STEVE PRICE EMPLOYMENT AGREEMENT
EXHIBIT 10.1
XXXXX XXXXX EMPLOYMENT AGREEMENT
This Agreement (hereinafter the “Agreement”), effective as of the 1st day of February, 2009,
is made by between Professional Veterinary Products, Ltd., a Nebraska corporation with its
principal office located at 00000 X. 000xx Xxxxxx in Omaha, Nebraska (hereinafter the
“Corporation”) and Xxxxx Xxxxx (hereinafter “Price”).
RECITALS
The Corporation wishes to hire Price as President and Chief Executive Officer (“CEO”), and
Price desires to serve the Corporation in this capacity.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth in this
Agreement and in the Employee Agreement to Protect Proprietary Rights, Trade Secrets and Goodwill
attached hereto as Exhibit “A,” and any other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Corporation and Price agree as follows:
ARTICLE I.
APPOINTMENT AND ACCEPTANCE; TERM OF AGREEMENT AND RENEWAL
APPOINTMENT AND ACCEPTANCE; TERM OF AGREEMENT AND RENEWAL
A. Appointment and Acceptance
The Corporation agrees to and does hereby employ Price, and Price hereby agrees to and does
hereby continue in the employ of the Corporation, for the period set forth below, in the position
and with the duties and responsibilities set forth below, upon and subject to the terms and
conditions hereinafter set forth and according to all of the policies, rules and regulations of the
Corporation from time to time prevailing which are applicable generally to its employees. Price
hereby accepts such appointment and agrees to be bound by all of the terms and conditions hereof
and thereof. The effective date of this Agreement shall be February 1, 2009 (the “Commencement
Date”).
B. Term of Agreement; Renewal
This Agreement shall continue in effect for a period of 12 months after the Commencement Date
(hereinafter the “Initial Term”), subject to earlier termination in accordance with the terms and
conditions hereinafter set forth. Subsequent to the Initial Term, this Agreement may be renewed
upon mutually acceptable terms and conditions including the Corporation’s then current form of
executive agreement and compensation (a “Renewal Term”). In the event this Agreement shall expire
at the end of the Initial Term or the then current Renewal Term, Price’s employment hereunder shall
be deemed a termination without cause.
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ARTICLE II.
RESPONSIBILITIES OF PRICE
RESPONSIBILITIES OF PRICE
Price shall work for the Corporation on a full-time basis. In Price’s capacity as President
and CEO, and subject to the direction and control of the Board of Directors of the Corporation,
Price shall have the authority and responsibility to conduct, manage, and operate the Corporation’s
business. Price shall report to the Chairman of the Board of Directors of the Corporation.
Price agrees that during the term of this Agreement he/she shall not engage in any other
business, calling, work, job, or other enterprise, including but not limited to any consulting
activities, participation on any board of directors or trustees positions, or other advisory
positions unless he/she shall (1) have provided the Corporation with thirty days’ prior written
notice of such proposed activity and details of such proposed engagement, and (2) have obtained the
Corporation’s prior express written consent to such proposed activity and proposed engagement. Upon
request from Corporation during the term of this Agreement, Price agrees to execute periodic
disclosure statements on forms to be provided by the Corporation summarizing Price’s outside
business activities.
ARTICLE III.
COMPENSATION
COMPENSATION
A. Base Salary
The Corporation shall pay Price a base salary from the Commencement Date through the end of
calendar year 2009 as follows:
| • | From February 1, 2009 to July 31, 2009, the salary shall be $374,667. | ||
| • | From August 1, 2009 to December 31, 2009, the salary shall be $437,000, subject to any adjustments made by the Board of Directors at the 2009 Mid-Year Meeting. |
(hereinafter the “Base Salary”). The Base Salary may be increased for each year after 2009 at the
discretion of the Corporation’s Board of Directors. Unless so adjusted, the Base Salary amount
shall remain the same as it was at the end of the immediately preceding Term or Renewal Term during
each Renewal Term. [The Base Salary shall be payable in consecutive bi-weekly installments equal
to one twenty-sixth (1/26) of the Base Salary, less applicable payroll deductions, in accordance
with the Corporation’s regular payroll practices.]
| * | Pursuant to an agreement with the Board of Directors, the Base Salary shall be reduced by 10% for calendar year 2009. |
B. Supplemental Executive Retirement Plan
Price participates in and shall continue to participate in the Corporation’s
Supplemental Executive Retirement Plan (“SERP”). Price shall be entitled to the same
percentage he held as of the date of this Agreement.
