EXHIBIT 10.11
[EXECUTION COPY]
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of November 25,
2002 (the "Effective Date"), is made by and between Rexnord Corporation, a
Delaware corporation, (together with any successor thereto, the "Company") and
Xxxxxxx Xxxxxxxxxxxx (the "Executive").
RECITALS
A. It is the desire of the Company to assure itself of the services of the
Executive by engaging the Executive to perform services under the terms
hereof.
B. The Executive desires to provide services to the Company on the terms
herein provided.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
(a) "Agreement" shall have the meaning set forth in the preamble
hereto.
(b) "Annual Base Salary" shall have the meaning set forth in SECTION
3(a).
(c) "Board" shall mean the Board of Directors of the Company.
(d) The Company shall have "Cause" to terminate the Executive's
employment hereunder upon:
(i) the Board's determination that the Executive failed to
carry out, or comply with, in any material respect any
lawful and reasonable directive of the Board consistent
with the terms of this Agreement, which is not remedied
within 30 days after receipt of written notice from the
Company specifying such failure;
(ii) the Executive's conviction, plea of no contest, plea of
NOLO CONTENDERE, or imposition of unadjudicated
probation for any felony;
(iii) the Executive's unlawful use (including being under the
influence) or possession of illegal drugs; or
(iv) the Executive's commission of an act of fraud,
embezzlement, misappropriation, willful misconduct, or
breach of fiduciary duty against the Company.
(e) "Company" shall have the meaning set forth in the preamble
hereto.
(f) "Compensation Committee" means the Compensation Committee of the
Board.
(g) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death;
(ii) if the Executive's employment is terminated pursuant to
SECTIONS 4(a)(ii) - (vi) either the date indicated in the Notice
of Termination or the date specified by the Company pursuant to
SECTION 4(b), whichever is earlier; (iii) if the Executive's
employment is terminated pursuant to SECTION 4(a)(vii) or
SECTION 4(a)(viii), the expiration of the then-applicable Term.
(h) "Disability" shall mean, at any time the Company or any of its
affiliates sponsors a long-term disability plan for the
Company's employees "disability" as defined in such long-term
disability plan for the purpose of determining a participant's
eligibility for benefits, provided, however, if the long-term
disability plan contains multiple definitions of disability,
"Disability" shall refer that definition of disability which, if
the Executive qualified for such disability benefits, would
provide coverage for the longest period of time. The
determination of whether the Executive has a Disability shall be
made by the person or persons required to make disability
determinations under the long-term disability plan. At any time
the Company does not sponsor a long-term disability plan for its
employees, Disability shall mean the Executive's inability to
perform, with or without reasonable accommodation, the essential
functions of his position hereunder for a total of three months
during any six month period as a result of incapacity due to
mental or physical illness as determined by a physician selected
by the Company or its insurers and acceptable to the Executive
or the Executive's legal representative, such agreement as to
acceptability not to be unreasonably withheld or delayed. Any
refusal by the Executive to submit to a medical examination for
the purpose of determining Disability shall be deemed to
constitute conclusive evidence of the Executive's Disability.
(i) "Effective Date" shall have the meaning set forth in the
preamble hereto.
(j) "Executive" shall have the meaning set forth in the preamble
hereto.
(k) "Executive Bonus Plan" shall mean the bonus plan attached hereto
as EXHIBIT A as in effect during the term of this Agreement.
(l) (i) The Executive shall have "Good Reason" to resign his
employment upon the occurrence of any of the following:
(A) failure of the Company to continue the Executive
in the position of Vice President of Business
Development;
(B) a material diminution in the nature or scope of
the Executive's responsibilities, duties or
authority;
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(C) failure of the Company to make any payment or
provide any benefit under this Agreement;
(D) the relocation of the Executive's principal
place of business to a location that is in
excess of 50 miles from the Executive's current
place of business; or
(E) the Company's material breach of this Agreement.
(ii) The Executive may not resign his employment for Good
Reason unless:
(A) the Executive provided the Company with at least
30 days prior written notice of his intent to
resign for Good Reason; and
(B) the Company has not remedied the alleged
violation(s) within the 30-day period.
(m) "Inventions" shall have the meaning set forth in SECTION 8.
