EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (“Agreement”)
dated
and effective as of May 15, 2008 (the “Effective
Date”),
between xXxx.xxx Holdings, Inc., a Delaware corporation, with its principal
place of business located at 0000 X. Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000, its affiliates, subsidiaries, successors and assigns (the “Company”),
and
Xxxxx X. Xxxxxxxxxx, an individual (the “Executive”).
1. Employment
Period.
As of
the Effective Date, the Company shall employ the Executive, and the Executive
agrees to be employed by Company in the position of Executive Vice President
in
accordance with the terms and subject to the conditions of this Agreement,
commencing on the Effective Date and terminating on the day which is the second
anniversary of the Effective Date, unless earlier terminated in accordance
with
the provisions of Section 11, in which case the provisions of Section 11 shall
control (the “Term”).
If
this Agreement remains in effect upon expiration of the Term and/or thereafter,
it shall automatically renew itself and continue in full force and effect from
year to year, subject to termination in accordance with the provisions of
Section 11, unless written notice of election not to renew, or written notice
of
election to modify any provision of this Agreement, is given by one party,
and
received by the other not later than 60 calendar days prior to the expiration
of
this Agreement or any extension hereto.
The
Executive affirms that, except as otherwise set forth herein, no obligation
exists between the Executive and any other entity which would prevent or impede
the Executive’s immediate and full performance of every obligation of this
Agreement.
2. Position
and Duties.
During
the Term of the Executive’s employment hereunder, the Executive shall serve in,
and assume duties and responsibilities consistent with, the position of
Executive Vice President. The Executive agrees to devote his working
time, as
set
forth in Section 4 hereof, utilizing his skill, energy and best business efforts
on behalf of the Company. Notwithstanding anything to the contrary contained
herein, upon written notice to the Board of Directors the Executive may hold
officer and non-executive director positions (or the equivalent position) in
or
at other entities not inconsistent with the best interests of the Company so
long as the Board of Directors has not provided Executive written notice that
it
has determined that such activities will interfere with his ability to perform
his duties and responsibilities hereunder.
3. No
Conflicts.
The
Executive covenants and agrees that for so long as he is employed by the
Company, he shall inform the Company of each and every business opportunity
related to the business of the Company of which he becomes aware, and that
he
will not, directly or indirectly, exploit any such opportunity for his own
account, nor will he render any services to any other person or business,
acquire any interest of any type in any other business (except for an ownership
interest of not more than 1% of a publicly traded entity) or engage in any
activities that conflict with the Company’s best interests or which is in
competition with the Company.
4. Days/Hours
of Work and Work Week.
The
Executive shall normally work 5 days per week (typically Monday - Friday) and
his hours of work shall be appropriate to the nature of the Executive’s duties
and responsibilities with the Company, it being recognized that such duties
and
responsibilities require flexibility in the Executive’s work schedule.
5. Employment
Location.
The
locus of the Executive’s employment with the Company shall be the Company’s
principal executive office which is currently located at 0000 X. Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000. Within 12 months of the Effective Date,
the
Executive shall relocate his residence to a residence located within 50 miles
of
the Company’s corporate headquarters in Chicago, Illinois.
6. Compensation.
(a) Base
Salary.
During
the first 12 months of the Term, the Company shall pay, and the Executive agrees
to accept, in consideration for the Executive’s services hereunder, an annual
salary of $240,000, less all applicable taxes and other appropriate deductions.
Thereafter, the
Company’s Board of Directors (the “Board”)
shall
annually review the Executive’s base salary to determine whether such salary
should be increased and the amount of any such increase shall be within the
Board’s sole discretion.
(b) Annual
Performance Bonus.
During
the Term of this Agreement, the Executive
shall be entitled to an annual performance bonus. The
Company is developing a Company wide annual bonus program, and will deliver
a
more detailed formal written plan document setting forth the final terms and
conditions of the annual performance bonus for the first year of this
Agreement.
7. Business
Expenses.
