Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of February 23, 2001
between ASI Solutions Incorporated, a Delaware corporation with offices located
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxx Xxxxx
residing at 000 Xxxx Xxx Xxxxxx, Xxx. 0X, Xxx Xxxx, Xxx Xxxx 00000 (the
"Employee").
R E C I T A L S
WHEREAS, the Employee is currently employed as President and Chief
Operating Officer of the Company;
WHEREAS, on the date even herewith, Aon Corporation, a Delaware
corporation ("Parent"), its wholly-owned merger subsidiary and the Company are
entering into an agreement (as such agreement may be amended from time to time,
the "Merger Agreement"), pursuant to which Parent will acquire all of the
outstanding capital stock of the Company;
WHEREAS, in order to ensure the successful integration of the
operations of the Company into Parent, the Company desires to utilize the
experience, ability and services of the Employee and to prevent any other
competitive business from securing his services to utilize his experience,
background and know-how;
WHEREAS, in furtherance of these goals, the Company wishes to employ
the Employee, and the Employee desires to be employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, the parties agree:
Section 1. EMPLOYMENT TITLE AND TERM.
The Company agrees to employ the Employee as Executive Vice President
and the Employee agrees to serve in such executive capacity with the duties set
forth in Section 4 for a term (the "Term of Employment") beginning on the
Effective Date (as defined in the Merger Agreement), and ending on the fifth
anniversary of the Effective Date, unless terminated during the Term of
Employment as fully set forth in Section 3. Initially, Employee's title shall be
Executive Vice President but it shall not be a breach of this Agreement if said
title is changed by the Company. The effectiveness of this Agreement is
expressly conditioned upon the effectiveness of the Merger (as defined in the
Merger Agreement).
Section 2. CONSIDERATION; COMPENSATION DURING TERM OF EMPLOYMENT.
(a) CONSIDERATION. The consideration for entering into this Agreement
shall be the performance of services by the Employee pursuant to this Agreement
and the employment of the Employee by the Company as well as the other payments
and benefits provided under this Section 2.
(b) BASE SALARY. Unless the Company fixes a higher rate for the
Employee during the Term of Employment, the Company shall pay compensation to
the Employee at the rate of a minimum of $400,000 per year (the "Base Salary")
payable in accordance with the usual payroll schedule of the Company. Management
of the Company shall review the Base Salary annually during the Term of
Employment, and at any time, based on the Employee's performance, management may
increase the Base Salary.
(c) BONUS. During the Term of Employment, the Employee may receive an
annual bonus if management of the Company so determines. The amount of any such
bonus shall be determined by management of the Company.
(d) FRINGE BENEFITS. During the course of employment, the Employee
shall enjoy the customary benefits which are generally afforded to employees of
the Company. The Employee also shall be entitled to participate (to the extent
that the Employee is eligible under the terms of such plans or programs) in
employee benefit plans now or hereafter provided or made available to the
Company's employees generally, such as group medical, life, disability
insurance, pension plan, flexible spending accounts for dependent care and
health care and long term care. Nothing in this Agreement shall require the
Company to establish, maintain or continue any of the benefits already in
existence or hereafter adopted for employees of the Company and nothing in this
Agreement shall restrict the right of the Company to amend, modify or terminate
such fringe benefit programs.
(e) VACATION TIME. The Employee shall be entitled to receive five (5)
weeks of paid vacation time per year. The Company shall not pay the Employee any
additional compensation for any vacation time not used by the Employee except as
required by law.
(f) BUSINESS TRAVEL, ENTERTAINMENT EXPENSES. In accordance with Company
policies and procedures and on prescribed Company forms, the Company will
reimburse the Employee for business expenses and entertainment expenses incurred
by the Employee.
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Section 3. TERMINATION.
(a) TERMINATION.
(i) DEATH OR DISABILITY. This Agreement shall be terminated
immediately upon the death, total disability (as defined under the Aon
Long Term Disability Plan or its successor plan) or other event or
condition rendering the Employee unable to perform substantially all of
his duties and obligations under this Agreement; provided, however,
that in the event of Employee's total disability an amount equal to the
Base Salary shall be paid for the remainder of the Term of Employment
in accordance with the Company's normal payroll schedule, which such
amount shall be reduced by the amount of disability insurance benefits
payable to Employee pursuant to Company-sponsored disability insurance
coverages.
