EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This
Employment Agreement (the “Agreement”), dated as of November 12, 2007, (the
“Effective Date”) is by and between AeroGrow International, Inc., a Nevada
corporation (the “Company”), and Xxxxxx
X. Xxxxxxx (“Employee”).
In
consideration of the promises and conditions contained herein, the parties
hereto agree as follows:
Section 1. Employment. The
Company hereby agrees to employ Employee, and Employee hereby accepts employment
by the Company upon the terms and subject to the conditions hereinafter set
forth in this Agreement. Employee’s employment with Company will commence
on November 12, 2007.
Section 2. Duties
During Contract Term. Employee shall serve as the President
and Chief Operating Officer of the Company. Employee will report to
the Chief Executive Officer of the Company. Employee hereby agrees to
perform such responsibilities and duties, and undertake such authorities, as
are
customarily performed and undertaken by executives holding positions similar
to
that assigned to Employee in similar businesses, as well as any other reasonable
responsibilities, duties and authorities commensurate with Employee’s position
assigned by the Company’s Board of Directors or by the Chief Executive Officer
of the Company. Chief Executive Officer Xxxxxxx Xxxxxxxxxxx and
Employee will confer within thirty (30) days following the Effective Date to
determine performance expectations of Employee. Employee will perform his duties
under this paragraph faithfully and to the reasonable best of his ability,
will
devote substantially all his working time and efforts to the business of the
Company, and shall comply with all reasonable and lawful existing and future
formal policies applicable to senior management level employees of the Company
and to the Company's business.
Section 3. Term. Unless
Employee's employment hereunder is terminated earlier pursuant to Section 8
of
this Agreement, and unless this Agreement is amended or superseded by a new
Agreement between the parties, the term of this Agreement shall begin on
November 12, 2007 and shall expire on May 12, 2008 (the initial “Contract
Term”), provided that upon the expiration of the initial Contract Term, the
Employee's employment hereunder shall continue for additional consecutive
extension terms of one (1) year each until either party gives notice of
termination to the other at least thirty (30) days prior to end of the current
term. The initial Contract Term and any extension thereof are
referred to as the Contract Term. Should this Agreement be renewed
for a subsequent term, Employee will be provided with relocation assistance
and
an auto allowance, the terms of which will be agreed to by the parties in a
separate written agreement.
Section
4. Place
of Employment and Transition Period. During the initial
Contract Term of this Agreement, Employee will commute to Company’s facilities
in Boulder, Colorado. During the initial Contract Term, Employee will
meet with Company-appointed transition team bi-weekly (in person and/or by
conference call), or more frequently as may be requested by Employee or Company,
to ensure a successful transition. During the initial Contract Term,
senior advisors Xx Xxxxxxxx, Xxxx Xxxxxx, and such others as may be appointed
by
the Company, will make themselves reasonably available to consult with Employee
for ongoing support, consultation, advice, and strategy.
During
the initial Contract Term,
Employee will be physically present at Company’s facilities in Boulder, Colorado
five days per week, subject to the following exceptions: 1) Employee may perform
work away from the Boulder facilities as requested by the Company or as
reasonably necessitated by Company business needs, 2) Employee may be absent
from the Boulder facilities due to illness or injury and on days he takes paid
vacation (in accordance with the paid time off policies of the Company), and
3)
Employee may be absent from the Boulder facilities for all holidays on which
the
facility is closed. During the initial Contract Term, the Company
shall pay Employee’s reasonably incurred commuting expenses, including airline
travel between Employee’s home and Colorado (via coach class airline ticket),
rental housing or hotel charges, and rental cars or car
service. Additionally, during the initial Contract Term, Company
shall pay the cost of flying Employee to his home (via coach class airline
ticket) weekly. At the request of Employee, Company shall pay the
cost of flying Employee’s spouse to Colorado (via coach class airline ticket)
and rental car or car service for any week, but not more frequently than once
every two week period unless agreed to by the Company.