During
the Term of this Agreement, the Executive shall be entitled to payment or
reimbursement of any and all reasonable expenses paid or incurred by him in
connection with and related to the performance of his duties and
responsibilities hereunder for the Company including relocation expenses (per
the Company’s Relocation Policy) incurred in connection with the relocation of
the Executive’s residence as provided in Section 5. All requests by the
Executive for payment of
reimbursement of such expenses shall be supported by appropriate invoices,
vouchers, receipts or such other supporting documentation in such form and
containing such information as the Company may from time to time reasonably
require, evidencing that the Executive, in fact, incurred or paid said
expenses.
8. Vacation.
During
the Term of this Agreement, the Executive shall be entitled to accrue 20
vacation days per year.
9. Equity
Compensation.
(a) Stock
Options.
Pursuant to the Company’s 2005 Equity Incentive Plan (the “Plan”) and subject to
approval of the Board of Directors, the Company shall issue to the Executive
stock options to acquire 200,000 shares of the Company’s common stock (the
“Common Stock”) under the Plan at an exercise price equal to the fair market
value of the Common Stock as of the date of grant. The stock options granted
pursuant to this Section and each subsequent grant of options to the Executive
during the Term shall be evidenced by a written stock option
agreement.
(b) Vesting
and Exercise.
The
stock options to be granted pursuant to this Section shall vest and become
exercisable as follows: 1/4 upon the first anniversary of the grant date, 1/4
upon the second anniversary of the grant date, and 1/4 on the third anniversary
of the grant date and 1/4 on the fourth anniversary of the grant date. Upon
a
Change of Control (as defined below), all options granted pursuant to this
Section shall immediately become fully vested. Subsequent stock options granted
to the Executive shall vest pursuant to the terms and conditions of the Plan.
10. Other
Benefits.
During
the Term of this Agreement, subject to the terms and conditions of such plans
and programs as they exist from time to time, Executive shall be entitled to
participate in the various employee benefit plans and programs applicable to
executive employees of the Company including, but not limited to, incentive,
savings, retirement (401(k)), and welfare benefit plans, including, without
limitation, health, medical,
dental,
vision,
life (including accidental death and dismemberment)
and
disability insurance plans (collectively, “Benefit
Plans”),
in
substantially the same manner and at
substantially the same levels as the Company makes
such
opportunities available to the Company’s
executive employees. Executive shall also participate in the Company’s
performance share award plan.
11. Termination
of Employment.
(a) Death.
In the
event that, during the Term of this Agreement, the Executive dies, this
Agreement and the Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations to the Executive
or
his heirs, administrators or executors with respect to compensation and
benefits, except for the obligation to pay the Executive’s heirs, administrators
or executors any earned but unpaid base salary and unpaid pro
rata
annual
bonus. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(b) Disability. In
the
event that, during the Term of this Agreement, the Executive shall be prevented
from performing his essential duties and responsibilities hereunder to the
full
extent required by the Company by reason of Disability, as defined below,
this
Agreement and the Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations to the Executive
or
his heirs, administrators or executors with respect to compensation and
benefits, except for the obligation to pay the Executor’s heirs, administrators
or executors any earned but unpaid base salary and unpaid pro
rata
annual
bonus. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions through
the last date of the Executive’s employment with the Company. For purposes of
this Agreement, “Disability”
shall
mean a physical or mental impairment that, in the Board’s discretion, based upon
the medical opinions of two qualified physicians specializing in the area or
areas of the Executive’s affliction, one of whom shall be chosen by the Board
and one of whom shall be chosen by the Executive, prevents the performance
by
the Executive, with or without reasonable accommodation, of his essential duties
and responsibilities hereunder for a period of not less than six months in
any
12 month period.
If such
medical opinions by the two qualified physicians contradict one another, the
medical opinion of an additional qualified physician shall be obtained. The
physician which is selected to provide this additional medical opinion shall
be
one that the Board and the Executive shall mutually agree upon in good faith.
This third opinion shall be binding on the parties, regardless of what the
prior
medical opinions were.
(c) Cause.
