company or applicable SPAR
Affiliate.
(e) "Change in Control" shall mean any of the following:
(i) when any "person" or "group" (as contemplated in Sections 3(a)(9) and
13(d)(3), respectively, of the Securities Exchange Act), becomes a
Beneficial Owner of a Majority of Voting Securities issued by the Company,
in each case other than any acquisition of Company Securities (A) in any
transaction covered by or exempted under clause (iii) of this definition,
(B) by the Employee or any group of which the Employee voluntarily is a
member, (C) by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any SPAR Affiliate or (D) by any corporation
or other entity if, immediately following such acquisition, the Beneficial
Owners of a Majority of Voting Securities of the acquirer (or its ultimate
parent) outstanding immediately after such event are either (1) the
persons who were the Beneficial Owners of all or substantially all of the
voting Company Securities immediately prior to such acquisition and in
substantially the same proportions as their ownership immediately prior to
such event, or (2) by Xxxxxx X. Xxxxx and/or Xxxxxxx X. Xxxxxxx;
(ii) when individuals who are members of the Board as of the date hereof or who
are added as hereinafter provided (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the then Incumbent Board
shall thereafter be added (for the purposes hereof) as a member of the
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of either an actual
or threatened solicitation of proxies or consents not by or on behalf of
at least a majority of the then Incumbent Board;
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(iii) any reorganization, merger or consolidation of the Company or any of its
subsidiaries, in each case other than (A) any merger of any SPAR Affiliate
(other than the Company) into the Company or any of its subsidiaries as
the surviving entity, or (B) one in which all or substantially all of the
Beneficial Owners' of the voting Company Securities immediately prior to
such event are, immediately following such event, Beneficial Owners of a
Majority of Voting Securities of either the Company or the surviving
entity of a merger with the Company (or its ultimate parent), as the case
may be, outstanding immediately after such event and in substantially the
same proportions as their ownership immediately prior to such event;
(iv) the approval by the Company's Board or stockholders of a plan of complete
liquidation of the Company; or
(v) any sale or other disposition by the Company of all or substantially all
of its assets , in each case other than (A) any assignment or pledge of
all or substantially all of the respective assets and properties of the
Company and its subsidiaries to one or more lenders as security for their
respective credit, indebtedness and guaranties, (B) any acquisition by the
Company or any of its subsidiaries of the assets of any SPAR Affiliate
(whether by assignment, merger, liquidation or otherwise), or (C) any
transaction in which all or substantially all of the Beneficial Owners' of
the voting Company Securities immediately prior to such event are,
immediately following such event, Beneficial Owners of a Majority of
Voting Securities of both the Company and the acquiring entity (or its
ultimate parent) outstanding immediately after such event and in
substantially the same proportions as their ownership immediately prior to
such event;
provided, however, that it shall not constitute a Change in Control if and for
so long as Xxxxxx X. Xxxxx retains effective control of the Company and shall
continue to be the chairman or the chief (or most senior, however designated)
executive officer of the Company.
(f) "Company Securities" shall mean any securities issued by the Company,
whether acquired directly from the Company, in the marketplace or otherwise.
(g) "Good Reason" shall mean the occurrence of any of the following
events:
(i) the failure to elect or appoint, or re-elect or re-appoint, the Employee
to, or removal or attempted removal of the Employee from, his position
positions with the Company or applicable SPAR Affiliate (except in
connection with the proper termination of the Employee's employment by the
Company by reason of death, disability or Termination For Cause);
(ii) the assignment to the Employee of any duties inconsistent with the status
of the Employee's office and/or position with the Company;
(iii) any adverse change in the Employee's title or in the nature or scope of
the Employee's authorities, powers, functions or duties of the position(s)
with the Company or applicable SPAR Affiliate;
(iv) the willful delay by the Company or applicable SPAR Affiliate for more
than ten (10) business days in the payment to the Employee, when due, of
any part of his or her compensation;
(v) a reduction in the Employee's salary or benefits (other than a
discretionary bonus);
(vi) a failure by the Company to obtain the assumption of, and agreement to
perform, this Agreement by any successor to the Company; or
(vii) a change in the location at which substantially all of the Employee's
duties with the Company are to be performed from the county and state in
which the Employee is currently performing substantially all of his or her
duties (excluding those duties performed at home or on the road.
