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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made as of the 8th day
of November, 2000, by and between ERESOURCE CAPITAL GROUP, INC., a Delaware
corporation ("ERCG") and XXXXXXX XXXXXX XXXXXX, an individual resident of the
State of North Carolina (the "EXECUTIVE"), and is effective as of the date
hereof (the "EFFECTIVE DATE").
WHEREAS, eRCG intends to employ Executive, and Executive desires to be
employed by eRCG; and
WHEREAS, eRCG and Executive desire to set forth the terms and
conditions on which Executive shall be employed and provide services to eRCG.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive and eRCG including,
without limitation, the promises and covenants described herein, the parties
hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
EMPLOYMENT
SECTION 1.1 Duties and Responsibilities. eRCG hereby employs
Executive full time as the Executive Vice President and General Counsel of eRCG.
Executive shall do and perform all reasonable services and acts necessary or
advisable to fulfill the duties of such office, and shall conduct and perform
such additional services and activities as may be reasonably determined from
time to time by the Board of Directors of eRCG (the "BOARD"). During the term of
this Agreement, Executive shall devote her full time, energy and skill to the
business of eRCG and to the promotion of eRCG's interests, and Executive
acknowledges that she has a duty of loyalty to eRCG and shall not, during the
term hereof, engage in, directly or indirectly, any other business or activity
whether or not for pecuniary gain, that could materially and adversely affect
eRCG's business or Executive's ability to perform her duties under this
Agreement. The foregoing shall not, however, preclude Executive from serving on
the boards of directors of other entities.
In her capacity as an officer of eRCG, Executive shall report to the
Board and abide by all rules and regulations established from time to time by
the Board. Executive's authority and responsibility in eRCG shall at all times
be subject to the review and discretion of the Board, which shall have the final
authority to make decisions regarding the business of eRCG.
SECTION 1.2 Term of Employment. The term of Executive's
employment hereunder shall continue for a period of two (2) years from the
Effective Date, unless earlier terminated as provided in this Agreement. At the
end of the initial two (2) year term, and at the end of each renewal term, this
Agreement shall automatically be extended for an additional one (1) year terms
unless either party hereto shall give written notice of its or her intent to
terminate for any or no reason sixty (60) days prior to the end of the initial
term or any subsequent renewal term.
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SECTION 1.3 Benefits. During the term of Executive's employment
hereunder, Executive will be entitled to the following:
(a) Vacation. Executive shall be entitled to four (4)
weeks paid vacation annually. Any vacation not used during any calendar year
shall be forfeited except that one (1) week's unused vacation may be carried
forward to the year following the year in which such vacation entitlement
accrued. Executive shall also be entitled to reasonable holidays and sick days
in accordance with eRCG's policy as may be established and modified from time to
time.
(b) Employee Benefit Plans. Executive shall be entitled
to participate in all employee benefit plans, including any life insurance,
disability insurance, profit sharing and retirement plans that are generally
offered to or provided for the senior executives of eRCG, said plans to be
approved by the Board. Executive shall be entitled to participate in such group
health and dental insurance plans (including family coverage) on the same basis,
including cost provisions, as may from time to time be offered generally to the
other senior executives of eRCG.
SECTION 1.4 Compensation. For all services to be rendered by
Executive under this Agreement, eRCG shall pay Executive as follows:
(a) Base Salary. Executive shall be paid an annual gross
salary of One Hundred Sixty Thousand Dollars ($160,000) payable in accordance
with the normal payroll practices of eRCG, which policies may be changed by eRCG
from time to time, and shall be subject to appropriate withholding taxes. In any
event, Executive's salary shall be paid no less frequently than monthly. At the
sole discretion of the Board, Executive's annual gross salary may be increased,
from time to time, throughout the term of this Agreement, the amount of any such
increase to be determined by the Board (or by the Compensation Committee
thereof).
(b) Annual Bonus. If the Board shall so authorize,
Executive shall be paid an annual bonus in an amount and in the manner approved
by the Board in its sole discretion (or by the Compensation Committee thereof),
within ninety (90) days of the end of each calendar year, provided Executive is
still employed by eRCG.
