EXHIBIT 10.23
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of
November 22, 2002 between National Waterworks, Inc., a Delaware corporation
(f/k/a/ Blue Acquisition Corp.) (the "Company"), and Xxxxx X. Xxxxxxx, Xx. (the
"Executive") amends and restates in its entirety that certain Employment
Agreement by and between the Company and the Executive dated as of September 12,
2002 (the "Original Agreement").
The Company will engage in the business (the "Subject
Business") of the sale and distribution of waterworks products for building and
rehabilitating water and wastewater infrastructure and any other related
business in which the Company may be engaged.
The Company has entered into an asset purchase agreement (the
"Purchase Agreement") pursuant to which the Company shall purchase substantially
all of the assets and retain substantially all of the liabilities of U.S. Filter
Distribution, Inc. ("Distribution"), a company engaged in the Subject Business.
Prior to the date hereof and the consummation of the
transactions contemplated in the Purchase Agreement (the "Closing"), Executive
has been and will continue, until the Closing, as an officer of Distribution
and, as such, has substantial experience that is valuable to the Subject
Business and the Company.
The Company desires to employ the Executive, and the Executive
desires to accept such employment, on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree to amend and restate the
Original Agreement as follows:
SECTION 1. EMPLOYMENT.
The Company shall employ the Executive, and the Executive
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the Effective Date and ending on the
Termination Date determined pursuant to Section 4(a) (the "Employment Period").
SECTION 2. POSITION AND DUTIES.
(a) During the Employment Period, the Executive shall serve as the
President and Chief Executive Officer of the Company and shall have the usual
and customary duties, responsibilities and authority of a President and Chief
Executive Officer subject to the power of the Board (i) with the Executive's
consent, to expand or limit such duties, responsibilities and authority and (ii)
to override the actions of the Executive. During the Employment Period, the
Executive shall also serve as a director on the Board without additional
compensation. The Executive acknowledges and agrees that he owes a fiduciary
duty of loyalty to the Company to discharge his duties and otherwise act in a
manner consistent with the best interests of the Company and its Subsidiaries.
(b) During the Employment Period, the Executive shall devote his
best efforts and all of his working time, attention and energies to the
performance of his duties and
responsibilities under this Agreement (except for vacations to which he is
entitled pursuant to Section 3(a) and except for illness or incapacity). During
the Employment Period, the Executive shall not engage in any business activity
which, in the reasonable judgment of the Board (excluding the Executive if he
should be a member of the Board at the time of such determination), conflicts
with the duties of the Executive hereunder, whether or not such activity is
pursued for gain, profit or other pecuniary advantage.
SECTION 3. BASE SALARY AND BENEFITS.
(a) Base Salary. During the Employment Period, the Executive's base
salary shall be $425,000 per annum, or such higher rate as the Compensation
Committee of the Board (excluding the Executive if he should be a member of the
Board or the Compensation Committee at the time of such determination) may
designate from time to time (the "Base Salary"), which salary shall be payable
in such installments as is customary for other senior executives of the Company.
In addition, during the Employment Period, the Executive shall be entitled to
participate in all employee benefit programs for which other senior executives
of the Company are generally eligible and the Executive shall be eligible to
participate in all insurance plans available generally to other senior
executives of the Company. The Executive shall be entitled to take four (4)
weeks of paid vacation annually. The Board shall conduct a review of the
Executive's Base Salary on an annual basis.
(b) Bonus. Executive shall be entitled to receive, in addition to
the Base Salary, an annual bonus (the "Bonus") for services rendered during such
year determined as follows:
(i) The Bonus for services provided during calendar year 2002
shall equal the amount that would otherwise be payable to the Executive under
Distribution's 2002 Executive Bonus Plan in effect as of the date hereof. The
Bonus shall be determined utilizing the base salary paid to Executive by
Distribution. The payment and calculation of the Bonus for the calendar year
2002 shall be subject to review by the Company of the accruals made by
Distribution prior to the date of the Closing.
