EXHIBIT 10.1
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Employment Agreement
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This Employment Agreement (the "Agreement"), effective as of August 1, 2005
(the "Effective Date"), is made by and between Xxxx X. Xxxxxxxxx (the
"Executive") and Dayton Superior Corporation, an Ohio corporation, and any of
its subsidiaries and affiliates as may employ Executive from time to time
(collectively, and together with any successor thereto, the "Company").
RECITALS
A. It is the desire of the Company to assure itself of the services
of the Executive by engaging the Executive to perform services
under the terms hereof.
B. The Executive desires to provide services to the Company on the
terms herein provided.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below the parties hereto agree as follows:
1. Certain Definitions
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(a) "Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common
control with, such Person where "control" shall have the meaning given
such term under Rule 405 of the Securities Act.
(b) "Agreement" shall have the meaning set forth in the preamble hereto.
(c) "Annual Base Salary" shall have the meaning set forth in Section 3(a).
(d) "Annual Bonus Plan" shall mean the Company's annual bonus plan as
maintained by the Company and administered by the Compensation
Committee.
(e) "Board" shall mean the Board of Directors of the Company.
(f) The Company shall have "Cause" to terminate the Executive's employment
hereunder upon:
(i) The Executive's willful failure to substantially perform the
duties set forth in this Agreement (other than any such failure
resulting from the Executive's Disability) which is not remedied
within 30 days after receipt of written notice from the Company
specifying such failure;
(ii) The Executive's willful failure to carry out, or comply with, in
any material respect any lawful and reasonable directive of the
Board not inconsistent with the terms of this Agreement, which is
not remedied within 30 days after receipt of written notice from
the Company specifying such failure;
(iii) The Executive's commission at any time of any act or omission
that results in, or that may reasonably be expected to result in,
a conviction, plea of no contest or imposition of unadjudicated
probation for any felony or crime involving moral turpitude;
(iv) The Executive's unlawful use (including being under the
influence) or possession of illegal drugs on the Company's
premises or while performing the Executive's duties and
responsibilities under this Agreement; or
(v) The Executive's commission at any time of any act of fraud,
embezzlement, misappropriation, material misconduct, or breach of
fiduciary duty against the Company (or any predecessor thereto or
successor thereof).
(g) "Common Stock" shall mean Class A common shares of the Company,
without par value.
(h) "Company" shall have the meaning set forth in the preamble hereto.
(i) "Compensation Committee" means the Compensation Committee of the
Board.
(j) "Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death; (ii) if the
Executive's employment is terminated pursuant to Section 4(a)(ii) -
(iv) either the date indicated in the Notice of Termination or the
date specified by the Company pursuant to Section 4(b), whichever is
earlier; (iii) if the Executive's employment is terminated pursuant to
Section 4(a)(v) or Section 4(a)(vi), the expiration of the
then-applicable Term.
(k) "Disability" shall mean the absence of the Executive from the
Executive's duties with the Company on a full-time basis for a total
of three months during any six-month period as a result of incapacity
due to mental or physical illness.
(l) "Effective Date" shall have the meaning set forth in the preamble
hereto.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(n) "Executive" shall have the meaning set forth in the preamble hereto.
(o) "Extension Term" shall have the meaning set forth in Section 2(b).
(p) "Initial Term" shall have the meaning set forth in Section 2(b).
(q) "Management Stockholders' Agreement" shall mean that certain
Management Stockholders' Agreement to be entered into by and among the
Company, Odyssey Investment Partners Fund, LP, the Executive and the
other employee stockholders party thereto, effective as of June 16,
2000, as amended from time to time.
(r) "Notice of Termination" shall have the meaning set forth in Section
4(b).
(s) "Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority or
other entity of whatever nature.
(t) "Principal Stockholders" shall mean Odyssey Investment Partners Fund,
LP and any of its Permitted Assignees (as such term is defined in the
Management Stockholders' Agreement).
(u) "Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
(v) "Term" shall have the meaning set forth in Section 2(b).