SECTION 1.5 Stock Options. Executive shall be a participant in
the 2000 Stock Option Plan of eRCG. eRCG shall grant Executive options to
purchase shares of stock of eRCG (the "OPTION SHARES") pursuant to the terms and
conditions of a stock option agreement to be entered into between eRCG and
Executive (the "STOCK OPTION AGREEMENT") and approved by the Board.
SECTION 1.6 Business Expenses. Executive shall be entitled to
reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, lodging, communications (including cell phone and
pager), entertainment and meals in connection with the performance of
Executive's duties under this Agreement, upon submission of sufficient
documentation evidencing same and in accordance with eRCG's established policies
for reimbursement of business expenses. eRCG expects Executive to attend and
participate in continuing education seminars and courses with respect to the
e-commerce, venture capital and
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legal industries and business management related to her duties, and eRCG will
reimburse all ordinary and necessary expenses of such attendance and
participation.
SECTION 1.7 Place of Employment. eRCG agrees to provide an office
for Executive in Charlotte, North Carolina. eRCG will provide at the Charlotte
office a computer and other equipment and assistance necessary in order for
Executive to complete her duties under this Agreement. Executive shall be
entitled to reside and perform her duties in Charlotte, North Carolina.
SECTION 1.8 Line of Credit. In order to facilitate the ability
of Executive to pay her federal, state and local income tax liabilities, eRCG
will provide Executive with a line of credit equal to Executive's additional
federal, state and local tax liabilities, if any, resulting from Executive's
ownership of stock in eRCG, including the receipt of the shares pursuant to
Section 1.5 hereof, or otherwise. Any amounts borrowed under this line of credit
will be available to Executive prior to the date that Executive must pay her
federal and state income taxes. This line of credit will bear interest at the
rate of five and seventy-five one hundreds percent (5.75%) per annum. The
interest attributable to the borrowed funds will be due and payable yearly. The
principal will be due on the earlier of: (i) termination of this Agreement and
(ii) sale of stock in eRCG by Executive (but only to the extent of sale
proceeds).
ARTICLE II
COVENANTS OF EXECUTIVE
SECTION 2.1 Confidentiality. Executive recognizes the interest
of eRCG in maintaining the confidential nature of its proprietary and other
business and commercial information. In connection therewith, Executive
covenants that during the term of her employment with eRCG under this Agreement,
and for a period of two (2) years thereafter (except as set forth in Section 2.2
hereof), Executive shall not, directly or indirectly, except as authorized in
writing by the Board, publish, disclose or use for her own benefit or for the
benefit of a business or entity other than eRCG or otherwise, any secret or
confidential matter, or proprietary or other information not in the public
domain that was acquired by Executive during her employment, relating to eRCG or
any of its affiliates' or subsidiaries' businesses, operations, customers,
suppliers, products, employees, financial information, budgets, practices,
strategies, prices, methods, technology, know-how, intellectual property,
documentation, concepts, improvements, plans, research and development, leads
and/or marketing materials, records, files, databases, accounting journals,
accounts receivable records, business plans and other similar information (the
"CONFIDENTIAL INFORMATION"); provided, however, Confidential Information does
not include information that (i) is or becomes generally available to the public
other than as a result of a breach of this Agreement; (ii) is disclosed with the
prior written consent of eRCG; (iii) at the time of such disclosure, was already
known or in the possession of Executive; (iv) becomes available to a competitor
of eRCG on a non-confidential basis from a source other than Executive, which
source is not prohibited from disclosing such Confidential Information by a
legal, contractual or fiduciary obligation to eRCG; or (v) is independently
developed by a
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competitor of eRCG. Executive will abide by eRCG's policies and regulations, as
established from time to time, for the protection of its Confidential
Information.
