EXHIBIT 10.(d)
EXHIBIT 10(D)
EMPLOYMENT AGREEMENT
The Employment Agreement (this "Agreement") is made and entered into
this 1st day of February, 1998, by and among Mutual Central Alarm Services,
Inc., a New York corporation ("Employer"), Guardian International, Inc., a
Nevada corporation ("Guardian") as guarantor and parent of Employer, and Xxxx X.
Xxxxx ("Employee").
WITNESSETH
WHEREAS, the Board of Directors of Employer (the "Board") recognizes
that Employee will contribute to the future growth and success of the security
business of Employer, consisting of burglar alarm, fire alarm, closed circuit
television and electronic access and control and central station monitoring
services to residential and commercial customers (the "Business"), and the Board
therefore desires to assure Employer of Employee's services as an employee of,
and for the benefit of, Employer; and
WHEREAS, in order to induce Employee to remain in the employ of
Employer, this Agreement sets forth employment and other benefits which Employer
shall pay to Employee in connection with his employment, provides for Employee's
employment for a term of five years and provides for Employee's agreement not to
compete with the Business in the event of his termination of employment on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the receipt and sufficiency of which
are mutually acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement.
2. TERM. Subject to the provisions for termination contained in Section
10 hereof, the term of this Agreement, and the employment of Employee hereunder,
shall commence on February 1, 1998 and continue for a five-year term ending on
January 31, 2003. Thereafter, this Agreement shall renew automatically for
one-year terms unless six months advance notice of termination is given by
either party.
3. DUTIES. During the term of his employment hereunder, Employee shall
serve as President and Chief Executive Officer of Employer and Vice President of
Guardian. In such capacity, Employee (i) shall (x) supervise and administer the
day to day operations, business and affairs of Employer, (y) administer and
oversee all labor union affairs, (z) shall have the power and authority to do
and to perform any and all other acts and things which he shall reasonably
consider to be necessary, desirable, convenient, or appropriate and in the best
interests of Employer, in the ordinary and usual course of its business, (ii)
shall report to the President of Guardian, and (iii) shall perform such other
duties as shall be usual and customary for such executive officer in accordance
with the Bylaws of Employer. The place of employment shall be New York City, New
York. Employee will travel from time to time as may be necessary in furtherance
of the Business.
4. EXCLUSIVITY OF SERVICES. Employee shall devote his full business
time, energy and ability exclusively to the business, affairs and interests of
Employer and matters related thereto, shall use Employee's best efforts and
abilities to promote Employer's interests, and shall perform the services
contemplated by this Agreement in accordance with policies established by and
under the direction of the Board. During the term hereof, Employee shall not
serve as an officer, director, employee, consultant or advisor to any other
business, and shall not engage in any other business activities other than the
Permitted Activities, as herein defined. The Employee may (i) make and manage
personal business investments of his choice, provided, that the Employee shall
hold no investment in any entity which competes in any way with Employer or its
subsidiaries, other than an investment representing a less than 5% interest in
any publicly held entity; and (ii) serve in any capacity with any civic,
educational or charitable organization without seeking or obtaining approval by
the Board, provided, that the activities and services described in clauses (i)
and (ii) (collectively, the "Permitted Activities") do not interfere or conflict
with the performance of duties hereunder or create any conflict of interest with
such duties. Employee hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this Agreement.
5. COMPENSATION.
a. During the term of his employment hereunder, Employee shall
receive a salary of One Hundred Fifty Thousand Dollars ($150,000) per annum (the
"Salary"), payable in equal installments no less frequently than semi-monthly,
and receive annual increases equal to the lesser of (i) the Consumer Price Index
for the Standard Metropolitan Statistical Area including New York, New York or
(ii) 5% of the Salary. Employee shall receive 15% of any profits from off-shore
ventures in which the Employee is actively involved on behalf of Employer.
b. Employee shall be entitled to a bonus from time to time
during the term of his employment with Employer pursuant to Schedule 5(b)
attached hereto.