(h) "Majority of Voting Securities" shall mean securities of the
referenced person representing more than fifty percent (50%) of the combined
voting power of the referenced person's then outstanding securities having the
right to vote generally in the election of directors, managers or the
equivalent.
(i) "Representative" shall mean any subsidiary or other affiliate of the
referenced person or any shareholder, partner, equity holder, member,
director, officer, manager, employee, consultant, agent, attorney,
accountant, financial advisor or other representative of the referenced
person or of any of its subsidiaries or other affiliates, in each case
other than the Employee.
(j) "Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any corresponding or succeeding provisions of any
applicable law (including those of any state or foreign jurisdiction), and the
rules and regulations promulgated thereunder, in each case as the same may have
been and hereafter may be adopted, supplemented, modified, amended, restated or
replaced from time to time.
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(k) "SPAR Affiliate" shall mean and currently includes (without
limitation) each of the Company's direct and indirect subsidiaries (including,
without limitation, SPAR Acquisition, Inc., SPAR Marketing, Inc., SPAR/Xxxxxxxx
Retail Services, Inc., SPAR, Inc., SPAR Marketing Force, Inc., SPAR Trademarks,
Inc., SPAR Group International, Inc., SPAR/PIA Retail Services, Inc., SPAR
Technology Group, Inc., SPAR All Store Marketing Services, Inc., SPAR Canada,
Inc., SPAR Canada Company, Retail Resources, Inc., Pivotal Field Services, Inc.,
PIA Merchandising Co., Inc., Pacific Indoor Display Co. d/b/a Retail Resources,
Pivotal Sales Company, and PIA Merchandising Ltd.), the Company's affiliates
(including, without limitation, SPAR Marketing Services Inc., SPAR Management
Services, Inc., and SPAR InfoTech, Inc.), and each other entity under the
control of or common control with any of the foregoing entities, in each case
whether now existing or hereafter acquired, organized or existing.
(l) "SPAR Group" shall mean the Company and all of the SPAR Affiliates.
(m) "Termination For Cause" shall mean any termination of the Employee for
any of the following reasons: (i) the Employee's willful, negligent or repeated
breach of, or the Employee's willful, negligent or repeated nonperformance,
misperformance or dereliction of any of his or her duties and responsibilities
under, (A) any employment agreement or confidentiality agreement with the
Company or any Spar Affiliate, (B) the directives of the Board or any Authorized
Representative, or (C) the Company's policies and procedures governing his or
her employment; (ii) the gross or repeated disparagement by the Employee of the
business or affairs of the Company, any SPAR Affiliate or any of their
Representatives that in the reasonable judgment of the Company or SGRP has
adversely affected or would be reasonably likely to adversely affect the
operations or reputation of any such person; (iii) any resume, application,
report or other information furnished to the Company or any SPAR Affiliate by or
on behalf of the Employee shall be in any material respect untrue, incomplete or
otherwise misleading when made or deemed made; (iv) the Employee is indicted
for, charged with, admits or confesses to, pleads guilty or no contest to,
adversely settles respecting or is convicted of (A) any willful dishonesty or
fraud (whether or not related to the Company or any SPAR Affiliate), (B) any
theft or embezzlement by the Employee of any asset or property of the Company,
any SPAR Affiliate or any of their respective Representatives, customers or
vendors, (C) any other misdemeanor involving moral turpitude, or (D) any other
felony; (vi) alcohol or drug abuse by the Employee; or (v) any other event or
circumstance that constitutes cause for termination of an employee under
applicable law and is not described in another clause of this subsection.
