Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of this 9th day of September
2002, is by and between Comdisco, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxxxxxx ("Executive"). The Company and Executive are
referred to collectively herein as the "Parties."
RECITALS
The Company desires to employ the Executive to have the benefits of
his expertise and knowledge. The Executive, in turn, desires to be employed by
the Company. The parties, therefore, enter into this Agreement to establish
the terms and conditions of the Executive's employment with the Company.
The signing by the Executive of the release of all claims contained
herein is a material part of the consideration being given in exchange for the
Executive's employment by the Company.
In consideration of the mutual promises, terms, covenants, and
conditions set forth herein, and the performance of each, the Parties hereto,
intending legally to be bound, hereby agree as follows:
AGREEMENTS
1. Effective Date. This Agreement will become effective on the eighth
(8th) day after the date of its execution by the Executive (the "Effective
Date").
2. Position and Duties. The Company hereby employs Executive as
Executive Vice President and Chief Information Officer of the Company during
the Employment Term described in Paragraph 2. As such, Executive shall have
such duties and responsibilities as properly assigned to him by the Company
including but not limited to being responsible primarily for the information
services activities of the Company and its subsidiaries in connection with the
implementation of the Company's "Post-Emergence Plan" after the effective date
(the "Plan Effective Date") of the confirmation of the Plan of Reorganization
(the "Reorganization Plan") filed by the Company with the United States
Bankruptcy Court for the Northern District of Illinois, Eastern Division (the
"Bankruptcy Court") in Case Number 01-24795 and all related bankruptcy
proceedings (the "Comdisco Bankruptcy Proceeding") and the execution of the
Plan and the Post-Emergence Plan. Executive will report directly to the
Chairman and Chief Executive Officer of the Company. On or about the Plan
Effective Date the Company intends to appoint the Executive to the position of
Executive Vice President and Chief Information Officer of the reorganized
Company.
Executive hereby accepts this employment upon the terms and
conditions contained herein and agrees to devote substantially all of his
professional time, attention, and efforts to promote and further the business
of the Company to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner. Executive shall faithfully adhere to,
execute, and fulfill all policies generally established by the Company.
3. Employment Term. The Company hereby employs Executive to perform
the duties described herein, and Executive hereby accepts employment with the
Company, for an initial term of twenty-four (24) months beginning as of April
1, 2002 ("Commencement Date") and terminates on March 31, 2004 (the
"Employment Term"). This Agreement may be extended by the mutual agreement of
the Executive and Company for additional six (6) month periods on the same
terms and conditions set forth herein after its originally scheduled
termination date. Executive's employment may be terminated prior to the end of
the Term only in the manner provided for in Paragraph 7 below.
4. Compensation. For all services rendered by Executive, the Company
shall compensate Executive as follows:
(a) Base Salary. Effective on the date hereof, the base
salary payable to Executive shall be $250,000 per annum, which salary
shall be payable on a regular basis in accordance with the Company's
standard payroll procedures.
(b) Benefits, and Other Compensation. During the Employment
Term, Executive shall be entitled to receive all benefits as have
been extended to him prior to his appointment as Executive Vice
President and Chief Information Officer based on his prior employment
with the Company and such other all benefits as are customarily
provided by the Company to its executive employees, subject to such
changes, additions, or deletions as the Company may make generally
from time to time, as well as such other benefits as may be specified
from time to time by the Board.
(c) Semi-Annual Performance Bonus. During the Term,
Executive shall receive semi-annual bonus payments as defined in the
Company's Post-Emergence Compensation Plan and subject to the terms
of the Bankruptcy Court approval of that Plan (Motion for an order
pursuant to 11 USC 105(a) and 363 (b)(1) approving the debtors'
Management Incentive Plan). Payments payable under this Plan will be
based on meeting specified individual and corporate objectives.
5. Expense Reimbursement. The Company shall reimburse Executive for
(or, at the Company's option, pay) all business travel and other out-of-pocket
expenses reasonably incurred by Executive in the performance of his services
hereunder during the Term. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any request
for reimbursement, and in a format and manner consistent with the Company's
expense reporting policy, as well as applicable federal and state tax record
keeping requirements.