SECTION 2.2 Trade Secrets. Executive shall not, at any time,
either during or after the term of her employment with eRCG under this
Agreement, use or disclose any "Trade Secrets" (as defined by the Delaware
Uniform Trade Secrets Act) of eRCG or its affiliates or subsidiaries, except in
fulfillment of her duties during her employment, for so long as the pertinent
information or data remain Trade Secrets, whether or not the Trade Secrets are
in written or tangible form. Notwithstanding anything to the contrary contained
herein, Executive shall not be prohibited hereunder from disclosing Trade
Secrets if, in the written opinion of counsel for Executive, such disclosure is
required by applicable law, in which event Executive shall provide eRCG with
prompt written notice of such request and shall take all reasonable action
requested by eRCG to obtain confidential treatment of such Trade Secrets.
SECTION 2.3 Surrender of Records. Executive shall provide eRCG
with notice of any inadvertent disclosure of Confidential Information. Executive
acknowledges that all Confidential Information is and shall remain the sole
property of eRCG and/or such affiliated entity or subsidiary and shall, upon
termination of Executive's employment with eRCG for any reason whatsoever, or
upon the request of eRCG, turn over to eRCG all Confidential Information,
without retaining notes or copies thereof (together with a written statement
certifying as to her compliance with the foregoing).
SECTION 2.4 Non-Solicitation of Clients/Employees. During the
term of Executive's employment with eRCG, and for the one (1) year period
following the termination of Executive's employment with eRCG for any reason,
Executive shall not, directly or indirectly:
(a) solicit or accept, or attempt to solicit or accept
any business from any individual or entity that was a customer or client of eRCG
during the one (1) year period ending on the date of termination of Executive's
employment with eRCG, or actively sought after prospective clients, for the
purpose of providing services or products to such customer or client which are
competitive with the services or products offered or provided by eRCG; provided,
however, nothing herein shall preclude Executive from holding not more than
one-percent (1%) of the outstanding equity of any company, so long as Executive
does not, in fact, have the power to participate in controlling or directing the
management of such company other than by such voting equity; or
(b) employ, induce, solicit or attempt to solicit for
employment, or assist others in employing, inducing or soliciting for
employment, any individual who is or was an employee or independent contractor
of eRCG at any time during the one (1) year period ending or the date of
termination of Executive's employment with eRCG in an attempt to have any such
individual work for Executive, or any other individual or entity in the business
of raising venture capital for, and the development, operation and management
of, e-commerce and technology-related companies.
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SECTION 2.5 Acknowledgment of Reasonableness/Enforcement/Tolling.
(a) The existence of any claim or cause of action by
Executive against eRCG predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by eRCG of these covenants. Executive
acknowledges and confirms (i) that the restrictions contained herein are fair
and reasonable and not the result of overreaching, duress, or coercion of any
kind, and (ii) that Executive's full, uninhibited, and faithful observance of
each of the covenants contained in this Agreement will not cause Executive any
undue hardship, financial or otherwise. In the event that any court shall
formally hold that the restrictions in this Article II are unreasonable,
Executive hereby expressly agrees that the restrictions shall not be rendered
void, but shall apply to the extent that such court may judicially determine or
indicate constitutes a reasonable restriction.
(b) Executive acknowledges that the services to be
rendered by Executive hereunder are extraordinary and unique and are vital to
the success of eRCG, and that damages at law would be an inadequate remedy for
any breach or threatened breach of this Agreement by Executive. Therefore, in
the event of a breach or threatened breach by Executive of any provision of this
Agreement, eRCG shall be entitled, in addition to all other rights or remedies,
to injunctions restraining such breach, without being required to show any
actual damage or to post any bond or other security. No remedy herein conferred
upon any party is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law, in equity or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
(c) In the event eRCG should bring any legal action or
other proceeding for the enforcement of the Agreement, the time for calculating
the non-solicitation period, or terms of any other restriction herein shall not
include the period of time commencing with the filing of the legal action or
other proceeding to enforce the terms of the Agreement through the date of final
judgment or final resolution, including all appeals, if any, of such legal
action or other proceeding.