Section 3. Severance. (a) Lump Sum Payment. If the Employee's employment
with the Company or applicable SPAR affiliate (or their respective successors in
any Change in Control, as applicable) shall be terminated pending or within the
twenty-four-month period following any Change in Control by (i) the Company for
any reason other than the Employee's death or permanent disability or a
Termination For Cause, or (ii) by the Employee for Good Reason (either of which
will be referred to as a "Severance Termination"), then the Company shall
promptly (but not later than the tenth business day following such Severance
Termination) pay (or cause the applicable SPAR Affiliate to promptly pay) to the
Employee severance pay (in a lump sum) in an amount equal to the sum of:
(i) the Employee's annual salary rate in effect immediately prior to his
cessation of such employment (or, if greater, at the highest annual salary
rate in effect at any time during the one-year period preceding the date
of such termination), times a multiple (calculated to two decimal places)
equal to the remainder of (i) 24 months (i.e., the number of months in the
period referred to in the introduction to this subsection Section 3(a)),
minus (ii) the number of months (to two decimal places, but not less than
zero) by which the Severance Termination date followed the effective date
of the Change in Control; and
(ii) the maximum bonus that would have been paid or payable to the Employee
under the Company's bonus proposal to the Employee for the full year of
the Severance Termination as if all performance criteria had been fully
satisfied, but in any event not to exceed twenty-five percent (25%) of the
Employee's annual salary rate referred to above.
(b) Vacation Days. In addition and in any event, promptly (but not later
than the tenth business day) following the date of any termination or
resignation pending or following a Change in Control, the Company shall pay (or
cause the applicable SPAR Affiliate to pay) to the Employee an amount equal to
his or her accrued and unused vacation days, computed at the Employee's annual
salary rate in effect immediately prior to his cessation of such employment (or,
if greater, at the highest annual salary rate in effect at any time during the
one-year period preceding the date of such termination) and in accordance with
the applicable policy of the Company (or if changed pending or following a
Change in Control, in accordance with the immediately preceding applicable
policy of the Company).
(c) Insurance. In addition, during the two-year period following the
effective date of any Change in Control, the Employee and his dependents shall
continue to receive the insurance benefits received during the preceding year as
well as any additional insurance benefits as may be provided to executive
officers or their dependents during such period in accordance with the Company's
policies and practices. The Employee's required co-payments shall not exceed
those payable by the other executive officers of the SPAR Group.
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(d) Stock Options. Each stock option granted to the Employee that has not,
by its express terms, vested shall be deemed to have vested on the date of any
Severance Termination, and shall thereafter be exercisable for the maximum
period of time allowed for exercise thereof under the terms of such option,
assuming that the Employee's employment with the Company had been terminated by
the Company other than Termination For Cause or by the Employee for Good Reason.
An election by the Employee to terminate his or her employment for Good Reason
pending or following a Change in Control shall not otherwise be deemed a
voluntary termination of employment of the Employee for the purpose of
interpreting the provisions of any of the Company's employee benefit plans,
programs, or policies.
(e) 401k. The Employee shall be entitled to a 401k matching contribution
for the year of his Severance Termination, which the Company shall pay into the
Employee's 401k (or deliver to the Employee for deposit into any rollover
account respecting such 401k) at the same time for such year as matching
contributions are made to the 401k plans of other executive officers.
(f) Illness not affecting Good Reason. The Employee's right to terminate
his employment for Good Reason pending or following a Change in Control shall
not be affected by his illness or incapacity, whether physical or mental, unless
the Company shall at the time be entitled to terminate his or her employment by
reason thereof.
