EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (this “Agreement”), is made and entered into as of the
Effective Date (as hereinafter defined), by and between Xxxxx Consulting Inc.
and/or its successors (the “Company”), a Delaware corporation, and Xxxxxx X.
Xxxxxxxxxx, a resident of California (the “Employee”).
W
I T
N E S S E T H:
WHEREAS,
the Company and its affiliates (collectively “Xxxxx Affiliates” and individually
“Xxxxx Affiliate”) are engaged in business in the State of Illinois and
throughout the United States; and
WHEREAS,
the Company desires to employ the Employee in the capacity of Executive Vice
President of the Company and its parent, Xxxxx, Inc., and President of the
Corporate Solutions Practice (the “Division”) of the Company, upon the terms and
conditions hereinafter set forth; and
WHEREAS,
the Employee and the Company are party to an existing employment agreement,
dated March 21, 2003, which shall be terminated upon the execution of this
Agreement; and
WHEREAS,
the Employee is willing to enter into this Agreement with respect to his
employment and services upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the mutual covenants and obligations contained
herein, the Company hereby employs the Employee and the Employee hereby accepts
such employment upon the terms and conditions hereinafter set
forth:
1. Term
of Employment.
The
term of employment under this Agreement shall commence on January 1, 2006 (the
“Effective Date”) and shall extend through December 31, 2006. Absent notice of
termination pursuant to Section 10, commencing on January 1, 2007 and continuing
on each subsequent January 1, the term of the Employee’s employment shall
automatically be extended for an additional twelve (12) months. To cause the
Employee’s employment to terminate at the end of the original or an extended
term, either party, at least 60 days prior to such date, shall give written
notice to the other party that the Agreement will terminate.
2. Duties
of the Employee.
The
Employee agrees that during the term of this Agreement, he will devote
substantially all his full professional and business-related time, skills and
best efforts to the businesses of the Company. The Employee shall report to
the
President and Chief Operating Officer of the Company or such other officer
as
the Board of Directors of Xxxxx, Inc. (the “Board”) may from time to time
determine. The Employee may engage in personal investment activities provided
such activities do not interfere with the performance of his duties hereunder
or
violate the noncompetition and confidential information provisions set forth
herein. Nothing herein, however, will prevent the Employee, (i) upon
approval of the President and Chief Operating Officer of the Company, from
service as a director or trustee of other corporations or businesses which
are
not directly or indirectly in competition with the business of the Company
or in
competition with any present or future Xxxxx Affiliate, (ii) from service
on civic or charitable boards or committees, or (iii) from engaging in
personal, passive, investment activities; provided such activities do not
interfere with the performance of his duties hereunder or violate the
noncompetition and confidential information provisions set forth herein.
Employee shall be indemnified for actions performed in the course of his
employment to the same extent as the President and Chief Operating Officer
of
the Company.
1
3. Compensation.
(a) Base
Salary.
The
Company shall pay the Employee an annual base salary of Four Hundred Twenty-Five
Thousand Dollars ($425,000), for each year of this Agreement (or fraction for
portions of a year) (“Base Salary”). After April 1, 2007, such Base Salary may
be adjusted upwards in accordance with the Company’s standard salary adjustment
guidelines based upon the Employee’s performance. The Employee’s Base Salary
shall be subject to all appropriate federal and state withholding taxes and
shall be payable in accordance with the normal payroll procedures of the
Company.
(b) Perquisite
Allowance.
The
Company shall pay the Employee an annual executive perquisite allowance of
Twenty-Five Thousand Dollars ($25,000), for each year of this Agreement (or
fraction for portions of a year) (the “Allowance”). The Allowance shall be in
lieu of all other executive perquisites and subject to all appropriate federal
and state withholding taxes and shall be payable in accordance with the normal
payroll procedures of the Company.
(c) Annual
Bonus.
In
addition to the Base Salary and Allowance set forth in Section 3(a) and
3(b) hereof, the Employee shall receive an annual bonus opportunity (the “Annual
Bonus”) each year during his employment equal to one hundred forty percent
(140%) of his Base Salary. The Annual Bonus will be based on financial and/or
non-financial goals which will be communicated to the Employee by the President
and Chief Operating Officer of the Company or his designee, on an annual basis.
