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Exhibit 10.69
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
October 11, 2000, between Xxxxxxxxx Industries, Inc., a Delaware corporation,
having its principal place of business at 0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx,
XX 00000 (the "Company"), and D. Xxxxx Xxxxxxxx, an individual residing at 0000
X. Xxxxxx Xxxxxx, Xxxxxxx, XX (the "Employee").
RECITALS
The Company desires to employ the Employee and the Employee desires to
accept such employment, on the terms and conditions set forth herein.
TERMS OF AGREEMENT
In consideration of the above recitals and the mutual promises herein
contained, the Company and the Employee hereby agree as follows:
1. DEFINITIONS.
(a) The "Board" shall mean the Board of Directors of the
Company.
(b) "Change of Control" shall mean (i) any transaction that
has the result that shareholders of the Company immediately before such
transaction cease to own at least 51% of (x) the voting stock of the Company or
(y) of any entity that results from the participation of the Company in a
reorganization, liquidation or any other form of corporate transaction; (ii) a
merger, consolidation, reorganization, liquidation or dissolution in which the
Company does not survive; or (iii) a sale, lease, exchange or other disposition
of all or substantilly all the property and assets of the Company.
(c) The "Company Target" shall mean, with respect to any
period, the target net income of the Company for such period as determined in
the sole discretion of the Board (or the Executive Committee), PROVIDED, HOWEVER
that the Company Target for the fiscal year ended December 31, 2000 shall be
$7,000,000.
(d) The "Effective Date" shall mean November 6, 2000.
(e) The "Employment Period" shall mean the period commencing
on the Effective Date and continuing until the fifth year anniversary of the
Effective Date, unless earlier terminated in accordance with the terms of this
Agreement.
(f) The "Executive Committee" shall mean the Executive
Committee of the Board of Directors of the Company.
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(g) "GAAP" shall mean generally accepted accounting principles
in the United States as in effect from time to time.
(h) "Net Income" shall mean, with respect to any period,
actual net income for such period as determined by the Company in its sole
discretion in accordance with GAAP.
2. EMPLOYMENT PERIOD. The Company hereby agrees to employ the Employee,
and the Employee hereby agrees to be employed by the Company, for the duration
of the Employment Period and pursuant to the other terms and conditions provided
herein. This Agreement shall terminate at the end of the Employment Period,
unless earlier terminated under Section 5 below.
3. TERMS OF EMPLOYMENT.
(a) POSITION AND DUTIES. During the Employment Period the
Employee shall serve as Chief Operating Officer of the Company. The Employee
shall perform such duties as the Board or the Chief Executive Officer or other
senior officers of the Company shall from time to time determine. In the
performance of his duties, the Employee shall comply with the stated policies of
the Company.
(b) LOCATION. The principal place of employment of the
Employee shall be the principal offices of the Company.
(c) COMPENSATION.
(1) BASE SALARY. The Employee's annual salary (the
"Salary") shall be at the rate of $300,000 per annum for the duration of the
Employee's employment hereunder. The Salary shall be paid in regular intervals
in accordance with the Company's payroll practices.
(2) COMPANY BONUS. Subject to subsection (F) below,
for each calendar year during the Employment Period commencing with the year
ending December 31, 2000, at the end of which year the Employee is employed by
the Company, the Employee shall be eligible to be paid a bonus, which shall be
computed based upon the Company's Net Income as compared to the Company Target
for such year (the "Company Bonus"). The Company Bonus, if any, payable on
account of any calendar year shall be computed as follows:
(A) if the Net Income of the Company for
such year is an amount equal to the Company Target for such year, the Employee
shall be entitled to a Company Bonus in the amount of $200,000.
(B) if the Net Income of the Company for
such year is more than the Company Target and less than 125% of the Company
Target, the Employee shall be entitled to a Company Bonus as calculated below:
CB = $200,000 + [$200,000 x 2 X (NI - CT)]
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CT
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where:
CB = the Company Bonus earned in such year.
CT = the Company Target for such year.
NI = the Net Income of the Company for such year.
(C) If the Net Income of the Company for
such year is equal to or greater than 125% of the Company Target, the Employee
shall be entitled to a Company Bonus in the amount of $300,000.
(D) If the Net Income of the Company for
such year is greater than 75% of the Company Target but less than the Company
Target, the Employee shall be entitled to a Company Bonus as calculated below:
CB = $200,000 - [$200,000 x 4 X (CT -NI)]
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CT
where:
CB = the Company Bonus earned in such year.