(g) Parachute Payments. Notwithstanding any other provision of this
Section 3, if it is determined that part or all of the compensation or benefits
to be paid to the Employee under this Agreement in connection with the
Employee's Severance Termination , or under any other plan, arrangement or
agreement, constitutes a "parachute payment" under section 280G(b)(2) of the
Internal Revenue Code of 1986, as amended, then the amount constituting a
parachute payment that would otherwise be payable to or for the benefit of the
Employee first shall be deferred (to the greatest extent permitted by such
applicable law), and to the extent not so deferred, shall be reduced (if
required under such applicable law), but only to the extent necessary, so that
such amount would not constitute a parachute payment. Any determination that a
payment constitutes a parachute payment shall be made as promptly as practicable
following the Employee's termination of employment (but not later than the date
payment is required under subsection (a) of this Section) by the independent
public accountants that audited the Company's financial statements for the
fiscal year preceding the year in which the Employee's employment was
terminated, whose determination shall be final and binding in all cases. Unless
the Employee is given notice that a payment (or payments) will constitute a
parachute payment prior to the earlier of (1) receipt of such payments or (2)
the tenth business day following his or her Severance Termination, no payment
(or payments) shall be deemed to constitute a parachute payment. If the
determination made pursuant to this subsection would result in a deferral (to
the greatest extent permitted under such applicable law) and to the extent not
so deferred, a reduction (to the minimum extent required by such applicable law)
of the payments that would otherwise be paid to the Employee, the Employee may
elect, in his sole discretion, which and how much of any particular entitlement
shall be so deferred or reduced (giving effect to any payments and benefits that
may have been received prior to such termination) and shall advise the Company
in writing of his election within 10 days of the determination of the deferral
or reduction in payments. If no such election is made by the Employee within
such 10-day period, the Company shall determine which and how much of any
entitlement shall be deferred (to the greatest extent permitted under such
applicable law) and, to the extent not so deferred, reduced (to the extent
required under such applicable law) and shall notify the Employee promptly of
such determination. The Company shall (or shall cause the applicable SPAR
Affiliate to) pay to, or distribute to or for the benefit of, the Employee such
amounts as are then due to the Employee under this Agreement and shall timely
pay to, or distribute to or for the benefit of, the Employee in the future such
amounts as become due to the Employee under this Agreement.
(h) Extension of Benefits: Any extension of benefits following a Severance
Termination shall be deemed to be in addition to, and not in lieu of, any period
for benefits continuation provided for by applicable law at the Company's, the
Employee's or his dependents' expense, as applicable.
(i) Temporary Suspension of Section's Benefits. Notwithstanding any other
provision of this Section 3, in the event that the Employee's Termination For
Cause pending or following a Change in Control is solely based on the Employee
having been indicted for or charged with any one or more of the deeds described
in clause (iv) of the definition of Termination For Cause, the benefits of this
Section 3 (other than those under subsections (b), (c) and (h) hereof respecting
vacation pay, insurance and the like) shall be temporarily withheld until such
time as either:
(i) the first to occur of (A) the final determination by an appropriate
authority (including an arbitrator) that the Employee is not guilty or is
acquitted of such deed(s), (B) the Company's written acknowledgement that
the Employee is not guilty or acquitted of such deed(s) or the substantive
equivalent or any settlement with the Employee to any such effect, or (C)
the passage of twelve months following such termination without the good
faith prosecution (criminal or civil) of the Employee for or arbitration
of such deed(s), in any which case the termination shall be deemed a
Severance Termination and the Employee shall be entitled at such time to
(x) all the
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benefits of this Section 3 as of such first to occur date, plus (y) the
Employee's salary and maximum bonuses for the period from termination
through the date severance is actually paid under subsection (a) of this
Section 3 (the "Resolution Period"), plus (z) an extension of the
Employees benefit periods under subsections (c) and (h) of this Section 3
and stock option exercise period(s) under subsection (d) of this Section 3
equal to the length of the Resolution Period; or
(ii) the Employee admits or confesses to, pleads guilty or no contest to,
adversely settles respecting or is convicted of such deed(s), in any which
case the Employee shall not be entitled to any of the benefits of this
Section 3, any salary or bonus pending such resolution, or any of the
benefits of subsection (b) hereof.
(j) Employee's Estate. In the event the Employee shall die after a
Severance Termination (including, without limitation, during the Resolution
Period), this Agreement and the benefits of this Section 3 shall inure to the
benefits of the estate, heirs and legal representatives of the deceased Employee
in accordance with his or her will or applicable law, as the case may be.