(i) At
any
time during the Term of this Agreement, the Company may terminate this Agreement
and the Executive’s employment hereunder for Cause. For purposes of this
Agreement, “Cause”
shall
mean:
(A)
the
continued failure of the Executive to substantially perform his material duties
to and responsibilities for the Company (other than any such failure resulting
from a Disability); (B) the
conviction of, or plea of guilty or nolo
contendere
to a
felony; or (C) fraud,
dishonesty, competition with the Company, unauthorized use of any of the
Company’s or any subsidiary’s trade secrets or confidential
information, a
material breach of the Company’s policies or codes of conduct, a willful or
material breach of any agreement between the Executive and the Company,
including this Agreement, or gross misconduct which is materially and
demonstratively injurious to the Company.
(ii) Termination
of the Executive’s employment for Cause shall be made by delivery to the
Executive of written notice from the Board specifying the basis of the
Executive’s termination is for Cause, describing the conduct or circumstances
justifying termination for Cause, and indicating that the Board has found that
such conduct or circumstances has occurred and warrants the Executive’s
termination of employment for Cause. Upon receipt of such demand or notice,
the
Executive, shall be entitled to appear before the Board within ten business
days
for the purpose of demonstrating that the conduct indicated does not exist
or
that breach of 11(c)(i)(A) has been cured. After such appearance, the Board
shall make a final determination on the existence of a basis warranting
Executive’s termination for Cause. No termination for Cause will be final until
the Board has reached such a determination.
(iii) Upon
termination of Executive’s employment for Cause, the Company shall have no
further obligations or liability to the Executive or his heirs, administrators
or executors with respect to compensation and benefits thereafter, except for
the obligation to pay the Executive any earned but unpaid base salary through
the Executive’s last day of employment with the Company. The Company shall
deduct, from all payments made hereunder, all applicable taxes, including income
tax, FICA and FUTA, and other appropriate deductions.
(d) Good
Reason.
(i) At
any
time during the Term of this Agreement, subject to the conditions set forth
in
Section 11(d)(iii) below, the Executive may terminate this Agreement and the
Executive’s employment with the Company for Good Reason. For purposes of this
Agreement, Good
Reason
shall
mean the occurrence, without the Executive’s consent, of any of the following
events: (A) the
assignment of duties and responsibilities that are inconsistent with and reflect
a substantial diminution in the duties and responsibilities assumed by the
Executive on the Effective Date; (B) a
Change
of Control (as defined in Section 11(d)(ii) herein below) that results, within
12 months following the Change of Control, in the termination of the Executive’s
employment with the Company or a material adverse change in the Executive’s
duties and responsibilities or, as applicable, in connection with which the
successor does not agree to assume, or is not deemed to assume by operation
of
law, the Company’s obligations under this Agreement; (C) a material breach of
this Agreement by the Company; (D) a relocation of the Company’s principal
executive offices to a location that is greater than 50 miles from its current
location; or (E) a reduction in the Executive’s base salary or a material
reduction in other benefits, as described in Section 10(a), other than
reductions generally applicable to executives of the Company.
(ii) For
purposes of this Agreement, “Change
of Control”
means:
(A) any sale, lease, exchange or other transfer (in one transaction or a series
of related transactions) of all, or substantially all, of the assets of the
Company other than any sale, lease, exchange or other transfer to any company
where the Company owns, directly or indirectly, 100 percent of the outstanding
voting securities of such company after any such transfer; (B) any person or
persons (as such term is used in Section 13(d) of the Exchange Act of 1934,
as
amended), other than the holders of voting securities of the Company as of
the
Effective Date, shall acquire or become the beneficial owner (within the meaning
of Rule 13d-3 under the Exchange Act) whether directly, indirectly, beneficially
or of record, of 51% or more of outstanding voting securities of the Company;
or
(C) consummation by any entity, person, or group (including any affiliate
thereof, other than the Company) of a tender offer or exchange offer where
the
offeree acquires more than 51% of the then outstanding voting securities of
the
Company.
(iii) The
Executive shall be entitled to terminate this Agreement for Good Reason if
Executive has delivered to the Company written notice of his intention to
terminate this Agreement for Good Reason promptly, and in no event longer than
5
business days, after either the date on which the Executive (A) receives written
notice from the Company of the occurrence of an event within the meaning of
Good
Reason under Section 11(d)(i) or (B) obtains actual knowledge of the occurrence
of an event within the meaning of Good Reason under Section 11(d)(i) and which
provides, in reasonable detail, the circumstances of the occurrence of the
event; provided, however, that the Executive shall not be entitled to terminate
this Agreement for Good Cause if the Company eliminates such event or
circumstances within 10 business days of the Company’s receipt of the written
notice described in this Section.