CT = the Company Target for such year.
NI = the Net Income of the Company for such year.
(E) If the Net Income of the Company for
such year is equal to or less than 75% of the Company Target, the Employee shall
not be entitled to a Company Bonus.
(F) For any calendar year regarding which
the Employee is entitled to a bonus under the foregoing provisions of this
subsection (2) but during which year the Employee did not work the entire
calendar year, unless otherwise provided herein, the Employee shall be entitled
to a bonus equal to the product of the bonus, as calculated under the foregoing
provisions, multiplied by a fraction, the numerator of which is the number of
months during such calendar year that the Employee was employed by the Company
and the denominator of which is twelve.
(3) SIGNING BONUS. The Employee shall be entitled to
a bonus of $50,000 (less 20% for estimated payroll and withholding taxes)
payable upon the execution of this Agreement by both parties. Any amounts which
shall have been paid to the Employee prior to the Effective Date pursuant to the
previous sentence shall be immediately repaid to the Company by the Employee in
the event that the Employee fails for any reason (other than the willful
misconduct of the Company) to commence employment for the Company on the
Effective Date in accordance with the terms and conditions of this Agreement.
(4) WITHHOLDING, ETC. The payment of any Salary and
bonus to the Employee shall be subject to all applicable withholding and payroll
taxes, and such other deductions as may be required under the Company's employee
benefit plans.
(d) STOCK OPTIONS. On the Effective Date, the Company shall
cause to be granted to the Employee a non-qualified stock option to purchase
180,000 shares of the common
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stock, $.001 par value per share, of the Company (the "Common Stock"), at an
exercise price per share equal to the fair market value of the Common Stock on
the date of the grant, pursuant to an option agreement to be executed by the
Company and the Employee. Such option shall vest in three equal installments of
60,000 shares on the first, second and third yearly anniversaries of the
Effective Date.
(e) BENEFITS. In addition to the compensation payable to the
Employee as set forth in Section 3(c) above, during the Employment Period the
Employee shall be eligible for similar incentive, stock option grants, savings,
welfare (including without limitation medical and dental insurance) plans,
practices, policies and programs applicable on or after the Effective Date to
other employees of the Company as determined in the discretion of the Board (or
the Executive Committee).
(f) VACATION. During the Employment Period, the Employee shall
be entitled to paid vacation in accordance with the policies and practices
applicable on or after the Effective Date to other employees of the Company,
PROVIDED that the Employee shall be entitled to a minimum of three (3) weeks of
paid vacation per full calendar year (pro rated if the Employee serves for less
than the full calendar year). Vacation accrued but unused at the end of a
calendar year may be carried over into the following calendar year or years,
PROVIDED that unused vacation days shall be accrued up to a maximum of six
weeks.
(g) HOLIDAYS AND SICK LEAVE. The Employee shall be entitled to
all holidays that are prescribed by the Company's policies and practices. The
Employee shall be entitled to six (6) days paid sick leave per year (pro rated
if the Employee serves for less than the full calendar year). Unused sick leave
days may be carried over to the following calendar year or years up to a maximum
of six weeks.
(h) AUTOMOBILE. During the Employment Period, the Company
shall make available to the Employee an automobile, or shall provide to the
Employee an allowance for an automobile, in either case of a type or in the
amount, as applicable, to be determined in the sole discretion of the Board (or
the Executive Committee) for use by the Employee in connection with the
performance of his duties hereunder. The Company shall pay or reimburse the
Employee for all reasonable, documented expenses of insurance, maintenance and
operation of such automobile.
(i) EXPENSES. The Company shall pay or reimburse the Employee
for reasonable expenses incurred or paid by him during the Employment Period in
the performance of his services under this Agreement upon presentation of
expense statements or such other supporting information as may be required for
other employees of the Company in accordance with the Company's policy.