(ii) For each calendar year commencing on or after January 1,
2003, there shall be no Bonus unless the Company exceeds 90% of the Target
EBITDA (as defined below) in any calendar year. If the Company exceeds 90% of
Target EBITDA for any calendar year, the Bonus shall be the percentage of Base
Salary between 10% and 50%, calculated on a straight-line basis, as corresponds
to the relative achievement of Target EBITDA, with 10% corresponding to 90% of
Target EBITDA and 50% corresponding to 100% of Target EBITDA. The Bonus shall be
50% of the Base Salary if the Target EBITDA (as defined below) is achieved for
any calendar year and shall be 100% of the Base Salary if 110% of the Target
EBITDA is achieved or exceeded in any calendar year. If EBITDA (as defined
below) for any calendar year exceeds 100% of the Target EBITDA but does not
exceed 110% of the Target EBITDA, the Bonus shall be a percentage of the Base
Salary between 50% and 100%, calculated on a straight-line basis, as corresponds
to the relative achievement of Target EBITDA, with 50% corresponding to 100%
Target EBITDA and 100% corresponding to 110% of Target EBITDA.
(iii) "EBITDA" shall mean the Company's earnings before
reduction for interest, income tax, depreciation and amortization for any period
calculated in accordance
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with generally accepted accounting principles. "Target EBITDA" shall be the
targeted EBITDA for the Company for any calendar year established annually, and
subject to adjustments for acquisitions by the Company, by the Board in
consultation with the Executive.
(iv) Each Bonus, if any, shall be paid thirty (30) days
following the rendering of the Company's audited financial statements for the
relevant calendar year subject to Executive's continued employment with the
Company as of the last date of such calendar year, except as specifically
provided in Section 5(a)(ii) hereof.
(c) Equity. Concurrent with the Closing, Executive shall purchase
from the Company's parent, National Waterworks Holdings, Inc. ("Parent"),
pursuant to an Executive Subscription and Stock Purchase Agreement, a form of
which is attached hereto as Exhibit A (the "Executive Subscription Agreement"),
executed prior to the Closing, 190,359.21 shares of the Parent's Class A Common
Stock at a per share purchase price equal to $0.0179 and 20,400 shares of the
Parent's Class B Common Stock at a per share purchase price equal to $50.00.
Concurrently with, and as a condition to, the purchase of the shares of the
Parent's Class A Common Stock, the Executive shall execute and enter into a
Restricted Stock Agreement with the Parent, a form of which is attached hereto
as Exhibit B (the "Restricted Stock Agreement").
Upon the death of the Executive, the executor of the
Executive's estate or the Executive's heirs shall have the right to require the
Company to repurchase all, but not less than all of the shares of Class A Common
Stock and Class B Common Stock purchased by the Executive pursuant to the
Executive Subscription Agreement (including any shares received as a result of a
stock dividend or stock split with respect to such shares originally purchased)
at a price per share equal to the original purchase price paid by the Executive
pursuant to the Executive Subscription Agreement (subject to appropriate
adjustment for stock splits, stock dividends and the like). In order to effect
such repurchase right, the executor of the Executive's estate or the Executive's
heirs shall deliver written notice to the Company of such election with sixty
(60) days of such death and the Company shall be obligated to repurchase such
shares in accordance with the terms hereof in cash within ninety (90) of receipt
of such notice. Notwithstanding the foregoing, the Company shall have no
obligation to repurchase such shares if such repurchase is prohibited by the
Company's agreement with its lenders.
(d) The Company shall reimburse the Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company's requirements with respect to reporting and
documentation of such expenses.
(e) The Company shall deduct from any payments to be made by it to
the Executive under this Agreement any amounts required to be withheld in
respect of any Federal, state or local income or other taxes.
(f) The Company hereby acknowledges that it is bound by Sections
7.3(c) and 7.3(d) of the Purchase Agreement.
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SECTION 4. TERMINATION.
(a) Termination Date. The Executive's employment under this
Agreement shall terminate upon the earliest to occur (the date of such
occurrence being the "Termination Date") of (i) on the fourth anniversary of the
Effective Date (the "Initial Term"), as may be extended under Section 4(c)
below, (ii) the effective date of the Executive's resignation (a "Resignation"),
(iii) the Executive's death or Disability (an "Involuntary Termination"), (iv)
the effective date of a termination of the Executive's employment for Cause by
the Board (a "Termination for Cause"), (v) the effective date of Executive's
resignation for Good Reason (a "Termination for Good Reason") and (vi) the
effective date of a termination of the Executive's employment by the Board for
reasons that do not constitute Cause (a "Termination Without Cause"). The
effective date of a Resignation shall be as determined under Section 4(b); the
effective date of an Involuntary Termination shall be the date of death or, in
the event of a Disability, the date specified in a notice delivered to the
Executive by the Company; the effective date of a Termination for Good Reason
shall be the date specified in a notice delivered to the Company by the
Executive of such termination and the effective date of a Termination for Cause
or a Termination Without Cause shall be the date specified in a notice delivered
to the Executive by the Company of such termination.