(ii) WITHOUT CAUSE. This Agreement may be terminated by the
Company or the Employee without cause on no less than thirty (30) days
advance notice (the "Notice Period"). If terminated without cause by
the Company the Company shall (A) continue to pay Employee an amount
equal to the Base Salary as and when it would be paid to its employees
generally until the earlier of two (2) years from the date of
termination or until the end of the Term of Employment and (B) pay
Employee all accrued but unpaid benefits as of the date of such
termination, so long as Employee continues to abide by the provisions
of Sections 4(d) and 4(e) herein notwithstanding the expiration of the
period specified therein.
Notwithstanding anything to the contrary in the foregoing
paragraph, the Company may require Employee to leave Company premises
immediately upon the giving of notice. Such a requirement shall not
relieve the Company of its obligations to continue to pay Base Salary
or benefits during the Notice Period.
In the event Employee terminates this Agreement without cause,
the Company shall only be required to pay Employee all accrued but
unpaid Base Salary and benefits as of the date of such termination.
(iii) FOR CAUSE. The Company may at any time during the
initial Term of Employment and during any renewals thereof, terminate
this Agreement for "cause", effective immediately by written notice of
termination given to the Employee setting forth the basis for such
termination. For the purposes of this Agreement, "cause" shall mean the
Employee's (A) performing an act of dishonesty, fraud, theft,
embezzlement, or misappropriation involving Employee's employment with
the Company, (B) performing an act of race, sex, national origin,
religion, disability, or age-based discrimination which an independent
counsel, after investigating the matter, reasonably concludes will
result in
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liability being imposed on the Company and/or Employee, (C) willful and
material violation of Company written policies and procedures
including, but not limited to, the Aon Business Conduct Guidelines and
the Aon Code of Ethics, (D) material non-compliance with the terms of
this Agreement, including but not limited to Sections 4 and 6
hereunder, which noncompliance remains uncured for more than thirty
(30) days after written notice of such non-compliance has been
delivered to Employee, or (E) performing any act resulting in a
criminal conviction of Employee (other than a conviction of a minor
traffic violation).
In the event of a termination for "cause," the Company shall
only be required to pay Employee all accrued but unpaid Base Salary and
benefits as of the date of such termination.
(iv) TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee shall
have the right to terminate his employment under this Agreement for
"Good Reason." For the purposes of this Agreement, the term "Good
Reason" means any one or more of the following: (i) any significant
material adverse change in Employee's duties or responsibilities under
this Agreement or the assignment by the Company to Employee of duties
or responsibilities which are materially inconsistent with his duties
or responsibilities under this Agreement, or (ii) any material
reduction of any employee benefit or perquisite enjoyed by Employee
other than as a part of an across- the-board reduction applicable to
all executive officers of the Company, except that such
across-the-board reduction shall not include the Base Salary referred
to herein, which the Employee is entitled to receive hereunder and
thereunder during the Term of Employment, or (iii) the failure by the
Company to pay Employee, on a timely basis, the amounts to which he is
entitled to receive under this Agreement, which failure or breach is
not cured by the Company within thirty (30) days following receipt of
notice thereof from Employee to the Company, or (iv) the failure by the
Company to perform, or any breach by the Company of, its material
obligations under this Agreement, which failure or breach is not cured
by the Company within sixty (60) days following receipt of notice
thereof from Employee to the Company.
In the event the Employee terminates his employment for Good
Reason, the Employee shall receive the Base Salary and benefits to
which he would have been entitled had he been terminated by the Company
without cause under Section 3(a)(ii) of the Agreement.
