EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of March 25, 1998 (the
"Effective Date") by and between Trident Rowan Group, Inc., a Maryland
corporation (the "Company"), and Xxxx X. Xxxxxx, an individual residing at 00
Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Executive").
W I T N E S S E T H
WHEREAS, the Company wishes to employ Executive in an executive capacity
and Executive is desirous of being so employed;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
(a) The Company hereby employs Executive for the Term (as hereinafter
defined) to render his services to the Company as Chief Executive Officer of the
Company with full executive control and authority over and full responsibility
for all aspects and phases of the management, business, personnel, activities
and affairs of the Company, and, at Executive's option, any subsidiaries of the
Company that may be formed in the future. Executive's powers and authority
shall include, but not be limited to, the hiring and termination of personnel,
preparation of budgets, and the purchase and disposition of investments.
Executive's powers and authority as Chief Executive Officer of the Company shall
be co-extensive with the powers and authority of the Chairman (the "Chairman")
of the Board of Directors of the Company (the "Board") so long as the Chairman
is Xxxxxx X. Xxxxx; provided, however, all line executives, including executives
of all significant subsidiaries, shall report to the Executive, with the
exception of the Chief Financial Officer who will report to the Chairman. In
the performance of Executive's duties, he shall report to, and be subject to the
instructions, directions and policies of the Board. During the Term, the
Company shall cause Executive to be
included in the slate of nominees for the Board and to be elected a member of
the Executive Committee (if permitted by applicable law) and, at Executive's
option, a director of any subsidiary of the Company.
(b) Executive agrees to render to the Company the duties and services
referred to above, to devote such part of his working time, attention and
energies to the performance of the business of the Company and its Affiliates
(as hereinafter defined) as shall be required for the performance of his duties
hereunder, including up to substantially all of his time as and when necessary;
and Executive shall not, directly or indirectly, alone or as a member, partner,
officer, director, employee, agent of, or in any other capacity with, any Person
(as hereinafter defined) be engaged in or concerned with any other duties or
pursuits that interfere with the performance of his duties hereunder in the
judgment of the Board, except those duties or pursuits specifically authorized
by the Board and this Agreement. Provided such activities do not materially and
adversely affect the performance of his duties to the Company hereunder,
Executive shall be permitted to manage and participate in the investments and
business affairs and any successors thereto organized by or involving Executive
prior to or following the date hereof (including but not limited to, investments
held by Tamarix Capital Corporation, a Delaware corporation ("Tamarix")), to
render services to such investments and in connection with such business affairs
as he sees fit, and to serve on boards of directors related to such investments,
business affairs or otherwise, without any obligatioin to the Company except
with respect to those matters set forth in Schedule 1 hereto. Nothing herein
shall prevent Executive from engaging in additional activities in connection
with the business of Tamarix, including, but not limited to its existing and
future merchant banking activities, whether in the U.S., Italy or elsewhere, all
as set forth in a certain agreement between Tamarix and the Company, dated March
25, 1998, personal investments or community affairs that do not interfere or
conflict with his duties hereunder.
(c) The principal place of employment of Executive hereunder shall at
all times during the Term be in the greater New York, New York area or such
other
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locations as are mutually acceptable to Executive and the Company.
Notwithstanding the foregoing, Executive shall be required and agrees to travel
in connection with the performance of his duties to the extent as he, in the
reasonable exercise of his judgment, deems necessary.
(d) Executive hereby accepts such employment and agrees to render the
services described above to the best of his ability.
2. TERM OF EMPLOYMENT.
The initial period of Executive's employment under this Agreement shall be
three years. This Agreement shall automatically be renewed on the same terms
for an additional period of two years (the initial three-year period and, if the
period of employment is so renewed, such additional period of employment are
collectively referred to herein as the "Term") unless terminated by written
notice given by the Company to Executive no later than January 1, 2000.