(b) Resignation. The Executive shall give the Company and the Board
at least 30 days' prior written notice of a Resignation, with the effective date
of such Resignation specified therein. The Board may, in its discretion,
accelerate the effective date of the Resignation.
(c) Renewal. This Agreement may be renewed for additional one (1)
year terms by mutual agreement of the Company and the Executive within one year
and 90 days (450 days) prior to the expiration of the Initial Term. Nothing
stated in this Agreement or represented orally or in writing to either party
shall create an obligation to renew this Agreement.
SECTION 5. EFFECT OF TERMINATION; SEVERANCE.
(a) In the event of a Termination Without Cause, a Termination for
Good Reason or an Involuntary Termination, the Executive or his beneficiaries or
estate shall have the right to receive the following:
(i) the Base Salary provided by Section 3(a) hereof for a
period of twelve (12) months from the Termination Date, such amount to
be deemed liquidated damages and payable at the applicable payroll
periods; provided, however, that in the event of a breach by the
Executive of Section 6, 7, 8, or 9 on or after the Termination Date,
the provisions of Section 11 shall apply;
(ii) a pro rata amount of any Bonus which is earned by the
Executive for the calendar year in which such termination occurs
determined after the end of the calendar year in which such termination
occurs and equal to the amount which would have been payable to the
Executive if Executive's employment had not been terminated during such
calendar year multiplied by a fraction, the numerator of which is the
number of whole months the Executive was employed by the Company and
the denominator of which is 12. The Bonus shall be paid out as set
forth in Section 3(b)(iv); and
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(iii) reimbursement for any expenses for which the Executive
shall not have been previously reimbursed, as provided in Section 3(d).
(b) In the event of a Termination for Cause or Resignation,
the Executive or his beneficiaries or estate shall have the right to
receive the following:
(i) the unpaid portion of the Base Salary,
computed on a pro rata basis to the Termination Date; and
(ii) reimbursement for any expenses for which the
Executive shall not have been previously reimbursed, as provided in
Section 3(d).
(c) Upon any termination, neither the Executive nor his
beneficiaries or estate shall have any further rights under this Agreement or
any rights arising out of this Agreement other than as provided in Sections 5(a)
and (b) above. The rights of the Executive set forth in this Section 5 are
intended to be the Executive's exclusive remedy for termination and, to the
greatest extent permitted by applicable law, the Executive waives all other
remedies.
SECTION 6. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION.
The Executive will not disclose or use at any time, either
during the Employment Period or thereafter, any Confidential Information of
which the Executive is or becomes aware, whether or not such information is
developed by him, except to the extent that (i) such disclosure or use is
directly related to and required by the Executive's performance of duties
assigned to the Executive by the Company, (ii) to the extent that such
disclosure is required in connection with any action by the Executive to enforce
rights under this Agreement, or (iii) such disclosure is required by a court of
law, governmental agency, or by any administrative or legislative with
jurisdiction to order the Executive to divulge or disclose such Confidential
Information; provided, that, the Executive shall provide ten (10) days prior
written notice, if practicable, to the Company of such disclosure so that the
Company may seek a protective order or similar remedy; and, provided, further,
that, in each case set forth above, the Executive informs the recipients that
such information or communication is confidential in nature.
SECTION 7. INVENTIONS AND PATENTS.
The Executive agrees that all Work Product belongs to the
Company. The Executive will promptly disclose such Work Product to the Board and
perform all actions reasonably requested by the Board (whether during or after
the Employment Period) to establish and confirm such ownership (including,
without limitation, the execution and delivery of assignments, consents, powers
of attorney and other instruments) and to provide reasonable assistance to the
Company in connection with the prosecution of any applications for patents,
trademarks, trade names, service marks or reissues thereof or in the prosecution
or defense of interferences relating to any Work Product.
SECTION 8. NON-COMPETE, NON-SOLICITATION, NON-DISPARAGEMENT.
The Executive acknowledges and agrees with the Company that
during the course of the Executive's employment with Distribution and with the
Company, the Executive has had
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and will continue to have the opportunity to develop relationships with existing
employees, customers and other business associates of the Company and its
Subsidiaries which relationships constitute goodwill of the Company, and the
Company would be irreparably damaged if the Executive were to take actions that
would damage or misappropriate such goodwill. Accordingly, the Executive agrees
as follows:
(a) The Executive acknowledges that the Company currently
conducts the Subject Business throughout North America (the "Territory").