c. Employee shall be entitled, in addition to the above, to
any benefits and perquisites to which executive officers of Employer may be or
may generally become entitled to receive under any present or future employment
benefit and perquisite plans or programs, or executive contingent compensation
plans, of Employer, and Employee shall be eligible to receive, during the period
of his employment under this Agreement, benefits and emoluments for which
corporate executive officers are eligible under every plan or program to the
extent
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permissible under the general terms and provisions thereof. The foregoing
notwithstanding, Employer may change or discontinue any such benefits in its
sole discretion.
d. In addition to the above, upon execution of this Agreement,
Employer shall grant to Employee options to purchase 100,000 shares of
Employer's Class A Common Stock, par value $.001 per share (the "Common Stock"),
with an exercise price equal to the five-day average closing price of the Common
Stock for the five days prior to the public announcement of the transactions
contemplated by the Stock Purchase Agreement by and among Guardian and the
shareholders of Employer, dated as of February 1, 1998. Twenty percent (20%) of
such options shall become exercisable on each anniversary of the execution of
this Agreement. If the Employee does not exercise all exercisable options in any
given year, such options may be exercised in subsequent years. In the event that
Employee's employment hereunder is terminated under Section 10(a) prior to the
vesting of all options, any such unvested options shall be forfeited. In the
event that Employee's employment hereunder is terminated pursuant to Section
10(b) or (c) prior to the vesting of all options, any such unvested options
shall vest automatically as of the date of termination, provided that Employee
has been employed with Employer at least 30 consecutive months from the date of
the execution of this Agreement.
e. All options shall immediately vest upon a Change of
Control. "Change of Control" means either (i) the acquisition directly or
indirectly, by any "person" (as this term is used in Section 13(d) of the
Securities Exchange Act of 1934, as amended) of in excess of 50% of the
Employer's combined voting power of all then-outstanding securities; or (ii) the
consummation of a merger, consolidation, or other business combination of the
Employer with any other person (as defined immediately above), other than a
merger, consolidation or other business combination that would result in the
Employer's outstanding common stock immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into common
stock of the surviving entity or a parent or affiliate thereof) at least 50% of
the Employer's outstanding common stock or stock of the surviving entity or
parent or affiliate thereof outstanding immediately after such transaction.
6. AUTOMOBILE. During the term of his employment hereunder, Employer
shall furnish to Employee a Jeep Grand Cherokee automobile or equivalent and
will reimburse all expenses relating to such automobile including gas, tolls,
parking, maintenance and repairs. Employer agrees that on the fourth anniversary
of the execution of this Agreement, Employer shall provide Employee with a new
Jeep Grand Cherokee.
7. EXPENSE REIMBURSEMENT. During the term of Employee's employment
hereunder, Employer, upon the submission of proper proof by Employee, shall
promptly reimburse Employee for reasonable business expenses actually and
necessarily paid or incurred by him in the Employee's discretion in connection
with the discharge of his duties hereunder.
8. VACATION. During the term of his employment hereunder, Employee,
during each year of the term of this Agreement, shall be entitled to four weeks
of vacation time as selected in
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consecutive or nonconsecutive periods or any combination thereof by Employee in
his reasonable discretion consistent with his duties and responsibilities
hereunder, during which vacation time Employee shall be paid the applicable
portion of his Salary provided, however, Employee shall not take a vacation for
longer than two weeks without the prior consent of the Board. Vacation shall not
accumulate or carry over from year to year.
9. INSURANCE. During the term of his employment hereunder, Employer
shall at all times pay the reasonable premiums of medical insurance policies for
Employee and his immediate family and shall further provide and pay the premiums
of group term life insurance, group disability insurance and such other
insurance as is from time to time provided to all of Employer's executive
officers on terms no less favorable than that provided to Employer's other
executive officers.