(j) LOAN. Upon the Employee's delivery to the Company of a
fully-executed purchase and sale agreement for a residential dwelling in Dade,
Broward or Palm Beach Counties, Florida ("Residential Contract") and evidence
that all deposits required thereunder have been paid, the Company agrees to make
a loan to the Employee for the sum of $200,000 (the "Loan"), which Loan shall be
evidenced by a Promissory Note, in form and substance
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satisfactory to the Company, to be executed by the Employee. On the day prior to
the closing of a Residential Contract (the "Closing"), the Company shall deliver
the proceeds of the Loan, by wire transfer or cashier's check, to the party
specified in written instructions from the Employee. In the event that the
Closing does not occur for any reason whatsoever, the Employee shall return the
proceeds of the Loan to the Company within three business days. The Loan shall
accrue interest at the applicable Federal rate in effect on the Effective Date
under ss.1274 of the Internal Revenue Code of the United States, as amended. At
the end of each of the first, second, third, fourth and fifth yearly
anniversaries of the Effective Date, PROVIDED that the Employee is then employed
by the Company, $40,000.00 of the Loan shall be forgiven, together with any
interest on the Loan which shall have accrued during such year, and the Company
shall reimburse the Employee for any Federal, state and/or local income taxes
paid or payable by the Employee on account of such forgiveness. Any such amounts
payable by the Company shall be paid at the same time as the Bonus for such
year, if any, payable pursuant to Section 3(c)(2) hereunder. In the event of the
termination of this Agreement at any time prior to the end of the Employment
Period (other than an involuntary termination pursuant to Section 5(d)
hereunder), the full principal amount of the Loan then outstanding, together
with all accrued interest thereon, shall be immediately due and payable.
4. EMPLOYEE'S OBLIGATIONS AND REPRESENTATIONS.
(a) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Employee is entitled, the Employee agrees
to devote substantially all of his attention and time during normal business
hours to the business and affairs of the Company and to perform faithfully and
efficiently the responsibilities assigned to the Employee by the Company.
(b) The Employee represents and warrants to the Company that
there are no agreements or arrangements, whether written or oral, in effect
which would prevent the Employee from rendering the service required of him
hereunder to the Company during the Employment Period. The Employee further
represents, warrants and agrees with the Company that as of the Effective Date
he has not made and will not make during the Employment Period any commitment or
do any act in conflict with this Agreement, or take any action that might divert
from the Company any opportunity which would be in the scope of any present or
future business of the Company or any subsidiary thereof.
5. TERMINATION.
(a) DEATH. This Agreement shall terminate automatically upon
the Employee's death. If the Employee's employment is terminated by reason of
the Employee's death, the Company shall have no further obligations to the
Employee's legal representatives under this Agreement, other than those
obligations accrued, earned or vested by the Employee as of the date of his
death.
(b) DISABILITY. If the Company determines in good faith that
the Employee has a "disability" (as defined below), it may give the Employee
written notice of its intention to terminate the Employee's employment. In such
event, the Employee's employment with the
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Company shall terminate effective on the 60th day after receipt by the Employee
of such notice. No such notice of termination by reason of disability shall be
given until the Employee has experienced a period of three (3) consecutive
months of disability and the disability is continuing. The notice of termination
shall not be effective if the Employee returns to full-time performance of his
duties prior to the expiration of the 60 day notice period. For purposes of this
Agreement, "disability" shall mean a physical or mental condition which, two
months after its commencement, is determined by a physician selected by the
Company to be a total and permanent condition which substantially prevents the
Employee from performing the services to be provided by him hereunder. The
Employee shall be entitled to all compensation and benefits provided for under
this Agreement during the two month waiting period for the disability
determination and during the 60 day notice of termination period. In the event
that the Company provides long-term disability benefits for the Employee, such
benefits shall not commence until after the employment of the Employee has been
terminated and the Company has ceased paying the Employee compensation pursuant
to the foregoing sentence. If the Employee's employment is terminated by reason
of the Employee's disability, this Agreement shall terminate without further
obligations to the Employee or the Employee's legal representatives under this
Agreement, other than those obligations accrued, earned or vested by the
Employee as of the date of the termination.
(c) CAUSE. During the Employment Period, the Company may
terminate the Employee's employment for cause, as determined by the Board (or
the Executive Committee) and as defined below. For purposes of this Agreement,
"cause" shall mean:
(i) an act or acts of fraud, embezzlement or any
other act by the Employee that would constitute a felony under the laws of the
State of Florida;
(ii) repeated violations by the Employee of his
obligations under Section 4(a) of this Agreement or a breach by the Employee of
his representations or obligations under any of Sections 3(a), 4(b), 7, 8 or 9
of this Agreement;
(iii) the indictment of the Employee of a crime, if
the Company reasonably believes such indictment would impair the Employee's
ability to perform his services under this Agreement;
(iv) willful and gross misconduct by the Employee in
the performance of his duties hereunder; or
(v) the commission by the Employee of an act (other
than good faith exercise of business judgment in the exercise of his
responsibilities pursuant to this Agreement) resulting in material damage to the
Company.