(n) "Notice of Termination" shall have the meaning set forth in
SECTION 4(b).
(o) "Severance Period" shall have the meaning set forth in SECTION
5(c)(i).
(p) "Term" shall have the meaning set forth in SECTION 2(b).
2. EMPLOYMENT.
(a) The Company shall employ the Executive and the Executive shall
enter the employ of the Company, for the period set forth in
SECTION 2(b), in the position set forth in SECTION 2(c), and
upon the other terms and conditions herein provided.
(b) The initial term of employment under this Agreement (the
"Initial Term") shall be for the period beginning on the
Effective Date of this Agreement and ending on the third
anniversary thereof, unless earlier terminated as provided in
SECTION 4. The employment term hereunder shall automatically be
extended for successive one-year periods ("Extension Terms" and,
collectively with the Initial Term, the "Term") unless either
party gives notice of non-extension to the other no later than
90 days prior to the expiration of the then-applicable Term. For
purposes of this Agreement, a notice of non-extension given by
the Company shall be treated as a termination of the Executive's
employment without Cause.
(c) POSITION AND DUTIES. During the term of this Agreement, the
Executive shall serve as the Vice President of Business
Development of Rexnord Corporation with such customary
responsibilities, duties and authority as may from time to time
be assigned to the Executive by the Board. The Executive shall
report to the Chief Executive Officer of the Company. The
Executive shall devote substantially all his working time and
efforts to the business and affairs of the Company. The
Executive agrees to observe and comply with the Company's rules
and policies as
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adopted by the Company from time to time. During the Term, it
shall not be a violation of this Agreement for the Executive to
(i) serve on industry trade, civic or charitable boards or
committees; (ii) deliver lectures or fulfill speaking
engagements; or (iii) manage personal investments, as long as
such activities do not interfere with the performance of the
Executive's duties and responsibilities as an employee of the
Company. During his employment and during the Severance Period,
the Executive agrees not to disparage in any material respect
the Company, any of its products or practices, or any of its
directors, officers, agents, representatives, stockholders or
affiliates, either orally or in writing. The Company agrees that
during the Executive's employment and during the Severance
Period, none of the members of the Board of the Company or the
Officers of the Company will disparage the Executive in any
material respect, either directly or in writing to third
parties.
3. COMPENSATION AND RELATED MATTERS.
(a) ANNUAL BASE SALARY. During the Term, the Executive shall receive
a base salary at a rate of $200,000 per annum, which shall be
paid in accordance with the customary payroll practices of the
Company, subject to increase as determined by the Compensation
Committee (the "Annual Base Salary"). The Executive's Annual
Base Salary shall be reviewed by the Compensation Committee
annually, beginning for the fiscal year that commences on April
1, 2003.
(b) ANNUAL BONUS. Effective as of the 2004 fiscal year and
continuing during the term of this Agreement, the Executive
shall be eligible to receive a bonus as set forth in the
Executive Bonus Plan if the Executive satisfies the performance
targets and other criteria set forth in the Executive Bonus
Plan.
(c) EQUITY/MEMBERSHIP ARRANGEMENT. During the Term, the Executive
shall be entitled to participate in the Stock Option Plan of RBS
Global, Inc. and on the Effective Date shall be granted options,
as of the Effective Date, to purchase 14,654 shares of RBS
Global, Inc. common stock at an exercise price of $100 per
share. The grant of stock options shall be governed by the terms
of the stock option plan and stock option agreement (attached
hereto as EXHIBIT B and EXHIBIT C, respectively).
(d) INVESTMENT. On the Effective Date, the Executive shall
personally invest $100,000 in shares of RBS Global, Inc. common
stock.
(e) BENEFITS. The Executive shall be entitled to participate in
employee benefit plans, programs and arrangements of the Company
now (or, to the extent determined by the Board, hereafter) in
effect which are applicable to the senior officers of the
Company as set forth in EXHIBIT D attached hereto.
(f) VACATION. During the Term, the Executive shall be entitled to
vacation each calendar year in accordance with the Company's
policy. Any vacation shall be
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taken at the reasonable and mutual convenience of the Company
and the Executive.