3. COMPENSATION AND BENEFITS.
(a) As full compensation for all services to be rendered by Executive
pursuant to this Agreement, the Company agrees to pay Executive during the Term:
(1) Commencing as of May 1, 1998, a base annual salary (the
"Salary") of $160,000, payable in such installments as is the policy of the
Company with respect to executive employees of the Company but no less
frequently than monthly; provided, however such salary shall accrue until such
time as funding for the Company's Budget (as defined below), as approved by the
Board of Directors, is available for the twelve months next following the date
of payment of the first of such installments. Interest shall accrue on all such
deferred payments at the rate of 8% per annum and shall be paid to Executive
when such deferred payments are paid. For purposes of this agreement, the term
"Budget" shall mean that Budget submitted to and approved by the
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Company's Board of Directors on March 18, 1998, any modification or amendment
thereof so approved, any other such budget so approved at any time during the
term of this agreement, or any modification or amendment thereof so approved,
provided, however, the term "Budget" shall not be deemed to include any expense
or revenue item relating to any existing or future operating subsidiary of the
Company except home office charges treated as revenue items. Executive confirms
that some or all of his salary may be paid and some or all of his benefits may
be provided by Affiliates of the Company if he provides services to them
hereunder, provided that in such case, the Company shall unconditionally
guarantee any such payments made and such benefits provided by such Affiliates.
Executive may receive increases in Salary on such dates, in such amounts and on
such other terms as may be determined by the Board in its sole discretion;
provided, however, that Executive shall not have any entitlement to any such
increase. The board will consider the issue of bonus compensation for Executive
on an annual basis, taking into account such matters as financings, asset
realizations, performance of the Company's stock in the public market,
acquisitions and business combinations.
(2) 130,000 shares of the Company's common stock, par value
$.01 per share (the "Stock"), at no cost to Executive. Executive's ownership of
such Stock shall vest on the date hereof, but shall be subject to restrictions
and risk of forfeiture as provided herein, all lapsing as to 43,333 shares on
each of December 31, 1998, December 31, 1999 and December 31, 2000; provided,
however, such restrictions and risk of forfeiture shall earlier lapse in the
event of the sale of substantially all of the assets, merger or consolidation of
the Company to, with or into another entity with which neither it nor Executive
immediately prior thereto is affiliated. The restrictions referred to above
are: Executive may not sell, transfer or hypothecate any of the Stock. The
Stock shall be subject to forfeiture in the event this agreement is terminated
for Cause, pursuant to Section 7(a) hereof, if such termination occurs prior to
the lapse of such restrictions and risk of forfeiture as herein above provided.
(i) Executive has advised the Company of his intention to
make an election pursuant to Section 83(b) of the Internal Revenue Code of 1986,
as
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amended, to treat all of the Stock as taxable to Executive in 1998, utilizing
the mean average of the quoted bid and asked prices of the Company's common
shares on the Effective Date, less an appropriate discount to reflect the
restrictions described in subparagraph (2) above, for that purpose (the Section
"83(b) Price").
(ii) Executive, by written notice given to the Company, given
at least 30 days prior to April 15, 1999, may put up to 40% of the Stock to the
Company at the Section 83(b) Price; provided, however, the Company's obligation
to purchase the Stock pursuant to the exercise of the put shall be subject to
the availability of funding for the Company's Budget, as in effect on April 15,
1999, for the twelve months next following that date, plus sufficient additional
funding to cover the cost of the put.
(iii) In the event Executive shall have exercised the put and
subsequently suffers the termination of this agreement for Cause, giving rise to
the forfeiture of some or all of the Stock as provided in subparagraph (2)
above, Executive nevertheless shall be obligated promptly to redeliver to the
Company that number of shares of the Company's common stock so forfeited or,
alternatively, in lieu of any such shares not so redelivered, cash in an amount
equal to the mean average of the bid and asked prices at the close of trading on
the date this agreement is so terminated, multiplied by the number of shares not
so redelivered.