6. Place of Performance. Executive shall perform his services under
this Agreement at the principal offices of the Company which shall initially
be located at the headquarters of the Company in Rosemont, Illinois. The
Company may change the location of the headquarters of the Company and, in the
event of such change, the Executive may perform his services under this
Agreement at a location which shall be agreeable to the Company.
7. Termination: Rights on Termination. Executive's employment may be
terminated in any one of the following ways, prior to the expiration of the
Term:
(a) Death. The death of Executive shall immediately
terminate the Term, and, subject to Paragraph 7(f), no severance
compensation shall be owed to Executive's estate other than the
payment of any accrued and unpaid Base Salary.
(b) Disability. If, as a result of incapacity due to
physical or mental illness or injury, Executive shall have been
unable to perform the material duties of his position on a full-time
basis for a period of three (3) consecutive months, or for a total of
four (4) months in any six (6) month period, then thirty (30) days
after written notice to the Executive (which notice may be given
before or after the end of the aforementioned periods, but which
shall not be effective earlier than the last day of the applicable
period), the Company may terminate Executive's employment hereunder
if Executive is unable to resume his full-time duties at the
conclusion of such notice period. Subject to Paragraph 7(f) below, if
Executive's employment is terminated as a result of Executive's
disability, the Company shall continue to pay Executive his Base
Salary at the then-current rate for the lesser of (i) three (3)
months from the effective date of termination, or (ii) whatever time
period is remaining under the then-current period of the Employment
Term, regardless of whether Executive is eligible for coverage under
the Company's Long-Term Disability Plan. In addition, Executive shall
be entitled to receive Severance and any compensation to which the
Executive has been vested in under the Post-Emergence Plan. Such
payments shall be made in accordance with the Company's regular
payroll cycle except that all payment payable under the
Post-Emergence Plan shall be made in accordance with the terms and
conditions of the Post-Emergence Plan.
(c) Termination by the Company "For Cause." The Company may
terminate the Employment Term fifteen (15) days after written notice
to Executive "for cause," or "cause" which shall be determined by the
Board or the Chairman of the Board of the Company and is defined as:
(i) the Executive's persistent and repeated refusal, failure or
neglect to perform the material duties of his employment under this
Agreement (other by reason of the Executive's physical or mental
illness or impairment), provided that such Cause shall be deemed to
occur only after the Company gave notice thereof to the Executive
specifying in reasonable detail the conduct constituting Cause, and
the Executive failed to cure and correct his conduct within 30 days
after such notice; (ii) committing any act of fraud or embezzlement,
provided that such Cause shall be deemed to occur only after the
Company gave notice thereof to the Executive specifying in reasonable
detail the instances of such conduct, and the Executive had the
opportunity to be heard at a meeting of the Board; (iii) breach of
the agreements and covenants under Paragraphs 8 and 9 below provided
that such Cause shall be deemed to occur only after the Company gave
notice thereof to the Executive specifying in reasonable detail the
conduct constituting Cause, and the Executive failed to cure and
correct his conduct within 30 days after such notice; (iv) conviction
of a felony (including pleading guilty to a felony) or commitment of
other acts causing or likely to cause a material detriment to the
reputation of the Company; (v) habitual abuse of alcohol or drugs in
violation of the terms of the Company's written policies that, in the
judgment of the Board or the Chairman of the Board of the Company,
materially impairs Executive's ability to perform his duties
hereunder; (vi) Executive's gross negligence in the performance of
his duties hereunder, intentional nonperformance or misperformance of
such duties, or refusal to abide by or comply with the directives of
the Board, his superior officers, or the Company's policies and
procedures, which actions continue for a period of at least fifteen
(15) days after receipt by Executive of written notice of the need to
cure or cease, or (vii) Executive's willful dishonesty, fraud, or
misconduct with respect to the business or affairs of the Company
that, in the good faith judgment of the Chairman of the Board or
Board, materially and adversely affects the operations or reputation
of the Company. In the event of termination "for cause," as
enumerated above, Executive shall have no right to any Severance
compensation or any other amounts payable to the Executive under the
terms of the Post-Emergence Plan.