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ARTICLE IV.
BENEFITS
BENEFITS
Price shall be entitled to participate in any Corporation benefits normally provided to
employees. In addition, the Corporation shall provide Price the use of a leased vehicle.
Price will be responsible for the costs associated with the personal use of that vehicle,
ARTICLE V.
TERMINATION
TERMINATION
A. Termination by the Corporation
The Corporation shall be entitled to terminate this Agreement and Price’s employment hereunder
for any of the following reasons:
1. A determination made by the Corporation that there is “cause” to terminate this Agreement
and Price’s employment. For purposes hereof, “cause” shall mean the occurrence of any one or more
of the following events:
| (a) | Price’s commission of a crime or other violation of law or act of dishonesty which directly or indirectly has an adverse effect or impact on the Corporation or its business; or | ||
| (b) | Price’s breach of any of the material terms of this Agreement, including, without limitation, any of the restrictive covenants contained in Exhibit “A” to this Agreement; or | ||
| (c) | Price’s material neglect of his duties and responsibilities under this Agreement or his gross negligence or willful misconduct in connection therewith; or |
2. Price’s death.
3. Price’s “total mental or physical disability” (as hereinafter defined) which continues for
any period of (i) three (3) consecutive months; or (ii) one hundred twenty (120) total days during
any period of twelve (12) consecutive months. For the purposes hereof the term “total mental or
physical disability” shall mean the physical or mental incapacity of Price, such that in the
judgment of a reputable physician in Omaha, Nebraska (chosen by the Corporation) Price is
substantially unable to perform the responsibilities as President/CEO.
Upon the occurrence of any of the circumstances described in ARTICLE V.A.1 through 3 above,
the Corporation shall be entitled to terminate this Agreement and Price’s employment hereunder upon
notice to Price.
X. Xxxxxxxxx Payments
1. In the event this Agreement and Price’s employment hereunder is terminated for “cause,” the
Corporation shall have no obligation to make any further payments of any kind to Price.
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2. In the event this Agreement and Price’s employment hereunder is terminated by the
Corporation for any reason other than for “cause,” Price shall be entitled to receive:
| (a) | The continuing payment of Base Salary in the same amount as had been in effect at the time notice of termination was given and continuation of the benefits which Price had been receiving for a period of one (1) year notwithstanding whether the remainder of the term is greater or less than one year; and | ||
| (b) | Any payment due under the terms of the SERP. | ||
| (c) | Health insurance benefits may be continued temporarily under Price’s current benefits elections by electing COBRA coverage following Price’s last day worked. | ||
| (d) | The amounts payable to Price following a termination for any reason other than for “cause,” shall (i) be contingent on Price agreeing to a Release and Severance Agreement; (ii) be Price’s sole and exclusive remedy for the termination of employment with the Corporation, and (iii) immediately cease if Price breaches any of the restrictive covenants set forth in Exhibit “A” to this Agreement. Price agrees that the amounts payable are fair and reasonable and are in liquidation of any other sums which may be or become due to Price whether, known or unknown, based upon breach of contract, tort, or other theory of liability or the manner or basis upon which Price’s employment was terminated. |
3. In case of Price’s death or disability during the period of employment hereunder, the
amounts payable under this Agreement shall be paid to the person or persons designated by Price in
this Agreement.
C. Termination by Price
1. Price shall have the right to terminate this Agreement at any time upon giving the
Corporation no less than sixty (60) days’ prior written notice.
2. In the event that Price elects to terminate this Agreement, the Corporation shall not be
obligated to make any further payments of any kind to Price, except for Base Salary which shall
have been earned through the effective date of termination of this Agreement.
D. Disagreement as to the “Cause” of Termination
1. In the event the parties shall disagree as to whether or not this Agreement was terminated
for “cause,” the dispute shall be resolved in accordance with the arbitration provisions contained
in this Agreement.