(iv) In
the
event that Executive terminates this Agreement for Good Reason, the Company
shall pay or provide to the Executive (or, following his death, to the
Executive’s heirs, administrators or executors) any earned but unpaid base
salary and unpaid pro
rata
annual
bonus. In addition, the Company shall pay Executive in 24 equal semi-monthly
installments as severance an amount equal to the Executive’s annual base salary
on the date of the termination of this Agreement in
accordance with the Company’s standard payroll schedule less all applicable
taxes and other appropriate deductions and adjustments pursuant to the Company’s
employee compensation policies in effect on such date, and
Executive shall receive for a period of 12 months following the date of
termination, COBRA coverage, at the Company’s expense, under the Benefits Plans;
provided, however, that continued coverage shall be canceled or reduced to
the
extent of any comparable benefit coverage offered to the Executive by a
subsequent employer or other person or entity for which the Executive performs
services, including but not limited to consulting services. Executive’s receipt
of such severance pay and benefits shall be conditioned on Executive’s
compliance with Sections, 12, 13 and 14 of this Agreement and his execution,
return, non-rescission and compliance with a release of claims agreement in
a
form to be prepared by the Company. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate deductions.
(e) Without
Good Reason or Cause.
(i) By
The Executive.
At any
time during the Term of this Agreement, the Executive shall be entitled to
terminate this Agreement and his employment without Good Reason by providing
30
calendar days prior written notice of such termination to the Company. Upon
termination by the Executive of this Agreement pursuant to this Section, the
Company shall have no further obligations to the Executive or his heirs,
administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive (or, following his
death, to the Executive’s heirs, administrators or executors) any earned but
unpaid base salary and pro
rata
annual
bonus. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(ii) By
The Company.
At any
time during the Term of this Agreement, the Company shall be entitled to
terminate this Agreement and Executive’s employment without Cause by providing
30 calendar days prior written notice of such termination to the Executive.
Upon
termination by the Company of this Agreement without Cause, the Company shall
pay or provide to the Executive (or, following his death, to the Executive’s
heirs, administrators or executors): any earned but unpaid base salary and
unpaid pro
rata
annual
bonus. In addition, the Company shall pay Executive in 24 equal semi-monthly
installments as severance an amount equal to the Executive’s annual base salary
on the date of the termination of this Agreement in
accordance with the Company’s standard payroll schedule less all applicable
taxes and other appropriate deductions and adjustments pursuant to the Company’s
employee compensation policies in effect on such date, and
Executive shall receive for a period of 12 months following the date of
termination, COBRA coverage, at the Company’s expense, under the Benefits Plans;
provided, however, that continued coverage shall be canceled or reduced to
the
extent of any comparable benefit coverage offered to the Executive by a
subsequent employer or other person or entity for which the Executive performs
services, including but not limited to consulting services. Executive’s receipt
of such severance pay and benefits shall be conditioned on Executive’s
compliance with Sections, 12, 13 and 14 of this Agreement and his execution,
return, non-rescission and compliance with a release of claims agreement in
a
form to be prepared by the Company. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate deductions.
12. Confidential
Information.
(a) The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, he has been exposed, and will be exposed,
to
the trade secrets, business and/or financial secrets and confidential and
proprietary information of the Company, its affiliates and/or its clients or
customers (“Confidential
Information”).
The
term “Confidential
Information”
includes, without limitation, information or material that has actual or
potential commercial value to the Company, its affiliates and/or its clients
or
customers and is not generally known to and is not readily ascertainable by
proper means to persons outside the Company, its affiliates and/or its clients
or customers.