Generally, subject to the discretion of the Company, approximately 80% of the
Annual Bonus opportunity is paid if approved budget levels are met.
The
Annual Bonus shall be paid on or before March 15 of the year following the
year to which the bonus relates. The Employee must be employed by the Company
or
a Xxxxx Affiliate on the date of payment in order to receive his Annual Bonus.
The Annual Bonus, if any, shall be subject to all appropriate federal and state
withholding taxes and shall be paid in accordance with the normal payroll
procedures of the Company.
(d) Xxxxx,
Inc. Long Term Incentive Compensation Plan.
The
Employee will be eligible to participate in the Xxxxx, Inc. Long Term Incentive
Compensation Plan (the “LTIC Plan”) subject to the approval of the Xxxxx, Inc.
Board of Directors. Any contributions made to the LTIC Plan on behalf of the
Employee will be on a date to be determined by the Board of Directors. Any
such
contributions will vest and be made according to the terms of the LTIC Plan.
Additionally, the LTIC Plan may grant the Employee certain restricted stock
awards in Xxxxx, Inc. stock, subject to the approval of the Board of Directors
of Xxxxx, Inc. Such restricted stock awards shall be based on financial
performance targets of the Company to be approved by the Board of Directors
of
Xxxxx, Inc. and subject to the terms of the LTIC Plan.
2
4. Termination
of Existing Contract.
The
Employee is currently party to an employment agreement with the Company dated
March 21, 2003 (the “Existing Contract”) which shall be terminated upon the
execution of this Agreement and which is attached as Exhibit
A.
The
termination of the Existing Contract shall not constitute a Constructive
Termination or a Termination by the Company as defined in the Existing Contract.
5. Keyman
Life Insurance.
In
recognition of the Employee’s unique position within the Company, the Employee
agrees to consent to the purchase of up to Five Million ($5,000,000) dollars
of
life insurance on his life which specifies the Company as the sole beneficiary
of any death benefits (“Keyman Life Insurance”). Such Keyman Life Insurance
shall designate the Company as both the owner and the payor of the life
insurance policy. The Five Million dollars of Keyman Life Insurance shall not
include any insurance which has been or will be purchased on the life of the
Employee in conjunction with the Company’s deferred compensation or executive
benefit plans.
6. Employee
Benefits.
The
Employee and his eligible dependents shall be eligible to participate in the
qualified employee benefit programs made available generally to other employees
of the Company as well as any other programs made available generally to other
officers of Xxxxx Affiliates, excluding any benefits negotiated specifically
by
contract with any other officers; provided, however, that the Employee and
his
eligible dependents must meet any and all eligibility provisions required under
such qualified employee benefit programs. The Employee will be also eligible
for
participation in the Xxxxx Consulting, Inc. Execu-flex Benefit Plan, which
will
provide the Employee with a $15,000 contribution each plan year for so long
as
this Plan is offered to other employees and for so long as the Employee remains
as President of the Division. The Employee shall also be eligible to participate
in the Company’s Deferred Compensation Plan, or such similar successor plan, if
any, that is maintained by the Company.
7. PTO.
The
Employee shall be entitled to up to the maximum amount of annual paid time
off
(“PTO”) as offered to other employees of the Company under the terms of the
Company’s current PTO Plan. The Employee may carry over the maximum amount of
unused PTO to the next succeeding calendar year under the terms of the PTO
Plan.
8. Reimbursement
of Expenses.
The
Company recognizes that the Employee will incur legitimate business expenses
in
the course of rendering services to the Company hereunder. Accordingly, the
Company shall reimburse the Employee, upon presentation of receipts or other
adequate documentation, for all necessary and reasonable business expenses
incurred by the Employee in the course of rendering services to the Company
under this Agreement consistent with the Company's Travel Policy then in
effect.
9. Working
Facilities.
The
Employee shall be furnished an office, administrative assistance and such other
facilities and services suitable to his position and adequate for the
performance of his duties (“Working Facilities”), which shall be consistent with
the reasonable policies of the Company.
10. Termination.
The
employment relationship between the Employee and the Company created hereunder
shall terminate before the expiration of the then current term upon the
occurrence of any one of the following events:
3
(a) Death
or Permanent Disability.