2. If the arbitrator shall determine that Price was terminated without “cause,” Price shall be
entitled to receive as the sole and exclusive remedy the amounts set forth in the applicable
provisions of this Agreement.
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ARTICLE VI.
NOTICES
NOTICES
No notice given hereunder by either party to the other party shall be effective unless it is
made in writing and delivered either by personal delivery or by registered, certified, or overnight
mail, postage prepaid as follows:
| If to Price: | Xxxxx Xxxxx | |||
| Professional Veterinary Products, Ltd. | ||||
| 00000 X. 000xx Xxxxxx | ||||
| Xxxxx, Xxxxxxxx 00000 | ||||
| If to the Corporation: | Chairman of the Board | |||
| Professional Veterinary Products, Ltd. | ||||
| 00000 X. 000xx Xxxxxx | ||||
| Xxxxx, Xxxxxxxx 00000 |
Notices delivered personally shall be deemed communicated as of the date of actual receipt;
mailed notices shall be deemed communicated five (5) days after mailing. Either party may change
its address for receipt of notices by written notice delivered to the other party in accordance
with this ARTICLE.
ARTICLE VII.
JOINT PREPARATION
JOINT PREPARATION
This Agreement shall be deemed to have been jointly prepared by each party hereto, and no
ambiguity herein shall be construed against any party hereto based upon the identity of the author
of this Agreement or any portion hereof.
ARTICLE VIII.
ENTIRE AGREEMENT
ENTIRE AGREEMENT
This Agreement sets forth the entire understanding of the parties with respect to the subject
matter hereof and supersedes any previous undertakings, written or oral, between Price and the
Corporation with respect to the subject matter hereof. This Agreement may be amended only in
writing and it shall be valid and enforceable only when signed by both of the parties to this
Agreement.
ARTICLE IX.
INVALIDITY
INVALIDITY
The parties agree that each of the foregoing covenants shall be deemed a separate, severable
and independent covenant, and in the event any covenant shall be declared invalid by any court of
competent jurisdiction, such invalidity shall not in any manner affect or impair the validity or
enforceability of any other part or provision of such covenant or of any other covenant contained
herein. Any such covenant, term or condition of this Agreement that may be determined by a court
of competent jurisdiction to be invalid or unenforceable shall be deemed ineffective only to the
extent of its invalidity or unenforceability, and such provision and this Agreement shall be deemed
modified to
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comply with applicable law but only to the minimum extent necessary to prevent the invalidity or
unenforceability of this Agreement or any provision hereof, or the creation of any civil liability
on account thereof, and the legality and enforceability of the remaining provisions of this
Agreement shall continue in full force and effect.
ARTICLE X.
GOVERNING LAW
GOVERNING LAW
This Agreement shall be interpreted, construed, and governed in accordance with the laws of
the State of Nebraska irrespective of whether any party is or may become a resident of a different
state.
ARTICLE XI.
ASSIGNMENT
ASSIGNMENT
Except as otherwise expressly provided in this Agreement, Price shall not have any right to
commute, sell, transfer, assign or otherwise convey the right to receive any payments under the
terms of this Agreement. Any such attempted assignment or transfer shall terminate this Agreement
and the Corporation shall have no further liability hereunder. This Agreement is solely between
Price and the Corporation.
ARTICLE XII.
ARBITRATION
ARBITRATION
Except for the Corporation’s right to injunctive relief pursuant to Exhibit “A” to
this Agreement, any controversy or claim arising out of or relating to this Agreement, or the
breach hereof, shall be settled by arbitration in Nebraska in accordance with the Rules of the
American Arbitration Association then in effect. Unless the parties shall otherwise agree, the
arbitration shall be conducted before a single arbitrator mutually selected by the parties.
Judgment upon any award rendered in the arbitration may be entered in any court having jurisdiction
thereof. The arbitrator(s) shall be bound by and may not modify or ignore the express terms of
this Agreement. Specifically, if the arbitrator(s) shall determine that Price was discharged
without “cause” as defined herein, the award to Price shall be limited to the sums specified in
this Agreement.
ARTICLE XIII.