(b) Except
as
authorized in writing by the Board, during the performance of the Executive’s
duties and responsibilities for the Company and until such time as any such
Confidential Information becomes generally known to and readily ascertainable
by
proper means to persons outside the Company, its affiliates and/or its clients
or customers,
the
Executive agrees to keep strictly confidential and not use for his personal
benefit or the benefit to any other person or entity the Confidential
Information, whether or not prepared or developed by the Executive. Confidential
Information includes, without limitation, the following, whether or not
expressed in a document or medium, regardless of the form in which it is
communicated, and whether or not marked “trade secret” or “confidential” or any
similar legend: (i) lists of and/or information concerning customers, suppliers,
employees, consultants, and/or co-venturers of the Company, its affiliates
or
its clients or customers; (ii) information submitted by customers, suppliers,
employees, consultants and/or co-venturers of the Company, its affiliates and/or
its clients or customers; (iii) information concerning the business of the
Company, its affiliates and/or its clients or customers, including, without
limitation, cost information, profits, sales information, prices, accounting,
unpublished financial information, business plans or proposals, markets and
marketing methods, advertising and marketing strategies, administrative
procedures and manuals, the terms and conditions of the Company’s contracts and
trademarks and patents under consideration, distribution channels, franchises,
investors, sponsors and advertisers; (iv) technical information concerning
products and services of the Company, its affiliates and/or its clients or
customers, including, without limitation, product data and specifications,
diagrams, flow charts, know how, processes, designs, formulae, inventions and
product development; (v) lists of and/or information concerning applicants,
candidates or other prospects for employment, independent contractor or
consultant positions at or with any actual or prospective customer or client
of
Company and/or its affiliates, any and all confidential processes, inventions
or
methods of conducting business of the Company, its affiliates and/or its clients
or customers; (vi) any and all versions of proprietary computer software
(including source and object code), hardware, firmware, code, discs, tapes,
data
listings and documentation of the Company, its affiliates and/or its clients
or
customers; (vii) any other information disclosed to the Executive by, or which
the Executive obtained under a duty of confidence from, the Company, its
affiliates and/or its clients or customers; (viii) all other information
concerning the Company not generally known to the public which, if misused
or
disclosed, could reasonably be expected to adversely affect the business of
the
Company, its affiliates and/or its clients or customers. Confidential
Information shall not include (i) information which is in the public domain
or
which enters the public domain without the fault of Executive, (ii) information
which was in the possession of Executive in written or other documentary form
prior to the time of disclosure by the Company to Executive, and (iii)
information which is required by Executive to be disclosed in legal proceedings,
including pursuant to subpoena or court order.
(c) The
Executive affirms that he does not possess and will not rely upon the protected
trade secrets or confidential or proprietary information of his prior
employer(s) in providing services to the Company.
(d) In
the
event that the Executive’s employment with the Company terminates for any
reason, the Executive shall deliver forthwith to the Company any and all
originals and copies of Confidential Information.
13. Ownership
and Assignment of Inventions.
(a) The
Executive acknowledges that, in connection with his duties and responsibilities
relating to his employment with the Company, he and/or other employees of the
Company working with him, without him or under his supervision, may create,
conceive of, make, prepare, work on or contribute to the creation of, or may
be
asked by the Company or its affiliates to create, conceive of, make, prepare,
work on or contribute to the creation of, without limitation, lists, business
diaries, business address books (except
for business addresses and business address books not related to the Company),
documentation, ideas, concepts, inventions, designs, works of authorship,
computer programs, audio/visual works, developments, proposals, works for hire
or other materials to the extent that any of the same relate to any actual
or
reasonably anticipated Business of the Company (as such phrase is defined in
paragraph 14(a) hereof) or any of the Company’s affiliates (“Inventions”).
Executive expressly acknowledges that all of his activities and efforts relating
to any Inventions, whether or not performed during his or the Company’s regular
business hours, are within the scope of his employment with the Company and
that
the Company owns all right, title and interest in and to all Inventions,
including, to the extent that they exist, all intellectual property rights
thereto, including, without limitation, copyrights, patents and trademarks
in
and to all Inventions. The Executive also acknowledges and agrees that the
Company owns and is entitled to sole ownership of all rights and proceeds to
all
Inventions.
(b) The
Executive expressly acknowledges and agrees to assign to the Company, and hereby
assigns to the Company, all of the Executive’s right, title and interest in and
to all Inventions, including, to the extent they exist, all intellectual
property rights thereto, including, without limitation, copyrights, patents
and
trademarks in and to all Inventions.
