EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of September 23,
2002, between XXXXXX XXXXXXX LTD., a Bermuda company (the "Company"), and
XXXXXXX X. XXXXXX (the "Executive").
The Executive and the Company wish to enter into an employment
relationship on the terms and conditions set forth in this Agreement.
Accordingly, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT, DUTIES. The Company hereby agrees to employ the
Executive for the Term (as defined in Section 2.1), to render exclusive and
full-time services to the Company, in the capacity of President and Chief
Executive Officer, Xxxxxx Xxxxxxx Power Group, Inc. and to perform such other
duties consistent with such position (including service as a director or officer
of any affiliate of the Company if elected) as may be assigned by the Chairman,
President and Chief Executive Officer of the Company (the "Chairman"); provided,
however, that the Executive may participate in civic, charitable, industry, and
professional organizations to the extent that such participation does not
materially interfere with the performance of Executive's duties hereunder. The
Executive's title shall be President and Chief Executive Officer, Xxxxxx Xxxxxxx
Power Group, Inc., or such other titles of at least equivalent level consistent
with the Executive's duties from time to time as may be assigned to the
Executive by the Company consistent with such position, and the Executive shall
have all authorities as are customarily and ordinarily exercised by executives
in similar positions in similar businesses of similar size in the United States.
1.2 ACCEPTANCE. The Executive hereby accepts such employment and
agrees to render the services described above. During the Term, and consistent
with the above, the Executive agrees to serve the Company faithfully and to the
best of the Executive's ability, to devote the Executive's entire business time,
energy and skill to such employment, and to use the Executive's best efforts,
skill and ability to promote the Company's interests.
1.3 LOCATION. The duties to be performed by the Executive
hereunder shall be performed primarily at the Company's offices in Clinton, New
Jersey, subject to reasonable travel requirements consistent with the nature of
the Executive's duties from time to time on behalf of the Company. The Executive
shall keep Executive's primary residence within reasonable daily commute of the
Clinton, New Jersey area throughout the Term after relocating pursuant to the
terms of Section 3.8.
2. TERM OF EMPLOYMENT.
2.1 TERM. The term of the Executive's employment under this
Agreement (the "Term") shall commence on November 4, 2002, or such earlier date
in respect of which the Executive provides at least three (3) days' advance
written notice to the Chairman (the "Effective Date"), and shall end on the date
on which the Term is terminated pursuant to Section 4.
3. COMPENSATION; BENEFITS.
3.1 SALARY. As compensation for all services to be rendered
pursuant to this Agreement, the Company agrees to pay to the Executive during
the Term a base salary, payable monthly in arrears, at the initial annual rate
of Four Hundred and Fifty Thousand Dollars ($450,000.00) (the "Base Salary"). On
each anniversary of the Effective Date or such other appropriate date during
each year of the Term when the salaries of executives at the Executive's level
are normally reviewed, the Company shall review the Base Salary and determine
if, and by how much, the Base Salary should be increased. Once increased, the
Base Salary shall not be decreased, and such increased amount shall be treated
as Base Salary hereunder. All payments of Base Salary or other compensation
hereunder shall be less such deductions or withholdings as are required by
applicable law and regulations.
3.2 BONUS.
3.2.1 Executive shall be eligible to participate, as determined by
the Compensation Committee of the Board of Directors of the Company (the
"Board"), in the Company's annual incentive program as in effect from time to
time for executives at the Executive's level. Initially, the Executive's
participation shall be in the discretionary bonus program designated the "Xxxxxx
Xxxxxxx Annual Incentive Plan for 2002 and Subsequent Years." The Executive
shall be eligible for an annual incentive bonus at a target opportunity of
seventy percent (70%) of Base Salary (up to a maximum opportunity of two hundred
and ten percent (210%) of Base Salary) based upon the achievement of certain
business unit objectives established in advance by the Chairman. The actual
amount of any annual incentive bonus shall be determined by and in accordance
with the terms of the Company's annual incentive program as in effect from time
to time and the Executive shall have no absolute right to an annual incentive
bonus in any year.