2. Employment
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(a) The Company shall employ the Executive and the Executive shall enter
the employ of the Company, for the period set forth in Section 2(b),
in the position set forth in Section 2(c), and upon the other terms
and conditions herein provided.
(b) The initial term of employment under this Agreement (the "Initial
Term") shall be for the period beginning on the effective date of this
Agreement and ending on December 31, 2008, unless earlier terminated
as provided in Section 4. The employment term hereunder shall
automatically be extended for successive one-year periods (each, an
"Extension Term" and, collectively with the Initial Term, the "Term")
unless either party gives notice of non-extension to the other no
later than 90 days prior to the expiration of the then-applicable
Term.
(c) Position and Duties. The Executive shall serve as Chief Executive
Officer of the Company with such customary responsibilities, duties
and authority as may from time to time be assigned to the Executive by
the Board. Such duties, responsibilities and authority may include
services for one or more subsidiaries or affiliates of the Company.
The Executive shall report to the Company's Board. The Executive shall
devote substantially all his working time and efforts to the business
and affairs of the Company. The Executive agrees to observe and comply
with the Company's rules and policies as adopted by the Company from
time to time.
3. Compensation and Related Matters
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(a) Annual Base Salary. During the Term, the Executive shall receive a
base salary at a rate of $350,000 per annum, which shall be paid in
accordance with the customary payroll practices of the Company,
subject to increase as determined by the Compensation Committee (the
"Annual Base Salary").
(b) Annual Bonus. With respect to each of the Company's fiscal years that
end during the Term, the Executive shall be eligible to receive an
annual performance-based bonus in accordance with the terms of the
Annual Bonus Plan. The Executive's annual target-level bonus under the
Annual Bonus Plan shall be equal to 75% of his Annual Base Salary. The
executives annual bonus for the 2005 fiscal year shall not be less
than $115,000.
(c) Benefits. During the Term, the Executive shall be entitled to
participate in employee benefit plans, programs and arrangements of
the Company now (or, to the extent determined by the Board or the
Compensation Committee, hereafter) in effect which are applicable to
the executives of the Company in accordance with their terms.
(d) Vacation. During the Term, the Executive shall be entitled to twenty
(20) vacation days annually, and to compensation in respect of earned
but unused vacation days in accordance with the Company's vacation
policy as in effect as of the Effective Date. The Executive shall also
be entitled to paid holidays in accordance with the Company's
practices with respect to same as in effect as of the Effective Date.
(e) Expenses. During the Term, the Company shall reimburse the Executive
for all reasonable travel and other business expenses incurred by him
in the performance of his duties to the Company in accordance with the
Company's expense reimbursement policy.
(f) Automobile -During the Term, the Company shall provide the Executive
with an annual personal automobile allowance of $1,250 per month. In
addition to such annual allowance, upon furnishing of adequate
documentation, the Company shall reimburse the Executive for
reasonable, documented fuel and maintenance expenses incurred by the
Executive with respect to such personal automobile.
(g) Club Membership. During the Term, the Company shall pay on behalf of
the Executive, or reimburse the Executive for, membership fees payable
in connection with the Executive's membership in one country, alumni,
or social club of the Executive's choice, provided that such costs to
the Company shall not in the aggregate exceed $6,000 per year and
provided further that the club shall be within a reasonable distance
of corporate headquarters. The Company shall pay on behalf of the
Executive, or reimburse the Executive for, the actual cost of an
initiation fee, if any, for such country, alumni or social club up to
$15,000.
(h) Relocation Expenses. Upon furnishing of adequate documentation, the
Company shall reimburse the Executive for reasonable, customary,
documented, out-of-pocket expenses related to the relocation of the
Executive and his family from the Greensboro, NC area. Reimbursed
expenses shall include moving expenses, meals, and other similar
expenses incurred in connection with the relocation of his household,
such expenses not to exceed $15,000. In addition, following the
Executive's relocation, the Company shall agree to pay to the
Executive an additional amount in recognition of the Executive's
relocation. The amount and timing of such payment will be determined
by the Board, in its sole discretion, working in good faith with the
Executive.