The
death or permanent disability of the Employee. For the purpose of this
Agreement, “permanent disability” of the Employee shall mean “disability” as
defined under the Company’s long-term disability plan.
(b) Termination
for Cause.
The
following events, actions or inactions by the Employee shall constitute “Cause”
for termination of this Agreement:
(i) Substantial
refusal or failure to perform duties or any reasonable obligation or substantial
poor performance by the Employee that is repeated or continued following thirty
(30) days written notice to the Employee of such refusal or failure to perform
or of substantial poor performance given by the President and Chief Operating
Officer of the Company to the Employee;
(ii) Employee’s
failure to rectify any material breach of contract under this Agreement within
(30) days after written notice of such breach is given by the President and
Chief Operating Officer of the Company to the Employee;
(iii) any
gross
misconduct or gross negligence in the performance of his duties that materially
and adversely affects the Company;
(iv) a
material breach of the Intellectual Property and Confidentiality Agreement
with
the Company;
(v) the
intentional diversion of a material financial opportunity away from the Company
or any Xxxxx Affiliates;
(vi) the
commission of an act of dishonesty or fraud that is of a material nature and
involves a material breach of trust with respect to the interests of the
Company;
(vii) the
conviction of Employee for any felony or of a crime involving moral turpitude;
and
(viii) the
failure by the Employee, after having received 30 days written notice, to remain
properly licensed and in good standing by any applicable state department of
insurance and, if applicable, with the NASD and the Company’s securities
affiliate, to the extent such licenses are required for the receipt of revenue.
Any
notice of discharge shall describe with reasonable specificity the cause or
causes for the termination of the Employee’s employment, as well as the
effective date of the termination (which effective date may be the date of
such
notice). If the Company terminates the Employee’s employment for any of the
reasons set forth above, the Company shall have no further obligations hereunder
from and after the effective date of termination (other than the Accrued
Obligations set forth in Section 11(a) below) and shall have all other rights
and remedies available under this Agreement or any other agreement and at law
or
in equity.
(c) Constructive
Termination.
In the
event of:
4
(i) a
material reduction in (or a failure to pay or provide) the Employee’s
Compensation as set forth in Section 3, including, but not limited to, his
Base
Salary, Allowance, Annual Bonus, employee benefits, PTO or Working Facilities,
other than as permitted by this Agreement;
(ii) a
material change or reduction in Employee’s duties orauthorityunless as a result
of regulatory or compliance requirements; or, reporting relationship unless
approved by the Company Board of Directors per section 2;
(iii) a
downward change in Employee’s title to which the Employee does not consent in
writing;
(iv) a
relocation of the Employee’s principal office location which exceeds one hundred
(100) miles from the current Los Angeles location, unless mutually agreed upon
in writing between the Employee and the President and Chief Operating Officer
of
the Company;
(v) following
a Change in Control (as defined in Section 10(f) below), the Company or its
successor delivers to Employee a notice of termination of the term of employment
or the evergreen feature under Section 1; or
(vi) any
other
material breach by the Company of this Agreement;
the
Employee shall have the right to terminate his employment and such termination
shall be treated in all respects as if it had been a termination of employment
by the Company without Cause.
(d) Termination
by the Employee with Notice.
The
Employee may terminate this Agreement at any time without liability to the
Company arising from the resignation of the Employee upon sixty (60) days prior
written notice to the Company. The Company retains the right after proper notice
of the Employee’s voluntary termination to require the Employee to cease his
employment immediately; provided, however, in such event, the Company shall
remain obligated to pay the Employee his Base Salary during the sixty (60)
day
notice period and shall be obligated to pay the Employee the Accrued Obligations
under Section 11(a). During such sixty (60) day notice period, the Employee
shall provide such consulting services to the Company as the Company may
reasonably request and shall assist the Company in training his successor and
generally preparing for an orderly transition.
(e) Termination
by the Company with Notice.
The
Company may terminate this Agreement at any time without liability other than
as
set forth in Section 11(a) and Section 11(b) upon sixty (60) days prior written
notice to the Employee. The Company retains the right after proper notice has
been given to the Employee to require the Employee to cease his employment
immediately; provided, however, in such event, the Company shall remain
obligated to pay the Employee his Base Salary during the sixty (60) day notice
period. During such sixty (60) day notice period, the Employee shall provide
such consulting services to the Company as the Company may reasonably request
and shall assist the Company in training his successor and generally preparing
for an orderly transition.