(d) Without Cause or For Good Reason. At any time, the
Company may, other than for cause, terminate the Employment Term and
Executive's employment, effective thirty (30) days after written
notice is provided to Executive. Should Executive be terminated by
the Company without cause during the Employment Term hereof then
Executive shall receive from the Company all amounts of Base Salary
and benefits accrued but unpaid through the date of such termination
as well as the Severance Payment described in Paragraph 7(f) below.
In the event that the Executive's employment hereunder is terminated
by the Executive for Good Reason, the Executive shall receive the
Severance Payment described in Paragraph 7(f) below.
For purposes of this Agreement, "Good Reason" for the
Executive to terminate employment shall mean voluntary termination as
a result of (i) the relocation of the Company's executive offices or
principal business location to a point more than fifty (50) miles
from the location of such offices or business as of the date the
Executive signs this Agreement or (ii) the reduction by the Company
of the Executive's Base Salary and/or Executive's Performance Bonus
Target.
In no event, however, shall the Executive be entitled to
receive any amounts, rights or benefits under this Paragraph 7(d)
unless he executes a release of claims against the Company in a form
prepared by the Company.
(e) Resignation Without Good Reason. In the event that the
Executive terminates his employment hereunder other than for Good
Reason, or death or disability as defined in Paragraph 7(b) above,
the Executive shall be entitled to receive all amounts of Base Salary
and benefits accrued but unpaid through the date of such termination.
All other compensation of the Executive hereunder shall terminate as
of the date of any such termination described in this Paragraph 7(e).
(f) Severance Payments. If the Executive's employment under
this Agreement is terminated by the Company without Cause or by the
Executive for Good Reason (as defined in herein), the Company shall
pay the Executive a lump sum cash payment, within 30 days of the date
of such termination, equal to the sum of: (i) the aggregate amount of
the Executive's unpaid Base Salary, as specified in paragraph 4(a) of
this Agreement, payable at the annual rate in effect on the
termination date, for the shorter of either (x) twenty-four (24)
months or (y) whatever time period is remaining under the remaining
Employment Term of this Agreement. In addition, Executive shall be
entitled to receive any remaining semi-annual performance bonus
amounts to which the Executive would be entitled to receive under the
Post-Emergence Plan for the same duration, provided however, that the
amounts of such semi-annual performance bonus attributable for
performance occurring after the date of termination and payable to
the Executive shall be not less than the amounts awarded for
performance occurring prior to the date of termination unless the CEO
of the Company has determined that the Executive is entitled to
payment of a greater sum. For purposes of this subparagraph (f), the
Employment Term shall be deemed to continue as if no termination of
employment occurred, provided that the Employment Term shall not be
renewed as provided herein and shall not be deemed to have ended
earlier than six (6) months after the date of termination. The
payments described in this paragraph shall be made in accordance with
the Company's regular payroll cycle cycle except that all payments
payable under the Post-Emergence Plan shall be made in accordance
with the terms and conditions of the Post-Emergence Plan.
(g) Payment Through Termination. Upon termination of
Executive's employment for any reason provided above, Executive shall
be entitled to receive all accrued and unpaid compensation earned and
all benefits and reimbursements (including payments for accrued
vacation, in each case in accordance with applicable policies of the
Company) due through the effective date of termination. Additional
compensation subsequent to termination, if any, including any
incentive compensation payable under the Post-Emergence Plan will be
due and payable to Executive only to the extent and in the manner
expressly provided above in this Paragraph 7. All other rights and
obligations of the Company and Executive under this Agreement shall
cease as of the effective date of termination, except that the
Company's obligations under this Paragraph 7 and Paragraph 15 below
and Executive's obligations under Paragraphs 8, 9 and 15 below shall
survive such termination in accordance with their terms. If Executive
voluntarily resigns or otherwise terminates his employment for any
reason or for no reason, Executive shall forfeit all deferred
semi-annual bonus payments and will not be eligible for any severance
benefits.
