EXHIBIT 10.26
EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
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This Employment and Non-Interference Agreement, dated as of August 16, 1995
(this "Agreement"), by and between Xxxxxx X. Xxxxx (the "Executive") and Xxxxxxx
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Acquisition Corp., a Delaware corporation (the "Company");
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W I T N E S S E T H:
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WHEREAS, the Company wishes to obtain the future services of the Executive
for the Company; and
WHEREAS, the Executive is willing, upon the terms and conditions herein set
forth, to provide services hereunder; and
WHEREAS, the Company wishes to secure the Executive's non-interference,
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment
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Subject to Section 3, the Company hereby employs Executive, and Executive
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agrees to accept such employment, during the Term of Employment (as defined in
Section 3(a)), as Chief Executive Officer and President of the Company to
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undertake such duties and responsibilities as may be reasonably assigned to
Executive from time to time by the Board of Directors of the Company or the
appropriately authorized and designated officers of the Parent.
2. Extent of Employment
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(a) During the Term of Employment, the Executive shall perform his
obligations hereunder faithfully and to the best of his ability at the principal
executive offices of the Company, under the direction of the Board of Directors
of the Company, and shall abide by the rules, customs and usages from time to
time established by each of Parent and the Company.
(b) During the Term of Employment, the Executive shall devote all of his
business time, energy and skill as may be reasonably necessary for the
performance of his duties, responsibilities and obligations hereunder (except
for vacation
periods and reasonable periods of illness or other incapacity), consistent with
past practices and norms in similar positions.
(c) Nothing contained herein shall require Executive to follow any
directive or to perform any act which would violate any laws, ordinances,
regulations or rules of any governmental, regulatory or administrative body,
agent or authority, any court or judicial authority, or any public, private or
industry regulatory authority (collectively, the "Regulations"). Executive shall
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act in good faith in accordance with all Regulations.
3. Term of Employment; Termination
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(a) The "Term of Employment" shall commence on the date hereof and shall
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continue for a term of five years; provided that, (i) such term shall continue
for the twelve month period following such five year period, and for each twelve
month period thereafter, unless at least 180 days prior to the scheduled
expiration date, either the Executive or the Company notifies the other of its
decision not to continue such term and (ii) should the Executive's employment by
the Company be earlier terminated pursuant to Section 3(b) or by the Executive
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pursuant to Section 3(c), the Term of Employment shall end on the date of such
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earlier termination.
(b) Subject to the payments contemplated by Section 3(f), Term of
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Employment may be terminated at any time by the Company:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability
Executive is unable to perform, and does not perform, in the view of the
Company and as certified in writing by a competent medical physician, his
duties hereunder for a continuous period of six consecutive months or any
120 working days out of any consecutive twelve month period;
(iii) for Cause (as defined in Section 3(d)) or Material Breach (as
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defined in Section 3(e));
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(iv) upon the continuous poor or unacceptable performance of the
Executive's duties to the Company, in the sole judgment of the Board of
Directors of the Company, which has remained uncured for a period of 90
days after delivery of notice by the Company to the Executive of such
dissatisfaction with Executive's performance; or
(v) for any other reason or no reason, it being understood that no
reason is required.
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Executive acknowledges that no representations or promises have been made
concerning the grounds for termination or the future operation of the Company's
business, and that nothing contained herein or otherwise stated by or on behalf
of the Company modifies or amends the right of the Company to terminate
Executive at any time, with or without Material Breach or Cause. Termination
shall become effective upon the delivery by the Company to the Executive of
notice specifying such termination and the reasons therefor (i.e., Section
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3(b)(i)-(v)), subject to the requirements for advance notice and an opportunity
to cure provided in this Agreement, if and to the extent applicable.