(c) In
connection with all Inventions, the Executive agrees to disclose any Invention
promptly to the Company and to no other person or entity. The Executive further
agrees to execute promptly, at the Company’s request, specific written
assignments of the Executive’s right, title and interest in any Inventions, and
do anything else reasonably necessary to enable the Company to secure or obtain
a copyright, patent, trademark or other form of protection in or for any
Invention in the United States or other countries.
(d) The
Executive acknowledges that all rights, waivers, releases and/or assignments
granted in this Section by the Executive are freely assignable by the Company
and are made for the benefit of the Company and its Affiliates, subsidiaries,
licensees, successors and assigns.
14. Non-Competition
And Non-Solicitation.
(a) The
Executive agrees and acknowledges that the Confidential Information that the
Executive will receive is valuable to the Company, its
affiliates and/or its clients or customers, and
that
its protection and maintenance constitutes a legitimate business interest of
Company, its
affiliates and/or its clients or customers
to be
protected by the non-competition restrictions set forth herein. The Executive
agrees and acknowledges that the non-competition restrictions set forth herein
are reasonable and necessary and do not impose undue hardship or burdens on
the
Executive. The Executive also acknowledges that the products and services
developed or provided by the Company, its
affiliates and/or its clients or customers
are or
are intended to be sold, provided, licensed and/or distributed to customers
and
clients in and throughout the United States (the “Geographic
Boundary”),
and
that the Geographic Boundary, scope of prohibited competition, and time duration
set forth in the non-competition restrictions set forth below are reasonable
and
necessary to maintain the value of the Confidential Information of, and to
protect the goodwill and other legitimate business interests of, the Company,
its
affiliates and/or its clients or customers.
The
Executive also acknowledges that the business of the Company is the offering
through its online marketplace of high quality new, overstock, close-out and
refurbished brand name consumer merchandise (the “Business
of the Company”).
(b) The
Executive hereby agrees and covenants that he shall not, directly or indirectly,
in any capacity whatsoever, including, without limitation, as an employee,
employer, consultant, principal, partner, shareholder, officer, director or
any
other individual or representative capacity (other than a holder of less than
one percent (1%) of the outstanding voting shares of any publicly held company),
or whether on the Executive’s own behalf or on behalf of any other person or
entity or otherwise howsoever, during the Executive’s employment with the
Company and for a period of one year following the termination of his employment
for any reason, whether voluntary or involuntary, in the Geographic
Boundary:
(i) Engage,
own, manage, operate, control, be employed by, consult for, participate in,
or
be connected in any manner with the ownership, management, operation or control
of any business in competition with the Business of the Company;
(ii) Solicit,
persuade or induce any Customer: to terminate, reduce or refrain from renewing,
extending, or entering into contractual or other relationships with the Company
or to become a customer of or enter into any contractual or other relationship
with any other individual, person or entity for the purpose of purchasing
competitive products or services; or
(iii) Recruit,
hire, induce, contact, divert or solicit, or attempt to recruit, induce,
contact, divert or solicit, any employee of the Company to leave the employment
thereof, whether or not any such employee is party to an employment agreement.
15. Indemnification.
The
Company hereby covenants and agrees to indemnify the Executive to the fullest
extent permitted by law and to hold the Executive harmless fully, completely,
and absolutely against and in any respects to any and all actions, suits,
proceedings, claims, demands, judgments, costs, expenses (including attorneys’
fees), losses, and damages resulting from the Executive’s good faith performance
of his job duties pursuant to this Agreement. The Company also hereby agrees
to
cover the Executive under a directors’ and officers’ liability insurance policy
at all times while an employee and for the applicable statute of limitations
after termination hereof, with such coverage no less favorable than that given
to other executive employees of the Company.
16. Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
this Agreement or contemplated hereby shall be in writing and shall be deemed
to
have been duly given when personally delivered, delivered by a nationally
recognized overnight delivery service or when mailed United States Certified
or
registered mail, return receipt requested, postage prepaid, and addressed as
follows:
If
to the
Company:
xXxx.xxx
Holdings, Inc.