Section 4. Waivers of Notice, Etc. Each Party hereby absolutely,
unconditionally, irrevocably and expressly waives forever each and all of the
following: (a) acceptance and notice of any acceptance of this Agreement; (b)
notice of any action taken or omitted in reliance hereon; (c) notice of any
nonpayment or other event that constitutes, or with the giving of notice or the
passage of time (or both) would constitute, any nonpayment, nonperformance,
misrepresentation or other breach or default under this Agreement; (d) notice of
any material and adverse effect, whether individually or in the aggregate, upon
the assets, business, cash flow, expenses, income, liabilities, operations,
properties, prospects, reputation or condition (financial or otherwise) of a
Party, its Representative or any other person,; and (e) any other proof, notice
or demand of any kind whatsoever with respect to any or all of a Party's
obligations or promptness in making any claim or demand under this Agreement.
Section 5. Consent to Exclusive New York Jurisdiction and Venue, Waiver of
Personal Service, Etc. Each Party hereby consents and agrees that the Supreme
Court of the State of New York for the County of Westchester and the United
States District Court for the Southern District of New York each shall have
exclusive personal jurisdiction and proper venue with respect to any claim or
dispute under this Agreement between the Employee and the Company or SPAR
Affiliate or any other aspect of their employment relationship; In any such
claim or dispute between the Employee and the Company or any SPAR Affiliate, no
Party will raise, and each Party hereby absolutely, unconditionally,
irrevocably, expressly and forever waives, any objection or defense to any such
jurisdiction as an inconvenient forum. Each Party hereby absolutely,
unconditionally, irrevocably, expressly and forever waives personal service of
any summons, complaint or other process on such Party or any authorized agent
for service of such Party in any claim or dispute under this Agreement
(irrespective of whether more parties may be involved). Each Party each hereby
acknowledges and agrees with the other Party that service of process may be made
in any such claim or dispute under this Agreement upon such Party by (i)
delivery pursuant to Section 7 hereof or (ii) any manner of service available
under the applicable law at address referenced in Section 7 hereof.
Section 6. Arbitration. (a) Arbitration Generally. Except as otherwise
provided in this Section, any unresolved dispute or controversy with respect to
this Agreement shall be settled exclusively by arbitration conducted by the
American Arbitration Association (including any successor body of similar
function, "AAA") in accordance with the AAA's Commercial Arbitration Rules then
in effect ("AAA Rules") and held in Westchester County, New York. In any
arbitration, no Party will raise, and each Party hereby expressly and
irrevocably waives, any objection or defense to such location as an inconvenient
forum. To commence an arbitration, the aggrieved Party shall submit an
arbitration notice (including a copy of this Agreement and a reasonable
description of its claims) to the AAA at its headquarters in New York, New York,
and request a list of qualified arbitrators. The Parties agree that each
arbitrator must have significant experience and knowledge in the applicable
field of endeavor and (to the extent applicable) in the accounting field and
GAAP.
(b) Arbitrator Selection. Unless the Parties agree in writing to a single
arbitrator prior to selection and a mechanism for his or her selection, three
arbitrators shall be chosen by the Parties from the list submitted by the AAA
within ten business days of receiving such list (or any subsequent list if
applicable). Either Party may object to any proposed arbitrator that does not
reasonably appear to have the required experience and knowledge or does not
reasonably appear to be a disinterested, unrelated third party. If the Parties
cannot agree on the three arbitrators, each Party shall select a single
disinterested arbitrator from the AAA's list with such qualifications and the
two arbitrators so selected by the Parties shall select the third arbitrator
with such qualifications in accordance with the AAA Rules. The arbitration shall
begin within 30 business days of such appointment unless another date and/or
place is otherwise agreed upon in writing by the Parties.
(c) Arbitrator's Limited Authority. The arbitrator(s) shall not have the
authority to add to, detract from, or modify any provision of this Agreement.