(3) Non-qualified stock options as follows: upon the date
hereof, non-qualified stock options respecting 130,000 shares of the Stock,
subject to anti-dilution protections as are provided in the Plan, with an option
exercise price of $5.00 per share, exercisable as to 43,333 shares on the date
hereof, as to 43,333 shares on January 1, 1999 and as to 43,334 shares on
January 1, 2000. All shares of Stock underlying such non-qualified stock
options shall be registered by the Company in order to permit Executive to
engage in "cashless exercise" at all times when such options are exercisable.
"Cashless exercise" shall mean a procedure by which Executive arranges to
exercise an option by directing his stockbroker simultaneously to pay the option
exercise
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price to the Company and the profit on sale to Executive out of the proceeds of
sale of the underlying shares of the Stock. If the Term is renewed, Executive
will be entitled to additional non-qualified stock options as agreed between the
Company and Executive at the time of the renewal, if any.
(b) The Company shall pay or reimburse Executive for all reasonable
expenses, actually incurred or paid by him during the Term in the performance of
his services under this Agreement, upon presentation of expense statements or
vouchers or such other supporting information as it reasonably may require,
including but not limited to: parking at or near the Company's New York City
offices Executive occupies, such rent, secretarial and other expenses as are
directly related to the performance of his duties hereunder; home office charges
including telephone, fax and Internet expenses; mobile cellular telephone in the
United States and Europe; and Italian language lessons.
(c) Executive shall be eligible under any incentive plan, stock
option plan, stock award plan, bonus, participation or extra compensation plan,
pension, group insurance or other so-called "fringe") benefits, if any, which
the Company generally provides for its executives, on terms and conditions as
may be approved by the Board, provided that such benefits are not duplicative of
the benefits otherwise provided to Executive hereunder.
(d) The Company shall provide Executive medical and dental insurance
with coverage in accordance with the plan attached hereto as Exhibit A.
(e) Executive shall be entitled to the same level of coverage (as
determined from time to time by the Board) under such directors' and officers'
liability insurance policies, and insurance for its employees against claims
arising in connection with allegations of libel, if any, or other arrangements
as are available to senior executive officers and directors of the Company or
its Affiliates, to the fullest
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extent permitted by the existing By-Laws of the Company or such Affiliates, as
the case may be. Additionally, the Company shall indemnify and hold Executive
harmless, to the fullest extent permitted by the laws of the State of the
Company's incorporation, from and against all claims, demands, costs, charges
and expenses (including reasonable attorney's fees) whatsoever or howsoever
incurred or sustained by Executive or his legal representatives in connection
with any action, suit or proceeding, whether or not groundless, to which he or
his legal representatives may be made a party by reason of his being or having
been an officer, director or employee of the Company or any of its Affiliates.
This sub-section shall survive the termination of this Agreement.
4. CONFIDENTIALITY.
(a) Executive shall not, during the Term of this Agreement, or at any
time following termination of this Agreement, directly, or indirectly, disclose
or permit to be known (other than (i) as is reasonably required in the regular
course of his duties, including disclosures to the Company's advisors and
consultants, (ii) as required by law or (iii) with the prior written consent of
the Board) to any Person, any confidential information acquired by him during
the course of, or incident to, his employment or the rendering of services
hereunder, relating to the Company or any of is Affiliates, or to any client,
investor, corporate partner, or joint venturer of, or other Person having a
business relationship with, the Company or any of its Affiliates. Such
confidential information shall include, but shall not be limited to, sales
information, operations information, financial information, administrative
information, and information regarding proprietary technology, business affairs,
trade secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies, employee
lists, personnel policies, the substance of agreements with customers,
suppliers and others, marketing or dealership arrangements, servicing and
training programs and arrangements, customer lists and any other materials
embodying information deemed by the Company or by industry practice to be
confidential. This confidentiality obligation shall not apply to any
confidential information which becomes publicly available other than pursuant to
a breach of this Section 4 by Executive.