(v) As of the effective date of termination, Employee agrees
that the Secretary of the Company may, as an irrevocable proxy and in
Employee's name and stead, execute all documents and things which the
Company deems necessary and desirable to effect Employee's resignation
as an officer or director of the Company and its subsidiaries and
affiliates. Upon the effective date of termination, the obligations of
the parties under this
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Agreement, other than the Employee's obligations under Sections 3(b),
4, 5 and 6, and the Company's obligations under Sections 3(a)(i)
through (iv), shall cease.
(vi) Any agreement herein by the Company to continue to pay
Base Salary or any other benefits after the termination of employment
shall be in lieu of, and not in addition to, any benefits provided by
the Company or the Aon Severance Plan.
(b) The Employee agrees that, prior to the commencement of any new
employment in involving human resources consulting and outsourcing services or
the insurance business the Employee will furnish the prospective new employer
with a copy of this Agreement. The Employee also agrees that the Company may
advise any prospective new employer of the Employee of the existence and terms
of this Agreement and furnish the prospective new employer with a copy of this
Agreement.
Section 4. RECITALS; DUTIES; COVENANT NOT TO COMPETE.
(a) RECITALS. Parent, with its executive headquarters in Chicago,
Illinois, and its subsidiaries and affiliates (and divisions thereof) including,
following the consummation of the Merger, the Company (collectively "Aon Group")
are in the business of providing human resources consulting and outsourcing
services, as well as conventional and alternative risk management products and
services covering the businesses of insurance brokerage, reinsurance brokerage,
benefits consulting, compensation consulting human resources consulting,
managing underwriting and related insurance services, including accounting,
claims management and handling, contract wording, information systems and
actuarial (collectively, the "Business"). Aon Group also solicits and services
the human resources consulting and outsourcing needs, as well as the insurance
and reinsurance needs of numerous commercial and individual clients which are
national and international and are not confined to any geographic area. An
essential element of the Business is the development and maintenance of personal
contacts and relationships with clients. Because of these contacts and
relationships, it is common for Aon Group's clients to develop an identification
with the employee who serves its human resources and insurance needs rather than
with Aon Group itself. Aon Group, however, invests considerable time and money
necessary for a relationship between its employee and a client to develop and be
maintained, in that Aon Group pays the employee's salary and reimburses the
employee for business expenses. Aon Group also assists its employees in
servicing clients by making available to these employees legal advice,
accounting support, advertising and other corporate services.
The personal identification of clients of Aon Group with an Aon Group
employee creates the potential for the employee's appropriation of the benefits
of the relationships developed with clients on behalf of and at the expense of
Aon Group. Since Aon Group would suffer irreparable harm if an employee left the
Company's employ and solicited the human resources consulting and outsourcing,
insurance or other related business of clients of the Company and Aon Group, it
is reasonable to protect the Company and Aon Group against solicitation
activities by an employee for a limited period of time after
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an employee leaves the Company so that Aon Group may renew or restore its
business relationship with its clients.
The Company and the Employee acknowledge and agree that the covenant
contained in Sections 4(d), (e) and (f) below is reasonably necessary for the
protection of the Company and Aon Group and is reasonably limited with respect
to the activities it prohibits, its duration (particularly in the context of
annual and multi-year insurance renewal periods), its geographical scope and its
effect on the Employee and the public. The parties acknowledge that the purpose
and effect of the covenant simply is to protect the Company and Aon Group for a
limited period of time from unfair competition by the Employee.
(b) DUTIES. The Employee agrees during the course of employment to
serve as an executive in the employment practices outsourcing area related to
the Business as agent of the Company and to well perform such other duties and
assignments relating to the business of the Company as the management of the
Company directs, except that the Employee shall not be required to perform any
duty or assignment inconsistent with the Employee's experience and
qualifications.
(c) EXCLUSIVITY. During the course of employment the Employee shall,
except during customary vacation periods and periods of illness, devote his
entire business time and attention to the performance of the duties hereunder
and to promoting the best interests of the Company. The Employee shall not,
either during or outside of normal business hours, directly or indirectly,
engage in any aspect of the human resources consulting and outsourcing or the
insurance or risk management businesses for or on behalf of any entity other
than the Company, nor intentionally engage in any activity inimical to the best
interests of the Company.