5
(f) Termination
due to Change in Control.
If
after a Change in Control (as defined below), Employee terminates due to
Constructive Termination (as defined in Section 10(c) above) or the Company
or
its successor terminates the Employee for any reason other than for Cause,
Death
or Disability, the Employee will be entitled to Compensation Upon Termination
as
described in 11(c) below. The “Company” for purposes of this Section 10(f) shall
include Xxxxx Consulting, Inc. and Xxxxx, Inc. The Company will require any
successor to all or substantially all of its assets, to expressly assume and
perform this Agreement. For purposes of this Agreement, a “Change in Control”
shall be deemed to have occurred if:
(i) the
Company becomes a subsidiary of another corporation or entity or is merged
or
consolidated into another corporation or entity or substantially all of the
assets of the Company are sold to another corporation or entity; or
(ii) any
person, corporation, partnership or other entity, either alone or in conjunction
with its “affiliates,” as that term is defined in Rule 405 of the General Rules
and Regulations under the Securities Act of 1933, as amended, or other group
of
persons, corporation, partnerships or other entities who are not “affiliates”
but who are acting in concert, other than X.X. Xxxxxxx or his family members
or
any person, organization or entity that is controlled by X.X. Xxxxxxx or his
family members, becomes the owner of record or beneficially of securities of
the
Company that represent thirty-three and one-third percent (33 1/3%) or more
of
the combined voting power of the Company’s then outstanding securities entitled
to elect Board of Directors of the Company; or
(iii) the
Board
of Directors of the Company or a committee thereof makes a determination in
its
reasonable judgment that a “Change in Control” of the Company has taken
place.
11. Compensation
Upon Termination.
(a) Accrued
Obligations.
Upon
termination of the Employee’s employment under this Agreement for any reason,
the Employee shall be entitled to:
(i) the
Base
Salary earned by him before the effective date of termination, as provided
in
Section 3(a) hereof, prorated on the basis of the number of full days of
service rendered by the Employee during the year to the effective date of
termination;
(ii) the
Allowance earned by him before the effective date of termination, as provided
in
Section 3(b) hereof, prorated on the basis of the number of full days of service
rendered by the Employee during the year to the effective date of termination;
(iii) any
accrued, but unpaid, PTO (up to the maximum carryover as specified in the
Company’s PTO Plan);
6
(iv) any
authorized but unreimbursed business expenses; and
(v) any
benefits to which the Employee is entitled under the employee benefit programs
maintained by the Company.
The
sum
of the amounts described in clauses (i) through (v) will be hereinafter
referred to as the “Accrued Obligations.” The Accrued Obligations will be paid
to the Employee or his estate or beneficiary, as applicable, in a lump sum
in
cash within thirty (30) days of the date of termination; provided that the
benefits under clause (v) will be paid or provided in accordance with the terms
of the applicable employee benefit programs.
(b) Compensation
for any Termination other than Cause, Termination by the Employee or Termination
Due to Change in Control.
Upon
termination of the Employee’s employment under this Agreement for any reason
other than those specified pursuant to Sections 10(b), 10(d) or 10(f) of the
Agreement, the Employee will, in addition to receiving his Accrued Obligations,
receive:
(i) an
amount
equal to one (1) year of his then current Base Salary, pursuant to Section
3(a);
and
(ii) an
amount
equal to a pro-rata share of the Annual Bonus, pursuant to Section 3(c), based
on the Employee’s Base Salary for the fiscal year through the date of
termination and not to include any base salary paid after the Employee’s date of
termination.
The
sum
of such amounts will be paid to the Employee in a lump sum in cash within thirty
(30) days of his date of termination and in a manner consistent with the
Company’s normal payroll practices, unless otherwise provided in Section
11(e).
(c) Compensation
for Termination Due to a Change in Control.