3.2.2 The Company shall pay to the Executive within five (5) days
after the Company receives this Agreement executed by the Executive a signing
bonus in the amount of Five Hundred Thousand Dollars ($500,000.00) (the "Signing
Bonus"). If the Company terminates the Executive for Cause (as defined below) or
if the Executive terminates employment with the Company other than with Good
Reason (as defined below), in either event before the first anniversary of the
Effective Date, the Executive shall repay to the Company, within thirty (30)
days of such termination, the net, after-tax amount of the Signing Bonus. In
addition, if for any reason the Executive
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does not commence employment with the Company on or before November 4, 2002, the
Executive shall repay to the Company, on or before November 9, 2002, the full
gross amount of the Signing Bonus.
3.3 STOCK OPTIONS.
3.3.1 On the Effective Date, the Company shall grant the Executive
an initial grant option to purchase Two Hundred and Fifty-Five Thousand
(255,000) shares of Company common stock. The exercise price for the initial
grant option shall be equal to the mean of the high and low price of Company
common stock on the New York Stock Exchange on the Effective Date. The initial
grant option shall have a term of ten (10) years from the Effective Date. A
portion of the initial grant option representing Fifty-One Thousand (51,000)
shares shall vest on each date immediately preceding each of the first through
fifth anniversaries of the Effective Date.
3.3.2 During the Term, on the first anniversary of the Effective
Date, the Company shall grant the Executive a subsequent grant option to
purchase One Hundred Thousand (100,000) shares of Company common stock. The
exercise price for the subsequent grant option shall be equal to the mean of the
high and low price of Company common stock on the New York Stock Exchange on the
Effective Date. The subsequent grant option shall have a term of ten (10) years
from the grant date. A portion of the subsequent grant option representing
Twenty-Five Thousand (25,000) shares shall vest on each date immediately
preceding each of the first through fourth anniversaries of the grant date.
3.3.3 The initial grant and subsequent grant options shall be
issued under stock option agreements on terms substantially the same as other
senior executives of the Company and shall be subject to the provisions of
Sections 3.7 and 4 of this Agreement.
3.4 BUSINESS EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or paid by the Executive
during the Term in the performance of the Executive's services under this
Agreement, subject to and in accordance with applicable expense reimbursement
and related policies and procedures as in effect from time to time.
3.5 VACATION. During the Term, the Executive shall be entitled to an
annual five (5) week paid vacation period in accordance with the applicable
executive vacation policy as in effect from time to time.
3.6 BENEFITS AND PERQUISITES.
3.6.1 During the Term and except as otherwise provided herein, the
Executive shall be entitled to participate in those defined benefit, defined
contribution, group insurance, medical, dental, disability and other benefit
plans of the Company for United States based employees as from time to time in
effect and on a basis no less favorable than any other executive at the
Executive's level. The Executive shall
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not be eligible to participate in the Company's current supplemental employee
retirement plan, known as the "Xxxxxx Xxxxxxx Corporation Supplemental Employee
Retirement Plan," nor any successor or replacement plan.
3.6.2 During the Term, the Executive shall be entitled to receive
the following perquisites:
(i) Company furnished automobile at a level no less
favorable than any other executive at the Executive's level;
(ii) Reimbursement of annual financial planning services at
a level no less favorable than any other executive at Executive's level;
(iii) Reimbursement on a one-time basis for legal expenses
associated with estate planning at a level no less favorable than any other
executive at Executive's level;
(iv) Facsimile machine for use at Executive's home; and
(v) Annual physical examination at a level no less favorable
than any other executive at Executive's level.
3.7 CHANGE OF CONTROL. The Executive shall be covered under the
Company's Change in Control Agreement as in effect from time to time for
executives at the Executive's level. Any amounts and/or benefits payable, paid
or provided to the Executive under such Change in Control Agreement shall be in
lieu of and not in addition to amounts and/or benefits payable or provided under
this Agreement. This Agreement is not intended to preclude benefits payable
under the Change in Control Agreement should the events described therein occur.