(c) Subject to the payments contemplated by Section 3(f), the Term of
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Employment may be terminated at any time by the Executive:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability the
Executive is unable to perform, and does not perform, in the view of the
Company, and as certified by a competent medical physician, his duties
hereunder for six consecutive months or any 120 working days out of any
consecutive twelve month period; or
(iii) as a result of a material reduction in Executive's authority,
perquisites, salary, position or responsibilities (other than such a
reduction which affects all of the Company's senior executives on a
substantially equal or proportionate basis), the relocation of the
Company's primary place of business or the relocation of Executive by the
Company to another Company office more than 50 miles from St. Louis,
Missouri, or the Company's willful, material violation of its obligations
under this Agreement, in each case, after 60 days' prior written notice to
the Company and its Board of Directors and the Company's failure thereafter
to cure such reduction or violation;
(d) For the purposes of this Section 3, "Cause" shall mean any of the
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following:
(i) Executive's commission or conviction of any crime or criminal
offense involving monies or other property, or any felony;
(ii) Executive's commission or conviction of fraud or embezzlement;
or
(iii) Executive's material and knowing violation of any obligations
imposed upon Executive, personally, as opposed
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to upon the Company, whether as a stockholder or otherwise, under this
Agreement, the Management Subscription Agreement, dated August 16, 1995, by
and among the Company and the signatories thereto, and the Second Amended
and Restated Credit Agreement, dated as of August 16, 1995, among Xxxxxxx
Products, Inc., Xxxxxxx Holding Company, the Lenders named therein and
Xxxxxx Financial, Inc., as Agent (the "Credit Agreement"), the Stockholders
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Agreement, dated as of August 16, 1995, by and among the Company and the
shareholders named therein, the Note Agreement, dated as of August 16,
1995, between the Company and the signatories thereto, the Certificate of
Incorporation or By-Laws of the Company; provided, that the Executive has
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been given notice and 90 days from such notice fails to cure the violation;
(e) For the purposes of this Section 3, "Material Breach" shall mean any
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of the following:
(i) Executive's breach of any of his fiduciary duties to the
Company or its stockholders or making of a willful misrepresentation or
omission which breach, misrepresentation or omission would reasonably be
expected to materially adversely affect the business, properties, assets,
condition (financial or other) or prospects of the Company;
(ii) Executive's willful, continual and material neglect or failure
to discharge his duties, responsibilities or obligations prescribed by this
Agreement or any other agreement between the Executive and the Company
(other than arising solely due to physical or mental disability);
(iii) Executive's habitual drunkenness or substance abuse which
materially interferes with Executive's ability to discharge his duties,
responsibilities or obligations prescribed by this Agreement or any other
agreement between the Executive and the Company;
(iv) Executive's violation of any non-competition or confidentiality
agreement with the Company, including without limitation, those set forth
in Sections 7 and 8 of this Agreement, or any other agreements with the
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Company; and
(v) Executive's gross neglect of his duties and responsibilities,
as determined by the Company's Board of Directors;
in each case, for purposes of clauses (i) through (v), after the Company or the
Board of Directors has provided Executive with 60 days' written notice of such
circumstances and the possibility of
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a Material Breach, and Executive fails to cure such circumstances and Material
Breach within those 60 days.
(f) In the event Executive's employment is terminated by the Company under
any circumstances described in Section 3(b)(v) or by Executive under the
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circumstances described in Section 3(c)(iii), the Company will pay to Executive
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the full amounts to which he would be entitled under Section 4(a) and customary
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benefits through the Term of Employment. In the event Executive's employment is
terminated by the Company under the circumstances described in Section 3(b)(iv),
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the Company will pay to Executive the full amounts to which he would be entitled
under Section 4(a) and customary benefits for the period from the effectiveness
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of termination through the first anniversary of the date of such termination.
In the event Executive's employment is terminated by the Company under the
circumstances described in Section 3(b)(i) or (ii) or by the Executive under
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Section 3(c)(i) or (ii), the Company will pay to the Executive the full amounts
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to which he would be entitled under Section 4(a) and customary benefits for the
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period from the effectiveness of termination through (y) the first anniversary
of the date of such termination, or (z) the third anniversary of the date of
this Agreement, whichever is greater. In the event Executive's employment is
terminated by the Company under any circumstances described in Section 3(b)(iii)
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or by Executive as a result of resignation or voluntary termination due to any
circumstance other than the material reductions, violations or relocation
described in Section 3(c)(iii) above, there will be no amounts owing by the
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Company to the Executive, under Section 4 or any other part of this Agreement,
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from and after the effectiveness of termination. If the Company makes the
payments required by this Section 3(f), such payments will constitute severance
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and liquidated damages, and the Company will not be obligated to pay any further
amounts to Executive under this Agreement or otherwise be liable to Executive in
connection with any termination.