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(b) All information and documents relating to the Company and its
Affiliates as hereinabove described shall be the exclusive property of the
Company and upon termination of Executive's employment with the Company, all
documents, records, reports, writings and other similar documents containing
confidential information, including copies thereof and computer records, then in
Executive's possession or control shall be returned and left with the Company.
5. NONCOMPETITION; NONINTERFERENCE.
Executive agrees that during the Term of his employment by the Company and
during the period of twelve months following the termination of Executive's
employment hereunder for any reason, except for termination by Executive
pursuant to Sections 7(b)(1), (2), or (3) following which the provisions of this
Section 5 shall not apply (the "Noncompetition Period"), Executive shall not,
directly or indirectly, as owner, partner, joint venturer, stockholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licensor, or in any capacity whatsoever (other than in connection with his
employment hereunder) engage in, become financially interested in, be employed
by, render any consultation or business advice with respect to, or have any
connection with (collectively, a "Relationship"), any person, firm or
corporation in connection with the manufacture, distribution or sale of
motorcycles. In addition, Executive shall not, directly or indirectly, during
the Noncompetition Period, request, induce or cause any suppliers, customers,
clients or accounts with whom the Company or any of its Affiliates has a
business relationship to cancel or terminate any such business relationship with
the Company or any of its Affiliates or have a Relationship with any Person that
solicits, interferes with or entices from the Company any employee (or former
employee) of the Company or of any of its Affiliates or which employs any
manager (or former manager) of the Company or any of its Affiliates, nor will
Executive directly or indirectly solicit, interfere with or entice any such
employee (or former employee) or employ any such manager (or former manager).
The provisions of the first sentence of this Section 5 shall not apply to any
activities permitted Executive pursuant to Section 1(b) hereof.
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6. INJUNCTION AND ENFORCEABILITY OF COVENANTS.
(a) If Executive commits a breach, or threatens to commit a breach,
of any of the provisions of Section 4, 5 or 9, the Company shall have the right
and remedy to have the provisions of this Agreement specifically enforced by the
Supreme Court of the State of New York for New York County (the "Court"), which
the parties hereby consent shall have exclusive jurisdiction over matters
arising out of this Agreement, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company.
(b) If any of the covenants contained in Section 4, 5 or 9, or any
part thereof, is hereafter construed to be invalid or unenforceable by the
Court, the same shall not affect the remainder of the covenant or covenants,
which shall be given full effect without regard to the invalid portions.
(c) The existence of any claim or cause of action by Executive
against the Company or any Affiliate of the Company shall not constitute a
defense to the enforcement by the Company of the covenants contained in Sections
4, 5 or 9, but such claim or cause of action shall be litigated separately;
provided, however, that the Company shall not be entitled to enforce any of the
provisions of Sections 4, 5 or 9 in the event it has failed to make all payments
payable to Executive hereunder and provided all benefits to which he is entitled
hereunder prior to the date of the termination of his employment and upon and
following termination of his employment hereunder by the Company or by
Executive, all of which shall be deemed payable subject to claim by the Company
for reimbursement following such payment.
(d) In the event the Court, despite the parties' consent hereunder,
declines jurisdiction over matters arising out of this Agreement, the provisions
of this
9
Agreement may be specifically enforced by any court of competent jurisdiction.
The Company will not raise any issue of jurisdiction with the Court.
7. TERMINATION.
(a) The Company may terminate this Agreement (i) at any time without
Cause or (ii) pursuant to Section 2 or (iii) upon written notice to Executive if
Executive acts in a manner that provides Cause for termination. For purposes of
this Agreement, the term "Cause" means (1) Executive's conviction (which,
through lapse of time or otherwise, is not subject to appeal) of any felony
under the laws of any country or political subdivision thereof or a crime or
offense involving money or property of the Company or any of its Affiliates, (2)
chronic alcoholism, drug addiction or acts of moral turpitude injurious to the
reputation of the Company, (3) embezzlement or theft of funds of the Company, or
(4) the willful breach by Executive of the terms of this Agreement or the
willful failure of the Executive to perform his duties and obligations
hereunder, that in either case materially and adversely affects the interest of
the Company, which breach continues uncured for 30 days after written notice
thereof is first given.