8. Covenant Not to Compete or Use Confidential Information.
(a) During the entire term of this Agreement, the Executive
shall not, directly or indirectly, engage in any business or activity
in which the Company is engaged in or the Commencement Date or has
been engaged within eighteen (18) months of the Commencement Date
("Competitive Business") nor be employed by, render services of any
kind to, advise or receive compensation in any form from nor invest
or participate in any manner or capacity in, any entity or person
which directly or indirectly engages in a Competitive Business or is
an existing leasing customer or a person with whom the Company has an
existing financing arrangement or lease arrangement within eighteen
(18) months prior to the Commencement Date ("Existing Customer").
Further, during the term of this Agreement and for a period of one
(1) year after the expiration or earlier termination of this
Agreement, Executive shall not directly or indirectly (i) solicit to
employ, (ii) solicit for employment on behalf of others, or (iii)
otherwise encourage to terminate his or her present employment, any
existing employee of the Company at the end of the Employment Term
nor shall Executive engage in activities or communications which
might serve to harm the reputation and goodwill of the Company and
its relationship with its investors, market analysts, customers,
suppliers, vendors or others affecting the business performance of
the Company. The Company may, in its discretion, consider waiving
this restriction completely or in part in unusual termination
situations. Any waiver would be based on the facts and circumstances
of the termination, and will not serve as a precedent for other
situations.
(b) It is agreed by both parties hereto that the covenants
contained in Paragraph 8 (a) above are reasonable and necessary to
protect the confidentiality of the trade secrets, and other
confidential information concerning the Company, acquired by the
Executive.
(c) The Executive and the Company recognize and agree that
(i) because of the nature of the businesses in which the Company is
engaged and because of the nature of the confidential information
which the Executive has acquired or will acquire with respect to the
business of the Company it would be impracticable and excessively
difficult to determine the actual damages of the Company in the event
that the Executive breaches any of the covenants contained in
Paragraph 8(a) above, and (ii) damages in an action at law would not
constitute reasonable or adequate compensation to the Company in the
event that the Executive breaches any of such covenants. Accordingly,
if the Executive commits any breach of such covenants or threatens to
commit any such breach, then the Company shall have the right to have
the covenants contained in Paragraph 8(a) above specifically enforced
by any court having equity jurisdiction, without posting bond or
other security, it being acknowledged and agreed by both parties
hereto that any such reach or threatened breach would cause
irreparable injury to the Company and that an injunction may be
issued against the Executive. The rights described in this Paragraph
8(c) shall be in addition to, and not in lieu of, any other rights to
remedies available to the Company under law or in equity.
(d) Notwithstanding the foregoing, nothing herein shall
prevent passive investments by the Executive of, directly or
indirectly, less than 5% of the outstanding common equity of any
entity whose common equity is listed for trading on the New York
Stock Exchange or the American Stock Exchange, or quoted on the
NASDAQ National Market System.
9. Covenant Not to Compete or Use Confidential Information.
(a) For purposes of this Agreement, "Confidential
Information" shall mean information or material proprietary to the
Company or designated as Confidential Information by the Company, of
or to which the Executive develops or of which the Executive may
obtain knowledge or access through or as a result of the Executive's
relationship with the Company (including information conceived,
originated, discovered or developed in whole or in part by the
Executive). The Confidential Information includes, but is not limited
to, the following types of information and other information of a
similar nature (whether or not reduced to writing): discoveries,
ideas, concepts, software in various stages of development, designs,
drawings, specifications, techniques, models, data, source code,
object code, documentation, diagrams, flow charts, research,
development, processes, procedures, "know how," marketing techniques
and materials, marketing and development plans, customer names and
other information related to customers, price lists, pricing policies
and financial information. Confidential Information also includes any
information described above which the Company obtains from another
party and which the Company treats as proprietary or designates as
Confidential Information, whether or not owned or developed by the
Company. INFORMATION PUBLICLY KNOWN THAT IS GENERALLY EMPLOYED BY THE
TRADE AT OR AFTER THE TIME THE EXECUTIVE FIRST LEARNS OF SUCH
INFORMATION, OR GENERIC INFORMATION OR KNOWLEDGE WHICH THE EXECUTIVE
WOULD HAVE LEARNED IN THE COURSE OF SIMILAR SERVICES OR WORK
ELSEWHERE IN THE TRADE, SHALL NOT BE DEEMED PART OF THE CONFIDENTIAL
INFORMATION.