(g) All determinations pursuant to this Section 3 shall be made by the
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Company's Board of Directors (not including Executive) of the Company, in its
sole discretion, whose decision shall be final, conclusive and binding.
(h) Termination of the Term of Employment will not terminate Sections 7,
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8, 10 through 21, or any other provisions not associated specifically with the
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Term of Employment.
(i) In the event the Term of Employment is terminated and the Company is
obligated to make payments pursuant to Section 3(f), Executive will not be
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obligated to seek or obtain alternative employment; provided, however, if he
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nevertheless thereafter obtains alternative employment, then if and to the
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extent Executive obtains such employment, the Company's payment obligations
under Section 3(f), including its obligation to provide insurance coverage, if
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any, will be mitigated and reduced by and to the extent of Executive's
compensation under such alternative employment during the period for which
payments are owed by the Company pursuant to Section 3(f). Moreover, in the
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event that, after the Restricted Period pursuant to Section 8(a), Executive is
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employed by or engaged in a Competitive Business as contemplated by Section
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8(a)(i), then the Company will thereupon cease and will be no longer obligated
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to make payments under Section 3(f).
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(j) In the event the Term of Employment is terminated and the Company is
obligated to make payments pursuant to Section 3(f), Executive hereby waives any
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and all claims against the Company, and their respective officers, directors,
employees, agents, or representatives, stockholders and affiliates relating to
this Agreement and to his employment during the term hereof other than those
payments to be made pursuant to Section 3(f).
4. Compensation. During the Term of Employment, the Company shall pay
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compensation to Executive as follows:
(a) As base compensation for his services hereunder, in biweekly
installments, a base salary at a rate of $325,000 per annum, as increased on an
annual basis to reflect the increase in the United States Cost of Living Index
for All Urban Consumer (CPI-U) for the St. Louis, Missouri area (the "CPI-U
Index"). The July 1995 CPI-U Index shall provide the basis for calculations of
such increases. Notwithstanding the minimum increase set forth above, the Board
of Directors, in its sole discretion, may establish a higher compensation level.
(b) An annual bonus compensation of up to sixty-five percent of his annual
base compensation based on Executive's performance as determined and approved by
the Board of Directors, in its sole discretion. Such bonus will be at the full
discretion of the Board of Directors, and may not be paid at all. Executive
acknowledges that no bonus has been agreed upon or promised. If the Board of
Directors decides to pay a bonus, it is to be paid within 30 days after the
issuance of audited financial statements for the Company. The Board of
Directors in its sole discretion may establish a higher bonus level based on the
performance of Executive.
(c) During the Term of Employment the Executive shall receive an
automobile allowance of, after the effect of federal and state income taxes and
FICA, $1000 per month.
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5. Reimbursement of Expenses
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During the Term of Employment, the Company shall reimburse Executive for
documented travel, entertainment and other expenses reasonably incurred by
Executive in connection with the performance of his duties hereunder and, in
each case, in accordance with the rules, customs and usages promulgated by the
Company from time to time in effect.
6. Benefits
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During the Term of Employment, the Executive shall be entitled to
perquisites, paid vacations and benefits (including health, short and long term
disability, pension and life insurance benefits consistent with past practice,
or as increased from time to time) established from time to time, by the Board
of Directors for executives of the Company, subject to the policies and
procedures in effect regarding participation in such benefits.