ARTICLE III
REPRESENTATIONS OF EXECUTIVE/INDEMNIFICATION
SECTION 3.1 Termination of Prior Employment. EXECUTIVE HEREBY
REPRESENTS AND WARRANTS THAT, EFFECTIVE AS OF THE DATE HEREOF, THE EMPLOYMENT
AGREEMENT BETWEEN EXECUTIVE AND AVENEL VENTURES, INC. DATED JUNE 6, 2000 IS
TERMINATED AND OF NO FURTHER FORCE AND EFFECT.
SECTION 3.2 Representations and Warranties of
Executive/Indemnification. Executive represents and warrants to eRCG that she is
fully empowered to enter and perform her obligations under this Agreement and,
without limitation, that she is under no restrictive covenants to any person or
entity that will be violated by her entering into and performing this Agreement,
and that this Agreement constitutes the valid and legally binding obligation of
Executive enforceable in accordance with its terms. Executive shall indemnify
eRCG upon
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demand for and against any and all judgments, losses, claims, damages, costs
(including, without limitation, all legal fees and costs, even if incident to
appeals) incurred or suffered by eRCG as a result of the breach of the
representations and warranties made in this Article 3.
ARTICLE IV
TERMINATION OF EMPLOYMENT
SECTION 4.1 Termination by eRCG. Executive's employment may be
terminated by eRCG during the term of this Agreement upon the occurrence of one
or more of the following events:
(a) Termination For Death. Immediately upon Executive's
death.
(b) Termination For Disability. Upon the effective date
of written notice from eRCG (which shall not be prior to the date on which such
notice is sent) in the event of Executive's disability which renders Executive
incapable of performing her duties for more than one hundred eighty (180)
calendar days in one calendar year or within consecutive calendar years.
(c) Termination Without Cause. After the second (2nd)
anniversary of the Effective Date, eRCG can terminate Executive's employment
without cause for any or no reason (other than those set forth in Section 4.1(d)
hereof), sixty (60) days after written notice (including a notice of nonrenewal
sent by eRCG pursuant to Section 1.2 hereof) sent to Executive following a
determination by the Board to so terminate Executive's employment.
(d) Termination For Cause. Upon the effective date of
written notice sent to Executive (which shall not be prior to the date on which
such notice is sent) stating eRCG's determination that it is terminating
Executive for "Cause", which for purposes of this Agreement shall mean:
(i) an intentional act of fraud, embezzlement or
theft of funds or property of eRCG or any of its clients/customers;
(ii) any gross and willful misconduct having a
substantial, adverse effect upon eRCG;
(iii) any intentional wrongful disclosure of
Confidential Information or Trade Secrets of eRCG or its affiliates or any
intentional form of self-dealing detrimental to the interests of eRCG;
(iv) conviction of a felony or any similar crime
causing material harm to the reputation of eRCG as determined by the Board (for
these purposes, conviction shall include a plea of no contest or plea to any
lesser charges predicated on the same underlying conduct);
(v) the habitual and debilitating use of alcohol
or drugs;
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(vi) failure to comply in any material way with
the reasonable written directives of the Board, which failure has a material
adverse effect on eRCG and has not been cured by Executive within thirty (30)
days after written notice from the Board of any such act or omission; or
(vii) failure to comply in any material respect
with the terms of this Agreement, which failure has a material adverse effect on
eRCG and has not been cured by Executive within thirty (30) days after written
notice from the Board of any such act or omission.
SECTION 4.2 Resignation by Executive. Executive's employment
may be terminated by Executive during the term of this Agreement upon the
occurrence of one or more of the following events:
(a) Voluntary Resignation. Executive may terminate her
employment under this Agreement by giving sixty (60) days' prior written notice
to eRCG (including a notice of nonrenewal sent by Executive pursuant to Section
1.2 hereof) stating Executive's election to terminate her employment with eRCG.
eRCG may accept such resignation effective as of any date during such sixty (60)
day period as eRCG deems appropriate; provided, however, Executive shall receive
from eRCG her base salary and be entitled to participate in any eRCG benefit
plans in which she was a participant as of the effective date of her resignation
for the duration of such sixty (60) day period (as further provided in Section
4.4(a) hereof).