In
lieu of renting automobiles for
the dates during which he is in Colorado, Employee may obtain an automobile
by
lease or purchase. In the event employee elects to lease or purchase
an automobile during the Contract Term, Employee shall not be entitled to
further rental car reimbursements but shall be entitled to an automobile
allowance in the amount of one thousand dollars ($1,000.00) per
month. Executive shall be solely responsible for the procurement of
such vehicle and for payment of all expenses regarding the operation, insurance
and maintenance of the said vehicle.
Section 5. Compensation
and Benefits. In consideration for the services of the
Employee hereunder, the Company will compensate Employee as
follows:
(a)
Base
Salary. Beginning on the Effective Date, Employee shall
be entitled to receive a base salary of $250,000 per annum, payable in
accordance with the Company’s normal payroll procedures and subject to
applicable tax withholding. Such base salary shall be payable in periodic
installments in accordance with the terms of the Company's regular payroll
practices in effect from the time during the term of this Agreement, but in
no
event less frequently than once each month. Employee’s base salary
may be increased from time to time in the discretion of the Chief Executive
Officer and/or Board of Directors, but in no event will Employee’s base salary
in effect from time to time be reduced.
(b)
Bonus. Employee shall receive an
annual cash bonus in an amount not less than 2.0% of the EBITDA of the Company
as determined by the Company’s annual financial statements. For the
fiscal year 2007, this bonus shall be pro-rated for the portion of such annual
period covered under this Agreement. Such bonus shall be payable in a
single lump sum payment not later than one hundred and twenty (120) days after
the end of the each of the Company’s fiscal year. In order to be
eligible for receipt of this bonus, Employee must be employed by Company on
the
last day of the fiscal year for which the bonus is payable.
(c)
Benefits. Employee shall be
entitled to participate in and receive benefits under any and all employee
benefit plans and programs which are from time to time generally made available
to the employees of the Company, subject to approval and grant by the Governance
Committee of the Board with respect to programs calling for such approvals
or
grants and consistent with plan terms.
(d)
Equity Compensation. Employee shall be
eligible to participate in the 2005 Equity Compensation Plan, and any successor
plan providing for compensation in the form of restricted or unrestricted stock,
stock options and other equity-related compensation provided by the Company
to
its employees.
(i)
The initial grant of the Stock
Options to be granted pursuant to the Company’s 2005 Equity Compensation Plan
shall be granted on February 1, 2008 (regardless of whether Employee is employed
by Company on that date) and shall not be less than 33,334 options to purchase
the common stock of the Company. The exercise price of such options
shall be the price of the Company’s stock at market close on the date of the
grant. These options shall: (i) fully vest on the date granted; (ii)
shall not expire in less than five (5) years from the date of grant, unless
Employee ceases to be employed by Company, in which case such options will
expire pursuant to the terms of the Company’s 2005 Equity Compensation Plan and
the Stock Option Agreement relating to such shares; and (iii) shall be subject
to other standard terms and conditions under the 2005 Equity Compensation
Plan. Employee agrees that the foregoing options shall be subject to
the lockup provisions as required by the Company's investment bankers in
conjunction with a private placement offering conducted during February,
2006. In the event Employee’s employment terminates before the
anticipated date that these options are to grant and vest, such options will
be
granted and immediately vest as of the date of employment
separation.
(ii)
Unless Employee is terminated by
the Company for Cause on or before August 1, 2008, a second grant of Stock
Options shall be granted pursuant to the Company’s 2005 Equity Compensation Plan
on August 1, 2008 and shall not be less than 33,334 options to purchase the
common stock of the Company. The exercise price of such options shall
be the price of the Company’s stock at market close on the date of the
grant. These options shall: (i) fully vest on the date granted; (ii)
shall not expire in less than five (5) years from the date of grant, unless
Employee ceases to be employed by Company, in which case such options will
expire pursuant to the terms of the Company’s 2005 Equity Compensation Plan and
the Stock Option Agreement relating to such shares; and (iii) shall be subject
to other standard terms and conditions under the 2005 Equity Compensation
Plan. Employee agrees that the foregoing options shall be subject to
the lockup provisions as required by the Company's investment bankers in
conjunction with a private placement offering conducted during February, 2006.
In the event Employee’s employment terminates before the anticipated date that
these options are to grant and vest, such options will be granted and
immediately vest as of the date of employment separation.