Accordingly, during the term hereof and until one year from the Termination Date
(the "Non-Compete Period"), the Executive shall not, directly or indirectly,
enter into, engage in, assist, give or lend funds to or otherwise finance, be
employed by or consult with, or have a financial or other interest in, any
business which engages in the Subject Business within the Territory, whether for
or by himself or as an independent contractor, agent, stockholder, partner or
joint ventures for any other Person. To the extent that the covenant provided
for in this Section 8(a) may later be deemed by a court to be too broad to be
enforced with respect to its duration or with respect to any particular activity
or geographic area, the court making such determination shall have the power to
reduce the duration or scope of the provision, and to add or delete specific
words or phrases to or from the provision. The provision as modified shall then
be enforced.
(b) Notwithstanding the foregoing, the aggregate ownership by
the Executive of no more than two percent (on a fully-diluted basis) of the
outstanding equity securities of any Person, which securities are traded on a
national or foreign securities exchange, quoted on the NASDAQ stock market or
other automated quotation system, and which Person competes with the Company (or
any part thereof) within the Territory, shall not be deemed to be a violation of
Section 8(a). In the event that any Person in which the Executive has any
financial or other interest directly or indirectly enters into a line of
business during the Non-Compete Period that competes with the Company or engages
in the Subject Business within the Territory, the Executive shall divest all of
his interest (other than as permitted to be held pursuant to the first sentence
of this Section 8(b)) in such Person within 15 days after such Person enters
into such line of business that competes with the Company or the engages in the
Subject Business within the Territory.
(c) The Executive covenants and agrees that during the period
commencing with the Effective Date and ending on the third anniversary of the
Termination Date, the Executive will not, directly or indirectly, either for
himself or for any other Person (A) solicit any employee or consultant of the
Company or any of its Subsidiaries to terminate his or her employment or
consulting relationship with the Company or any of its Subsidiaries or employ
any such individual during his or her employment or consulting relationship with
the Company or any of its Subsidiaries and for a period of one year after such
individual terminates his or her employment with the Company or any of its
Subsidiaries, (B) solicit any customer of the Company or any of its Subsidiaries
to purchase or distribute information, products or services of or on behalf of
the Executive or such other Person that are competitive with the information,
products or services provided by the Company or any of its Subsidiaries, or (c)
take any action that may cause injury to the relationships between the Company
or any of its Subsidiaries or any of their employees and any lessor, lessee,
vendor, supplier, customer, distributor, employee, consultant or other business
associate of the Company or any of its Subsidiaries as such relationship relates
to the Company's or any of its Subsidiaries' conduct of their business.
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(d) The Executive understands that the foregoing restrictions
may limit his ability to earn a livelihood in a business similar to the business
of the Company and any of its Subsidiaries, but he nevertheless believes that he
has received and will receive sufficient consideration and other benefits as an
employee of the Company and as otherwise provided hereunder or as described in
the recitals hereto to clearly justify such restrictions which, in any event
(given his education, skills and ability), the Executive does not believe would
prevent him from otherwise earning a living.
SECTION 9. DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT.
The Executive shall deliver to the Company at the termination
of the Employment Period or at any time the Company may request all memoranda,
notes, plans, records, reports, computer tapes and software and other documents
and data (and copies thereof) relating to the Confidential Information, Work
Product or the Subject Business which he may then possess or have under his
control regardless of the location or form of such material and, if requested by
the Company, will provide the Company with written confirmation that all such
materials have been delivered to the Company.
SECTION 10. INSURANCE.
The Company may, for its own benefit, maintain "keyman" life
and disability insurance policies covering the Executive. The Executive will
cooperate with the Company and provide such information or other assistance as
the Company may reasonably request in connection with the Company obtaining and
maintaining such policies.
SECTION 11. ENFORCEMENT.
Because the Executive's services are unique and because the
Executive has access to Confidential Information and Work Product, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event of a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions hereof (without posting
a bond or other security). In addition to the foregoing, and not in any way in
limitation thereof, or in limitation of any right or remedy otherwise available
to the Company, if the Executive violates any provision of the foregoing
Sections 6, 7, 8 or 9, any payments then or thereafter due from the Company to
the Executive pursuant to Section 5(a)(i) and Section 5(a)(ii) shall be
terminated forthwith and the Company's obligation to pay and the Executive's
right to receive such payments shall terminate and be of no further force or
effect, in each case without limiting or affecting the Executive's obligations
under such Sections 6, 7, 8 and 9 or the Company's other rights and remedies
available at law or equity.