In
connection with any termination by the Company or its successor of the Employee
or termination by the Employee due to a Change in Control as described in
Section 10(f) above, the Employee will, in addition to receiving his Accrued
Obligations, receive:
(i) an
amount
equal to two (2) years of his then current Base Salary,; and
(ii) an
amount
equal to the Annual Bonus that would have been paid to the Employee with respect
to each of the two fiscal years prior to the Change in Control had the maximum
Annual Bonus opportunity in Section 3(c) of the Agreement been attained,
regardless of the amount of Annual Bonus actually paid or due to the Employee
with respect to each of the two fiscal years prior to the Change in Control.
The
sum
of such amounts will be paid to the Employee in a lump sum in cash within thirty
(30) days of his date of termination and in a manner consistent with the
Company’s normal payroll practices, unless otherwise provided in Section
11(e).
7
(d) Withholding;
Offset.
Amounts
payable under this Section 11 shall be subject to all appropriate federal
and state withholding taxes in accordance with the normal payroll practices
of
the Company, and shall be offset by any amounts due to the Company under this
Agreement.
(e) Payments
Subject to Code Section 409A.
In the
event all or a portion of this Agreement is subject to Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) and the Employee is
determined to be a “key employee” (as defined in Code Section 416(i) without
regard to paragraph (5) thereof) at the time of his “separation from service,”
as that term is defined in Code Section 409A and related Treasury guidance
and
regulations, any distribution by the Company pursuant to this Agreement of
amounts subject to Code Section 409A that is triggered by the Employee’s
“separation from service” shall be delayed for a period of six (6) months from
the time such distribution is scheduled to be paid.
(f) Additional
4999 Payment.
In the
event that the sum of all payments or benefits made or provided to, or that
may
be made or provided to, the Employee under this Agreement and under all other
plans, programs and arrangements of the Company (the “Aggregate Payment”) is
determined to constitute a Parachute Payment, as such term is defined in Code
Section 280G(b)(2), the Company shall pay to the Employee at the time specified
below, an additional amount (the “Additional 4999 Payment”) which, after the
imposition of all income and excise taxes thereon, is equal to the excise tax
imposed by Code Section 4999 (the “Excise Tax”) on the Aggregate Payment. For
purposes of determining the amount of the Additional 4999 Payment, the Employee
shall be deemed to pay federal income taxes at the Employee’s highest marginal
rate of federal income taxation in the calendar year in which the Additional
4999 Payment is to be made and state and local income taxes at the Employee’s
highest marginal rate of taxation in the state and locality of the Employee’s
residence on the date on which the Excise Tax is determined, net of the maximum
reduction in federal income taxes which could be obtained from deduction of
such
state and local taxes. The determination of whether the Aggregate Payment
constitutes a Parachute Payment and, if so, the amount to be paid to the
Employee and the time of payment pursuant to this Section 11(f) shall be made
by
the Company’s tax preparer, legal counsel or certified public accounting firm,
selected at the sole discretion of the Company with such costs incurred for
the
performance of the calculation of the Additional 4999 Payment to be paid for
by
the Company. The Additional 4999 Payment shall be paid to the Employee within
thirty (30) days following the date the Company has calculated the Additional
4999 Payment, and, if applicable, within thirty (30) days of any determination
that the Excise Tax is greater or less than initially calculated.
Notwithstanding the foregoing, in the event that the amount of the Employee’s
Excise Tax liability is subsequently determined to be greater than the Excise
Tax liability with respect to which the Additional 4999 Payment to the Employee
under this Section 11(f) has been made, the Company shall pay to the Employee
an
additional amount (and any interest and penalties thereon) at the time and
in
the amount determined by the Company. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder,
the Employee shall repay to the Company at the time that the amount of such
reduction in Excise Tax is finally determined the portion of the Additional
4999
Payment attributable to such reduction (plus the portion of the Additional
4999
Payment attributable to the Excise Tax and federal and state and local income
tax imposed on the Additional 4999 Payment being repaid by the Employee) plus
interest on the amount of such repayment from the date the Additional 4999
Payment was initially made to the date of repayment at the rate provided in
Code
Section 1274(b)(2)(B). The Employee and the Company shall cooperate with each
other in connection with any proceeding or claim relating to the existence
or
amount of liability for the Excise Tax and all reasonable expenses incurred
by
the Employee in connection therewith shall be paid by the Company promptly
upon
notice of demand from the Employee.
8
12. Noncompetition;
Nonsolicitation.