(b) Executive may terminate this Agreement upon written notice to the
Company if any one or more of the following shall occur:
(1) a material breach of the terms of this Agreement by the
Company, which breach continues uncured for 30 days after written notice thereof
is first given;
(2) a material breach by the Company of any other material
agreement with Executive, which breach continues for 30 days after written
notice thereof is first given;
(3) if:
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(i) during any two (2) consecutive years (A) individuals who
at the beginning of any such period constitute the directors of the Company and
(B) such other individuals as are (A) elected or nominated by greater than
seventy per cent (70%) of the Board or (B) are voted for by Executive in his
capacity as a Director or a shareholder (including votes by Persons that are
Affiliates of Executive) of the Company, collectively, cease to constitute a
majority of the Board; or
(ii) any Person or group of Persons acting together (other
than Executive, Tamarix and Tamarix Investors, acting either directly or through
any other Person (the "Excluded Persons")) own twenty-five per cent (25%) or
more of the Company's voting stock, unless the Excluded Persons own more shares
of the Company's voting stock than such Person or group of Persons; or
(iii) there is a sale of all or substantially all of the
Company's assets (other than to an Affiliate of the Company); or
(iv) there is a merger or other business combination of the
Company following which the Company and/or its shareholders immediately
preceding such merger or other business combination own less than fifty percent
(50%) of the surviving Person's voting stock; or
(v) without his consent, the Executive is removed from the
Board or Executive Committee of the Board or any board of directors or
management position with an Affiliate or subsidiary of the Company, other than
(A) by operation of law, (B) following a termination of this Agreement pursuant
to Section 7(a), (b) or (c) or (C) by virtue of a requirement imposed on the
Company by any governmental or regulatory authority having the power and
jurisdiction to impose such requirement; provided, however, that (A) Executive
shall be deemed to have irrevocably waived his right to terminate this Agreement
pursuant to Section 7(b)(3) if he does not exercise his right to terminate this
Agreement within (30) days after the event that triggered his right to terminate
this Agreement and (B) Executive shall not have the right to terminate this
11
Agreement pursuant to Section 7(b)(3) if Executive, Tamarix or any Affiliate of
Executive or Tamarix directly or indirectly causes or votes in favor of the
event that triggers Executive's right to terminate this Agreement.
(c) Executive's employment shall terminate upon:
(1) Executive's death during the Term; provided that the
Company, subject to the provisions of Section 3 (a)(1), shall pay the
representative of Executive's estate the unpaid balance of Executive's total
compensation for the month of the Term in which such death has occurred.
(2) Executive becoming physically or mentally disabled so that
he is unable substantially to perform his services hereunder for (a) a period of
120 consecutive days, or (b) for shorter periods aggregating 180 days during any
twelve month period during the Term. Notwithstanding such disability the
Company, subject to the provisions of Section 3 (a)(1), shall continue to pay
Executive his total compensation through the date of such termination.
(d) Upon any termination of Executive's employment hereunder for any
reason, whether by the Company or by Executive, Executive shall be deemed to
have resigned from all positions held by him as an officer and/or director of
the Company and all of its Affiliates.
(e) All determinations of Cause by the Company pursuant to this
Section 7 shall be made by the vote of at least a 70% majority of the entire
Board and the grounds of Cause shall be described in specific detail in writing
to Executive. If the Executive disagrees with the Company's determination that
Cause exists, or if the Company disagrees with the Executive's determination
that he may terminate this Agreement under Section 7(b)(1), (2) or (3), then
such determination shall be subject to review and resolution in accordance with
Section 12 and the Company, subject to the provisions of Section 3 (a)(1), shall
continue to pay Executive all amounts payable
12
hereunder while such disagreement is being resolved, provided that if the
disagreement is resolved adversely to the Executive, then Executive shall be
required to repay to the Company such amount as is so determined.