(b) Resignation With Cause. Upon the effective date of
written notice sent to eRCG stating Executive's determination of "Constructive
Termination" (hereinafter defined) by eRCG; provided, however, if the
Constructive Termination is curable, then eRCG shall have thirty (30) days after
Executive's written notice to cure such condition and if eRCG fails to cure such
condition to the reasonable satisfaction of Executive, then Executive may
immediately terminate her employment with eRCG, such termination to be
conclusively deemed to be a resignation with cause. For purposes of this
Agreement, "Constructive Termination" shall mean:
(i) Such change in duties or position as:
(A) the assignment (other than an
occasional temporary assignment) to Executive of any duties not commensurate
with Executive's position, duties, responsibilities and status with eRCG;
(B) a material change in Executive's
reporting responsibilities, (i.e., reporting to a lower tier) or a diminution in
Executive's titles or offices; or
(C) a material diminution of
Executive's authority or responsibilities.
(ii) A reduction in Executive's base salary
specified in Section 1.4(a) hereof for the calendar year 2001, or a reduction in
Executive's base salary in effect for the prior calendar year for all succeeding
years (other than pro rata reductions in compensation for all senior executives
of eRCG).
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(iii) The requirement that Executive be based
anywhere other than within 30 miles of eRCG's current office in Charlotte, North
Carolina.
(iv) eRCG's failure to comply in any material
respect with the terms of this Agreement.
SECTION 4.3 Change of Control. Upon (i) the effective date of a
written notice sent to Executive by eRCG stating that a "Change of Control"
(hereinafter defined) has occurred or will occur and Executive's employment will
be terminated in connection therewith (despite eRCG's best efforts to the
contrary as set forth in Section 5.8 hereof), which notice must be given no
later than sixty (60) days following such Change of Control, (ii) the date of
termination if Executive is terminated without cause or resigns with cause
within eighteen (18) months of a Change of Control, or (iii) the date of
termination if Executive voluntarily resigns within ninety (90) days following a
Change of Control. A "Change of Control" shall be deemed to have occurred if (A)
as a result of any merger, consolidation, sale, assignment, transfer or other
transaction, any person, other than those persons who are shareholders of eRCG
or its affiliates (within the meaning of Rule 501 of the Securities Act of 1933)
on the date hereof, becomes the "beneficial owner" (as defined in Rule 13d-3 and
13d-5 under the Securities Exchange Act of 1934, as amended) of more than 50% of
the outstanding voting securities of eRCG or the surviving entity or becomes
entitled to elect more than one-half (1/2) of the Board or other governing body
of eRCG or the surviving entity; (B) a tender offer shall be made and
consummated of the ownership of 50% or more of the outstanding voting securities
of eRCG; (C) Xxxxxxx X. Xxxxxx is no longer the Chief Executive Officer of eRCG;
or (D) eRCG sells, assigns or otherwise transfers all or substantially all of
the assets of the eRCG, to persons other than those persons who are shareholders
of eRCG, its subsidiaries or affiliates; provided, however, in no event shall a
financing transaction (such as additional rounds of venture capital), which is
approved by the Board and entered into by eRCG be deemed to be a "Change of
Control" .
SECTION 4.4 Effect of Termination/Change of Control.
(a) Termination for Death or Voluntary Resignation. In
the event of termination of Executive's employment pursuant to Sections 4.1(a)
or 4.2(a) hereof:
(i) eRCG shall pay to Executive the base salary
and expenses otherwise payable to Executive under Sections 1.4(a) and 1.6 hereof
through the date of termination (provided that in the event of Executive's
death, eRCG shall also pay to Executive's estate her base salary for a period of
three (3) months after the date of Executive's death), as well as any accrued
but unpaid vacation time. For purposes of this Agreement, one (1) week of
vacation shall be deemed to accrue each calendar quarter. Executive shall not be
entitled to receive any severance pay except to the extent the Board, in its
sole discretion, elects to authorize severance pay in the event of Executive's
voluntary resignation.
(ii) Executive's rights under eRCG's benefit
plans of general application shall be determined under the provisions of those
plans.