The Parties hereby instruct and direct the arbitrator to determine each claim or
severable part thereof in accordance with the terms and provisions of this
Agreement, and the arbitrator(s) shall not "split the difference" or employ
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other equitable principles of allocation. Discovery will be strictly limited to
documents of the parties specifically applicable to the claims, excluding,
however, those items protected by attorney/client, accountant or other
professional or work product privilege (which the parties hereby agree have not
been waived by the Parties hereto or other applicable Persons). No depositions,
interrogatories or other prescreening of a Party or its Representatives or
expert witnesses will be permitted. No punitive, consequential or similar
damages shall be awarded by the arbitrator(s).
(d) Arbitrator's Decision. The arbitrator(s) shall render a decision and
award within sixty (60) days after the commencement of the arbitration. Such
decision and award shall be in writing, shall be delivered to each Party and
shall be conclusive and binding on the Parties. Judgment on such decision and
award may be entered in any court of competent jurisdiction.
(e) Arbitrator's Fees and Expenses. Except as otherwise provided in this
Agreement, each Party shall pay (i) the fees and disbursements of its own
attorneys and the expenses of its proof, and (ii) half of the fees and expenses
of the AAA and the arbitrator(s), in each case irrespective of outcome.
Section 7. Notice. Any notice, request, demand, service of process or
other communication permitted or required to be given to a Party under this
Agreement shall be in writing and shall be sent to the applicable Party at the
address set forth on the signature page below (or at such other address as shall
be designated by notice to the other Party and Persons receiving copies),
effective upon actual receipt (or refusal to accept delivery) by the addressee
on any business day during normal business hours or the first business day
following receipt after the close of normal business hours or on any
non-business day, by (a) FedEx (or other equivalent national or international
overnight courier) or United States Express Mail, (b) certified, registered,
priority or express United States mail, return receipt requested, (c) telecopy,
or (d) messenger, by hand or any other means of actual delivery. The Employee
also may use and rely on the accuracy of the address of the Company designated
as its executive office in its most recent filing under the Securities Exchange
Act. The Parties acknowledge and agree that such actual receipt will be presumed
with, among other things, evidence of the signature by a Representative of, or
adult in the same household as, the receiving Party on a return receipt, courier
manifest or other courier's acknowledgment of delivery or receipt.
Section 8. Interpretation, Headings, Severability, Reformation, Etc. The
Parties agree that the provisions of this Agreement have been negotiated, shall
be construed fairly as to all Parties, and shall not be construed in favor of or
against any Party. The section headings in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement. The term "including" shall mean "including (without limitation)",
whether or not so stated. The terms "including", "including, but not limited
to", "including (without limitation)" and similar phrases (i) mean that the
items specifically listed after such term are examples of the provision
preceding such term and are not intended to be all inclusive, (ii) shall not in
any way limit (or be deemed or construed to limit) the generality of the
provision preceding such term, and (iii) shall not in any way preclude (or be
deemed or construed to preclude) any other applicable item encompassed by the
general provision preceding such term. In the event that any provision of this
Agreement shall be determined to be superseded, invalid, illegal or
unenforceable pursuant to applicable law by a governmental authority, that
determination shall not impair or affect the validity, legality or
enforceability (a) by that authority of the remaining provisions of this
Agreement, which shall be enforced as if the unenforceable provision were
deleted or reduced or (b) by any other authority of any of the provisions of
this Agreement. If any provision of this Agreement is held to be unenforceable
because of the scope or duration of any such provision, the Parties agree that
any court making such determination shall have the power, and is hereby
requested by the Parties, to reduce the scope or duration of such provision to
the maximum permissible under applicable law so that said provision shall be
enforceable in such reduced form.
Section 9. Successors and Assigns; Assignment; Intended Beneficiaries.