(d) COVENANT NOT TO COMPETE. Employee hereby covenants and agrees that,
except with the prior written consent of the Chairman of the Company, the
Executive will not, for five (5) years from the Effective Date, directly or
indirectly, engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be employed by, associated with, or in any manner connected with, lend the
Employee's name or any similar name to, lend the Employee's credit to, or render
services or advice to, any portion of a business that offers or provides
products or activities that compete in whole or in part with the Business,
provided, however, that the Employee may purchase or otherwise acquire up to
(but not more than) one percent (1%) of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise except as provided in the next sentence) if such securities are
listed on any national or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934 and may own interests
in competing entities through mutual funds, private equity funds and similar
arrangements so long as he owns less than one percent (1%) of such pooled
entities.
(e) COVENANT NOT TO SOLICIT. The Employee hereby covenants and agrees
that, except with the prior written consent of the Company, the Employee will
not, for the longer of (i) a period of two (2) years after the end of the Term
of Employment or (ii) a period of two (2) years after the end of
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his employment with Parent, the Company or any of their respective subsidiaries
for any reason, enter into or attempt to enter into (on Employee's own behalf or
on behalf of any other person or entity) any business relationship of the same
type or kind as the business relationship which exists between Aon Group and its
clients or customers to provide services related to the Business for any
individual, partnership, corporation, association or other entity who or which
was a client or customer during the twenty-four (24) months prior to the end of
employment. "Client" or "customer" means any person or entity listed on the
books of Aon Group as such, including, but not limited to the former clients and
customers of ASI Solutions, Incorporated.
The Employee acknowledges that there is no general geographical
restriction contained in the preceding paragraph because the restriction applies
only to the specified clients and customers of Aon Group.
(f) COVENANT NOT TO HIRE. The Employee hereby also agrees not to induce
or attempt to induce, or to cause any person or other entity to induce or
attempt to induce, any person who is an employee of Aon Group to leave the
employ of Aon Group during the period of the covenant in Section 4(e) above.
Section 5. COMPANY'S RIGHT TO INJUNCTIVE RELIEF; ATTORNEYS' FEES.
The Employee acknowledges that the Employee's services to the Company
are of a unique character which gives them a special value to the Company, the
loss of which cannot reasonably or adequately be compensated in damages in an
action at law, and that a breach of Section 4 and 6 of this Agreement will
result in irreparable and continuing harm to the Company or Aon Group, or both,
and that therefore, in addition to any other remedy which the Company or Aon
Group, or both, may have at law or in equity, the Company and Aon Group shall be
entitled to injunctive relief for a breach of this Agreement by the Employee. In
the event that any action is filed in relation to this Agreement, the prevailing
party in the action shall recover from the non-prevailing party, in addition to
any other sum that either party may be called upon to pay, a reasonable sum for
the prevailing party's attorney's fees.
Section 6. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) The Employee acknowledges that the Company's and Aon Group's
business depend to a significant degree upon the possession of information which
is not generally known to others, and that the profitability of the business of
the Company and Aon Group requires that this information remain proprietary to
the Company and Aon Group.
(b) The Employee shall not, except as required in the course of
employment by the Company, disclose or use during or subsequent to the course of
employment, any trade secrets or confidential or proprietary information
relating to the business of the Company or Aon Group of which the Employee
becomes aware by reason of being employed by the Company or to which Employee
gains
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access during his employment by the Company and which has not been publicly
disclosed (other than by Employee in breach of this provision). Such information
includes client and customer lists, data, records, computer programs, manuals,
processes, methods and intangible rights which are either developed by the
Employee during the course of employment or to which the Employee has access.
All records and equipment and other materials relating in any way to any
confidential information relating to clients or to the business of the Company
or Aon Group shall be and remain the sole property of the Company and Aon Group
during and after the end of employment.
(c) Upon termination of employment, the Employee shall promptly return
to the Company all materials and all copies or tangible embodiments of materials
involving any confidential information in the Employee's possession or control.
The Employee agrees to represent in writing to the Company upon termination of
employment that he has complied with the provisions of this Section 6.