If the Employee's employment is terminated for cause, this Agreement shall
terminate without further obligations to the Employee under this Agreement,
other than those obligations accrued, earned or vested by the Employee as of the
date of the termination. The Employee shall not be entitled to any bonus in
respect of the year of termination in the event the Employee's employment is
terminated for cause pursuant to this Section 5(c).
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(d) INVOLUNTARY TERMINATION. Notwithstanding anything herein
to the contrary, the Company shall have the right, at any time upon notice to
the Employee, to terminate the Employee's employment. If during the Employment
Period the Company terminates the Employee's employment other than for cause or
disability it shall be deemed to be an involuntary termination and the Company
shall pay to the Employee the following amounts:
(i) to the extent not theretofore paid, the Company
shall pay the Employee's Salary through the date of such involuntary termination
and, when calculated, the pro-rated bonus (if any) as set forth in Section
3(c)(2)(F) above, in each case payable as and when such Salary and bonus (if
any) would otherwise have been paid to the Employee;
(ii) the Loan shall be forgiven in its entirety; and
(iii) (A) if the involuntary termination occurs prior
to the second anniversary of the Effective Date, the Company shall pay in one
cash lump sum an amount equal to twelve (12) months salary as severance pay; or,
in the case of an involuntary termination following the occurrence of a Change
of Control, an amount equal to twelve (12) months salary as severance pay; or
(B) if the involuntary termination occurs on or after the second anniversary of
the Effective Date, the Company shall pay in one cash lump sum an amount equal
to six (6) months salary as severance pay; or, in the case of an involuntary
termination following the occurrence of a Change of Control, an amount equal to
twelve (12) months salary as severance pay.
(e) VOLUNTARY TERMINATION. The Employee agrees to provide the
Company with thirty (30) days' written notice prior to voluntarily terminating
his employment. At the end of such 30-day period, this Agreement shall terminate
automatically and the Company shall have no further obligations to the Employee
under this Agreement, other than those obligations accrued, earned or vested by
the Employee as of the date of the termination. The Employee shall not be
entitled to any bonus in respect of the year of termination in the event the
Employee's employment is terminated pursuant to this Section 5(e).
6. INDEMNIFICATION. If the Employee acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company, and the Employee had no reasonable cause to believe that his conduct
was unlawful or detrimental to the Company, the Company shall indemnify and hold
harmless the Employee and his heirs and legal representatives from and against
any and all claims, losses, liabilities, damages, costs, demands, causes of
action (whether legal, equitable, administrative, civil or criminal), judgments,
settlements (subject to the last sentence of Section 6(b)), fines, court costs
and other expenses of any kind or nature whatsoever, including, without
limitation, attorneys' fees and disbursements (collectively, "Losses"), which
may be threatened against, incurred or suffered by the Employee or his heirs and
legal representatives in connection with, relating to or arising out of,
directly or indirectly, the Employee's performance, duties and responsibilities
to, for and on behalf of, the Company, including, without limitation, (i) the
Agreement and all actions or omissions taken thereunder and (ii) any acts,
omissions or alleged acts or omissions arising out of the Employee's activities
on behalf of the Company or in furtherance of the interests of the Company.
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(a) EXCEPTIONS. Notwithstanding anything contained herein or
in the By-Laws of the Company, the Company shall have no obligation to indemnify
the Employee if the Loss incurred by the Employee (i) arises out of an action
brought directly by the Company against the Employee or (ii) arises, directly or
indirectly, as a result of the Employee being terminated for cause (as defined
in Section 5(c)).
(b) NOTIFICATION OF CLAIM. Promptly after receipt by the
Company of notice of any claim against the Employee pursuant to which the
Employee is entitled to indemnification, the Company shall have the right to
assume the defense of such claim, including the employment of counsel of its
choice. Although the Employee shall have the right to employ his own counsel,
the fees and expenses of such counsel shall be at the expense of the Employee.
The Company shall not be liable for any settlement of any claim or action
effected without its written consent, PROVIDED that such consent was not
unreasonably withheld.