10. TERMINATION.
a. Notwithstanding anything contained in this Agreement,
Employer by written notice to Employee shall at all times in its sole discretion
have the right to terminate this Agreement, and Employee's employment hereunder,
"for cause" effective upon delivery of notice to Employee. For purposes for this
Agreement, "for cause" shall mean: (i) any conviction of Employee of a felony or
any conduct which if proved would support conviction of a felony; (ii) conduct
amounting to a material act of fraud, gross misconduct or dishonesty involving
Employer; (iii) a material act of fraud or dishonesty not involving Employer
which has a material adverse effect upon the Business or reputation of Employer;
(iv) continuing material violation by Employee of his obligations under this
Agreement after written notice thereof to Employee and failure to cure such
violation within fifteen (15) days following such notice; (v) misuse of alcohol
that materially impairs Employee's ability to perform the duties of his
employment as determined by a physician retained by Employer or, if Employee
refuses to submit to appropriate examinations by such physician at the request
of the Board of Directors, then by at least three members of the Board of
Directors; or (vi) the unlawful use of drugs or other controlled substances.
b. Employer by written notice to Employee shall have the right
to terminate this Agreement and Employee's employment upon Employee's lack of
capacity to perform the essential functions of his duties under this Agreement,
with or without reasonable accommodation, because of physical or mental
disability ("Disability") of Employee, for a period of 120 or more days, either
consecutively or in the aggregate during any six-month period, as determined by
an impartial reputable physician agreed upon by the Board and Employee (or his
representative, as the case may be).
c. If Employee dies during the term of his employment
hereunder, this Agreement shall terminate automatically upon the date of
Employee's death.
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11. PAYMENTS UPON TERMINATION OR EXPIRATION.
a. In the event that this Agreement, and Employee's employment
hereunder, is terminated for cause pursuant to Section 10(a) hereof, then, in
such event, (i) Employer shall have no obligation whatsoever to make any
payment, including, without limitation, any payment of Salary, bonus, automobile
expense reimbursement or any insurance premium, to or on behalf of Employee for
any period subsequent to the date of such termination; (ii) Employer may,
subject to the terms of such plans and applicable law, remove Employee from
coverage under any medical, life, disability or other insurance plans or
programs made available to Employee by Employer; and (iii) Employee shall, upon
such termination, return the automobile provided pursuant to Section 6.
b. In the event that this Agreement, and Employee's employment
hereunder, is terminated for death or Disability of Employee pursuant to Section
10(b) or 10(c) hereof, then, in any such event, Employer shall have no
obligation whatsoever to make any payment, including without limitation, any
payment of Salary, bonus, automobile expense reimbursement or any such insurance
premium, to or on behalf of Employee for any period subsequent to the date of
such termination or expiration and Employee shall, upon such termination, return
the automobile provided pursuant to Section 6. Notwithstanding the above, in the
event this Agreement is terminated for Disability of Employee pursuant to
Section 10(b) hereof, Employee shall have the right at Employer's expense
through the remaining term of this Agreement to continue such disability
insurance as Employer was providing as of the date of termination, and, at
Employee's own expense, to continue any group medical insurance then provided to
Employee and to such other benefits as he is then entitled under such insurance
and any disability plan or program of Employer.
c. In the event that this Agreement, and Employee's employment
hereunder, is terminated by Employer without cause during the terms set forth in
Section 2 hereof, or Employee shall terminate his employment with Employer as a
result of a material breach by Employer of the terms hereof, which breach is not
cured within fifteen (15) days following notice in writing from Employee to
Employer specifying the nature of such breach, then, in such event, in addition
to such amounts as have accrued prior to the date of termination and have not
previously been paid including any accrued vacation benefits, Employer shall pay
to Employee, payable at such time as such payments would otherwise be payable
hereunder, Employee's Salary and benefits that would have accrued to him for the
remaining term of this Agreement, and any bonus pursuant to Schedule 5(b)
prorated to the date of termination.
12. GUARDIAN BOARD SEAT. During the term of Employee's employment
hereunder, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxxx agree to vote all Guardian stock over which they have voting control to
elect Employee to the Board of Directors of Guardian. Employee agrees to tender
his resignation as such a director immediately upon termination of his
employment hereunder for any reason.