(g) EXPENSES. The Company shall reimburse the Executive for all
reasonable travel and other business expenses incurred by him in
the performance of his duties to the Company in accordance with
the Company's expense reimbursement policy.
(h) KEY PERSON INSURANCE. At any time during the Term, the Company
shall have the right to insure the life of the Executive for the
Company's sole benefit. The Company shall have the right to
determine the amount of insurance and the type of policy. The
Executive shall cooperate with the Company in obtaining such
insurance by submitting to physical examinations, by supplying
all information reasonably required by any insurance carrier,
and by executing all necessary documents reasonably required by
any insurance carrier. The Executive shall incur no financial
obligation by executing any required document, and shall have no
interest in any such policy.
4. TERMINATION.
The Executive's employment hereunder may be terminated by the Company or
the Executive, as applicable, without any breach of this Agreement only under
the following circumstances:
(a) CIRCUMSTANCES.
(i) DEATH. The Executive's employment hereunder shall
terminate upon his death.
(ii) DISABILITY. If the Executive has incurred a Disability,
the Company may give the Executive written notice of its
intention to terminate the Executive's employment. In
that event, the Executive's employment with the Company
shall terminate effective on the 30th day after receipt
of such notice by the Executive, provided that within
the 30 days after such receipt, the Executive shall not
have returned to full-time performance of his duties.
(iii) TERMINATION FOR CAUSE. The Company may terminate the
Executive's employment for Cause.
(iv) TERMINATION WITHOUT CAUSE. The Company may terminate the
Executive's employment without Cause.
(v) RESIGNATION FOR GOOD REASON. The Executive may resign
his employment for Good Reason.
(vi) RESIGNATION WITHOUT GOOD REASON. The Executive may
resign his employment without Good Reason.
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(vii) NON-EXTENSION OF TERM BY THE COMPANY. The Company may
give notice of non-extension to the Executive pursuant
to SECTION 2(b).
(viii) NON-EXTENSION OF TERM BY THE EXECUTIVE. The Executive
may give notice of non-extension to the Company pursuant
to SECTION 2(b).
(b) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive under this SECTION
4 (other than termination pursuant to paragraph (a)(i)) shall be
communicated by a written notice to the other party hereto
indicating the specific termination provision in this Agreement
relied upon, setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and
specifying a Date of Termination which, if submitted by the
Executive, shall be at least 30 days following the date of such
notice (a "Notice of Termination") provided, however, that the
Company may, in its sole discretion, accelerate the Date of
Termination to any date following the Company's receipt of the
Notice of Termination. A Notice of Termination submitted by the
Company may provide for a Date of Termination on the date the
Executive receives the Notice of Termination, or any date
thereafter elected by the Company in its sole discretion. The
failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes
to a showing of Cause or Good Reason shall not waive any right
of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's
rights hereunder.
(c) COMPANY OBLIGATIONS UPON TERMINATION. Upon termination of the
Executive's employment, the Executive (or the Executive's
estate) shall be entitled to receive the sum of the Executive's
Annual Base Salary through the Date of Termination not
theretofore paid, any expenses owed to the Executive under
SECTION 3(g), any accrued vacation pay owed to the Executive
pursuant to SECTION 3(f), and any amount arising from the
Executive's participation in, or benefits under any employee
benefit plans, programs or arrangements under SECTION 3(e),
which amounts shall be payable in accordance with the terms and
conditions of such employee benefit plans, programs or
arrangements.
5. SEVERANCE PAYMENTS.
(a) TERMINATION UPON DEATH. If the Executive's employment shall
terminate as a result of the Executive's death pursuant to
SECTION 4(a)(i), the Company shall pay to the Executive's estate
a prorated amount of the Executive's Annual Bonus based on the
Company's year-to-date performance through the Date of
Termination in relation to the performance targets and other
criteria set forth in the Executive Bonus Plan (such amount to
be determined in good faith by the Compensation Committee).