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(iii) Executive shall not be entitled a bonus
under Section 1.4(b) hereof for the year of termination except to the extent the
Board, in its sole discretion, elects to authorize a bonus in the event of
Executive's voluntary resignation.
(iv) Executive's rights with respect to Option
Shares shall be determined under the provisions of the Stock Option Agreement.
(b) Termination For Disability; Termination Without
Cause; Resignation With Cause; Termination in Connection with a Change of
Control. In the event of termination of Executive's employment pursuant to
Sections 4.1(b), 4.1(c), 4.2(b) or 4.3 hereof:
(i) eRCG shall pay to Executive the base salary
and expenses otherwise payable to Executive under Sections 1.4(a) and 1.6 hereof
through the date of termination as well as any accrued but unpaid vacation time
(provided that in the event of Executive's disability, the base salary payable
to Executive shall be less any disability benefits provided by eRCG). In
addition, Executive shall be entitled to twelve (12) months' salary continuation
at the then current rate, payable in accordance with the normal payroll
practices of eRCG. Such severance payments are to be considered compensation for
services previously rendered hereunder.
(ii) Executive shall continue to participate in
eRCG's group health plan for twelve (12) months following the date of
termination upon the timely periodic payment of any amount required for
employees to maintain family coverage for such plan, and rights under other
benefit plans shall be determined under the provisions of those plans.
(iii) Executive shall be entitled to a bonus
under Section 1.4(b) hereof for the year of termination in an amount as
determined by the Board (or by the Compensation Committee thereof) in its sole
discretion.
(iv) Executive's rights with respect to the
Option Shares shall be determined under the provisions of the Stock Option
Agreement.
(c) Termination For Cause. In the event of termination
of Executive's employment prior to Section 4.1(d) hereof:
(i) eRCG shall pay to Executive the base salary
and expenses otherwise payable pursuant to Sections 1.4(a) and 1.6 hereof
through the date of termination. Executive shall not be entitled to receive any
severance pay whatsoever.
(ii) Executive's rights under eRCG's benefit
plans of general application shall be determined under the provisions of those
plans.
(iii) Executive shall not be entitled to a bonus
under Section 1.4(b) hereof for the year of termination.
(iv) Executive's rights with respect to the
Option Shares shall be determined under the provisions of the Stock Option
Agreement.
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SECTION 4.5 Gross Up Payment.If eRCG or its accountants determine
that any payments called for under this Agreement or any other payments or
benefits made available to Executive by eRCG or its affiliates will result in
Executive being subject to an excise tax ("EXCISE TAX") under Section 4999 of
the Internal Revenue Code of 1986, as amended, or any successor statute thereto,
or if an Excise Tax is assessed against Executive as a result of such payments
or other benefits, eRCG shall make a "Gross-Up Payment" (hereinafter defined) to
or on behalf of Executive as and when such determination(s) and assessment(s),
as appropriate, are made, subject to the conditions of this Section 4.5. A
"Gross-Up Payment" shall mean a payment to or on behalf of Executive that shall
be sufficient to pay (i) any Excise Tax in full, (ii) any federal, state and
local income tax and Social Security or other employment tax on the payment made
to pay such Excise Tax as well as any additional Excise Tax on the Gross-Up
Payment, and (iii) any interest or penalties assessed by the Internal Revenue
Service on the Executive if such interest or penalties are attributable to
eRGC's failure to comply with its obligations under this Section 4.5 or
applicable law. Any determination under this Section 4.5 by eRCG or its
accountants shall be made in accordance with Section 280G of the Code and any
applicable related regulations (whether proposed, temporary or final) and any
related Internal Revenue Service rulings and related case law. Executive shall
take such action (other than waiving Executive's right to any payments or
benefits) as eRCG may reasonably request under the circumstances to mitigate or
challenge such tax. If eRCG reasonably requests that Executive take action to
mitigate or challenge any such tax or assessment and Executive complies with
such request, eRCG shall provide Executive with such information and such expert
advice and assistance from eRCG's accountants, lawyers and other advisors as
Executive may reasonably request and shall pay for all expenses incurred in
effecting such compliance and any related fines, penalties, interest and other
assessments.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.1 Survival. Notwithstanding anything to the contrary
herein, the provisions of this Agreement shall survive and remain in effect in
accordance with their respective terms in the event Executive's employment is
terminated for any reason.