(a) The
Employee acknowledges that he occupies a position of special trust and
confidence with respect to the Company, and that the position imposes the
obligation to act in a stewardship capacity with respect to the preservation
and
development of the Company and its resources for the benefit of future, as
well
as present, shareholders, officers, directors and employees. In recognition
of
his special relationship with the Company, and to protect the Company’s
legitimate business interests without unnecessarily or unreasonably restricting
his professional opportunities in the event of his termination from the Company
and all Xxxxx Affiliates:
(i) The
Employee shall not, for a period of thirteen (13) months following his
termination of employment with the Company and all Xxxxx Affiliates for any
reason, for himself or as agent, partner or employee of any person, corporation
or firm, directly or indirectly, engage in services of the type provided by
the
Company, excluding those services which involve training, performance
management, or strategy, for:
(1) any
client of the Company or a Xxxxx Affiliate for whom the Employee performed
services, as determined by the President and Chief Operating Officer of the
Company, or supervised the performance of services, or
(2) any
prospective client of the Company or a Xxxxx Affiliate to whom the Employee
submitted, or assisted in the submission of, a proposal, during the eighteen
(18) month period preceding his termination, or
(3) any
client about whom the Employee learned Confidential Information.
(ii) The
Employee shall not, at any time during which he is an employee of the Company
or
another Xxxxx Affiliate and for thirteen (13) months after his termination
with
the Company and all Xxxxx Affiliates for any reason, whether for his own account
or for the account of any person other than a Xxxxx Affiliate, directly or
indirectly, endeavor to solicit away from the Company or a Xxxxx Affiliate,
or
facilitate the solicitation away from the Company or a Xxxxx Affiliate of,
any
client of the Company or a Xxxxx Affiliate or induce same to limit, alter or
reduce its relationship with the Company.
9
(iii) The
Employee shall not, at any time during which he is an employee of the Company
or
another Xxxxx Affiliate and for thirteen (13) months after his termination
for
any reason from the Company and all Xxxxx Affiliates, whether for his own
account or for the account of any person other than a Xxxxx. Affiliate, directly
or indirectly, induce away from the Company or a Xxxxx Affiliate, or facilitate
the inducement away from the Company or a Xxxxx. Affiliate of, any personnel
of
the Company or a Xxxxx Affiliate or interfere with the faithful discharge by
such personnel of their contractual and fiduciary obligations to serve the
Company’s or a Xxxxx Affiliate’s interests and those of its clients of undivided
loyalty.
(iv) The
Employee agrees that, for a period of five (5) years after the Closing Date
of
the Purchase Agreement (Exhibit B), the Employee shall not promote, market,
solicit, or sell any product or service, including without any limitation,
any
life insurance or other insurance product or policy, similar to or competitive
with the Company or any of its divisions’ programs (“Xxxxx Program”) to any of
the clients listed on Exhibit C hereto.
(b) “Client”
as used in this Section 12 shall mean any person or entity for whom the
Company or a Xxxxx Affiliate performed services or provided products within
the
twelve (12) months immediately preceding the termination of the Employee’s
employment with the Company and all Xxxxx Affiliates.
13. Confidential
Information.
Employee shall abide by the terms of the Company’s standard Intellectual
Property and Confidentiality Agreement, which is attached hereto as Exhibit D.
14. Property
of the Company.
The
Employee acknowledges that from time to time in the course of providing services
pursuant to this Agreement he shall create or have the opportunity to inspect
and use certain property, both tangible and intangible, of the Company and
the
Employee hereby agrees that such property shall remain the exclusive property
of
the Company, and the Employee shall have no right or proprietary interest in
such property, whether tangible or intangible, including, without limitation,
the Employee’s customer and supplier lists, contract forms, books of account,
computer programs and similar property.
15. Equitable
Relief.
The
Employee acknowledges that the services to be rendered by him are of a special,
unique, unusual, extraordinary, and intellectual character, which gives them
a
peculiar value, and the loss of which cannot reasonably or adequately be
compensated in damages in an action at law, and that a breach by him of any
of
the provisions contained in this Agreement will cause the Company irreparable
injury and damage. The Employee further acknowledges that he possesses unique
skills, knowledge and ability and that competition by him in violation of this
Agreement or any other breach of the provisions of this Agreement would be
extremely detrimental to the Company. By reason thereof, the Employee agrees
that the Company shall be entitled, in addition to any other remedies it may
have under this Agreement or otherwise, to injunctive and other equitable relief
to prevent or curtail any breach of this Agreement by him.