(c) PAYMENT OF INDEMNITY AMOUNTS. The Company agrees to pay
all amounts payable in respect of Losses immediately upon its receipt of a
statement with respect thereto rendered by the Employee, together with
appropriate supporting documentation thereof. It is the express intention of the
parties hereto that all such amounts shall be paid by the Company on or before
the date payment thereof is due, and that the Employee shall not be required at
any time to bear any costs or expenses on account of Losses.
7. CONFIDENTIALITY.
(a) ACKNOWLEDGMENT AND PURPOSES. The Employee acknowledges
that during the Employment Period he will learn, develop and have access to
Confidential Information relating to the business and affairs of the Company and
its affiliates. As used in this Agreement, "Confidential Information" shall mean
any and all trade secrets and other confidential information concerning the
Company and/or its affiliates including, without limitation, information
regarding the operations, future plans, projected and historical sales,
marketing, costs, production, growth and distribution, customer lists, customer
information, information relating to governmental relations and information
relating to products or services of such companies, in each case whether
patentable or not.
The Company is engaged in a highly competitive business; its
competitive position depends in great measure upon the ability to develop or
acquire and maintain the confidentiality of Confidential Information; and it may
have expended and is likely to continue to expend considerable efforts and
resources in the development or acquisition of Confidential Information. Based
upon the foregoing, the Employee recognizes that the unauthorized disclosure of
Confidential Information in violation of the terms hereof is likely to result in
serious and irrevocable harm to the Company.
(b) RESTRICTIONS ON THE USE OF CONFIDENTIAL INFORMATION. The
Employee agrees and covenants as follows:
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(i) All documents and other materials made or
compiled by or made available to the Employee prior to the date hereof or at any
time hereafter, including during the Employment Period, by the Company or any of
its affiliates and any copies thereof, whether or not containing Confidential
Information, are and shall be the property of the Company or its affiliates and
shall, at the request of the Company or its affiliates, be delivered to the
Company or by the Employee immediately upon the conclusion of his engagement as
an employee. Except as required in connection with the services to be performed
hereunder, the Employee agrees not to remove from the premises of the Company or
any of its affiliates, without permission, any papers or drawings belonging to
the Company or its affiliates, including those prepared or worked on by him. The
Employee will treat as trade secrets all Confidential Information acquired by
him prior to the date hereof or at any time hereafter, including during the
Employment Period, and shall not at any time use any Confidential Information
for his own benefit nor disclose it or any part of it to any other person, firm
or corporation not connected with the Company or its affiliates (a) without the
prior written consent of the Company, or (b) unless such disclosure is required
by law or in response to a legal order or (c) unless such Confidential
Information has become generally available to the public other than through the
breach the Employee of the terms hereof.
(ii) All ideas, reports, and other creative works
conceived by the Employee during the Employment Period and relating to
Confidential Information, shall be disclosed to the Company and shall be the
sole property of the Company.
8. NON-COMPETITION. The Employee agrees that during the longer of (i)
the Employment Period, and (ii) the period during which the Employee is employed
by the Company, and in either such case, for two (2) years thereafter (or, in
the event of an involuntary termination by the Company pursuant to Section 5(d)
of this Agreement, for one (1) year thereafter) he will not, anywhere in the
world, directly or indirectly, engage or participate or make any financial
investments in or become employed by or render advisory or other services to or
for any person, firm or corporation, or in connection with any business activity
which directly or indirectly is in competition with any of the business
operations or activities of the Company or any of its affiliates as of the date
of termination of his employment, or which shall have been in competition with
the Company or any of its affiliates during any time prior thereto. Nothing
herein contained, however, shall restrict the Employee from making any
investments in any company (but without otherwise participating in the
activities of such company) whose stock is listed on a national securities
exchange or actively traded in the over-the-counter market, as long as such
investment does not give him the right to control or influence the policy
decisions of any such business or enterprise which is or might be directly or
indirectly in competition with any of such business operations or activities of
the Company or its affiliates.