7. Confidential Information
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(a) During and after the Term of Employment, Executive will not, directly
or indirectly in one or a series of transactions, disclose to any person, or use
or otherwise exploit for the Executive's own benefit or for the benefit of
anyone other than the Company, any Confidential Information (as defined in
Section 9), whether prepared by Executive or not; provided, however, that any
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Confidential Information may be disclosed to officers, representatives,
employees and agents of the Company who need to know such Confidential
Information in order to perform the services or conduct the operations required
or expected of them in the Business (as defined in Section 9). Executive shall
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use his best efforts to prevent the removal of any Confidential Information from
the premises of the Company, except as required in his normal course of
employment by the Company. Executive shall use commercially reasonable efforts
to cause all persons or entities to whom any Confidential Information shall be
disclosed by him hereunder to observe the terms and conditions set forth herein
as though each such person or entity was bound hereby. Executive shall have no
obligation hereunder to keep confidential any Confidential Information if and to
the extent disclosure of any thereof is specifically required by law; provided,
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however, that in the event disclosure is required by applicable law, the
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Executive shall provide the Company with prompt notice of such requirement,
prior to making any disclosure, so that the Company may seek an appropriate
protective order. At the request of the Company, Executive agrees to deliver to
the Company, at any time during the Term of Employment, or thereafter, all
Confidential Information which he may possess or control. Executive agrees that
all Confidential
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Information of the Company (whether now or hereafter existing) conceived,
discovered or made by him during the Term of Employment exclusively belongs to
the Company (and not to Executive). Executive will promptly disclose such
Confidential Information to the Company and perform all actions reasonably
requested by the Company to establish and confirm such exclusive ownership.
(b) The terms of this Section 7 shall survive the termination of this
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Agreement regardless of who terminates this Agreement, or the reasons therefor.
8. Non-Interference
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(a) Executive acknowledges that the services to be provided give him the
opportunity to have special knowledge of the Company and its Confidential
Information and the capabilities of individuals employed by or affiliated with
the Company and that interference in these relationships would cause irreparable
injury to the Company. In consideration of this Agreement, Executive covenants
and agrees that:
(i) From the date hereof through the date that is 24 months after the
termination of the Term of Employment (the "Restricted Period"), Executive
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will not, without the express written approval of the Board of Directors of
the Company, anywhere in the Market, directly or indirectly, in one or a
series of transactions, own, manage, operate, control, invest or acquire an
interest in, or otherwise engage or participate in, whether as a
proprietor, partner, stockholder, lender, director, officer, employee,
joint venturer, investor, lessor, supplier, customer, agent, representative
or other participant, in any business which competes, directly or
indirectly, with the Business in the Market ("Competitive Business")
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without regard to (A) whether the Competitive Business has its office,
manufacturing or other business facilities within or without the Market,
(B) whether any of the activities of the Executive referred to above occur
or are performed within or without the Market or (C) whether the Executive
resides, or reports to an office, within or without the Market; provided,
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however, that (x) the Executive may, anywhere in the Market, directly or
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indirectly, in one or a series of transactions, own, invest or acquire an
interest in up to five percent (5%) of the capital stock of a corporation
whose capital stock is traded publicly, or that (y) Executive may accept
employment with a successor company to the Company.
(ii) During the Restricted Period (which shall not be reduced by any
period of violation of this Agreement by
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Executive or period which is required for litigation to enforce the rights
hereunder), Executive will not without the express prior written approval
of the Board of Directors of the Company (A) directly or indirectly, in one
or a series of transactions, recruit, solicit or otherwise induce or
influence any proprietor, partner, stockholder, lender, director, officer,
employee, sales agent, joint venturer, investor, lessor, supplier,
customer, agent, representative or any other person which has a business
relationship with the Company or had a business relationship with the
Company within the 24 month period preceding the date of the incident in
question, to discontinue, reduce or modify such employment, agency or
business relationship with the Company, or (B) employ or seek to employ or
cause any Competitive Business to employ or seek to employ any person or
agent who is then (or was at any time within 24 months prior to the date
the Executive or the Competitive Business employs or seeks to employ such
person) employed or retained by the Company. Notwithstanding the foregoing,
nothing herein shall prevent the Executive from providing a letter of
recommendation to an employee with respect to a future employment
opportunity.
(iii) The scope and term of this Section 8 would not preclude
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Executive from earning a living with an entity that is not a Competitive
Business.