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13. CONFIDENTIALITY.
a. For good consideration and as an inducement for Employer to
employ Employee, Employee agrees that, both during the term of this Agreement
and after the termination of this Agreement, Employee will hold in a fiduciary
capacity for the benefit of Employer, and shall not, directly or indirectly, use
or disclose, except as authorized by Employer in connection with the performance
of his duties, any Confidential Information (as defined below) that Employee may
have or acquire (whether or not developed or compiled by Employee and whether or
not Employee has been authorized to have access to such Confidential
Information) prior to or during the term of this Agreement. The term
"Confidential Information" as used in this Agreement shall mean and include any
material information, data and know-how specific to the Business of Employer and
not generally known in the industry that is disclosed to Employee by Employer or
known by him as a result of his relationship with Employer (or a company
acquired by Employer) and not generally within the public domain (whether
constituting a trade secret or not), including without limitation, the
following: financial information, supply and service information, marketing
information, personnel information, customer information and information with
respect to any corporate affairs that Employer treats as confidential.
The term "Confidential Information" does not include information that
has become generally available to the public by the act of Employer or by the
act of one who has the right to disclose such information without violating any
right of Employer or the customer to which such information pertains.
Nothing in this Section 13 shall prevent Employee from disclosing any
Confidential Information to the extent such disclosure is required by law or any
order of a court or government authority with jurisdiction, provided, however,
that Employee agrees to give Employer advance written notice as soon as possible
of the Confidential Information required to be disclosed, and at Employer's
request, to use his best efforts to obtain assurances that the Confidential
Information required to be disclosed will be maintained on a confidential basis
and will not be disclosed to a greater degree than required by law.
b. The covenant contained in this Section 13 shall survive the
termination of Employee's employment with Employer for any reason for a period
of two (2) years; provided, however, that with respect to those items of
Confidential Information which constitute trade secrets under applicable law,
Employee's obligations of confidentiality and non-disclosure as set forth in
this Section 13 shall continue to survive after said two (2) year period to the
greatest extent permitted by applicable law. These rights of Employer are in
addition to those rights Employer has under the common law or applicable
statutes for the protection of trade secrets.
14. COVENANT NOT TO COMPETE. For good consideration and as an
inducement for Employer to employ Employee, Employee agrees that he will not
engage or participate, directly or indirectly, in any business that competes
with the Business, whether as employee, employer,
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consultant, agent, principal, partner, stockholder, corporate officer, director,
or other representative capacity, at any time during Employee's employment with
Employer, and (i) if terminated pursuant to Section 10(a) for cause, for a
period of two (2) years after the date of termination of Employee's employment
with Employer, in any city or county within the United States in which the
Employer (or any of its subsidiaries) is then engaging and continues to engage
in its Business, and (ii) if terminated by expiration of this Agreement pursuant
to its terms, for a period of one (1) year after the date of termination of
Employee's employment with Employer, in the five boroughs of New York, New York,
and (iii) if terminated without cause during the term of this Agreement, for
only the balance of the term of this Agreement, in the five boroughs of New
York, New York. Notwithstanding the foregoing, Employee may hold an investment
representing a less than 5% interest in any publicly held entity engaging in a
business that competes with the Business. In the event any court shall refuse to
enforce any portion of the covenant set forth in this Section 14, then such
unenforceable portion shall be deemed eliminated and severed from said contract
for the purposes of said court's proceedings to the extent necessary to permit
the remaining portions of the covenant to be enforced.
15. COVENANTS AGAINST OTHER ACTIONS DAMAGING EMPLOYER. Employee agrees
that he will not, at any time during his employment with Employer and for the
period of the non-compete provision determined in accordance with Section 14
(the "Non-Compete Period"), for himself or on behalf of or in conjunction with
any third party solicit any employee of Employer or its subsidiaries to leave
such employment; provided that the posting by Employee or any entity with which
Employee is involved of general advertisements soliciting employees shall not
constitute the solicitation of any employee of Employer or its subsidiaries.