8. (a) In the event Executive's employment hereunder is terminated for
any reason, except pursuant to Section 7(a)(ii), Section 7(a)(iii) or Section
7(c), by either the Company or Executive, Executive shall be entitled to
participate in all medical, dental, long term disability, life insurance and all
other benefits provided to him hereunder for the remainder of the Term without
cost to him if permitted by law, or, if not so permitted by law, upon
contribution by him.
(b) In the event Executive terminates his employment pursuant to
Section 7(b)(3), the Company, subject to the provisions of Section 3(a)(1),
shall pay Executive (i) all of his compensation remaining unpaid at the date of
termination under each subsection of Section 3 and (ii) an amount equal to two
times his total compensation provided under Section 3(a)(1), (2) and (3); all
restrictions on restricted stock then held shall lapse; all stock transferred to
Executive pursuant to this subparagraph 8(b) shall be without restrictions and
all stock options granted theretofore or pursuant to this subparagraph 8(b)
shall be immediately exercisable for as long as permitted by the Plan; and
(c) In the event Executive's employment is terminated by the Company
pursuant to Section 7(a)(ii), Section 7(a)(iii), or Section 7(c), the Company
shall pay Executive all of his accrued Salary remaining unpaid at the date of
termination.
(d) Except as provided in this Section 8, Executive shall have no
rights to any salary, severance, bonus, benefits or other compensation upon
termination of this Agreement for any reason or by virtue of the Company's
employment of the Executive or the termination of such employment for any
reason.
9. INVENTIONS DISCOVERED BY EXECUTIVE.
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Executive shall promptly disclose to the Company any patentable or
copyrightable invention, improvement, discovery, process, formula, or method or
other intellectual property in the Company's Field of Interest (collectively,
"Inventions") made, conceived or first reduced to practice by the Executive,
either alone or jointly with others, while performing services hereunder. In
consideration of the payment of the Salary, the Bonus and the other payments and
benefits provided to Executive hereunder, Executive hereby assigns to the
Company all of his right, title and interest in and to any such Inventions.
During and after the Term, and without the payment of any additional
consideration by the Company, Executive shall execute any documents necessary to
perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain, and enforce patents and copyrights in any and all
countries on such Inventions. Executive hereby irrevocably designates the
counsel to the Company (or such other person as the Company may designate from
time to time) as his agent and attorney-in-fact to execute and file any such
document and to do all lawful acts necessary to apply for and obtain patents and
copyrights and to enforce the Company's rights under this Section. This Section
9 shall survive the termination of this Agreement.
10. REPRESENTATIONS AND AGREEMENTS OF EXECUTIVE AND THE COMPANY.
(a) Executive represents and warrants that he is free to enter into
this Agreement and to perform the duties required hereunder, and that there are
no employment contracts or understandings, restrictive covenants or other
restrictions, whether written or oral, preventing or in any manner affecting the
performance of his duties hereunder.
(b) Executive agrees to submit to a medical examination and to
cooperate and supply such other information and documents as may be required by
any insurance company in connection with the Company's obtaining life insurance
on the life of Executive, long term disability insurance and any other type of
insurance or fringe
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benefit that the Company is obligated to provide Executive hereunder or
otherwise shall determine from time to time to obtain.
(c) The Company represents and warrants that this Agreement has been
duly authorized by all necessary action of the Board, that no action by
shareholders of the Company is required, that no other approvals by any third
party (including but not limited to any regulatory or governmental agency) are
required, and that the performance by it hereof will not conflict with or
violate any agreement or other restriction to which the Company is a party or to
which it is subject.