0000
X.
Xxxxxxx Xxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxxx 00000
If
to the
Executive:
Xxxxx
X.
Xxxxxxxxxx
xXxx.xxx
Holdings, Inc.
0000
X.
Xxxxxxx Xxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxxx 00000
17. Miscellaneous.
(a) Telephones,
stationery, postage, e-mail, the internet and other resources made available
to
the Executive by the Company, are solely for the furtherance of the Company’s
business.
(b) All
issues and disputes concerning, relating to or arising out of this Agreement
and
from the Executive’s employment by the Company, including, without limitation,
the construction and interpretation of this Agreement, shall be governed by
and
construed in accordance with the internal laws of the State of Illinois, without
giving effect to that State’s principles of conflicts of law. The Executive
hereby consents to jurisdiction in the courts of Illinois.
(c) The
Parties agree that Sections 12, 13, 14 and 15 of this Agreement, and those
provisions of this Agreement necessary for the enforcement of such Sections,
shall survive termination of this Agreement and termination of Executive’s
employment for any reason.
(d) The
Parties agree that any provision of this Agreement deemed unenforceable or
invalid may be reformed to permit enforcement of the objectionable provision
to
the fullest permissible extent. Any provision of this Agreement deemed
unenforceable after modification shall be deemed stricken from this Agreement,
with the remainder of the Agreement being given its full force and
effect.
(e) The
Company shall be entitled to equitable relief, including injunctive relief
and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of Sections 12, 13 and 14 of this Agreement, as money damages
for
a breach thereof would be incapable of precise estimation, uncertain, and an
insufficient remedy for an actual or threatened breach of Sections 12, 13 and
14
of this Agreement. If
the
Company prevails against Executive in a legal action for violation of Section
12, 13 and/or 14 of this Agreement, the
Company shall be entitled to collect from Executive any attorneys’ fees and
costs incurred by the Company in bringing any action to enforce the terms of
this Agreement, as well as any attorneys’ fees and costs incurred by the Company
for the collection of any judgments in the Company’s favor arising out of
Executive’s violation(s). The
Parties agree that any pursuit of equitable relief in respect of Sections 12,
13
and 14 of this Agreement shall have no effect whatsoever regarding the continued
viability and enforceability of Section 15 of this Agreement.
(f) Any
waiver or inaction by the Company or the Executive for any breach of this
Agreement shall not be deemed a waiver of any subsequent breach of this
Agreement.
(g) The
Parties independently have made all inquiries regarding the qualifications
and
business affairs of the other which either party deems necessary. The Executive
affirms that he fully understands this Agreement’s meaning and legally binding
effect. Each party has participated fully and equally in the negotiation and
drafting of this Agreement.
(h) The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity. Executive
consents to and the Company shall have the right to assign this Agreement to its
successors or assigns, and this
Agreement shall be enforceable by the
Company
and its
parents, affiliates, successors and assigns.
(i) This
instrument constitutes the entire Agreement between the Parties regarding its
subject matter. When signed by all Parties, this Agreement supersedes and
nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement.
In
any future construction of this Agreement, this Agreement should be given its
plain meaning. This Agreement may be amended only by a writing signed by the
Parties. Notwithstanding
the foregoing or anything in this Agreement to the contrary, the Company
expressly reserves the right to amend this Agreement without Executive’s consent
to the extent necessary to comply with Code Section 409A, as it may be amended
from time to time, and the regulations, notices and other guidance of general
applicability issued thereunder.
(j) This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the Parties’ entry into this Agreement. The Parties agree to
execute any further or future documents which may be necessary to allow the
full
performance of this Agreement. This Agreement contains headings for ease of
reference. The headings have no independent meaning.
THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
UNDERSTOOD,
AGREED, AND ACCEPTED:
| EXECUTIVE | COMPANY | ||
| XXXXX X. XXXXXXXXXX | XXXX.XXX HOLDINGS, INC. | ||
| /s/ Xxxxx X. Xxxxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | ||
| Title: | Chief Executive Officer | ||
| Date: May 15, 2008 | Date: | May 15, 2008 | |