3.8 RELOCATION.
3.8.1 The Company will provide the Executive the following
relocation assistance net of taxes:
(i) Provide furnished housing in the Clinton, New Jersey
area at Company expense for a twelve (12) month period to a maximum of Four
Thousand Five Hundred Dollars ($4,500.00) per month;
(ii) To assist with travel to and from permanent home during
the first year of employment, reimburse for weekend travel expense for a twelve
(12) month period to a maximum of Twenty-Five Thousand Dollars ($25,000.00);
(iii) Reimbursement for closing costs on the purchase of a
home in the Clinton, New Jersey area, should such purchase be made within two
(2) years after the Effective Date; and
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(iv) Reimbursement for relocation of household goods if such
relocation takes place within two (2) years of the Effective Date.
4. TERMINATION.
4.1 TERMINATION EVENTS.
4.1.1 Executive's employment and the Term shall terminate
immediately upon the occurrence of any of the following:
(i) the death of the Executive;
(ii) the physical or mental disability of the Executive,
whether totally or partially, such that with or without reasonable accommodation
the Executive is unable to perform the Executive's material duties, for a period
of not less than one hundred and eighty (180) consecutive days; or
(iii) notice of termination for "Cause". As used herein,
"Cause" means (i) conviction of a felony; (ii) actual or attempted theft or
embezzlement of Company assets; (iii) use of illegal drugs; (iv) material breach
of the Agreement that the Executive has not cured within thirty (30) days after
the Company has provided the Executive notice of the material breach which shall
be given within sixty (60) days of the Company's knowledge of the occurrence of
the material breach; (v) commission of an act of moral turpitude that in the
judgment of the Board can reasonably be expected to have an adverse effect on
the business, reputation or financial situation of the Company and/or the
ability of the Executive to perform the Executive's duties; (vi) gross
negligence or willful misconduct in performance of the Executive's duties; (vii)
breach of fiduciary duty to the Company; or (viii) willful refusal to perform
the duties of Executive's titled position.
4.1.2 The Executive may immediately resign the Executive's
position for Good Reason and, in such event, the Term shall terminate. As used
herein, "Good Reason" means without the Executive's consent (i) material
diminution in title, duties, responsibilities or authority; (ii) reduction of
Base Salary and benefits except for across-the-board changes for executives at
the Executive's level; (iii) exclusion from executive benefit/compensation
plans; (iv) relocation of the Executive's principal business location by the
Company of greater than fifty (50) miles; (v) material breach of the Agreement
that the Company has not cured within thirty (30) days after the Executive has
provided the Company notice of the material breach which shall be given within
sixty (60) days of the Executive's knowledge of the occurrence of the material
breach; or (vi) resignation in compliance with applicable law or rules of
professional conduct.
4.1.3 The Company may terminate the Executive's employment
thirty (30) days following notice of termination without Cause given by the
Company and, in such event, the Term shall terminate. During such thirty (30)
day notice period, the Company may require that the Executive cease performing
some or all
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of the Executive's duties and/or not be present at the Company's offices and/or
other facilities.
4.1.4 The Executive may voluntarily resign the Executive's
position effective thirty (30) days following notice to the Company of the
Executive's intent to voluntarily resign without Good Reason and, in such event,
the Term shall terminate. During such thirty (30) day notice period, the Company
may require that the Executive cease performing some or all of the Executive's
duties and/or not be present at the Company's offices and/or other facilities.
4.1.5 The date upon which Executive's employment and the Term
terminate pursuant to this Section 4.1 shall be the Executive's "Termination
Date" for all purposes of this Agreement.
4.2 PAYMENTS UPON A TERMINATION EVENT.
4.2.1 Following any termination of the Executive's employment, the
Company shall pay or provide to the Executive, or the Executive's estate or
beneficiary, as the case may be, (i) Base Salary earned through the Termination
Date; (ii) the balance of any awarded but as yet unpaid, annual cash incentive
or other incentive awards for any calendar year prior to the calendar year
during which the Executive's Termination Date occurs; (iii) a payment
representing the Executive's accrued but unused vacation; (iv) any vested, but
not forfeited benefits on the Termination Date under the Company's employee
benefit plans in accordance with the terms of such plans; (v) vested stock
options; and (vi) benefit continuation and conversion rights to which the
Executive is entitled under the Company's employee benefit plans.