(b) In the event that Executive breaches his obligations in any material
respect under Section 7 or this Section 8, the Company, in addition to pursuing
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all available remedies under this Agreement, at law or otherwise, and without
limiting its right to pursue the same shall cease all payments to the Executive
under this Agreement or any other agreement.
(c) The terms of this Section 8 shall survive the termination of this
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Agreement regardless of who terminates this Agreement, or the reasons therefor.
9. Definitions
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"Business" means any business conducted, or engaged in, by the Company
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prior to the date hereof or at any time during the Term of Employment.
"Cause" is defined in Section 3(c).
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"Companies" means Parent and its successors or any of its direct or
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indirect subsidiaries (including the Company), now or hereafter existing.
"Company" is defined in the introduction.
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"Competitive Business" is defined in Section 8(a)(i).
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"Confidential Information" means any confidential information including,
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without limitation, any study, data, calculations, software storage media or
other compilation of information, patent, patent application, copyright,
trademark, trade name, service xxxx, service name, "know-how", trade secrets,
customer lists, details of client or consultant contracts, pricing policies,
operational methods, marketing plans or strategies, product development
techniques or plans, business acquisition plans or any portion or phase of any
scientific or technical information, ideas, discoveries, designs, computer
programs (including source of object codes), processes, procedures, formulas,
improvements or other proprietary or intellectual property of the Company,
whether or not in written or tangible form, and whether or not registered, and
including all files, records, manuals, books, catalogues, memoranda, notes,
summaries, plans, reports, records, documents and other evidence thereof. The
term "Confidential Information" does not include, and there shall be no
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obligation hereunder with respect to, information that becomes generally
available to the public other than as a result of a disclosure by the Executive
not permissible hereunder.
"Executive" means Xxxxxx X. Xxxxx or his estate, if deceased.
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"Market" means any county in the United States of America and each similar
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jurisdiction in any other country in which the Business was conducted by or
engaged in by the Company prior to the date hereof or is conducted or engaged
in, or is proposed to be conducted or engaged in, by the Company at any time
during the Term of Employment.
"Regulations" is defined in Section 2(c).
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"Restricted Period" is defined in Section 8(a)(i).
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"Term of Employment" is defined in Section 3(a).
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10. Notice
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Any notice, request, demand or other communication required or permitted to
be given under this Agreement shall be given in writing and if delivered
personally, or sent by certified or registered mail, return receipt requested,
as follows (or to such other addressee or address as shall be set forth in a
notice given in the same manner):
If to Executive: Xxxxxx X. Xxxxx
00 Xxxxxxxxxx Xxxx
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Xxxxxxxx Xxxxxx, Xxxxxxxx 00000
If to Company: Xxxxxxx Acquisition Corp.
c/o The Jordan Company
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: A. Xxxxxxx Xxxxxx, Xx.
Any such notices shall be deemed to be given on the date personally delivered or
such return receipt is issued.
11. Executive's Representation
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Executive hereby warrants and represents to the Company that Executive has
carefully reviewed this Agreement and has consulted with such advisors as
Executive considers appropriate in connection with this Agreement, and is not
subject to any covenants, agreements or restrictions, including without
limitation any covenants, agreements or restrictions arising out of Executive's
prior employment which would be breached or violated by Executive's execution of
this Agreement or by Executive's performance of his duties hereunder.
12. Other Matters
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Executive agrees and acknowledges that the obligations owed to Executive
under this Agreement are solely the obligations of the Company, and that none of
the Companies' stockholders, directors, officers, affiliates, representatives,
agents or lenders will have any obligations or liabilities in respect of this
Agreement and the subject matter hereof.
13. Validity
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If, for any reason, any provision hereof shall be determined to be invalid
or unenforceable, the validity and effect of the other provisions hereof shall
not be affected thereby.
14. Severability
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Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been
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contained herein. If any court determines that any provision of Section 8 or any
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other provision hereof is unenforceable and therefore acts to reduce the scope
or duration of such provision, the provision in its reduced form shall then be
enforceable.