HEADINGS
HEADINGS
The headings used herein are included solely for convenience of reference and shall not
control the meaning or interpretation of any of the provisions of this Agreement.
ARTICLE XIV.
BINDING AGREEMENT, WAIVER
BINDING AGREEMENT, WAIVER
This Agreement shall be binding upon the heirs, administrators, executors and successors of
Price, as well as the successors of the Corporation. The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as or be construed a waiver of any
subsequent breach hereof.
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ARTICLE XV.
PAYMENTS AFTER PRICE’S DEATH
PAYMENTS AFTER PRICE’S DEATH
In case Price should die while this Agreement is in effect, the amounts payable to him
pursuant to the applicable provisions of this Agreement shall be paid to the following person or
persons as a sole and exclusive remedy and subject to the conditions hereinafter set forth:
Name:
Address:
If the foregoing is not filled in or if the party or parties mentioned above do not survive Price,
the Corporation shall not be obligated to make any payments of any kind after Price’s death to his
estate or otherwise.
ARTICLE XVI.
COUNTERPARTS
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original and together shall constitute one and the same Agreement, with one counterpart being
delivered to each party hereto.
ARTICLE XVII.
CAPACITY TO EXECUTE
CAPACITY TO EXECUTE
Each party to this Agreement warrants and represents that they are duly and properly
authorized to enter into this Agreement, that all necessary corporate or other approvals and other
actions have been obtained or taken prior to the execution of this Agreement, and that upon a
party’s execution of this Agreement, the Agreement shall become binding upon and inure to the
benefit of such party.
ARTICLE XVIII.
DISCLOSURE
DISCLOSURE
Price will not directly or indirectly disclose, discuss, disseminate, be the source of or
otherwise publish or communicate in any manner to any person or entity any private confidential
information concerning the personal, social or business activities of the Corporation, its
affiliates or the executives and principals and the officers, directors, agents and employees of
all of the foregoing (the “Confidential Information”) during or at any time after the termination
of Price’s employment. In addition, Price agrees that without Corporation’s express written
approval in each case, Price will not
(i) write, be the source of or contribute to any articles, stories, books, screenplays or
any other communication or publicity of any kind (written or otherwise) or deliver lectures
in any way regarding or concerning the Confidential Information; or
(ii) grant any interviews regarding or concerning the Confidential Information during or at
any time after the termination of employment.
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ARTICLE XX.
NONDISPARAGEMENT
NONDISPARAGEMENT
Price hereby agrees that during the Term of this Agreement and at all times thereafter, Price
will not make any public statement, or engage in any conduct, that is disparaging to the
Corporation, any of its officers, directors, or shareholders known to Price, including, but not
limited to, any statement that disparages the products, services, finances, financial condition,
capabilities or other aspect of the business of the Corporation. Notwithstanding any term to the
contrary herein, Price shall not be in breach of this section for the making of any truthful
statements under oath.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in Omaha, Nebraska as of
the date first above written.
| Professional Veterinary Products, Ltd. | ||||||
/s/ Xxxxx Xxxxx
|
By: | /s/ Xxxxx X. Xxxxx | ||||
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EXHIBIT A
EMPLOYEE AGREEMENT TO PROTECT PROPRIETARY RIGHTS,
TRADE SECRETS AND GOODWILL
TRADE SECRETS AND GOODWILL
In consideration for employment or continuation of employment at Professional Veterinary
Products, Ltd., a Nebraska corporation (the “Corporation”), and Xxxxx Xxxxx (“Price”), Price hereby
agrees to observe and be bound by all of the provisions of this Employee Agreement to Protect
Proprietary Rights, Trade Secrets and Goodwill, dated as of February 1, 2009 (this “Agreement”).