4.2.2 Following a termination by the Company without Cause or by
the Executive for Good Reason, the Company shall pay or provide to the Executive
in addition to the payments in Section 4.2.1 above, (i) Base Salary at the rate
in effect on the Termination Date ("Termination Base Salary Rate"), payable
monthly following the Termination Date and continuing for twenty-four months
thereafter; (ii) an annual cash incentive payment for the calendar year that
includes the Executive's Termination Date and the following calendar year equal
to a percentage of the Termination Base Salary Rate equal to the average
percentage of base salaries paid as bonuses to the executives of the Company at
the Executive's level under the Company's annual incentive program during such
applicable calendar year and payable at the time that the Company pays annual
cash incentive payments to other participants in such program; (iii) two years
of continued health and welfare benefit plan coverage following the Termination
Date (excluding any additional vacation accrual or sick leave) at active
employee levels and active employee cost; (iv) executive level career transition
assistance services by a firm selected by the Executive and approved by the
Company; and (v) provided the Executive's employment is terminated pursuant to
this Section 4.2.2 within one year of the termination or retirement of the
Chairman who is Chairman on the Effective Date, full vesting of all granted
stock options which the Executive may exercise
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for a period of two years following the Termination Date. Notwithstanding any
other provision of this Agreement, as consideration for the pay and benefits
that the Company shall provide the Executive pursuant to this Section 4.2.2, the
Executive shall provide the Company an enforceable waiver and release agreement
in a form that the Company normally requires and which is mutually acceptable to
the Executive and the Company.
4.3 NO MITIGATION. Upon termination of the Executive's employment
with the Company, the Executive shall be under no obligation to seek other
employment or otherwise mitigate the obligations of the Company under this
Agreement.
5. PROTECTION OF CONFIDENTIAL INFORMATION; NON-COMPETITION.
5.1 The Executive acknowledges that the Executive's services will
be unique, that they will involve the development of Company-subsidized
relationships with key customers, suppliers, and service providers as well as
with key Company employees and that the Executive's work for the Company will
give the Executive access to highly confidential information not available to
the public or competitors, including trade secrets and confidential marketing,
sales, product development and other data and information which it would be
impracticable for the Company to effectively protect and preserve in the absence
of this Section 5 and the disclosure or misappropriation of which could
materially adversely affect the Company. Accordingly, the Executive agrees:
5.1.1 except in the course of performing the Executive's duties
provided for in Section 1.1, not at any time, whether before, during or after
the Executive's employment with the Company, to divulge to any other entity or
person any confidential information acquired by the Executive concerning the
Company's or its subsidiaries' or affiliates' financial affairs or business
processes or methods or their research, development or marketing programs or
plans, or any other of its or their trade secrets. The foregoing prohibitions
shall include, without limitation, directly or indirectly publishing (or
causing, participating in, assisting or providing any statement, opinion or
information in connection with the publication of) any diary, memoir, letter,
story, photograph, interview, article, essay, account or description (whether
fictionalized or not) concerning any of the foregoing, publication being deemed
to include any presentation or reproduction of any written, verbal or visual
material in any communication medium, including any book, magazine, newspaper,
theatrical production or movie, or television or radio programming or
commercial. In the event that the Executive is requested or required to make
disclosure of information subject to this Section 5.1.1 under any court order,
subpoena or other judicial process, then, except as prohibited by law, the
Executive will promptly notify the Company, take all reasonable steps requested
by the Company to defend against the compulsory disclosure and permit the
Company to control with counsel of its choice any proceeding relating to the
compulsory disclosure. The Executive acknowledges that all information, the
disclosure of which is prohibited by this section, is of a confidential and
proprietary character and of great value to the Company and its subsidiaries and
affiliates.
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5.1.2 to deliver promptly to the Company on termination of the
Executive's employment with the Company, or at any time that the Company may so
request, all confidential memoranda, notes, records, reports, manuals, drawings,
software, electronic/digital media records, blueprints and other documents (and
all copies thereof) relating to the Company's (and its subsidiaries' and
affiliates') business and all property associated therewith, which the Executive
may then possess or have under the Executive's control.