(iii)
Should this Agreement be
renewed for a subsequent Contract Term, a subsequent grant of stock options
to
be granted pursuant to the Company’s 2005 Equity Compensation Plan shall be
granted on August 1, 2008 and shall not be less than 133,336 options to purchase
the common stock of the Company. The exercise price of such options
shall be the price of the Company’s stock at market close on the date of the
grant. These options shall: (i) vest according to the schedule set
forth below; (ii) shall not expire in less than five (5) years from the date
of
grant, unless Employee ceases to be employed by Company, in which case such
options will expire pursuant to the terms of the Company’s 2005 Equity
Compensation Plan and the Stock Option Agreement relating to such shares; and
(iii) shall be subject to other standard terms and conditions under the 2005
Equity Compensation Plan. Employee agrees that the foregoing options
shall be subject to the lockup provisions as required by the Company's
investment bankers in conjunction with a private placement offering conducted
during February, 2006.
Vesting
Schedule:
|
·
|
33,334
stock options on February 1, 2009
|
|
·
|
33,334
stock options on August 1, 2009
|
|
·
|
33,334
stock options on February 1, 2010
|
|
·
|
33,334
stock options on August 1, 2010
|
In
the
event of a Change in Control, as that term is defined in the 2005 Equity
Compensation Plan, or if Employee’s employment is terminated by the Company
without Cause after May 12, 2008 but before the anticipated date that these
options set forth in Section 5(d)(iii) are to vest, all unvested options that
are scheduled to vest within one year after Employee’s separation of employment
will immediately vest as of the date of employment separation. In the
event Employee’s employment is terminated in any manner other than by the
Company without Cause after May 12, 2008, but before the anticipated date that
these options set forth in Section 5(d)(iii) are to vest, no unvested options
will vest. In the event Employee is offered and accepts the position
of Chief Executive Officer, all options set forth in this Agreement that have
not yet vested will become null and void, and Employee’s right to further
options will be defined in a separate Agreement.
Section 6. Potential
Succession To Chief Executive Officer Position. On or before
the expiration of the initial Contract Term, Company will notify Employee of
whether the Agreement and Employee’s employment will be renewed for a subsequent
Contract Term. If Employee is offered a subsequent Contract Term, he
may be offered employment in his current position of President and Chief
Operating Officer under the terms and conditions set forth in this Agreement
or
as Chief Executive Officer of Company. The decision of whether to
renew Employee’s Agreement for a subsequent Contract Term, and whether Employee
should be retained in current position or offered the Chief Executive Officer
position, is committed to the sole and absolute discretion of the Board of
Directors of the Company. Should Employee be offered the Chief
Executive Officer position, the terms and conditions of his employment in that
position will be set forth in a separate Agreement with will supersede this
Agreement. Such terms and conditions shall be in all respects at
least as favorable as the terms and conditions set forth in this
Agreement.
Section 7. Expenses. It
is acknowledged that Employee, in connection with the services to be performed
by him pursuant to the terms of this Agreement, will be required to make
payments for travel, entertainment of business associates and similar
expenses. The Company will pay or reimburse Employee for all
reasonable expenses incurred by Employee in the performance of his duties
hereunder within fifteen days from date Employee or his representative submits
a
request for such reimbursement. Employee will comply with such budget
limitations and approval and reporting requirements with respect to expenses
as
the Company may establish from time to time.
Section 8. Termination.
(a)
For
Cause. The Company may terminate the Employee's
employment under this Agreement at any time for Cause. “Cause” is
defined as (i) a material act of dishonesty by Employee in connection with
his responsibilities as an Employee, (ii) conviction of, or plea of
nolo contendere to, a felony, (iii) gross misconduct, or
(iv) continued substantial violation of his employment duties after
Employee has received a written demand for performance from the Company which
specifically sets forth the factual basis for the Company’s belief that Employee
has not substantially performed his duties.