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(b) TERMINATION UPON DISABILITY. If the Executive's employment shall
terminate as a result of the Executive's Disability pursuant to
SECTION 4(a)(ii), the Company shall pay to the Executive:
(i) in accordance with the Company's regular payroll
practice following the Date of Termination, an amount
equal to the Annual Base Salary that the Executive would
have been entitled to receive if the Executive had
continued his employment for a period of 12 months
following the Date of Termination; and
(ii) a prorated amount of the Executive's Annual Bonus based
on the Company's year-end performance in relation to the
performance targets and other criteria set forth in the
Executive Bonus Plan, which such amount will be paid at
the end of the bonus period when the year-end
performance of the Company has been determined and
bonuses are paid to other executives (such amount to be
determined in good faith by the Compensation Committee).
(c) TERMINATION WITHOUT CAUSE OR RESIGNATION FOR GOOD REASON. If the
Executive's employment shall terminate without Cause pursuant to
SECTION 4(a)(iv) or for Good Reason pursuant to SECTION 4(a)(v),
the Company shall:
(i) pay to the Executive, in accordance with the Company's
regular payroll practice following the Date of
Termination, an amount equal to the Annual Base Salary
that the Executive would have been entitled to receive
if the Executive had continued his employment hereunder
for a period of 12 months following the Date of
Termination (the "Severance Period"); and
(ii) subject to SECTION 5(e), continue to provide, during the
Severance Period, coverage for the Executive and any
dependents under all Company group health benefit plans
(including health, dental and vision coverage) in which
the Executive and any dependents were entitled to
participate immediately prior to the Date of
Termination, to the extent permitted thereunder;
PROVIDED THAT, in the event of a non-extension of Term by the
Company, the time periods set forth in SECTIONS 5(c)(i) and
5(c)(ii) shall begin to run on the Date of Termination.
(d) SURVIVAL. The expiration or termination of the Term shall not
impair the rights or obligations of any party hereto, which
shall have accrued prior to such expiration or termination.
(e) MITIGATION OF DAMAGES. In the event of any termination of the
Executive's employment by the Company other than for retirement,
the Executive shall be required to seek other employment to
mitigate damages, and any employee benefits received by the
Executive from other full-time employment or self-employment
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shall be offset against any obligation of the Company to provide
benefits to the Executive pursuant to this SECTION 5.
6. COMPETITION.
(a) The Executive shall not, at (x) any time during the Term of this
Agreement, if this Agreement terminates pursuant to SECTION
4(a)(i) or SECTION 4(a)(ii); (y) any time during the Term of
this Agreement or during the Severance Period plus six months,
whichever is longer, if this Agreement terminates pursuant to
SECTION 4(a)(iv) or SECTION 4(a)(v); or (z) any time during the
Term of this Agreement or during the Term of this Agreement plus
18 months, whichever is longer, if this Agreement terminates
pursuant to SECTION 4(a)(iii) or SECTION 4(a)(vi); directly or
indirectly engage in, have any equity interest in, or manage or
operate any person, firm, corporation, partnership or business
(whether as director, officer, employee, agent, representative,
partner, security holder, consultant or otherwise) that engages
in any business which competes with any business of the Company
or any entity owned by the Company anywhere in the world
PROVIDED, HOWEVER, that the Executive shall be permitted to
acquire a passive stock or equity interest in such a business
provided the stock or other equity interest acquired is not more
than five percent (5%) of the outstanding interest in such
business.
(b) During the Term of this Agreement if this Agreement terminates
pursuant to SECTION 4(a)(i) OR SECTION 4(a)(ii); or during the
Term of this Agreement or during the Term of this Agreement plus
18 months, whichever is longer, if this Agreement terminates
pursuant to SECTION 4(a)(iii) through SECTION 4(a)(viii); the
Executive will not, and will not permit any of his affiliates
to, directly or indirectly, recruit or otherwise solicit or
induce any employee, customer, subscriber or supplier of the
Company to terminate its employment or arrangement with the
Company, otherwise change its relationship with the Company, or
establish any relationship with the Executive or any of his
affiliates for any business purpose deemed competitive with the
business of the Company.
(c) In the event the terms of this SECTION 6 shall be determined by
any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too
extensive in any other respect, it will be interpreted to extend
only over the maximum period of time for which it may be
enforceable, over the maximum geographical area as to which it
may be enforceable, or to the maximum extent in all other
respects as to which it may be enforceable, all as determined by
such court in such action.