SECTION 12. REPRESENTATIONS.
Each party hereby represents and warrants to the other party
that (a) the execution, delivery and performance of this Agreement by such party
does not and will not conflict with, breach, violate or cause a default under
any agreement, contract or instrument to
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which such party is a party or any judgment, order or decree to which such party
is subject, and (b) upon the execution and delivery of this Agreement by such
party, this Agreement will be a valid and binding obligation of such party,
enforceable in accordance with its terms, except as enforcement hereof may be
limited by any applicable bankruptcy, reorganization, insolvency or other laws
affecting creditors rights generally or by general principles of equity. In
addition, the Executive represents and warrants to the Company that the
Executive is not a party to or bound by any employment agreement, consulting
agreement, non-compete agreement, confidentiality agreement or similar agreement
with any other Person, all of which shall be terminated effective as of the
Closing except the obligation to pay the Completion Bonus as set forth in that
certain Completion Bonus Letter Agreement between the Execution and United
States Filter Corporation.. The Company and the Executive hereby terminate all
existing employment or consulting agreements between them, if any, to the extent
such agreements may be in effect after the date hereof.
SECTION 13. TERMINATION OF EXISTING EMPLOYMENT ARRANGEMENTS.
Effective upon the Closing, other than the Completion Bonus
obligation referenced above, any and all agreements or understandings related to
employment matters between Distribution or its affiliates and the Executive
shall be terminated and shall be of no further force or effect and the Executive
hereby agrees to take all action necessary to affect such termination. In the
event that the Closing shall not be consummated by December 20, 2002, this
Agreement shall be of no further force and effect.
SECTION 14. DEFINITIONS.
"Board" shall mean the board of directors of the Company.
"Business Day" shall mean any day that is not a Saturday,
Sunday, or a day on which banking institutions in New York are not required to
be open.
"Cause" shall mean (i) the failure by the Executive to perform
such duties as are reasonably requested by the Board which is not cured within
thirty (30) days of receipt by the Executive of written notice detailing the
same from the Board, (ii) the Executive's willful disregard of his duties or
failure to act, where such action would be in the ordinary course of the
Executive's duties, (iii) the failure by the Executive to observe all written
material Company policies and written material policies of all Affiliates of the
Company generally applicable to executives of the Company and/or its Affiliates
of which the Executive has notice, (iv) gross negligence or willful misconduct
by the Executive in the performance of his duties, (v) the commission by the
Executive of any act of fraud, theft or financial dishonesty with respect to the
Company or any of its Affiliates, or any felony or criminal act involving moral
turpitude, (vi) the material breach by the Executive of (a) this Agreement,
including, without limitation, any breach by the Executive of the provisions of
Xxxxxxxxx 0, Xxxxxxxxx 0 xx Xxxxxxxxx 0, (x) the Executive Purchase Agreement
and the Restricted Stock Agreement, or (c) any Stockholders' Agreement to which
the Company, the Executive may become a party, or (vii) chronic absenteeism. For
purposes of this Agreement, "Affiliates" means the Company (or its successors
and assigns) and all Subsidiaries thereof.
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"Confidential Information" means information that is not
generally known to the public and that is or was used, developed or obtained by
Distribution or the Company or any of its Subsidiaries in connection with the
Subject Business, including, but not limited to, (i) information, observations,
procedures and data obtained by the Executive while employed by the Company
(including those obtained by the Executive while employed at Distribution prior
to the date of this Agreement) concerning the business or affairs of
Distribution or the Company or any of its Subsidiaries, (ii) products or
services, (iii) costs and pricing structures, (iv) analyses, (v) drawings,
photographs and reports, (vi) computer software, including operating systems,
applications and program listings, (vii) flow charts, manuals and documentation,
(viii) data bases, (ix) accounting and business methods, (x) inventions,
devices, new developments, methods and processes, whether patentable or
unpatentable and whether or not reduced to practice, (xi) customers, vendors,
suppliers and customer, vendor and supplier lists, (xii) other copyrightable
works, (xiii) all production methods, processes, technology and trade secrets,
and (xiv) all similar and related information in whatever form. Confidential
Information will not include any information that has been published in a form
generally available to the public prior to the date the Executive proposes to
disclose or use such information. Confidential Information will not be deemed to
have been published merely because individual portions of the information have
been separately published, but only if all material features comprising such
information have been published in combination.