SECTION 5.2 Enforcement Costs. If any civil action, arbitration,
or other legal proceeding is brought for the enforcement of the Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any provision of the Agreement, the successful or prevailing
party or parties shall be entitled to recover reasonable attorneys' fees, sales
and use taxes, court costs, and all expenses (including, without limitation, all
such fees, taxes, costs, and expenses incident to arbitration, appellate and
post-judgment proceedings), incurred in that civil action, arbitration, or legal
proceeding, in addition to any other relief to which such party or parties may
be entitled.
SECTION 5.3 Notices. For purposes of this Agreement, all
communications including, without limitation, notices, consents, requests or
approvals, provided for herein shall be in writing and shall be deemed to have
been duly given (a) when personally delivered, (b) on the day of transmission
when given by facsimile transmission with confirmation of receipt, (c) on
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the following day if submitted to a nationally recognized courier service, or
(d) five (5) business days after having been mailed by United States registered
mail or certified mail, return receipt requested, postage prepaid, addressed to:
If to eRCG: If to Executive:
eResource Capital Group, Inc. Xxxxxxx Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 1146 Xxxxxxxx Street
Charlotte, NC 28209 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or to such other address as a party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
SECTION 5.4 Governing Law. The validity, interpretation,
construction, performance and enforcement of this Agreement shall be governed by
the laws of the State of North Carolina, without giving effect to the principles
of conflicts of law of such State.
SECTION 5.5 Severability. If any provision of this Agreement or
the application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, under applicable law or regulation,
the remainder of this Agreement and the application of such provision to any
other person or circumstances shall not be affected, and the provision so held
to be invalid, unenforceable or otherwise illegal shall be reformed to the
extent (and only to the extent) necessary to make it valid, enforceable and
legal; provided, however, if the provision so held to be invalid, unenforceable
or otherwise illegal constituted a material inducement to a party's execution
and delivery of this Agreement, such provision shall not be reformed unless
prior to any reformation that party agrees to be bound by the reformation.
SECTION 5.6 Entire Agreement. This Agreement supersedes any other
agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between the
parties with respect to the employment of Executive by eRCG.
SECTION 5.7 Amendments. Any amendment or modification of any
term of this Agreement shall be effective only if it is set forth in writing
signed by the parties hereto.
SECTION 5.8 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
administrators, executors, representatives, heirs, successors and permitted
assigns. "Successor" shall mean any successor in interest, pursuant to a Change
of Control as set forth in Section 4.3 hereof. eRCG shall use its best efforts
to cause any Successor which is not obligated to assume eRCG's contracts to
agree at the time of becoming a Successor to perform this Agreement to the same
extent as the original parties would be required if no succession had occurred.
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SECTION 5.9 Assignment. This Agreement is personal in nature and
the parties shall not, without written consent, assign, transfer or delegate
this Agreement or any rights or obligations hereunder.
SECTION 5.10 Waivers. No provision of this Agreement may be waived
or discharged unless such waiver or discharge is agreed to in writing signed by
the party to be bound. No waiver by a party hereto at any time of any breach or
noncompliance with any provision or condition of this Agreement to be performed
by such other party shall be deemed a waiver of any other provisions or
conditions at the same or at any prior or subsequent time.
SECTION 5.11 Captions. The captions in this Agreement are solely
for convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
SECTION 5.12 Counterparts/ Facsimile Signatures. This Agreement
may be executed in one or more counterparts (whether by facsimile or otherwise),
each of which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
ERCG:
ERESOURCE CAPITAL GROUP, INC.
By:
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Xxxx Xxxxxxxx
Its: President
EXECUTIVE:
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Xxxxxxx Xxxxxx Xxxxxx
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