7. NONDISCLOSURE OF PROPRIETARY INFORMATION.
(a) Except as required in the faithful performance of the
Executive's duties hereunder or pursuant to SECTION 7(c), the
Executive shall, in perpetuity, maintain in confidence and shall
not directly, indirectly or otherwise, use, disseminate,
disclose or publish, or use for his benefit or the benefit of
any person, firm,
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corporation or other entity any confidential or proprietary
information or trade secrets of or relating to the Company,
including, without limitation, information with respect to the
Company's operations, processes, products, inventions, business
practices, finances, principals, vendors, suppliers, customers,
potential customers, marketing methods, costs, prices,
contractual relationships, regulatory status, compensation paid
to employees or other terms of employment, or deliver to any
person, firm, corporation or other entity any document, record,
notebook, computer program or similar repository of or
containing any such confidential or proprietary information or
trade secrets. The parties hereby stipulate and agree that as
between them the foregoing matters are important, material and
confidential proprietary information and trade secrets and
affect the successful conduct of the businesses of the Company
(and any successor or assignee of the Company).
(b) Upon termination of the Executive's employment with the Company
for any reason, the Executive will promptly deliver to the
Company all correspondence, drawings, manuals, letters, notes,
notebooks, reports, programs, plans, proposals, financial
documents, or any other documents concerning the Company's
customers, business plans, marketing strategies, products or
processes.
(c) The Executive may respond to a lawful and valid subpoena or
other legal process but shall give the Company the earliest
possible notice thereof, shall, as much in advance of the return
date as possible, make available to the Company and its counsel
the documents and other information sought and shall assist such
counsel in resisting or otherwise responding to such process.
8. INVENTIONS.
All rights to discoveries, inventions, improvements and innovations
(including all data and records pertaining thereto) related to the Company's
business, whether or not patentable, copyrightable, registrable as a trademark,
or reduced to writing, that the Executive may discover, invent or originate
during the Term, and for a period of 12 months thereafter, either alone or with
others and whether or not during working hours or by the use of the facilities
of the Company ("Inventions"), shall be the exclusive property of the Company.
The Executive shall promptly disclose all Inventions to the Company, shall
execute at the request of the Company any assignments or other documents the
Company may deem necessary to protect or perfect its rights therein, and shall
assist the Company, at the Company's expense, in obtaining, defending and
enforcing the Company's rights therein. The Executive hereby appoints the
Company as his attorney-in-fact to execute on his behalf any assignments or
other documents deemed necessary by the Company to protect or perfect its rights
to any Inventions.
9. INJUNCTIVE RELIEF.
It is recognized and acknowledged by the Executive that a breach of the
covenants contained in SECTIONS 6, 7 and 8 will cause irreparable damage to
Company and its goodwill, the exact amount of which will be difficult or
impossible to ascertain, and that the remedies at law for any such breach will
be inadequate. Accordingly, the Executive agrees that in the event of a
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breach of any of the covenants contained in SECTIONS 6, 7 and 8, in addition to
any other remedy which may be available at law or in equity, the Company will be
entitled to specific performance and injunctive relief.
10. ASSIGNMENT AND SUCCESSORS.
The Company may assign its rights and obligations under this Agreement
to any entity, including any successor to all or substantially all the assets of
the Company, by merger or otherwise, and may assign or encumber this Agreement
and its rights hereunder as security for indebtedness of the Company and its
affiliates. The Executive may not assign his rights or obligations under this
Agreement to any individual or entity. This Agreement shall be binding upon and
inure to the benefit of the Company, the Executive and their respective
successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
11. GOVERNING LAW.
This Agreement shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the state of Delaware, without reference
to the principles of conflicts of law of Delaware or any other jurisdiction, and
where applicable, the laws of the United States.
12. VALIDITY.
The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. NOTICES.
Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
(a) If to the Company:
Rexnord Corporation
[Address]
Fax.:
Attn:
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with a copy to:
TC Group, L.L.C.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Fax:
Attn:
and a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxxxxx Xxxxxx, X.X.
10th Floor
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
(b) If to the Executive:
Xxxxxxx Xxxxxxxxxxxx
_____________________
_____________________
or at any other address as any party shall have specified by notice in
writing to the other party.
14. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same Agreement.