(b) All notes, data, reference materials, sketches,
drawings, memoranda, documentation and records in any way
incorporating or reflecting any of the Confidential Information shall
belong exclusively to the Company and the Executive agrees to turn
over all copies of such materials in the Executive's control as of
the date first set forth above to the Company immediately and those
which thereafter may come into Executive's possession during the
course of this Agreement upon the Company's request or upon
termination of the Executive's engagement by the Company.
(c) The Executive agrees during his engagement by the
Company and thereafter to hold in confidence and not to directly or
indirectly reveal, report, publish, disclose or transfer any of the
Confidential Information to any person or entity, or utilize any of
the Confidential Information for any purpose, except in the course of
the Executive's work for the Company.
(d) The Executive agrees that any inventions or ideas in
whole or in part conceived or made by the Executive during or after
the term of his relationship with the Company which are made through
the use of any of the Confidential Information or any of the
Company's equipment, facilities, trade secrets or time, or which
result from any work performed by the Executive for the Company shall
belong exclusively to the Company and shall be deemed part of the
Confidential Information.
(e) Because of the unique nature of the Confidential
Information, the Executive understands and agrees that the Company
will suffer irreparable harm in the event that the Executive fails to
comply with any of his obligations under this Paragraph 9 and that
monetary damages will be inadequate to compensate the Company for
such breach. Accordingly, the Executive agrees that the Company will,
in addition to any other remedies available to it at law or in
equity, be entitled to injunctive relief to enforce the terms of this
Paragraph 9 above.
10. Release by the Executive. The Executive hereby knowingly and
voluntarily, fully and finally releases, acquits, and forever discharges the
Company and its respective affiliates and subsidiaries, each of its present
and former officers, directors, members, shareholders, agents, partners,
consultants, and employees, and the successors or assigns of said persons and
entities (the "Released Parties"), from any and all claims, charges,
complaints, liens, demands, causes of action, obligations, damages,
liabilities, attorneys' fees, and legal responsibilities, known or unknown,
suspected or unsuspected, that the Executive had, now has, or may hereafter
claim to have against the Released Parties from the beginning of time through
the Effective Date of this Agreement. This release specifically extends to,
without limitation, any claims in law, equity, contract, tort or any claims
under the Fair Labor Standards Act, the Worker Retraining and Notification
Act, Title VII of the Civil Rights Act of 1964, the Americans With
Disabilities Act, the Employee Retirement Income Security Act, the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act, the Illinois Statutes, the Illinois Human Rights Act, as
amended from time to time. The Executive also expressly waives all rights
afforded by any provision comparable to Section 1542 of the California Civil
Code with respect to the Released Parties or any other local ordinance or
federal or state statute or constitution. Section 1542 states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASED, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECT HIS
SETTLEMENT WITH THE DEBTOR.
Notwithstanding the provisions of Section 1542 or any comparable legal
provision and for the purpose of implementing a full and complete release, the
Executive understands and agrees that this Agreement is intended to include
all claims, if any, that he may have and does not now know or suspect to exist
against the Released Parties, and that this Agreement extinguishes those
claims.
11. No Further Claims. The Executive agrees forever that he has not
filed, initiated or caused to be filed or initiated, any claim, charge, suit,
complaint, grievance, action or cause of action against the Released Parties.