Whenever in this Agreement reference is made to any person, such reference shall
be deemed to include the successors, assigns, and legal Representatives of such
person, and, without limiting the generality of the foregoing, all
representations, warranties, covenants and other agreements made by or on behalf
of the Employee in this Agreement shall inure to the benefit of the successors
and assigns of the Company and the SPAR Affiliates; provided, however, that
nothing herein shall be deemed to authorize or permit the Employee to assign any
rights or obligations under this Agreement to any other person, and the Employee
agrees to not make any such assignment. Without limiting the generality of the
foregoing, the Employee acknowledges and agrees that the Company may pledge this
Agreement and all rights and interest arising hereunder to one or more
lender(s), such lender(s) shall be entitled upon default to enforce any and all
of the rights, powers, privileges, remedies and interests of the Company as so
assigned in accordance with the this Agreement, the applicable loan documents
and applicable law, and such lender(s) shall not be responsible or liable for
any of the acts, omissions, duties, liabilities or obligations of the Company
hereunder or otherwise. The representations, agreements and other terms and
provisions of this Agreement are for the exclusive benefit of the Parties hereto
and the SPAR Affiliates, and, except as otherwise expressly provided herein, no
other person shall have any right or claim against any Party by reason of any of
those provisions or be entitled to enforce any of those provisions against any
Party. The provisions of this Agreement are expressly intended to benefit each
of the members of the SPAR Group, who may enforce any such provisions directly,
irrespective of whether the Company participates in such enforcement. However,
no SPAR Affiliate shall have, or shall be deemed or construed to have, any
obligation or liability to the Employee under this Agreement or otherwise.
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Section 10. Survival of Agreements, Etc. Each of the representations and
warranties (as of the date(s) made or deemed made), covenants, waivers, releases
and other agreements and obligations of each Party contained in this Agreement:
(a) shall be absolute, irrevocable and unconditional, irrespective of (among
other things) (i) the validity, legality, binding effect or enforceability of
any of the other terms and provisions of this Agreement or any other agreement
(if any) between the Parties, or (ii) any other act, circumstance or other event
described in this Section; (b) shall survive and remain and continue in full
force and effect in accordance with their respective terms and provisions
following and without regard to (i) the execution and delivery of this Agreement
and each other agreement (if any) between the Parties and the performance of any
obligation of such Party hereunder or thereunder, (ii) any waiver, modification,
amendment or restatement of any other term or provision of this Agreement or any
other agreement (if any) between the Parties (except as and to the extent
expressly modified by the terms and provisions of any such waiver, modification,
amendment or restatement), (iii) any full, partial or non-exercise of any of the
rights, powers, privileges, remedies and interests of a Party or any SPAR
Affiliate under this Agreement, any other agreement (if any) between the Parties
or applicable law against such other Party or any other person or with respect
to any obligation of such Party, which exercise or enforcement may be delayed,
discontinued or otherwise not pursued or exhausted for any or no reason
whatsoever, or which may be waived, omitted or otherwise not exercised or
enforced (whether intentionally or otherwise), (iv) any extension, stay,
moratorium or statute of limitations or similar time constraint under any
applicable law, (v) any pledge, assignment, sale, conveyance or other transfer
by the Company (in whole or in part) to any other person of this Agreement or
any other agreement (if any) between the Parties or any one or more of the
rights, powers, privileges, remedies or interests of the Company therein, (vi)
any act or omission on the part of the Company, any SPAR Affiliate, any of their
respective Representatives or any other person, (vii) any termination or other
departure of the Employee from his or her employment, whether for cause or
otherwise, or any dispute involving any aspect of such employment; or (viii) any
other act, event, or circumstance that otherwise might constitute a legal or
equitable counterclaim, defense or discharge of a contracting party, co-obligor,
guarantor, pledgor or surety; in each case without notice to or further assent
from the Employee or any other person (except for such notices or consents as
may be expressly required to be given to such Party under this Agreement or any
other agreement (if any) between the Parties); (c) shall not be subject to any
defense, counterclaim, setoff, right of recoupment, abatement, reduction or
other claim or determination that the Employee may have against the Company, any
SPAR Affiliate, any of their respective Representatives or any other person; (d)
shall not be diminished or qualified by the death, disability, dissolution,
reorganization, insolvency, bankruptcy, custodianship or receivership of Party
or any other person, or the inability of any of them to pay its debts or perform
or otherwise satisfy its obligations as they become due for any reason
whatsoever; and (e) with respect to any provision expressly limited to a period
of time, shall remain and continue in full force and effect (i) through the
specific time period(s) and (ii) thereafter with respect to events or
circumstances occurring prior to the end of such time period(s).