(b)
Without
Cause by
Company. The Company may terminate the Employee's
employment under this Agreement at any time without Cause. If the
Company breaches any term of this Agreement and fails to cure such breach within
thirty (30) days of notice of such breach from the Employee, and if Employee
terminates his employment with the Company within thirty (30) days after the
period for the cure of the breach by the Company expires, the Company shall
be
deemed to have terminated the Employee's employment hereunder without
Cause. If the Company terminates the Employee’s employment in
accordance with this paragraph, and Employee has been employed by Company for
less than six months, the Employee shall be entitled to continuation in payment
of his Base Salary for six months following the date of termination;
additionally, Employee will be entitled to a pro-rated portion of the bonus
described in paragraph 5(b) above and to continued coverage under the health
and
welfare employee benefit plans and programs described in paragraph 5(c) at
active executive levels and costs for six months following the date of
termination. If the Company terminates the Employee’s employment in
accordance with this paragraph, and Employee has been employed by Company for
six months or longer, the Employee shall be entitled to continuation in payment
of his Base Salary for twelve months following the date of termination;
additionally, Employee will be entitled to a pro-rated portion of the bonus
described in paragraph 5(b) above and to continued coverage under the health
and
welfare employee benefit plans and programs described in paragraph 5(c) at
active executive levels and costs for twelve months following the date of
termination. Payment of all salary continuation and pro-rated bonus
payments described in this paragraph are contingent on (i) Employee’s compliance
with restrictive covenants provided in Section 9 of this Agreement and (ii)
Employee’s execution of a release of all claims arising from his employment with
the Company, in such form as may then be used by the Company respecting
termination of employees.
In
the
event the Company determines that any severance or termination payments provided
for in this Agreement or otherwise payable to Employee constitute “parachute
payments” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”) and; (A) but for this paragraph, would be subject
to the excise tax imposed by Section 4999 of the Code (or any corresponding
provisions of state income tax law); and; (B) reduction of such payments to
the
amount necessary to avoid the application of such excise tax would result in
Employee retaining an amount that is greater than the amount he would retain
if
such payments were made without such reduction but after the application of
such
tax; then such payments shall be delivered as to such lesser extent which would
result in no portion of such payments being subject to excise tax under Section
4999 of the Code. Any determination required under this paragraph
shall be made by the Company’s accountants, whose determination shall be
conclusive and binding upon the Employee and the Company for all
purposes. For purposes of making the calculations required by this
paragraph, the Company’s accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999
of
the Code. The Company and Employee shall furnish to the accountants
such information and documents as the accountants may reasonably request in
order to make a determination under this paragraph. The Company shall
bear all costs the accountants may reasonably incur in connection with any
calculations contemplated by this paragraph. In the event this
paragraph applies, then unless otherwise agreed by the parties, lump sum
payments shall be reduced before periodic payments reduced to the extent
necessary to avoid imposition of such excise taxes.
Notwithstanding
the foregoing, in
the event that the timing of any of the payments or benefits described in this
Agreement would cause Employee to incur adverse tax consequences due to
application of Section 409A of the Code or the regulations thereunder, the
parties agree to negotiate in good faith the revision of the timing of such
payments and/or benefits to avoid such adverse tax consequences, but in no
event
shall such payments and/or benefits be reduced.
(c)
Without
Cause by
Employee. The Employee may terminate the Employee's
employment under this Agreement at any time after the initial Contract Term
without Cause upon giving at least thirty (30) day’s advance written
notice. If the Employee terminates the Employee’s employment in
accordance with this paragraph, the Employee shall be entitled to continuation
in payment of his Base Salary until the end of the month following said notice.
Notwithstanding any other provision of this Agreement, in the event
Employee is offered a subsequent Contract Term following the initial Contract
Term set forth in Section 3 above and declines such offer, Employee will not
be
entitled to any benefits after his separation of employment (including
additional stock options, bonuses, and salary continuation) other than those
set
forth in (i) this Paragraph 8(c).
(d)
Non-Renewal
Deemed
Termination. The timely notice by the Company under
Section 3 of this Agreement not to renew the Contract Term for a subsequent
term
shall be deemed a termination without Cause by the Company under this
Agreement.
(e)
Termination
Upon
Death Or Disability. This Employment Agreement shall
terminate immediately upon the death of Employee or, at the discretion of the
Board of Directors of the Company, upon Employee becoming disabled such that
Employee becomes qualified for Long Term Disability Benefits.