Section 7. MERGERS AND CONSOLIDATIONS; ASSIGNABILITY.
The rights and obligations under this Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns. By
way of explanation, and without limiting the generality of the foregoing
sentence, if the Company or any entity resulting from any merger or
consolidation referred to in this Section 7 is merged with or consolidated into
any other entity or entities, or if substantially all of the assets of the
Company or any such entity are sold or otherwise transferred to another entity,
the provisions of this Agreement shall be binding upon and shall inure to the
benefit of the continuing entity in or the entity resulting from such merger or
consolidation or the entity to which such assets are sold or transferred. This
Agreement shall not be assignable by the Employee, but in the event of his death
it shall be binding upon and inure to the benefit of the Employee's legal
representatives to the extent required to effectuate its terms.
Section 8. MISCELLANEOUS.
(a) INTEGRATION. Except as is otherwise provided herein, this Agreement
contains all of the terms and conditions agreed upon by the parties relating to
the subject matter of this Agreement and supersedes all prior and
contemporaneous agreements, negotiations, correspondence, undertakings and
communications of the parties, whether oral or written, respecting the subject
matter of this Agreement, including but not limited to, that certain Employment
Agreement dated January 16, 1997 by and between Employee and ASI Solutions
Incorporated.
This Agreement may not be amended, altered or modified without the
prior written consent of both parties and such instrument must acknowledge that
it is an amendment or modification of this Agreement.
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(b) WAIVER. Waiver of any term or condition of this Agreement by any
party shall not be construed as a waiver of a subsequent breach or failure of
the same term or condition, or a waiver of any other term or condition of this
Agreement. Any waiver must be in writing.
(c) CAPTIONS. The captions in this Agreement are not part of its
provisions, are merely for reference and have no force or effect. If any caption
is inconsistent with any provision of this Agreement, such provision shall
govern.
(d) GOVERNING LAW AND CHOICE OF FORUM. The validity, interpretation,
construction, performance, enforcement and remedies of or relating to this
Agreement, and the rights and obligations of the parties hereunder, shall be
governed by and construed in accordance with the substantive laws of the State
of New York, without regard to the conflict of law principles, rules or statutes
of any jurisdiction.
(e) AGREEMENT TO BE AVAILABLE IN FUTURE PROCEEDINGS. During the period
of employment, and after employment termination, Employee agrees to voluntarily
make himself available to the Company and its legal counsel, at Company's
request, without the necessity of obtaining a subpoena or court order, in the
Company's investigation, preparation, prosecution and/or defense of any actual
or potential legal proceeding, regulatory action, or internal matter. Employee
agrees to provide any information reasonably within his recollection. The
Company will reimburse Employee for reasonable out-of-pocket expenses actually
incurred as a result of such requests, or, at Company's option, will arrange to
advance Employee's expenses or incur such expenses directly.
(f) SEVERABILITY. To the extent that the terms set forth in this
Agreement or any word, phrase, clause or sentence is found to be illegal or
unenforceable for any reason, such word, phrase, clause or sentence shall be
modified or deleted in such manner so as to afford the Company and Aon Group the
fullest protection commensurate with making this Agreement, as modified, legal
and enforceable under applicable laws, and the balance of this Agreement shall
not be affected thereby, the balance being construed as severable and
independent.
(g) NOTICE. All notices given hereunder shall be in writing and shall
be sent by registered or certified mail or delivered by hand and, if intended
for the Company, shall be addressed to it or delivered to it at its principal
office for the attention of the Secretary of the Company. If intended for the
Employee, notices shall be delivered personally or shall be addressed (if sent
by mail) to the Employee's then current residence address as shown on the
Company's records, or to such other address as the Employee directs in a notice
to the Company. All notices shall be deemed to be given on the date received at
the address of the addressee or, if delivered personally, on the date delivered.
(h) GENDER. The use of the male gender in this Agreement includes the
female gender.