15. Waiver of Breach; Specific Performance
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The waiver by the Company or Executive of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any other breach of such other party. Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its respective
rights under this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of Sections 7 and 8 of this
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Agreement and that any party (and third party beneficiaries) may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions in order to enforce or
prevent any violations of the provisions of this Agreement. In the event either
party takes legal action to enforce any of the terms or provisions of this
Agreement, the nonprevailing party shall pay the successful party's costs and
expenses, including but not limited to, attorneys' fees, incurred in such
action.
16. Assignment; Third Parties
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Neither the Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of his or
its respective rights or obligations hereunder, without the prior written
consent of the other. The parties agree and acknowledge that each of the
Companies and the stockholders and investors therein are intended to be third
party beneficiaries of, and have rights and interests in respect of, Executive's
agreements set forth in Sections 7 and 8.
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17. Amendment; Entire Agreement
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This Agreement may not be changed orally but only by an agreement in
writing agreed to by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter of this Agreement, and supersedes and replaces all prior
Agreements, understandings and commitments with respect to such subject matter.
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18. Litigation
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THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT THAT NO DOCTRINE OF
CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF NEW YORK, AND NO
DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED BY THE LAWS OF ANY
OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT, MODIFICATION OR
REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE OF ANY FOREIGN JURISDICTION,
BE INTERPOSED IN ANY ACTION HEREON. SUBJECT TO SECTION 19, EXECUTIVE AND THE
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COMPANY AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS
AGREEMENT MAY BE COMMENCED IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED
STATES DISTRICT COURTS IN NEW YORK. EXECUTIVE AND THE COMPANY CONSENT TO SUCH
JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN SUCH COURTS AND WAIVE ANY
OBJECTIONS BASED UPON FORUM NON CONVENIENS. THE CHOICE OF FORUM SET FORTH IN
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THIS SECTION 18 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT
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OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER JURISDICTION.
19. Arbitration
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THE EXECUTIVE AND THE COMPANY AGREE THAT ANY DISPUTE BETWEEN OR AMONG THE
PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, ITS
NEGOTIATION, EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR
DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION ANY CLAIM UNDER THE SECURITIES ACT, THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD
OR BOTH, THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR
FEDERAL OR STATE COMMON LAW, SHALL BE SETTLED BY FINAL, BINDING AND NON-
APPEALABLE ARBITRATION IN NEW YORK, NEW YORK BY THREE ARBITRATORS. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 19, THE ARBITRATION SHALL BE
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CONDUCTED IN ACCORDANCE WITH THE VOLUNTARY LABOR ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION (THE "ASSOCIATION") THEN IN EFFECT. ONE OF THE
ARBITRATORS SHALL BE APPOINTED BY THE COMPANY, ONE SHALL BE APPOINTED BY THE
EXECUTIVE, AND THE THIRD SHALL BE APPOINTED BY THE FIRST TWO ARBITRATORS. IF
THE FIRST TWO ARBITRATORS CANNOT AGREE ON THE THIRD ARBITRATOR WITHIN 60 DAYS OF
THE APPOINTMENT OF THE SECOND ARBITRATOR, THEN THE THIRD ARBITRATOR SHALL BE
APPOINTED BY THE ASSOCIATION. UPON THE CONCLUSION OF ARBITRATION, EXECUTIVE OR
THE COMPANY MAY APPLY TO ANY COURT OF THE TYPE DESCRIBED IN SECTION 18 TO
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ENFORCE THE DECISION PURSUANT TO SUCH ARBITRATION. IN CONNECTION WITH THE
FOREGOING, THE PARTIES HEREBY WAIVE ANY RIGHTS TO A JURY TRIAL TO RESOLVE ANY
DISPUTES OR CLAIMS RELATING TO THIS AGREEMENT.
20. Further Action
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Executive and the Company agree to perform any further acts and to execute
and deliver any documents which may be reasonable to carry out the provisions
hereof.
21. Counterparts
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This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the day
and year first written above.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
XXXXXXX ACQUISITION CORP.
By /s/ A. Xxxxxxx Xxxxxx, Xx.
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Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
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