(f)
Accrued
Compensation
and Benefits. In all cases of Employee’s termination of
employment, the Company shall, within 90 days following Employee’s separation of
employment, pay to Employee (or, in the case of Employee’s death, his surviving
spouse, if any, otherwise his estate) any earned but unpaid salary, bonus and
other compensation together with reimbursement for unpaid expenses approved
by
the Company. In addition, Employee shall be entitled to benefit
continuation and conversion rights as required by law or as permitted by the
Company’s employee benefit plans and programs described in paragraph
5(c).
Section
9. Restrictive Covenants.
(a) Confidential
Data. The Employee will hold in a fiduciary capacity
and will not reveal, communicate or divulge during the period of his employment
by the Company or thereafter, any information, knowledge or data to any person,
firm or corporation other than the Company or persons, firms or corporations
designated by the Company, which relates to the names of the customers,
finances, technical data concerning products or services, or any other secret
or
confidential information, knowledge or data of the Company or of any firm owned
by the Company, which was learned through or as a result of employment by the
Company.
(b)
Covenant
Not to
Compete. In consideration for the
benefits provided in this Agreement and his employment with Company, during
the
term of this agreement, and for twelve (12) months after the termination of
this
Agreement, whichever is later, the Employee shall not, within the United States,
either directly or indirectly, own, have a proprietary interest of any kind
in,
be employed by, or serve as a consultant to or in any other capacity for any
firm which is in the primary business of providing aeroponics products or
businesses, or which is otherwise engaged in a business that is competitive
with
that conducted by the Company. Notwithstanding the foregoing, the
Employee may invest in the securities of any corporation whose shares are listed
on a national securities exchange or registered under the Securities Exchange
Act of 1934 (the “Exchange Act”).
(c)
Ownership
of
Inventions. Every invention and
improvement conceived, invented or developed by the Employee during the term
of
his employment hereunder relating to products or services to be manufactured,
sold, used or in the process of development by the Company or by any parent
or
affiliate of the Company during such period of employment, or which may be
sold
or used in competition with any such product shall be considered work for hire
and become the exclusive property of the Company, its successors and assigns.
Employee agrees to execute such assignments, instruments or other documents
as
the Company or its counsel may request to implement this paragraph.
(d)
Solicitation
of
Employees. The Employee and any entity controlled by
him or with which he is associated (as the terms “control” and “associate” are
defined in the Exchange Act) shall not, during the Contract Term and for a
period of twenty-four (24) months after the termination of this Agreement,
directly or indirectly solicit, interfere with, offer to hire, or induce any
person who is or was an officer or employee of the Company or any affiliate
(as
the term "affiliate" is defined in the Exchange Act) (other than secretarial
personnel) to discontinue his or her relationship with the Company or an
affiliate of the Company, in order to accept employment by, or enter into a
business relationship with, any other entity or person. The
restrictions contained in this paragraph 9(d) shall not apply to officers or
employees of the Company or its affiliates who periods of employment did not
overlap with the periods of employment of Employee.
(e)
Return
of
Property. Upon termination of employment, and at the
request of the Company, the Employee agrees to promptly deliver to the Company
all Company or affiliate memoranda, notes, records, reports, manuals, drawings,
designs, computer files in any media, and any other documents (including
extracts and copies thereof) relating to the Company or its affiliates, and
all
other property of the Company. Upon termination, the Employee shall
cease to use all such materials and information set forth under this Section
9(e).
(f) Representations. The
Employee represents and warrants to the Company that he has full power and
authority to enter into this Agreement and perform his duties hereunder, and
that he has no outstanding agreement, whether oral or written or any obligation
that is or may be in conflict with any of the provisions of this Agreement
or
that would preclude Employee from complying with the provisions of this
Agreement and that the performance of his denies shall not result in
a breach of, or constitute a default under, any agreement, whether oral or
written, including, without limitation, any restrictive covenant or
confidentiality agreement, to which he is a party or by which he may be
bound. Employee further represents and warrants that he has not
misappropriated any confidential information and/or trade secrets of any third
party that he intends to use in the performance of his duties under this
Agreement.