PURPOSE OF AGREEMENT
Price recognizes that his employment by the Corporation is one of highest trust and confidence
because (i) Price will become fully familiar with all aspects of the Corporation’s business during
the term of his employment, (ii) certain information of which Price will gain knowledge during his
employment is proprietary and confidential information which is special and critical value to the
Corporation, and (iii) if any such proprietary and confidential information were imparted to or
became known by any person, including Price, engaging in a business in competition with that of the
Corporation, hardship, loss or irreparable injury and damage could result to the Corporation, the
measurement of which would be difficult if not impossible to ascertain. Price acknowledges that
the Corporation has developed unique skills, concepts, designs, marketing programs, marketing
strategy, business practices, methods of operation, trademarks, licenses, hiring and training
methods, financial and other confidential and proprietary information concerning its operations and
expansion plans (“Trade Secrets”). Therefore, Price agrees that it is necessary for the
Corporation to protect its business from such damage, and Price further agrees that the following
covenants constitute a reasonable and appropriate means, consistent with the best interest of both
Price and the Corporation, to protect the Corporation against such damage and shall apply to and be
binding upon Price as provided herein.
CONFIDENTIALITY
A. Trade Secrets
Price recognizes that his position with the Corporation is one of highest trust and confidence
by reason by of Price’s access to and contact with certain Trade Secrets of the Corporation. Price
agrees and covenants to use his best efforts and exercise utmost diligence to protect and safeguard
the Trade Secrets of the Corporation. Price further agrees and covenants that, except as may be
required by the Corporation in connection with this Agreement, or with the prior written consent of
the Corporation, Price shall not, either during the term of this Agreement or thereafter, directly
or indirectly, use for Price’s own benefit or for the benefit of another, or disclose, disseminate,
or distribute to another, any Trade Secret (whether or not acquired, learned, obtained, or
developed by Price alone or in conjunction with others) of the Corporation. All memoranda, notes,
records, drawings, documents, or other writings whatsoever made, compiled, acquired, or received by
Price during the term of his employment related to Price’s employment or performance
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hereunder, arising out of, in connection with, or related to any business of the Corporation,
including, but not limited to, Trade Secrets, are, and shall continue to be, the sole and exclusive
property of the Corporation, and shall, together with all copies thereof and all advertising
literature, be returned and delivered to the Corporation by Price immediately, without demand, upon
the termination of employment, or at any time upon the Corporation’s demand.
Price acknowledges the importance of protecting the privacy and confidentiality of customer
information and Corporation information. Price agrees that he assumes personal liability in the
event that he violates any state or federal confidentiality statute(s) during the life of this
Agreement.
B. Confidentiality
Price agrees, both during the period of his employment and thereafter, to hold in strictest
confidence, to not use (except for work performed on behalf of the Corporation), and to not
disclose or permit any person to obtain or disclose, any trade secret or confidential information
of the Corporation (whether or not such trade secret or confidential information is in written or
tangible form), except as specifically authorized in writing by the Corporation.
CUSTOMER GOODWILL AND DUTIES OF NONSOLICITATION DURING AND
FOLLOWING EMPLOYMENT
FOLLOWING EMPLOYMENT
A. Duty of Loyalty
As long as employed by Corporation, and in addition to any obligations imposed by law, Price
will not: (i) have any employment, ownership, contract or business relationship with any individual
or entity which competes or intends to compete in any way with Corporation; (ii) solicit for
employment or hire on behalf of any individual or entity other than Corporation any then current
employee of Corporation; or (iii) interfere with Corporation’s vendor relationships.
B. Restriction on Soliciting Employees of the Corporation
Price covenants that during his employment and for a period of one (1) year following the
termination of his employment (whether voluntary or involuntary, for any or no reason) (the
“Non-Solicitation Period”), he will not, either directly or indirectly, call on, solicit, or take
away, or attempt to call on, solicit, induce or take away any current employee of the Corporation
with whom Price actually worked and had person contact while employed by the Corporation, either
for himself or for any other person, firm, corporation or other entity, except to the extent such
solicitation for employment is for an enterprise that is not competitive with the business,
products or services that Price offered or provided on behalf of the Corporation and cannot
adversely affect the Corporation’s relationship or volume of business with its customers. Price
specifically acknowledges, without limitation, that any employee who was employed at the
Corporation’s facility at which Price’s primary office was located, and who worked at such facility
while Price was employed by the Corporation, should be considered an “employee of the Corporation
with whom Price actually worked and had personal contact while employed by the Corporation,” unless
Price can prove otherwise. Price further specifically acknowledges that this
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restriction is necessary and reasonable for the protection of the Corporation’s customer
goodwill, and that it will not prevent Price from being gainfully employed following termination of
employment with the Corporation because Price will be free to engage in any occupation, and even to
solicit the Corporation’s employees, as long as Price honors the restrictions contained in this
paragraph concerning contact with certain of the Corporation’s employees. Notwithstanding anything
to the contrary contained herein, general solicitations of employment by means of newspaper,
periodical or trade publication advertisements not directed at employees of the Corporation shall
not constitute a violation of this provision.