Section 11. No Waiver by Action, Cumulative Rights, Etc. Any waiver or
consent from a Party respecting any provision of this Agreement shall be
effective only in the specific instance for which given and shall not be deemed,
regardless of frequency given, to be a further or continuing waiver or consent.
The failure or delay of a Party at any time to require performance of, or to
exercise or enforce its rights or remedies with respect to, any provision of
this Agreement shall not affect the Party's right at a later time to exercise or
enforce any such provision. Any acceptance by or on behalf of a Party of any
partial or late payment, reimbursement or performance of any obligation of the
other Party shall not constitute a satisfaction or waiver of the obligation of
such other Party then due or the resulting default, and any acceptance by or on
behalf of a Party of any payment, reimbursement or performance of any obligation
of such other Party during the continuance of any default under this Agreement
or any other agreement (if any) between the Parties shall not constitute a
waiver or cure thereof, and a Party or its designee may accept or reject any
such payment, reimbursement or performance without affecting any of its rights,
powers, privileges, remedies and other interests under this Agreement, other
agreements (if any) between the Parties and applicable law. No notice to or
demand on a Party shall entitle such Party to any other or notice or demand in
similar or other circumstances. All rights, remedies and other interests of the
Parties and the SPAR Affiliates hereunder are cumulative and not alternatives,
and they are in addition to (and shall not limit) any other right, remedy or
other interest of the Employee under this Agreement or the Company or any SPAR
Affiliate under this Agreement, the rules, policies or procedures of the Company
or applicable law.
Section 12. Counterparts; New York Governing Law; Amendments, This
Agreement shall be effective as of the date written below when executed by the
Employee. This Agreement may have been executed in two or more counterpart
copies of the entire document or signatures pages hereto, all of which, when
taken together, shall constitute a single agreement binding upon all of the
Parties hereto. This Agreement and all other aspects of the Employee's
employment shall be governed by and construed in accordance with the applicable
laws pertaining in the State of New York, other than those conflict of law rules
that would defer to the substantive laws of another jurisdiction. Each and every
modification and amendment of this Agreement shall be in writing and signed by
all of the Parties hereto, and each and every waiver of, or consent to any
departure from, any representation, warranty, covenant or other provision of
this Agreement shall be in writing and signed by each affected Party hereto.
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Section 13. Waiver of Jury Trial; All Waivers Knowing, Intentional, Etc.
In any action, suit or proceeding in any jurisdiction brought against the
Employee by the Company or any SPAR Affiliate, or vice versa, each Party hereby
absolutely, unconditionally, irrevocably and expressly waives forever trial by
jury. This waiver of jury trial by the Parties, and each other waiver, release,
relinquishment or similar surrender of rights (however expressed) made by a
Party in this Agreement, has been absolutely, unconditionally, irrevocably,
knowingly and intentionally made by such Party.
Section 14. Entire Agreement. No Party or Representative of such Party has
made, accepted or acknowledged any representation, warranty, promise, assurance,
agreement, obligation or understanding (oral or otherwise) to, with or for the
benefit of the other Party with respect to the matters contained in this
Agreement other than as expressly set forth herein. This Agreement contains the
entire agreement of the Parties, and supersedes and completely replaces all
prior and other communications, discussions and other representations,
warranties, promises, assurances, agreements and understandings (oral or
otherwise) between the Parties, with respect to the matters contained in this
Agreement.
In Witness Whereof, the Parties hereto have executed and delivered this
Agreement as of the last date written below:
COMPANY: EMPLOYEE:
SPAR Group, Inc.
/s/ Xxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxx --------------------------
-------------------------- Employee's Signature
Officer's Signature
--------------------------
Company's Current Address: Xxxx X. Xxxxxx
SPAR Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000 Employee's Current Address:
--------------------------
Dated as of: August 12, 2004 --------------------------
--------------------------
Dated as of: August 12, 2004
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