(g)
Reformation. If any court shall determine
that the duration or scope of any restriction contained in this Section 9 is
unenforceable, it is the intention of the parties that the provisions set forth
herein shall not be terminated but shall be deemed restricted, amended, and/or
reformed to the extent necessary to render it valid and
enforceable.
(h)
Reasonable
Restrictions. Employee acknowledges and agrees that the
provisions of this Section 9 are reasonable and necessary protections of the
immediate and substantial interests of the Company, that any violation of these
restrictions may cause substantial injury to the Company for which the Company
has no adequate legal remedy, and that the Company would not have entered into
this Employment Agreement with Employee without the additional consideration
offered by Employee in binding himself to the provisions of this Section
9. In the event of a breach or threatened breach by Employee of any
provision of this Section 9, the Company shall be entitled to seek a temporary
restraining order and preliminary and/or permanent injunction restraining
Employee from such breach or threatened breach; provided, however, that nothing
herein contained shall be construed to preclude the Company from pursuing any
other available remedy for such breach or threatened breach in addition to,
or
in lieu of, such injunctive relief.
(i)
Forum
for Injunctive
Relief. Notwithstanding any arbitration agreements
between Employee and Company, Employee and Company irrevocably consent to
personal jurisdiction in the state courts of Colorado, as well as the United
States District Court for the District of Colorado, for any matter arising
out
of or associated with any of the provisions contained in this Section 9 of
this
Agreement, including its subparts, including but not limited to any action
seeking to enforce any of the provisions contained in this Section 9 of this
Agreement. Employee further agrees that venue for any action arising
out of or associated with any of the provisions contained in this Section 9
of
this Agreement, including its subparts (including but not limited to common
law
claims or claims under the Uniform Trade Secrets Act or claims under the
Computer Fraud and Abuse Act, the Xxxxxx Act, the Stored Communications Act
or
any similar statutes) shall lie exclusively in the state courts of Colorado
covering Boulder County and in the United States District Court for the District
of Colorado, regardless of where Employee resides or performs duties for
Company.
Section 10. Arbitration.
The
parties agree that any claim,
controversy or dispute that may arise directly or indirectly in connection
with
Employee’s employment or the termination of Employee’s employment, and involving
the Company, and/or any employee(s), Director(s), officer(s), or agent(s) of
it,
whether arising in contract, statute, tort, fraud, misrepresentation,
discrimination, common law or any other legal theory, including, but not limited
to disputes relating to the making, performance or interpretation of this
Employment Agreement; and claims or other disputes arising under any federal
or
state employment statutes including, without limitation, Title VII of the Civil
Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967; as amended; 42 U.S.C. § 1981, § 1981a,
§ 0000, § 1985, or § 1988; the Family and Medical Act of 1993; the Americans
with Disabilities Act of 1990, as amended; the Rehabilitation Act of 1973,
as
amended; the Fair Labor Standards Act of 1938, as amended; the Worker Adjustment
and Retraining Notification Act; the Employee Retirement Income Security Act
of
1974, as amended (“ERISA”); the Colorado Anti-Discrimination Act; or any other
similar federal, state or local law or regulation, whenever brought, shall
be
resolved by arbitration. If, however, any party would otherwise be
legally required to exhaust administrative remedies to obtain legal relief,
that
party can and must exhaust such administrative remedies prior to pursuing
arbitration. The only claims between the parties that are not subject
to arbitration are claims for workers’ compensation or unemployment compensation
benefits, claims for injunctive relief, or other claims specifically exempted
from arbitration by this or any subsequent agreement between Employee and
Company, including but not limited to those claims referenced in Section 9
above. By signing this Agreement, Employee voluntarily, knowingly and
intelligently waives any right Employee may otherwise have to seek remedies
with
a court or other forums, including the right to a jury trial. Company
also hereby voluntarily, knowingly, and intelligently waives any right it might
otherwise have to seek remedies against Employee in court or other
forums. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”) shall
govern the arbitrability of all claims, provided that they are arbitrable under
the FAA, as it may be amended from time to time. In the event the FAA
does not apply, the Colorado Uniform Arbitration Act shall apply.