5.2 In consideration of the Company's entering into this Agreement,
the Executive agrees that at all times during the Term and thereafter for the
time period described hereinbelow, the Executive shall not, directly or
indirectly, for Executive or on behalf of or in conjunction with, any other
person, company, partnership, corporation, business, group, or other entity
(each, a "Person"):
5.2.1 until the first anniversary of the Termination Date, engage
in any activity for or on behalf of a Competitor, as director, employee,
shareholder, consultant or otherwise, which is the same as or similar to
activity in which Executive engaged at any time during the last two (2) years of
employment by the Company;
5.2.2 until the second anniversary of the Termination Date, (i)
call upon any Person who is, at such Termination Date, engaged in activity on
behalf of the Company or any subsidiary or affiliate of the Company for the
purpose or with the intent of enticing such Person to cease such activity on
behalf of the Company or such subsidiary or affiliate; or (ii) solicit, induce,
or attempt to induce any customer of the Company to cease doing business in
whole or in part with or through the Company or a subsidiary or affiliate, or to
do business with any Competitor.
For purposes of this Agreement, "Competitor" means a person or entity
who or which is engaged in a material line of business conducted by the Company.
For purposes of this Agreement, "a material line of business conducted by the
Company" means an activity of the Company generating gross revenues to the
Company of more than twenty-five million dollars ($25,000,000) in the
immediately preceding fiscal year of the Company.
5.3 If the Executive commits a breach or threatens to breach any
of the provisions of Section 5.1 or 5.2 hereof, the Company shall have the right
and remedy to have the provisions of this Agreement specifically enforced by
injunction or otherwise by any court having jurisdiction, it being acknowledged
and agreed that any such breach will cause irreparable injury to the Company in
addition to money damage and that money damages alone will not provide a
complete or adequate remedy to the Company, it being further agreed that such
right and remedy shall be in addition to, and not in lieu of, any other rights
and remedies available to the Company under law or in equity.
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5.4 If any of the covenants contained in Sections 5.1, 5.2 or 5.3,
or any part thereof, hereafter are construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions.
5.5 The period during which the prohibitions of Section 5.2 are in
effect shall be extended by any period or periods during which the Executive is
in violation of Section 5.2.
5.6 If any of the covenants contained in Sections 5.1 or 5.2, or
any part thereof, are held to be unenforceable, the parties agree that the court
making such determination shall have the power to revise or modify such
provision to make it enforceable to the maximum extent permitted by applicable
law and, in its revised or modified form, said provision shall then be
enforceable.
5.7 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 5.1, 5.2 and 5.3 upon the courts of
any state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties' hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographical scope of such covenants as to breaches of
such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being for this purpose severable into diverse and
independent covenants.
6. INTELLECTUAL PROPERTY.
Notwithstanding and without limiting the provisions of Section 5, the
Company shall be the sole owner of all the products and proceeds of the
Executive's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Executive may acquire,
obtain, develop or create in connection with or during the Term, free and clear
of any claims by the Executive (or anyone claiming under the Executive) of any
kind or character whatsoever (other than the Executive's right to receive
payments hereunder), the Executive shall, at the request of the Company, execute
such assignments, certificates or other instruments as the Company may from time
to time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its right, title or interest in or to any such
properties.
7. INDEMNIFICATION.
In addition to any rights to indemnification to which the Executive
is entitled under the Company's charter and by-laws, to the extent permitted by
applicable law, the Company will indemnify, from the assets of the Company
supplemented by insurance in an amount determined by the Company, the Executive
at all times, during
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and after the Term, and, to the maximum extent permitted by applicable law,
shall pay the Executive's expenses (including reasonable attorneys' fees and
expenses, which shall be paid in advance by the Company as incurred, subject to
recoupment in accordance with applicable law) in connection with any threatened
or actual action, suit or proceeding to which the Executive may be made a party,
brought by any shareholder of the Company directly or derivatively or by any
third party by reason of any act or omission or alleged act or omission in
relation to any affairs of the Company or any subsidiary or affiliate of the
Company of the Executive as an officer, director or employee of the Company or
of any subsidiary or affiliate of the Company. The Company shall use its best
efforts to maintain during the Term and thereafter insurance coverage sufficient
in the determination of the Company to satisfy any indemnification obligation of
the Company arising under this Section 7.
8. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, one day after sent by overnight courier
or three days after mailed first class, postage prepaid, by registered or
certified mail, as follows (or to such other address as either party shall
designate by notice in writing to the other in accordance herewith):
If to the Company, to:
Xxxxxx Xxxxxxx, Inc.