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(i) ARBITRATION. Except for a dispute arising in relation to the
provisions of Sections 4 and 6 herein, any dispute between Employee and the
Company concerning the employment of the Employee by the Company terms of this
Agreement, including whether a breach has occurred, will be settled by
arbitration and will be governed by the rules and procedures set forth below:
(i) GOVERNING LAW. Notwithstanding any other choice of law
provisions in the Agreement, the interpretation and enforcement of the
arbitration provisions of this Agreement shall be governed exclusively
by the Federal Arbitration Act, ("FAA"), 9 U.S.C. 1 ET SEQ., provided
that they are enforceable under the FAA, and shall otherwise be
governed by the law of the State of New York (without regard to
conflict of law principles).
(ii) SCOPE OF ARBITRATION. Except as provided below, the
parties agree to submit to arbitration, in accordance with these
provisions, any and all disputes arising from or related to the
employment relationship created by this Agreement and any other
disputes between the parties arising from or related to their
employment relationship and alleging common law tort violations or
violations of state or federal statutory rights. The parties further
agree that the arbitration process agreed upon herein shall be the
exclusive means for resolving all disputes made subject to arbitration
herein and that the decision of the arbitrator shall be final and
binding and may be entered in any court of competent jurisdiction.
(iii) TIME LIMITS ON SUBMITTING DISPUTES. The parties agree
and understand that one of the objectives of this arbitration agreement
is to resolve disputes expeditiously as well as fairly, and that it is
the obligation of both parties, to those ends, to raise any disputes
subject to arbitration hereunder in an expeditious manner. Accordingly,
the parties agree to waive all statutes of limitations that might
otherwise be applicable and agree further that, as to any dispute that
can be brought hereunder, a demand for arbitration must be postmarked
or delivered in person to the other party no later than one (1) year
after the dispute arises. In the absence of a timely submitted written
demand for arbitration, an arbitrator has no authority to resolve the
disputes or render an award and no arbitrator has authority hereunder
to determine the timeliness of an arbitration demand.
(iv) AVAILABILITY OF PROVISIONAL RELIEF. These arbitration
provisions shall not prevent the Company or the Executive, as the case
may be, from obtaining relief from a court of competent jurisdiction to
enforce the obligations of Sections 4 or 6 of the Agreement.
(v) AMERICAN ARBITRATION ASSOCIATION RULES APPLY AS MODIFIED
HEREIN. Any arbitration hereunder shall be conducted under the Model
Employment Procedures of the American Arbitration Association ("AAA"),
as modified herein.
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(vi) INVOKING ARBITRATION. Either party may invoke the
arbitration procedures described herein, by submitting to the other, in
person or by mail, a written demand for arbitration, containing a
statement of the matter to be arbitrated sufficient to establish the
timeliness of the demand. The parties shall then have fourteen (14)
days within which they may identify a mutually agreeable arbitrator.
After the fourteen (14) day period has expired, the parties shall
prepare and submit to the American Arbitration Association a joint
submission, with the Company paying the appropriate administrative fee.
In their submission to the AAA, the parties shall either designate a
mutually acceptable arbitrator or request a panel of arbitrators from
the AAA according to the procedure described in (g) below.
(vii) ARBITRATOR SELECTION. In the event the parties cannot
agree upon an arbitrator within fourteen days after the demand for
arbitration is received, their joint submission to the AAA shall
request a panel of nine (9) arbitrators who are practicing attorneys
with professional experience in the field of labor and/or employment
law, and the parties shall attempt to select an arbitrator from the
panel according to AAA procedures. In the event that the parties are
unsuccessful, they shall request a second panel of nine comparably
qualified arbitrators and repeat the selection process. If the parties
remain unable to select an arbitrator, then they shall request from AAA
a third panel of three comparably qualified arbitrators, from which the
AAA shall reject the least preferred candidate of each party, and
select the candidate with the highest joint ranking of the parties.
In the event of the death or disability of an arbitrator, the
parties shall select a new arbitrator as provided above. The substitute
arbitrator shall have the power to determine the extent to which he or
she shall act on the record already made in arbitration.