Except to the extent that such waiver is prohibited by law, order, or
regulation, executive further promises and agrees that the Executive will not
file, refile, initiate, or cause to be filed, refiled or initiated any claim,
charge, suit, complaint, grievance, action or cause of action based upon,
arising out of, or relating to any claim, demand, or cause of action released
herein, nor shall the Executive participate, assist or cooperate in any claim,
charge or action whether before a court of administrative agency against the
Released Parties, except to the extent such waiver is prohibited by law,
order, or regulation.
12. Review and Revocation Period. The Executive acknowledges that he
has been advised to consult with his counsel prior to signing this Agreement
and that he has been given at least twenty-one (21) days during which to
review and consider the provisions of this Agreement before signing, although
Executive may sign and return it sooner if he so desires. The Executive
further agrees that he has been advised of his right to revoke this Agreement
for a period of seven (7) days after signing it and that this Agreement shall
not become effective or enforceable until such seven (7)-day revocation period
has expired. The Executive acknowledges and agrees that, if he wishes to
revoke this Agreement, he must do so in writing, signed by the Executive and
received by the Company, no later than 5:00 p.m. Central Standard Time on the
seventh (7th) day after the Executive has signed this Agreement. The Executive
further agrees that, in the event that he revokes this Agreement, it shall
have no force or effect. The Executive represents that he has read this
Agreement and understand its terms and enters into this Agreement freely,
voluntarily, and without coercion.
13. Return of Company Property. Promptly upon termination of
Executive's employment with the Company for any reason or no reason, Executive
or Executive's personal representative shall return to the Company (a) all
Confidential Information; (b) all other records, designs, patents, business
plans, financial statements, manuals, memoranda, lists, correspondence,
reports, records, charts, advertising materials, and other data or property
delivered to or compiled by Executive by or on behalf of the Company and its
subsidiaries, vendors, or customers that pertain to the business of the
Company or its subsidiaries, whether in paper, electronic, or other form; and
(c) all keys, credit cards, vehicles, and other property of the Company or its
subsidiaries. Executive shall not retain or cause to be retained any copies of
the foregoing. Executive hereby agrees that all of the foregoing shall be and
remain the property of the Company or its subsidiaries, as the case may be,
and shall be subject at all times to their discretion and control.
14. No Prior Agreement. Executive hereby represents and warrants to
the Company that the execution of this Agreement by Executive, his employment
by the Company, and the performance of his duties hereunder will not violate
or be a breach of any agreement with a former employer, client, or any other
Person. Further, Executive agrees to indemnify and hold harmless the Company
and its officers, directors, and representatives for any claim, including, but
not limited to, reasonable attorneys' fees and expenses of investigation, of
any such third party that such third party may now have or may hereafter come
to have against the Company or such other persons, based upon or arising out
of any non-competition agreement, invention, secrecy, or other agreement
between Executive and such third party that was in existence as of the date of
this Agreement. To the extent that Executive had any oral or written
employment agreement or understanding with the Company, this Agreement shall
automatically supersede such agreement or understanding, and upon execution of
this Agreement by Executive and the Company, such prior agreement or
understanding automatically shall be deemed to have been terminated and shall
be null and void.
15. Assignment: Binding, Effect. Executive understands that he has
been selected for employment by the Company on the basis of his personal
qualifications, experience, and skills. Executive agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement. This
Agreement may not be assigned or transferred by the Company without the prior
written consent of Executive. Subject to the preceding two sentences, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable
by the Parties hereto and their respective heirs, legal representatives,
successors, and assigns. Notwithstanding the foregoing, if Executive accepts
employment with a subsidiary or affiliate of the Company, unless Executive and
his new employer agree otherwise in writing, this Agreement shall
automatically be deemed to have been assigned to such new employer (which
shall thereafter be an additional or substitute beneficiary of the covenants
contained herein, as appropriate), with the consent of Executive, such
assignment shall be considered a condition of employment by such new employer,
and references to the "Company" in this Agreement shall be deemed to refer to
such new employer. If the Company is merged with or into another subsidiary or
affiliate of the Company, such action shall not be considered to cause an
assignment of this Agreement, and the surviving or successor entity (including
any subsidiary or division of the Company) shall become the beneficiary of
this Agreement and all references to the "Company" shall be deemed to refer to
such surviving or successor entity.