C. Post-Employment Solicitation With Certain Customers
For a period of one (1) year immediately following termination of his employment with the
Corporation (whether voluntary or involuntary, for any or no reason), Price will not seek or accept
employment with, and will not call on or solicit the business of, or sell to, or service (directly
or indirectly, on my own behalf or in association with any other individual or entity), any of the
Corporation’s customers with whom he did business and had personal contact while employed by the
Corporation, except to the extent such activities are unrelated to, and not competitive with the
business, products and/or services that Price offered, provided or supervised on behalf of the
Corporation and cannot adversely affect the Corporation’s relationship or volume of business with
such customers. Price specifically acknowledges that these restrictions are necessary and
reasonable for the protection of the Corporation’s business interests, and will not prevent him
from being gainfully employed following termination of employment with the Corporation because he
will be free to engage in any occupation as long as he honors the limited restrictions contained in
this section.
GENERAL TERMS
A. Survival of Covenants
Each covenant of Price set forth in this Agreement shall survive the termination of employment
and shall be construed as an agreement independent of any other provision of this Agreement, and
the existence of any claim or cause of action of Price against the Corporation whether predicated
on this Agreement or otherwise shall not constitute a defense to the enforcement by the Corporation
of said covenant.
B. Remedies
The parties hereby declare that it is impossible to measure in money the damages which will
accrue to the Corporation by reason of Price’s failure to perform any of the obligations under this
Agreement. Therefore, in the event of a breach or threatened breach by Price of any provision
hereof, the Corporation shall be entitled (in addition to other legal and equitable relief to which
it may be entitled, including any and all monetary damages which the Corporation may incur as a
result of said breach, violation or threatened breach or violation) to (i) relief by temporary
restraining order, temporary injunction, or permanent injunction or otherwise, (ii) damages and an
equitable accounting of all earnings, profits and other benefits arising from such violation, and
(iii) cessation of, and repayment by Price to the Corporation of, any severance benefits payable or
paid to
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Price pursuant to any agreement with the Corporation or any plan or program of the Corporation.
The Corporation may pursue any remedy available to it concurrently or consecutively in any order as
to any breach, violation, or threatened breach or violation, and the pursuit of one of such
remedies at any time will not be deemed an election of remedies or waiver of the right to pursue
any other of such remedies as to such breach, violation, or threatened breach or violation, or as
to any other breach, violation, or threatened breach or violation.
C. Severability
If the restrictions contained in this Agreement are found by a court to be unreasonable or
overly broad as to geographic area or time, or otherwise unenforceable, the parties intend for said
restrictions to be modified by said court so as to be reasonable and enforceable and, as so
modified, to be fully enforced. Price and Corporation agree that if any provision of this
Agreement is determined to be unenforceable for any reason, and such provision cannot be reformed
by the court, such provision shall be deemed separate and severable and the unenforceability of any
such provision shall not invalidate or render unenforceable any of the remaining provisions hereof.
D. Limitations
The obligations of confidentiality regarding Trade Secrets shall not apply if (i) it can be
demonstrated by Price to have been within his legitimate possession prior to the time of disclosure
by the Corporation, (ii) it was in the public domain prior to disclosure, (iii) such disclosure
comes into the public domain through no fault of Price, or (iv) such disclosure is required by law
or compelled by court order.
E. Governing Law and Venue
This Agreement shall be governed by, construed and enforced in accordance with the laws of the
State of Nebraska. Each party agrees that any action by either party to enforce the terms of this
Agreement may be brought by the other party in an appropriate state or federal court in Omaha,
Nebraska and waives all objections based upon lack of jurisdiction or improper or inconvenient
venue of any such court.
/s/ Xxxxx Xxxxx
|
2-5-09 | |||||
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