15. ENTIRE AGREEMENT.
The terms of this Agreement and the other agreements and instruments
contemplated hereby or referred to herein (collectively the "Related
Agreements") are intended by the parties to be the final expression of their
agreement with respect to the employment of the Executive by the Company and may
not be contradicted by evidence of any prior or contemporaneous agreement. The
parties further intend that this Agreement and the Related Agreements shall
constitute the complete and exclusive statement of their terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding to vary the terms of this Agreement and the Related
Agreements.
16. SOLE EMPLOYMENT AGREEMENT.
The Executive acknowledges and agrees that he has taken all actions
required under the terms of any prior employment agreement with Rexnord
Corporastion, Invensys, plc or any of their successors, predecessors or
affiliated in order to terminate that employment and that, to the
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best of his knowledge, the provisions contained in that employment agreement do
not bind the Company.
17. AMENDMENTS; WAIVERS.
This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and a duly authorized officer of
Company. By an instrument in writing similarly executed, the Executive or a duly
authorized officer of the Company may waive compliance by the other party or
parties with any provision of this Agreement that such other party was or is
obligated to comply with or perform, provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right, remedy, or
power hereunder preclude any other or further exercise of any other right,
remedy, or power provided herein or by law or in equity.
18. NO INCONSISTENT ACTIONS.
The parties hereto shall not voluntarily undertake or fail to undertake
any action or course of action inconsistent with the provisions or essential
intent of this Agreement. Furthermore, it is the intent of the parties hereto to
act in a fair and reasonable manner with respect to the interpretation and
application of the provisions of this Agreement.
19. CONSTRUCTION.
This Agreement shall be deemed drafted equally by both the parties. Its
language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party
shall not apply. The headings in this Agreement are only for convenience and are
not intended to affect construction or interpretation. Any references to
paragraphs, subparagraphs, sections or subsections are to those parts of this
Agreement, unless the context clearly indicates to the contrary. Also, unless
the context clearly indicates to the contrary, (a) the plural includes the
singular and the singular includes the plural; (b) "and" and "or" are each used
both conjunctively and disjunctively; (c) "any," "all," "each," or "every" means
"any and all," and "each and every"; (d) "includes" and "including" are each
"without limitation"; (e) "herein," "hereof," "hereunder" and other similar
compounds of the word "here" refer to the entire Agreement and not to any
particular paragraph, subparagraph, section or subsection; and (f) all pronouns
and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the entities or persons referred
to may require.
20. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before an
arbitrator in Wisconsin in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitration award in
any court having jurisdiction, provided, however, that the Company shall be
entitled to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of the provisions of
SECTIONS 6, 7 or 8 of the
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Agreement and the Executive hereby consents that such restraining order or
injunction may be granted without requiring the Company to post a bond. Only
individuals who are (i) lawyers engaged fulltime in the practice of law; and
(ii) on the AAA register of arbitrators shall be selected as an arbitrator.
Within 20 days of the conclusion of the arbitration hearing, the arbitrator
shall prepare written findings of fact and conclusions of law. It is mutually
agreed that the written decision of the arbitrator shall be valid, binding,
final and non-appealable, provided however, that the parties hereto agree that
the arbitrator shall not be empowered to award punitive damages against any
party to such arbitration. The arbitrator fees and expenses will be borne
equally by each party. In the event that an action is brought to enforce the
provisions of this Agreement pursuant to this SECTION 20, each party shall pay
its own attorney's fees and expenses regardless of whether in the opinion of the
court or arbitrator deciding such action there is a prevailing party.
21. ENFORCEMENT.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
22. WITHHOLDING.
The Company shall be entitled to withhold from any amounts payable under
this Agreement any federal, state, local or foreign withholding or other taxes
or charges which the Company is required to withhold. The Company shall be
entitled to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
23. EMPLOYEE ACKNOWLEDGEMENT.
The Executive acknowledges that he has read and understands this
Agreement, is fully aware of its legal effect, has not acted in reliance upon
any representations or promises made by the Company other than those contained
in writing herein, and has entered into this Agreement freely based on his own
judgment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
COMPANY
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Name:
Title:
EXECUTIVE
By: /s/
-----------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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