(viii) PREHEARING PROCEDURES. In order to achieve the
objectives of a just, fair, and expeditious resolution of the dispute,
the arbitrator may either, upon accepting assignment as arbitrator, (i)
promptly conduct a preliminary hearing or (ii) require the submission
of written statements, or both, in which event, each party shall be
entitled to make a brief statement of their respective positions, and
at which time the arbitrator shall establish a timetable for prehearing
activities and the conduct of the hearing, and may address initial
requests from the parties for prehearing disclosure of information. At
the preliminary hearing and/or thereafter, arbitrator shall have the
discretion and authority to order, upon request or otherwise, the
prehearing disclosure of information to the parties, including, without
limitation, production of requested documents, exchange of witness
lists and summaries of the testimony of proposed witnesses, and
examination by deposition of potential witnesses. Pursuant to these
same objectives, the arbitrator shall have the authority, upon request
or otherwise, to conference with the parties of their designated
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representatives concerning any matter, and to set or modify timetables
for all aspects of the arbitration proceeding.
(ix) STENOGRAPHIC RECORD. There shall be a stenographic record
of the arbitration hearing, unless the parties agree to record the
proceedings by other reliable means. The costs of recording the
proceedings shall be borne by the Company.
(x) LOCATION. Unless otherwise agreed by the parties,
arbitration hearings shall take place in the city and state where the
office of the Company is located in which the Employee was primarily
employed during the term of the Agreement, at a place designated by the
AAA.
(xi) POSTHEARING BRIEFS. After the close of the arbitration
hearing, and on any issue concerning prehearing procedures, the
arbitrator may allow the parties to submit written briefs.
(xii) CONFIDENTIALITY. All arbitration proceedings hereunder
shall be confidential. Neither party shall disclose any information
about the evidence adduced by the other in the arbitration proceeding
or about documents produced by the other in connection with the
proceeding, except in the course of a judicial, regulatory, or
arbitration proceeding, or as may be requested by governmental
authority or legal process. Before making any disclosure permitted by
the preceding sentence, the party shall give the other party reasonable
(under the circumstances) written notice of the intended disclosure and
an opportunity to protect its interests. Expert witnesses and
stenographic reports shall be requested to sign appropriate
nondisclosure agreements.
(xiii) COSTS. All expenses of such arbitration, including but
not limited to the Employee's reasonable legal fees and disbursements,
shall be borne by the Company unless the arbitrators determine that
Employee's position was frivolous or taken in bad faith (in which case
Employee shall bear his own legal fees and disbursements and the
Parties shall equally divide the costs of the arbitration and the AAA).
(xiv) REMEDIES. The arbitrator shall have authority to award
any remedy or relief that a court of the state of New York could grant
in conformity to applicable law, except that the arbitrator shall have
no authority to award attorneys' fees (except as provided in the
Agreement) or punitive damages, can suggest but not order
reinstatement, and shall offset from any award of compensation any and
all amounts the prevailing party has received from collateral sources
as compensation for the same injury, that are not themselves subject to
reimbursement as a consequence of the award.
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(xv) LAW GOVERNING THE ARBITRATOR'S AWARD. In rendering an
award, the arbitrator shall determine the rights and obligations of the
parties according to federal law and the substantive law of the State
of New York (excluding conflicts of laws principles), and the
arbitrator's decision shall be governed by state and federal
substantive law, including state and federal discrimination laws, as
though the matter were before a court of law.
(xvi) WRITTEN AWARDS AND ENFORCEMENT. Any arbitration award
shall be accompanied by a written statement containing a summary of the
issues in controversy, a description of the award, and an explanation
of the reasons for the award. The parties agree that a competent court
shall enter judgment upon the award of the arbitrator, provided it is
in conformity with the terms of this Agreement.
(xvii) DISCLAIMER OF EMPLOYMENT RIGHTS. It is understood and
agreed by the parties that the provisions in this Section concerning
arbitration do not contain, and cannot be relied upon by the Executive
to contain, any promises or representations concerning the duration of
the employment relationship, or the circumstances under or procedures
by which the employment relationship may be terminated.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ASI SOLUTIONS INCORPORATED
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
I have read the above Agreement and understand and agree to be bound by its
terms.
/s/ XXX XXXXX
Xxx Xxxxx
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