10
16. Assignment.
The
Company may assign its rights under this Agreement to any successor in interest,
whether by merger, consolidation, sale of assets or otherwise. This Agreement
is
personal to the Employee and may not be assigned in any way by the Employee
without the prior written consent of the Company.
17. Severability
and Reformation.
The
parties hereto intend all provisions of this Agreement to be enforced to the
fullest extent permitted by law. If, however, any provision of this Agreement
is
held to be illegal, invalid, or unenforceable under present or future law,
such
provision shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision were never
a
part hereof, and the remaining provisions shall remain in full force and effect
and shall not be affected by the illegal, invalid, or unenforceable provision
or
by its severance. Further, if any provision is held to be overbroad, a court
may
modify that provision to the extent necessary to make the provision enforceable
according to applicable law and enforce the provision as modified.
18. Integrated
Agreement.
This
Agreement constitutes the entire Agreement between the parties hereto with
regard to the subject matter hereof, and there are no agreements,
understandings, specific restrictions, warranties or representations relating
to
said subject matter between the parties other than those set forth herein,
specifically referenced herein or otherwise herein provided for.
19. Notices.
All
notices 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, mailed by certified mail (return receipt requested) or sent by
overnight delivery service, cable, telegram, facsimile transmission or telex
to
the parties at the following addresses or at such other addresses as shall
be
specified by the parties by like notice:
If
to the
Company:
Xxxxx
Consulting, Inc.
000
Xxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn:
Xx. Xxxxxx X. Xxxx
President
and Chief Operating Officer
With
a
copy in the event of notice to the Company to:
Vedder,
Price, Xxxxxxx and Kammholz
000
X.
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Lane X. Xxxxx, Esq.
If
to
Employee:
Xxxxxx
X.
Xxxxxxxxxx
000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
11
Notice
so
given shall, in the case of notice so given by mail, be deemed to be given
and
received on the fourth calendar day after posting, in the case of notice so
given by overnight delivery service, on the date of actual delivery and, in
the
case of notice so given by cable, telegram, facsimile transmission, telex or
personal delivery, on the date of actual transmission or, as the case may be,
personal delivery.
20. Further
Actions.
Whether
or not specifically required under the terms of this Agreement, each party
hereto shall execute and deliver such documents and take such further actions
as
shall be necessary in order for such party to perform all of his or its
obligations specified herein or reasonably implied from the terms
hereof.
21. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF ILLINOIS.
22. Application
of Terms.
Whenever used herein the terms Xxxxx, Inc. and Xxxxx Consulting, Inc.(or any
abbreviations thereof) shall include all affiliates and successors
thereof.
23. Counterparts.
This
Agreement may be executed in counterparts, each of which will take effect as
an
original and all of which shall evidence one and the same
Agreement.
24. Arbitration.
Without
limiting the right of the Company or the Employee to seek equitable relief
to
prevent irreparable injury, any dispute arising out of or relating to this
Agreement or the breach, termination or validity thereof, which has not been
resolved by agreement within 60 days after written notice thereof by the
affected party shall be settled by arbitration in accordance with the then
current Center for Public Resources Rules for Non-Administered Arbitration
of
Business Disputes, by a sole arbitrator. The arbitration shall be governed
by
the United States Arbitration Act, 9 U.S.C. § 1-16, and judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction
thereof. The place of arbitration shall be Chicago, Illinois. The arbitrator
is
not empowered to award damages in excess of compensatory damages and each party
hereby irrevocably waives any right to recover such damages with respect to
any
dispute resolved by arbitration.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
|
XXXXX
CONSULTING, INC.
By:
/s/
Xxxxxx X. Xxxx
Xxxxxx
X. Xxxx
President
and Chief Operating Officer
Dated: 4/12/06
|
|
|
EMPLOYEE:
/s/
Xxxxxx X. Xxxxxxxxxx
Xxxxxx
X. Xxxxxxxxxx
|
12