(i) Tax and Financial Planning Assistance. During the Term, the Company
shall, upon submission of proper documentation, pay on behalf of the
Executive, or reimburse the Executive for, reasonable expenses
incurred for professional assistance in planning and preparing his tax
returns and managing his financial affairs, consistent with the
Company's practices as in effect on the date of execution of this
Agreement, such expenses not to exceed $2,000 annually.
4. Termination
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The Executive's employment hereunder may be terminated by the Company or
the Executive, as applicable, without any breach of this Agreement only under
the following circumstances:
(a) Circumstances.
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(i) Death. The Executive's employment hereunder shall terminate upon
his death.
(ii) Disability. If the Executive has incurred a Disability, the
Company may give the Executive written notice of its intention to
terminate the Executive's employment, provided, however, that
such notice shall not be effective prior to the earlier to occur
of (A) the first anniversary of the date the Executive incurred
the Disability or (B) the expiration of short-term disability
benefits pursuant to any applicable Company benefit plan. In that
event, the Executive's employment with the Company shall
terminate effective on the later to occur of (X) the 30th day
after the receipt of such notice by the Executive or (Y) the
earlier to occur of the events described in subparagraphs (A) or
(B) of this Section 4(a)(ii), provided that prior to the
effective date of such termination, the Executive shall not have
returned to full-time performance of his duties.
(iii) Termination for Cause. The Company may terminate the Executive's
employment for Cause.
(iv) Termination without Cause. The Company may terminate the
Executive's employment without Cause.
(v) Non-extension of Term by the Company. The Company may give notice
of non-extension to the Executive pursuant to Section 2(b).
(vi) Non-extension of Term by the Executive. The Executive may give
notice of non-extension to the Company pursuant to Section 2(b).
(b) Notice of Termination. Any termination of the Executive's employment
by the Company or by the Executive under this Section 4 (other than
termination pursuant to paragraph (a)(i)) shall be communicated by a
written notice to the other party hereto indicating the specific
termination provision in this Agreement relied upon, setting forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the
provision so indicated, and specifying a Date of Termination which, if
submitted by the Executive, shall be at least 30 days following the
date of such notice (a "Notice of Termination") provided, however,
that the Company may, in its sole discretion, change the Date of
Termination to any date following the Company's receipt of the Notice
of Termination. A Notice of Termination submitted by the Company may
provide for a Date of Termination on the date the Executive receives
the Notice of Termination, or any date thereafter elected by the
Company in its sole discretion. The failure by the Company to set
forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Cause shall not waive any right of the
Company hereunder or preclude the Company from asserting such fact or
circumstance in enforcing the Company's rights hereunder.
(c) Company Obligations upon Termination. Upon termination of the
Executive's employment, the Executive (or the Executive's estate)
shall be entitled to receive (i) except in the event of the
Executive's Disability, any amount of the Executive's Annual Base
Salary through the Date of Termination not theretofore paid, (ii) any
expenses owed to the Executive under Section 3(e), (iii) any accrued
vacation pay owed to the Executive pursuant to Section 3(d), and (iv)
any amount arising from the Executive's participation in, or benefits
under any employee benefit plans, programs or arrangements under
Section 3(c), which amounts shall be payable in accordance with the
terms and conditions of such employee benefit plans, programs or
arrangements including, if applicable, any death benefits. In the
event of the Executive's Disability, in lieu of Annual Base Salary
during such period of Disability, Executive shall be entitled to
receive any applicable short-term disability benefits pursuant to any
applicable Company benefit plan.
5. Severance Payments
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(a) Termination due to Death or Disability. If the Executive's employment
shall terminate pursuant to Section 4(a)(i) due to the Executive's
death, or pursuant to Section 4(a)(ii) due to Executive's Disability,
then the Company shall pay to the Executive (or Executive's estate) a
prorated amount of the Executive's Annual Bonus based on the Company's
year-to-date performance through the Date of Termination in relation
to the performance targets set forth in the Annual Bonus Plan (such
amount to be determined in good faith by the Compensation Committee
and payable at such time as the Executive's Annual Bonus would
otherwise have been payable pursuant to the Annual Bonus Plan).