Employee further agrees that during his employment with Employer and for an
unlimited period thereafter, he will not directly or indirectly, on his own
behalf or in the service of or on behalf of others, solicit, divert or
appropriate, or attempt to solicit, divert or appropriate, to any competing
business, any customers of Employer who are customers as of the date of
termination. If, during the term of this agreement, Employee is engaged in or
associated with the planning or implementing of any project, program or venture
involving Employer and a third party or parties (a "Venture"), or any
discussions, analysis or negotiations with respect to an investment in, merger,
acquisition or purchase, directly or indirectly, of the stock, assets, or
business of any entity (an "Acquisition"), all rights in the Venture and the
Acquisition and any opportunity to make any investment in the entity to be so
acquired (the "Target") shall belong to Employer and shall constitute a
corporate opportunity belonging exclusively to Employer. Except as approved by
the Board, Employee shall not be entitled to any interest in any such Venture or
to invest or solicit any third party to invest in the Target or consummate the
Acquisition, or to any commission, finder's fee or other compensation in
connection therewith other than any Salary paid to Employee for performance of
his duties in the ordinary course of business. In the event any court shall
refuse to enforce any portion of the covenants set forth in this Section 15,
then such unenforceable portion shall be deemed eliminated and severed from said
contract for the purposes of said court's proceedings to the extent necessary to
permit the remaining portions of the covenant to be enforced.
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16. ARBITRATION. All disputes or controversies between the parties
arising from or related to any matter that pertains to this Agreement, to the
employment of Employee by Employer, or to the termination Employee's employment
which otherwise would allow or require resort to a court, administrative, or
other governmental dispute resolution forum (whether the claim is legal or
equitable in nature, whether it is based on any tort, contract, or common law
theory of recovery, and whether it is based on any federal, state, or local
employment discrimination or civil rights statute, executive order, law,
regulation, or ordinance, including without limitation the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act, Title VII of the
Civil Rights Act of 1964, the New York Sate Human Rights Law, and the New York
City Human Rights Law) shall be referred to binding, non-appealable arbitration
in accordance with the procedures set forth in Exhibit A hereto and without
recourse to any litigation except as set forth in Exhibit A. Each party hereby
submits to personal jurisdiction in New York, New York for the purpose of such
arbitration proceedings, and/or any suits to confirm same. Pending completion of
any arbitration proceedings, payments not in dispute shall continue to be made
and obligations not in dispute shall continue to be performed.
17. ASSIGNMENT. This Agreement is personal to Employee, and Employee
may not assign or transfer any of its benefits or obligations. Upon written
notice by Employer to Employee, Employer may assign its rights under this
Agreement to any entity (i) that controls or acquires control of Employer, (ii)
that is controlled by, is under common control with, or acquires an interest in
Employer, or (iii) in which Employer acquires a financial interest, provided
that such entity assumes Employer's obligations under this Agreement or that
Employer remains liable for its obligations under the Agreement. Upon written
notice by Employer to Employee, Employer may assign its rights to any entity
that acquires substantially all of Employer's assets, provided that such entity
assumes Employer's obligations under this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
conflicts of laws principles thereof.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, both oral and written, between the parties hereto with respect
to the subject matter hereof. This Agreement may not be modified in any way
unless in writing signed by both Employer and Employee.
20. NOTICES. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand and receipted or when received or refused if delivered by
United States mail, by registered or certified mail, return receipt requested,
postage prepaid, as follows:
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If to Employer: Guardian International, Inc.
0000 Xxxxx 00xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
If to Employee: Xxxx X. Xxxxx
00 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other on five days prior notice in the manner aforesaid.
21. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective legal
representatives, successors and, where applicable, assigns.
22. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their being valid in
law, and, in the event that anyone or more of the words, phrases, sentences,
clauses or sections contained in this Agreement declared invalid, this Agreement
shall be construed as if such invalid word or words, phrase or phrases, sentence
or sentences, clause or clauses, or section or sections had not been inserted.