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: General Counsel
If to the Executive, to the Executive's principal residence as
reflected in the records of the Company.
9. GENERAL.
9.1 This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New Jersey applicable to agreements
made between residents thereof and to be performed entirely in New Jersey.
9.2 The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
9.3 This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by either party
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that is not embodied in this Agreement, and neither party shall be bound by or
liable for any alleged representation, promise or inducement not so set forth.
9.4 This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive, nor may the Executive pledge,
encumber or anticipate any payments or benefits due hereunder, by operation of
law or otherwise. The Company may assign its rights, together with its
obligations, hereunder (i) to any affiliate or (ii) to a third party in
connection with any sale, transfer or other disposition of all or substantially
all of any business to which the Executive's services are then principally
devoted, provided that no assignment shall relieve the Company from its
obligations hereunder to the extent the same are not timely discharged by such
assignee.
9.5 The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement or the Term to the extent
necessary to the intended preservation of such rights and obligations.
9.6 This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
9.7 This Agreement may be executed in two or more counterparts,
each of which shall he deemed to be an original but all of which together will
constitute one and the same instrument.
9.8 The parties acknowledge that this Agreement is the result of
arm's-length negotiations between sophisticated parties each afforded the
opportunity to utilize representation by legal counsel. Each and every provision
of this Agreement shall be construed as though both parties participated equally
in the drafting of same, and any rule of construction that a document shall be
construed against the drafting party shall not be applicable to this Agreement.
10. DISPUTE RESOLUTION.
Subject to the rights of the Company pursuant to Section 5.3 above,
any controversy, claim or dispute arising out of or relating to this Agreement,
the breach thereof, or the Executive's employment by the Company shall be
settled by arbitration with three arbitrators. The arbitration will be
administered by the American Arbitration Association in accordance with its
National Rules for Resolution of Employment Disputes. The arbitration proceeding
shall be confidential, and judgment on the award
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rendered by the arbitrator may be entered in any court having jurisdiction. Any
such arbitration shall take place in the Clinton, New Jersey area, or in any
other mutually agreeable location. In the event any judicial action is necessary
to enforce the arbitration provisions of this Agreement, sole jurisdiction shall
be in the federal and state courts, as applicable, located in New Jersey. Any
request for interim injunctive relief or other provisional remedies or
opposition thereto shall not be deemed to be a waiver or the right or obligation
to arbitrate hereunder. The arbitrator shall have the discretion to award
reasonable attorneys' fees, costs and expenses to the prevailing party. To the
extent a party prevails in any dispute arising out of this Agreement or any of
its terms and provisions, all reasonable costs, fees and expenses relating to
such dispute, including the parties' reasonable legal fees, shall be borne by
the party not prevailing in the resolution of such dispute, but only to the
extent that the arbitrator or court, as the case may be, deems reasonable and
appropriate given the merits of the claims and defenses asserted.
11. FREE TO CONTRACT.
The Executive represents and warrants to the Company that as of both
the date of this Agreement and the Effective Date Executive is able freely to
accept engagement and employment by the Company as described in this Agreement
and that there are no existing agreements, arrangements or understandings,
written or oral, that would prevent Executive from entering into this Agreement,
would prevent Executive or restrict Executive in any way from rendering services
to the Company as provided herein during the Term or would be breached by the
future performance by the Executive of Executive's duties hereunder, provided
that the Company shall not require the Executive to use or disclose any trade
secrets of any third person. The Executive also represents and warrants that no
fee, charge or expense of any sort is due from the Company to any third person
engaged by the Executive in connection with Executive's employment by the
Company hereunder, except as disclosed in this Agreement.
12. SUBSIDIARIES AND AFFILIATES.
As used herein, the term "subsidiary" shall mean any corporation or
other business entity controlled directly or indirectly by the Company or other
business entity in question, and the term "affiliate" shall mean and include any
corporation or other business entity directly or indirectly controlling,
controlled by or under common control with the Company or other business entity
in question.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
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XXXXXX XXXXXXX LTD.
By:/S/ XXXXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman, President and Chief
Executive Officer
/S/XXXXXXX X. XXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxx
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