(b) Termination without Cause or non-extension of the Term by the Company.
If the Executive's employment shall terminate without Cause pursuant
to Section 4(a)(iv) or pursuant to non-extension of the Term by the
Company pursuant to Section 4(a)(v), the Company shall, subject to the
Executive's execution of a general waiver and release of claims
agreement in the Company's customary form:
(i) Continue to pay to the Executive his base salary as described in
Section 3(a), in accordance with the Company's regular payroll
practices, during the period beginning on the Date of Termination
and ending on the earliest to occur of (A) the eighteen month
anniversary of the Date of Termination if termination occurs
before a change of control or twelve months if termination occurs
after change of control; or (B) the first date that the Executive
violates any covenant contained in Section 6 or 7; and
(ii) Pay to the Executive a prorated amount of the Executive's Annual
Bonus based on the Company's year-to-date performance through the
Date of Termination in relation to the performance targets set
forth in the Annual Bonus Plan (such amount to be determined in
good faith by the Compensation Committee and payable at such time
as Executive's Annual Bonus would otherwise have been payable
pursuant to the Annual Bonus Plan).
(iii) Continue for 18 months coverage under the medical and dental
plans and programs in which the executive was entitled to
participate immediately prior to the termination date.
(c) Survival. The expiration or termination of the Term shall not impair
the rights or obligations of any party hereto, which shall have
accrued prior to such expiration or termination.
6. Non-Competition; Non-Solicitation
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The Executive shall not, at any time during the Term or during the
twelve-month period following the Date of Termination (the "Restricted
Period") engage in any Prohibited Competition. For purposes of this
Agreement, the Executive shall be considered to engage in prohibited
competition ("Prohibited Competition") if the Executive shall:
directly or indirectly, engage in or own, manage, join, operate or
control, or participate in the ownership, management, operation or
control of, or be connected as a director, officer, employee, partner,
consultant or otherwise with, or permit his name to be used by
or in connection with, any business or organization which produces,
designs, conducts research on, provides, sells, leases, distributes or
markets accessories, chemicals, forming and related products used in
concrete and masonry construction (the "Business") which, directly or
indirectly, competes with the Business conducted by Company and its
subsidiaries in North America, South America and Europe, it being
understood that the foregoing shall not limit the Executive from
making passive investments of less than 5% of the outstanding equity
securities in any entity listed for trading on a national stock
exchange or quoted on any recognized automatic quotation system.
(a) During the Restricted Period, the Executive will not, and will
not permit any of his affiliates to, directly or indirectly,
recruit or otherwise solicit or induce any employee, customer,
subscriber or supplier of the Company to terminate its employment
or arrangement with the Company, otherwise change its
relationship with the Company, or establish any relationship with
the Executive or any of his affiliates for any business purpose
deemed competitive with the business of the Company.
(b) In the event the terms of this Section 6 shall be determined by
any court of competent jurisdiction to be unenforceable by reason
of its extending for too great a period of time or over too great
a geographical area or by reason of its being too extensive in
any other respect, it will be interpreted to extend only over the
maximum period of time for which it may be enforceable, over the
maximum geographical area as to which it may be enforceable, or
to the maximum extent in all other respects as to which it may be
enforceable, all as determined by such court in such action.
(c) As used in this Section 6, the term "Company" shall include the
Company, its parent, related entities, and any of its direct or
indirect subsidiaries.
(d) The provisions contained in Section 6(a) and Section 6(b) may be
altered and/or waived with the prior written consent of the Board
or the Compensation Committee.