A
single
arbitrator engaged in the practice of law shall conduct the arbitration under
the National Rules For The Resolution Of Employment Disputes of the American
Arbitration Association (“AAA”) in effect at the time of the arbitration, unless
otherwise agreed to by the parties. Other than as set forth in this
Employment Agreement, the arbitrator shall have no authority to add to, detract
from, change, amend, or modify existing law. All arbitration
proceedings will be confidential. The prevailing party in any
arbitration shall be entitled to receive reasonable attorney fees and costs
(to
include the fees of the arbitrator) to the extent such fees and costs are
otherwise provided for by the statute or common law that forms the basis for
the
claims being arbitrated. The arbitrator’s decision and award shall be
final and binding as to all claims that were or could have been raised in the
arbitration, and judgment upon the award rendered by the arbitrator may be
entered by any court of competent jurisdiction. If any party to this
Employment Agreement files a judicial or administrative action asserting claims
subject to this arbitration provision, and another party successfully stays
such
action and/or compels arbitration of such claims, the party filing the initial
court action shall pay the other party’s costs and expenses incurred in seeking
the stay and/or compelling arbitration, including reasonable attorney fees
not
to exceed Twenty-Five Thousand Dollars ($25,000.00). Any arbitration
under this Section 10 of this Agreement shall take place within 50 miles of
Boulder, Colorado.
Section 11. General.
(a)
Notices. all notices and other
communications hereunder will be in writing or by written telecommunication,
and
will be deemed to have been duly given if delivered personally or if mailed
by
certified mail, return receipt requested, or by facsimile, to the relevant
address set forth below, or to such other address as the recipient of such
notice or communication will have specified to the other party hereto in
accordance with this Agreement:
If
to Employer, to:
000
00xx Xxxxxx, Xxxxx
000
Xxxxxxx,
Xx 00000
Fax: 000-000-0000
If to Employee, to:
Xxxxxx
X. Xxxxxxx
0000
Xxxxxxxxxx Xxxxx
Xxxx
Xxxxxx, XX 00000
(b)
Withholding. All payments required
to be made by Employer under this Agreement to Employee will be subject to
the
withholding of such amounts, if any, relating to federal, state and local taxes
as may be required by law.
(c) Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable,
such provision will be fully severable and this Agreement will be construed
and
enforced as if such illegal, invalid or unenforceable provision never comprised
a part hereof; and the remaining provisions hereof will remain in full force
and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as part of this Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
(d) Waivers. No delay or omission
by either party hereto in exercising any right, power or privilege hereunder
will impair such right, power or privilege, nor will any single or partial
exercise of any such right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privilege.
(e)
Counterparts. This Agreement may
be executed in multiple counterparts, each of which will be deemed an original,
and all of which together will constitute one and the same
instrument.
(f)
Captions. The captions in this
Agreement are for convenience of reference only and will not limit or otherwise
affect any of the terms or provisions hereof
(g) Reference to
Agreement. Use of the words “herein,”
“hereof,” “hereto” and the like in this Agreement refer to this Agreement
only
as a whole and not to any particular subsection or provision of this Agreement,
unless otherwise noted.
(h) Binding Agreement. This
Agreement will be binding upon and inure to the benefit of the parties and
will
be enforceable by the personal representatives and heirs of Employee and the
successors of the Company. If Employee dies while any amounts would
still be payable to him hereunder, such amounts will be paid to Employee’s
estate. This Agreement is not otherwise assignable by
Employee.
(i) Entire Agreement. This
Agreement contains the entire understanding of the parties, supersedes all
prior
agreements and understandings relating to the subject matter hereof and may
not
be amended except by a written instrument hereafter signed by each of the
parties hereto.
(j) Governing Law. This Agreement
and the performance hereof will be construed and governed in accordance with
the
laws of the State of Colorado, without regard to its choice of law
principles.
EXECUTED
as of the date first above
written.
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By:
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/s/
Xxxxxxx Xxxxxxxxxxx
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Its:
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Chief
Executive Officer
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EMPLOYEE:
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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