9. RESTRICTION ON SOLICITATION. The Employee agrees that during the
longer of (i) the Employment Period, and (ii) the period during which the
Employee is employed by the Company, and in either such case, for a period of
two (2) years thereafter he will not:
(i) directly or indirectly solicit, raid, entice or induce any
employee of the Company or any of its affiliates to become an employee of any
person, firm or corporation which
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is, directly or indirectly, in competition with the business or activities of
the Company or any of its affiliates; or
(ii) directly or indirectly approach any such employee for
these purposes; or
(iii) authorize or knowingly approve the taking of such
actions by other persons on behalf of any such person, firm or corporation, or
assist any such person, firm or corporation in taking such action; or
(iv) directly or indirectly solicit, raid, entice or induce
any person, firm or corporation who or which on the date hereof is, or at the
time during his employment with the Company or any of its affiliates shall be, a
customer of the Company or any of its affiliates, to become a customer for the
same or similar products which it purchased from the Company or any of its
affiliates, of any other person, firm or corporation, and the Employee shall not
approach any such customer for such purpose or authorize or knowingly approve
the taking of such actions by any other person.
10. REMEDIES. The Employee hereby acknowledges that in the event of a
breach or threatened breach by him of the provisions of Sections 7, 8 or 9 of
this Agreement, the Company would suffer irreparable harm for which there would
be no adequate remedy at law. Accordingly, the Employee agrees that in such
event, in addition to any other remedies which the Company may have in law or in
equity for money damages or other relief, the Company shall be entitled to
temporary and/or injunctive relief, without the necessity of proving damages, to
enforce the provisions hereof. In addition, the parties hereto agree and
acknowledge if any provision of Section 7, 8 or 9 as applied to any party or to
any circumstance is adjudged by a court to be invalid or unenforceable, the same
shall in no way affect any other circumstance or the validity or enforceability
of any other provision of this Agreement. If any such provision, or any part
thereof, is held to be unenforceable because of the duration of such provision
or the area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision, and/or to delete specific words or phrases, and in its reduced form,
such provision shall then be enforceable and shall be enforced.
11. SUCCESSORS. This Agreement is personal to the Employee and without
the prior written consent of the Company shall not be assignable by the
Employee. The Company may assign its rights and obligations hereunder, provided
that the Company will require the assignee to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such assignment had taken place.
12. BINDING ARBITRATION. In the event that the Company and the Employee
cannot agree on an interpretation of any provision of this Agreement, or in the
event that either of the parties fails to make any payments or otherwise fulfill
any obligations required by the terms of this Agreement, the Company and the
Employee agree to resolve any such dispute through arbitration in Broward
County, Florida, under the then-current rules of the American Arbitration
Association in the State of Florida. For the purposes of confirming any such
award and entering judgment thereon, each party hereby submits to the exclusive
jurisdiction and venue of the State and Federal courts located in Broward
County, Florida.
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13. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Each party to this Agreement
hereby irrevocably (a) accepts and consents to the exclusive personal
jurisdiction of the courts of Broward County, Florida or in the U.S. District
Court for the Southern District of Florida for the purpose of any suit, action
or proceeding against the Employee, the Company, Xxxxxxxxx or any affiliate of
Xxxxxxxxx arising out of, or relating in any way to, this Agreement or the
Company's employment of the Employee, (b) waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding or any judgment entered by any
court in respect thereof brought in such courts and (c) waives any claim that
any suit, action or proceedings brought in such courts has been brought in an
inconvenient forum. Each party further agrees that service of process, summons,
notice or document by U.S. registered mail in accordance with this Agreement
shall be effective service of process for any action, suit or proceeding brought
against a party in any such court.
(b) The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(c) All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given if sent by
facsimile transmission, delivered by overnight or other carrier service, or
mailed, certified first class mail, postage prepaid, return receipt requested,
to the parties hereto at the following addresses:
If to the Company, to:
Xxxxxxxxx Industries, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Telecopier: (000) 000-0000
If to the Employee, to:
Xxxxx Xxxxxxxx
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or to such other address as either party shall have furnished to the other in
accordance herewith.
(d) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
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(e) A party's failure to insist upon strict compliance with
any provision hereof shall not be deemed to be a waiver of such provision or any
other provision thereof.
(f) This Agreement embodies the entire agreement between the
Company and the Employee and supersedes all prior agreements and understandings
(including, without limitation, the Prior Employment Agreement), oral or
written, with respect to the subject matter hereof.
(g) This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which, together, shall constitute
one and the same instrument.
[signatures on following page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
XXXXXXXXX INDUSTRIES, INC.
By: /s/ Zivi X. Xxxxxx
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Name: Zivi X. Xxxxxx
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Title: President
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EMPLOYEE
/s/ D. Xxxxx Xxxxxxxx
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D. Xxxxx Xxxxxxxx
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