7. Nondisclosure of Proprietary Information; Non-Disparagement
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(a) Except as required in the faithful performance of the Executive's
duties hereunder or pursuant to Section 7(c), the Executive
shall, during the Term and after the Date of Termination,
maintain in confidence and shall not directly or indirectly, use,
disseminate, disclose or publish, or use for his benefit or the
benefit of any person, firm, corporation or other entity any
confidential or proprietary information or trade secrets of or
relating to the Company, including, without limitation,
information with respect to the Company's operations, processes,
protocols, products, inventions, business practices, finances,
principals, vendors, suppliers, customers, potential customers,
marketing methods, costs, prices, contractual relationships,
regulatory status, compensation paid to employees or other terms
of employment ("Proprietary Information"), or deliver to any
person, firm, corporation or other entity any document, record,
notebook, computer program or similar repository of or containing
any such Proprietary Information. The Executive's obligation to
maintain and not use, disseminate, disclose or publish, or use
for his benefit or the benefit of any person, firm, corporation
or other entity any Proprietary Information after the Date of
Termination will continue so long as such Proprietary Information
is not, or has not by legitimate means become, generally known
and in the public domain (other than by means of the Executive's
direct or indirect disclosure of such Proprietary Information)
and is continued to be maintained as Proprietary Information by
the Company. The parties hereby stipulate and agree that as
between them, the Proprietary Information identified herein is
important, material and affects the successful conduct of the
businesses of the Company (and any successor or assignee of the
Company).
(b) Upon termination of the Executive's employment with the Company
for any reason, the Executive will promptly deliver to the
Company all correspondence, drawings, manuals, letters, notes,
notebooks, reports, programs, plans, proposals, financial
documents, or any other documents concerning the Company's
customers, business plans, marketing strategies, products or
processes.
(c) The Executive may respond to a lawful and valid subpoena or other
legal process but shall give the Company the earliest possible
notice thereof, shall, as much in advance of the return date as
possible, make available to the Company and its counsel the
documents and other information sought and shall assist such
counsel in resisting or otherwise responding to such process.
(d) The Executive agrees not to disparage the Company, any of its
products or practices, or any of its directors, officers, agents,
representatives, stockholders or affiliates, either orally or in
writing, at any time; provided, that, the Executive may confer in
confidence with his legal representatives and make truthful
statements as required by law.
(e) The Company agrees to instruct the members of the Board and the
executive officers of the Company not to disparage the Executive,
either orally or in writing, at any time; provided, that, the
Company may confer in confidence with its legal representatives
and make truthful statements as required by law.
(f) As used in this Section 7, the term "Company" shall include the
Company, its parent, related entities, and any of its direct or
indirect subsidiaries.
8. Injunctive Relief
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It is recognized and acknowledged by the Executive that a breach of the
covenants contained in Sections 6 and 7 will cause irreparable damage to Company
and its goodwill, the exact amount of which will be difficult or impossible to
ascertain, and that the remedies at law for any such breach will be inadequate.
Accordingly, the Executive agrees that in the event of a breach of any of the
covenants contained in Sections 6 and 7, in addition to any other remedy which
may be available at law or in equity, the Company will be entitled to specific
performance and injunctive relief.
9. Assignment and Successors
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The Company may assign its rights and obligations under this Agreement to
any entity, including any successor to all or substantially all the assets of
the Company, by merger or otherwise, and may assign or encumber this Agreement
and its rights hereunder as security for indebtedness of the Company and its
affiliates. The Executive may not assign his rights or obligations under this
Agreement to any individual or entity. This Agreement shall be binding upon and
inure to the benefit of the Company, the Executive and their respective
successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
10. Governing Law
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This Agreement shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the state of [Ohio], without reference
to the principles of conflicts of law of [Ohio] or any other jurisdiction, and
where applicable, the laws of the United States.
11. Validity
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The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
12. Notices
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Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
(a) If to the Company:
Dayton Superior Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Corporate Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
[Odyssey Investment Partners Fund, LP
000 Xxxx Xxxxxx
Xxxx Tower, 38th Floor
New York, New York 10017
Attention: Xxxx Xxxxxxxx and Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000]
and
Xxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) If to the Executive, to the address set forth on the signature page
hereto or at any other address as any party shall have specified by
notice in writing to the other party.
13. Counterparts
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This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, but all of which together will constitute one and
the same Agreement.