"Disability" shall mean the physical or mental inability of
the Executive (i) to substantially perform all of his duties under this
Agreement for a period of 90 consecutive days or longer or for any 90 days in
any period of 365 consecutive days, or (ii) that, in the opinion of a physician
selected by the Board (excluding the Executive if the Executive is a member of
the Board at such time), but reasonably acceptable to the Executive, is likely
to prevent the Executive from substantially performing all of his duties under
this Agreement for more than 90 days in any period of 365 consecutive days.
"Effective Date" shall mean the date of the Closing.
"Good Reason" shall mean the occurrence of any of the
following events without the prior consent of the Executive: (i) a material
reduction in the Executive's duties and responsibilities which has not been
cured within ten (10) days of the receipt of the written notice detailing the
same from the Executive to the Company, (ii) a reduction in the Base Salary and
(iii) a relocation of the offices where Executive is to perform his duties to a
location which is greater than fifty (50) miles from the offices where Executive
currently performs his duties.
"Subsidiary" of the Company means and includes (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by the Company or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than a corporation) in which the Company directly
or indirectly through Subsidiaries, has more than a 50% equity interest at the
time.
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"Work Product" shall mean all inventions, innovations,
improvements, technical information, systems, software developments, methods,
designs, analyses, drawings, reports, service marks, trademarks, tradenames,
logos and all similar or related information (whether patentable or
unpatentable) which relates to the Company's or any of its Subsidiaries' actual
or anticipated business, research and development or existing or future products
or services and which are conceived, developed or made by the Executive (whether
or not during usual business hours and whether or not alone or in conjunction
with any other Person) while employed by the Company (including those conceived,
developed or made prior to the date of this Agreement) together with all patent
applications, letters patent, trademark, tradename and service xxxx applications
or registrations, copyrights and reissues thereof that may be granted for or
upon any of the foregoing.
15. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the Parties
hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(b) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and sufficient if (i) delivered
personally, (ii) delivered by certified United States Post Office mail, return
receipt requested, (iii) telecopied or (iv) sent to the recipient by a
nationally-recognized overnight courier service (charges prepaid) and addressed
to the intended recipient as set forth below:
(i) if to the Executive, to him at:
[-------------------]
Attention: [________________]
Telephone: [________________]
Telecopier: [________________]
with a copy to:
Attention: [________________]
Telecopier: [________________];
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(ii) if to the Company, to:
National Waterworks, Inc.
American Plaza
000 Xxxx Xxxxxxx 0
Xxxxx 000
Xxxx, Xxxxx 00000
Attention: President
Telephone: [________________]
Telecopier: [________________];
with copies to:
O'Melveny & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000;
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
or such other address as the recipient party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
communication shall deemed to have been delivered and received (a) in the case
of personal delivery, on the date of such delivery, (b) in the case of delivery
by mail, on the third Business Day following such mailing, (c) if telecopied, on
the date telecopied, and (d) in the case of delivery by nationally-recognized,
overnight courier, on the Business Day following dispatch.
(c) Entire Agreement. This Agreement, the Executive
Subscription Agreement, the Restricted Stock Agreement and the documents
expressly referred to herein embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way. The Original Agreement is
hereby amended and restated in its entirety and the rights and obligations
thereunder shall be replaced in their entirety by the rights and obligations
hereunder. Upon execution of this Agreement, the Original Agreement shall be of
no further force and effect. Notwithstanding the foregoing, nothing herein shall
modify any terms relating to the payment of the Completion Bonus referenced
above.
(d) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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(e) Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Executive and the Company and their respective successors, assigns,
heirs, representatives and estate, as the case may be; provided, however, that
the obligations of the Executive under this Agreement shall not be assigned
without the prior written consent of the Company.
(f) Amendment and Waiver. The provisions of this Agreement may
be amended and waived only with the prior written consent of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement or any provision hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
(h) Descriptive Headings; Nouns and Pronouns. Descriptive
headings are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice-versa.
(i) Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Employment Agreement as of the date first written above.
NATIONAL WATERWORKS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: C.F.O. and Secretary
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Xx., individually
WGM DRAFT 10/31/02
================================================================================
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
NATIONAL WATERWORKS, INC.
AND
XXXXX X. XXXXXXX, XX.
NOVEMBER 22, 2002
================================================================================