11. DEFINITIONS.
As used herein, the following terms have the following meanings:
(1) "Affiliate" means, as applied to any Person, (a) any other Person
directly or indirectly controlling, controlled by or under common control with
that Person, (b) any other Person that owns or controls 5% or more of any class
of equity securities (including any equity securities issuable upon the exercise
of any option or convertible security) of that Person or any of its Affiliates,
or (c) any director, partner, officer, agent, employee or relative of such
Person. For the purposes of this definition of "Affiliate" as used in this
Agreement only, Executive, Tamarix and Tamarix Investors shall not be deemed to
be Affiliates of the Company. For the purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the directions of the
management and policies of that Person, whether through ownership of voting
securities or by contract or otherwise.
(2) "Company's Field of Interest" means the businesses of the Company
and/or its Affiliates at any time during the Term.
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(3) "Person" means any natural person, corporation, limited liability
company, general partnership, limited partnership, proprietorship, other
business organization, trust, union, association and any other entity.
12. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof (other than disputes with respect to alleged violations of
the covenants contained in Sections 4, 5 and 9 hereof, and the Company's pursuit
of the remedies described in Section 6 hereof in connection therewith) shall be
settled by arbitration. Such arbitration is to be administered by, and
conducted in New York, New York in accordance with the rules then obtaining of
the American Arbitration Association and the arbitrators are to be selected in
accordance with such rules. Judgment upon the award rendered may be entered in
the Court. The parties shall be free to pursue any remedy before the
arbitration tribunal that they shall be otherwise permitted to pursue in a court
of competent jurisdiction. The award of the arbitrators shall be final and
binding. The prevailing party shall be entitled to have his or its costs,
including reasonable attorneys' fees, paid by the other party.
13. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if sent by private overnight mail service (delivery confirmed by
such service), registered or certified mail (return receipt requested and
received), telecopy (confirmed receipt by return fax from the receiving party)
or delivered personally, as follows (or to such other address as either party
shall designate by notice in writing to the other in accordance herewith):
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If to the Company:
Trident Rowan Group, Inc.
0 Xxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Executive:
Xxxx Xxxxxx, Esq.
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx, Wang & Xxxxxxxx, P.C.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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14. GENERAL.
(a) The Company shall reimburse Executive for all legal fees and
expenses incurred by him in connection with the negotiation of this Agreement up
to a maximum of $12,000.00.
(b) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in New York. Each of the parties accepts for
himself and itself and in respect of their respective property, generally and
unconditionally, the jurisdiction of the Courts of the State of New York and
consent to a New York City venue.
(c) This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements, and understandings, written or oral, relating to the
subject matter hereof. No representations, promise or inducement has been made
by either party that is not embodied in this Agreement, and neither party shall
be bound by or liable for any alleged representation, promise or inducement not
so set forth.
(d) This Agreement may be amended, modified, superseded, renewed or
extended, and the terms or covenants hereof may be waived only by a written
instrument executed by the parties hereto, or in the case of a waiver, by the
party waiving compliance. The failure of a party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver by a party of the breach of any
term or covenant contained in this Agreement, whether by conduct or otherwise,
or any one or more or continuing waivers of any such breach, shall constitute a
waiver of the breach of any other term or covenant contained in this Agreement.
(e) This Agreement may not be assigned (by operation of law or
otherwise) by either party without the written consent of the other party except
that,
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subject to Executive's rights to terminate this Agreement pursuant to Section
7(b)(3), this Agreement may be assigned to an entity to which the Company sells
all or substantially all of its assets or with which the Company may merge and
which assumes all of the Company's obligations hereunder. This Agreement shall
be binding upon the legal representatives, heirs, distributees, successors and
permitted assigns of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
each party hereto as of the date first above written.
Trident Rowan Group, Inc.
By:
------------------------------
Name:
Title:
---------------------------------
Xxxx X. Xxxxxx
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