14. Entire Agreement
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The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the employment of the Executive by
the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement (including without limitation any Term Sheet or
similar agreement entered into between the Company and the Executive). The
parties further intend that this Agreement shall constitute the complete and
exclusive statement of their terms and that no extrinsic evidence whatsoever may
be introduced in any judicial, administrative, or other legal proceeding to vary
the terms of this Agreement.
15. Amendments; Waivers
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This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and a duly authorized officer of
Company. By an instrument in writing similarly executed, the Executive or a duly
authorized officer of the Company may waive compliance by the other party or
parties with any provision of this Agreement that such other party was or is
obligated to comply with or perform, provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right, remedy, or
power hereunder preclude any other or further exercise of any other right,
remedy, or power provided herein or by law or in equity.
16. No Inconsistent Actions
-----------------------
The parties hereto shall not voluntarily undertake or fail to undertake any
action or course of action inconsistent with the provisions or essential intent
of this Agreement. Furthermore, it is the intent of the parties hereto to act in
a fair and reasonable manner with respect to the interpretation and application
of the provisions of this Agreement.
17. Construction
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This Agreement shall be deemed drafted equally by both the parties. Its
language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party
shall not apply. The headings in this Agreement are only for convenience and are
not intended to affect construction or interpretation. Any references to
paragraphs, subparagraphs, sections or subsections are to those parts of this
Agreement, unless the context clearly indicates to the contrary. Also, unless
the context clearly indicates to the contrary, (a) the plural includes the
singular and the singular includes the plural; (b) "and" and "or" are each used
both conjunctively and disjunctively; (c) "any," "all," "each," or "every" means
"any and all," and "each and every"; (d) "includes" and "including" are each
"without limitation"; (e) "herein," "hereof," "hereunder" and other similar
compounds of the word "here" refer to the entire Agreement and not to any
particular paragraph, subparagraph, section or subsection; and (f) all pronouns
and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the entities or persons referred
to may require.
18. Arbitration
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Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before an
arbitrator in New York, New York in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitration award in any court having jurisdiction, provided, however, that the
Company shall be entitled to seek a restraining order or injunction in any court
of competent jurisdiction to prevent any continuation of any violation of the
provisions of Sections 6 or 7 of the Agreement and the Executive hereby consents
that such restraining order or injunction may be granted without requiring the
Company to post a bond. Only individuals who are (a) lawyers engaged full-time
in the practice of law; and (b) on the AAA register of arbitrators shall be
selected as an arbitrator. Within 20 days of the conclusion of the arbitration
hearing, the arbitrator shall prepare written findings of fact and conclusions
of law. It is mutually agreed that the written decision of the arbitrator shall
be valid, binding, final and non-appealable, provided however, that the parties
hereto agree that the arbitrator shall not be empowered to award punitive
damages against any party to such arbitration. The arbitrator shall require the
non-prevailing party to pay the arbitrator's full fees and expenses or, if in
the arbitrator's opinion there is no prevailing party, the arbitrator's fees and
expenses will be borne equally by the parties thereto. In the event action is
brought to enforce the provisions of this Agreement pursuant to this Section 18,
the non-prevailing parties shall be required to pay the reasonable attorney's
fees and expenses of the prevailing parties, except that if in the opinion of
the court or arbitrator deciding such action there is no prevailing party, each
party shall pay its own attorney's fees and expenses.
19. Enforcement
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If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
20. Withholding
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The Company shall be entitled to withhold from any amounts payable under
this Agreement any federal, state, local or foreign withholding or other taxes
or charges which the Company is required to withhold. The Company shall be
entitled to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
21. Employee Acknowledgement
------------------------
The Executive acknowledges that he has read and understands this Agreement,
is fully aware of its legal effect, has not acted in reliance upon any
representations or promises made by the Company other than those contained in
writing herein, and has entered into this Agreement freely based on his own
judgment.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chairman, President & Chief
Executive Officer
EXECUTIVE
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Residence Address:
0000 Xxxxxxxxxx Xxxxx
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Xxxxxxxxxx, XX 00000
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