16. Complete Agreement; Waiver; Amendment. This Agreement is not a
promise of future employment. Executive has no oral representations,
understandings, or agreements with the Company or any of its officers,
directors, or representatives covering the same subject matter as this
Agreement. This Agreement together with the Asset Purchase Agreement is the
final, complete, and exclusive statement and expression of the agreement
between the Company and Executive with respect to the subject matter hereof
and thereof, and cannot be changed, contradicted, or supplemented by evidence
of any prior or contemporaneous oral or written agreements. This written
Agreement may not be later modified except by a writing signed by a duly
authorized officer of the Company and Executive, and no term of this Agreement
may be waived except by a writing signed by the party waiving the benefit of
such term. The Executive confirms that he is aware of his legal rights
concerning the Executive's Comdisco employment. The Executive agrees that,
except as specified in this Agreement, and in any Comdisco Shared Investment
Plan (SIP) relief program, the Executive will be entitled to no other salary,
or other form of compensation (including bonus or commissions) from Comdisco.
17. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To the Company:
Comdisco, Inc.
0000 Xxxxx Xxxx,
Xxxxxxxx, XX 00000
Attention: EVP and Chief Administrative Officer
Telecopy: (000) 000-0000
To Executive:
Xxxxxxx Xxxxxxxxx
0000 X. Xxxxxxxx
Xxxxxxxxx Xxxxxxx, Xx 00000
Attention: Xxxxxxx Xxxxxxxxx
Notice shall be deemed given and effective three days after the deposit in the
U.S. mail of a writing addressed as above and sent pre-paid first class mail,
certified, return receipt requested, or, if sent by express delivery, hand
delivery, or facsimile, when actually received. Either Party may change the
address for notice by notifying the other Party of such change in accordance
with this Paragraph 17.
18. Counterparts. This Agreement may be executed in one or more
counterparts and may include more than one signature page, all of which shall
be deemed to be one instrument. Fully executed copies of this Agreement may be
used in lieu of the original.
19. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid and inoperative.
The paragraph headings herein are for reference purposes only and are not
intended in any way to describe, interpret, define or limit the extent or
intent of the Agreement or of any part hereof.
20. Equitable Remedy. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the restrictive covenants set
forth in Paragraphs 8 and 9 and because of the immediate and irreparable
damage that would be caused to the Company for which monetary damages would
not be a sufficient remedy, it is hereby agreed that in addition to all other
remedies that may be available to the Company at law or in equity, the Company
shall be entitled to specific performance and any injunctive or other
equitable relief as a remedy for any breach or threatened breach of the
aforementioned restrictive covenants.
21. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Illinois without giving
effect to any choice or conflict of law provision or rule (whether of the
State of Illinois or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Illinois.
22. Venue. Executive hereby consents to venue in Illinois or in any
other state where the Company then has its principal place of business.
Executive hereby waives any objections based on forum non conveniens and any
objections to venue of any action arising out of, connected with, related to
or incidental to the employment contemplated by or the relationship
established in connection with this Agreement.
23. Voluntary Agreement; No Inducements. The Executive and the
Company acknowledge and represent that he or it has fully and carefully read
this Agreement prior to signing it, has been, or has had the opportunity to be
advised by independent legal counsel of his own choice as to the legal effect
and meaning of each of the terms and conditions of this Agreement, and is
signing and entering into this Agreement as a free and voluntary act without
duress or undue pressure or influence of any kind or nature whatsoever and has
not relied on any promises, representations or warranties regarding the
subject matter hereof other than as set forth in this Agreement.
* * * * *
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be duly executed as of the date first written above.
COMDISCO, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Executive Vice President &
Chief Administrative Officer
EXECUTIVE:
/s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