23. WAIVERS. The waiver by either party hereto of a breach of any
provision of this Agreement shall not be construed as a waiver of any subsequent
breach.
24. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
25. EQUITABLE REMEDIES. Employee acknowledges that Employer would not
have an adequate remedy at law for money damages if Employee breaches Sections
13, 14 or 15. Therefore, in addition to all other remedies to which Employer may
be entitled for a breach or threatened breach of this Agreement, Employer will
be entitled to specific enforcement of this Agreement and to injunctive or other
equitable relief as a remedy for a breach or threatened breach. In the event of
legal proceedings in connection with this Agreement, the non-prevailing party
shall pay all reasonable attorneys' fees and costs of the prevailing party at
trial and on appeal.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written.
EMPLOYER:
MUTUAL CENTRAL ALARM SERVICES, INC.,
a New York corporation
By: /S/ XXXXXXX XXXXXXXX
--------------------
Name: XXXXXXX XXXXXXXX
Title: VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
GUARANTOR AND PARENT OF
EMPLOYER:
GUARDIAN INTERNATIONAL, INC.,
a Nevada corporation
By: /S/ XXXXXXX XXXXXXXX
--------------------
Xxxxxxx Xxxxxxxx, President and
Chief Executive Officer
EMPLOYEE:
/S/ XXXX X. XXXXX
-----------------
Xxxx X. Xxxxx
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EXHIBIT A
ARBITRATION PROCEDURES
a. If a dispute or controversy arises, the parties hereto shall attempt
in good faith to resolve such dispute or controversy promptly by negotiation.
Any such dispute or controversy which has not been resolved by negotiation
within thirty (30) days after the initiation of discussions shall be resolved by
binding arbitration in accordance with the then current CPR Rules for
Non-Administered Arbitration of Business Disputes. Unless the parties agree
otherwise, the arbitration shall be conducted in New York, New York, by a panel
of three arbitrators. The disputing parties shall each select one arbitrator,
and the arbitrators so selected shall select an attorney as the third
arbitrator. If the arbitrators selected by the disputing parties fail to agree
on the third arbitrator within thirty (30) days of the date this arbitration
provision becomes operative, any person involved may request CPR to make the
appointment in accordance with its applicable rules.
b. The arbitrators shall decide the issues submitted to them in
accordance with the provisions and commercial purposes of this Agreement;
provided that, all substantive questions of law shall be determined under the
laws of the State of New York (without regard to its principles of conflicts of
laws).
c. The arbitration shall be governed by the United States Arbitration
Act, 9 X.X.X.xx. 1, ET SEQ., and judgment upon the award rendered by the
arbitrators may be entered by any court having jurisdiction thereof. The
arbitrators may grant any remedy or relief which is just and equitable,
including injunctive relief or specific performance.
d. The parties hereto agree to facilitate the arbitration by: (i)
making available to one another and to the arbitrators for examination,
inspection and extraction all documents, books, records and personnel under
their control if determined by the arbitrators to be relevant to the dispute;
(ii) participating in reasonable discovery, including oral depositions; (iii)
conducting arbitration hearings to the greatest extent possible on successive
days; and (iv) observing strictly the time periods established by the Rules or
by the arbitrators for submission of evidence or briefs.
e. Initially, the disputing parties shall each pay one-half of the
costs (excluding attorneys' fees) of any arbitration; provided, however, that
the arbitrators shall divide all costs (excluding attorneys' fees) incurred in
conducting the arbitration in their final award in accordance with what they
deem just and equitable under the circumstances, and any party who is allocated
in excess of one-half of such costs shall reimburse the other for such excess
costs.
f. Notwithstanding the exclusivity of the dispute resolution procedures
specified herein, a party hereto, without prejudice to such procedures, may file
a complaint or seek a
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preliminary injunction or other provisional judicial relief if in its sole
judgment such action is necessary to avoid irreparable damage or to preserve the
status quo. Despite any such action, the parties shall continue to participate
in good faith in the procedures specified herein.
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