Exhibit (10w)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement"), made and entered into and to
become effective on the 24th day of October, 2003 (the "Effective Date"), by and
between XXXXXXX CORPORATION, an Alabama corporation (the "Company"), and XXXXX
X. XXXXX (the "Executive").
RECITALS:
The Company and its affiliates are engaged in the design, marketing and
manufacturing of branded athletic, activewear and outdoor apparel products. The
Company desires to employ the Executive as Senior Vice President of the Company
and the Executive desires to be employed by the Company in that capacity.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
herein and the compensation the Company agrees herein to pay the Executive, and
of other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and the Executive agree as follows:
ARTICLE 1. EMPLOYMENT OF EXECUTIVE
Subject to the terms and conditions set forth in this Agreement, the
Company hereby employs the Executive and the Executive hereby accepts such
employment for the period stated in Article 3 of this Agreement.
ARTICLE 2. POSITION, RESPONSIBILITY AND DUTIES
2.1 Position and Responsibilities. During the Term (as defined in Section
3.1), the Executive shall serve as Senior Vice President/President and Chief
Executive Officer Activewear, or a similar title, of the Company on the
conditions herein provided. Executive shall have responsibility for all of the
Company's domestic activewear business, which includes the mass retail, artwear
and DeSoto Xxxxx operations. The Executive shall report to the President and
Chief Operating Officer of the Company (the "COO") and provide such executive
services in the management of the Company's business not inconsistent with his
position as shall be assigned to him from time to time by the COO and the Chief
Executive Officer ("CEO") of the Company.
2.2 Duties. During the Term and except for illness, vacations consistent
with the policies of the Company, periods of temporary sick leave and reasonable
time devoted to civic and charitable activities, the Executive shall devote his
full business time, attention, skill, energies and efforts to the faithful
performance of his duties hereunder and to the business and affairs of the
Company and any subsidiary or affiliate of the Company.
ARTICLE 3. TERM
3.1 Term of Employment. The term ("Term") of the Executive's employment
under this Agreement shall commence on the Effective Date and shall continue
until the earliest to occur of the following dates (the "Termination Date"): (a)
October 30, 2006; (b) the date of death of the Executive; (c) the Disability
Effective Date (as defined in Section 7.1) in the event of "Total Disability" of
the Executive (as defined in Section 7.4); (d) the effective date of a
termination of the Executive's employment hereunder, by the Company, including
any termination by the Company for Cause (as defined in and pursuant to Section
3.2); or (e) the effective date of the Executive's resignation from his
employment hereunder, including but not limited to termination by the Executive
for Good Reason (as defined in and pursuant to Sections 3.3 and 3.4).
3.2 Termination for Cause.
(a) The Company may terminate Executive's employment for Cause
solely in accordance with all of the provisions of this Section 3.2.
(b) For purposes of this Agreement, "Cause" means any one or more of
the following:
(i) Executive's conviction of a felony other than those
felonies involving use of an automobile in violation of any vehicle statute and
excluding any liability which is based on acts of the Company for which
Executive is responsible solely as a result of his office(s) with the Company,
provided that (A) he was not directly involved in such acts and either had no
prior knowledge of such intended actions or promptly acted reasonably and in
good faith to attempt to prevent the acts causing such liability or (B) he did
not have a reasonable basis to believe that a law was being violated by such
acts;
(ii) Final determination (which for purposes of this paragraph
shall mean the exhaustion of all available remedies and appeals by the Executive
or the Executive's refusal to pursue such remedies and appeals) in any action
the effect of which is to permanently enjoin Executive from fulfilling his
duties under this Agreement;
(iii) Executive's willful or intentional material breach of
this Agreement;
(iv) Executive's gross negligence in performing his duties
under this Agreement;
(v) Executive's willful or intentional misconduct in the
performance of his duties under this Agreement;
Provided, however, that for purposes of clauses (i) through (v), Cause
shall not include any one or more of the following:
(A) Executive's bad judgment; or
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(B) any act or omission believed by Executive in good
faith to have been in or not opposed to the interest of the
Company (without intent of Executive to gain, directly or
indirectly, a profit to which Executive was not legally
entitled).
3.3 Good Reason.
(a) During the Term, Executive may terminate his employment
hereunder for Good Reason in accordance with the substantive and procedural
provisions of this Article. For purposes of this Agreement, Good Reason means
the occurrence of any one or more of the following actions or omissions that,
unless otherwise specified, occurs during the Term of the Agreement:
(i) any failure by the Company to pay Executive's Base Salary
or annual bonus in violation of Article 4 of the Agreement;
(ii) any failure by the Company to comply with any provision
of Articles 2 (including, but not limited to, failure by the Company to
reappoint or reelect Executive as Senior Vice President), 4, 5, 6, 8, or 9 of
the Agreement;
(iii) any material adverse modification in Executive's
position, authority, duties or other terms and conditions of Executive's
employment;
(iv) any material breach of the Agreement by the Company;
(v) any termination of employment by the Company that purports
to be for Cause, but is not in full compliance with all of the requirements of
this Agreement (any such purported termination shall be treated as a termination
of employment without Cause for all purposes of this Agreement); or
(vi) the failure at any time of a successor to the Company
explicitly to assume and agree in writing upon request by the Executive to be
bound by the Agreement.
(b) In the event Executive determines there is Good Reason to
terminate, Executive shall notify the Company of the events constituting such
Good Reason by a Notice of Termination pursuant to Section 3.4. A delay in the
delivery of such Notice of Termination or a failure by Executive to include in
the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of Executive under this
Agreement or preclude Executive from asserting such fact or circumstance in
enforcing rights under this Agreement; provided, that no act or omission by the
Company shall qualify as Good Reason if Executive's delivery of Notice of
Termination occurs more than 3 months after Executive first obtains actual
knowledge of such act or omission.
3.4 Notice of Termination. Any termination by the Executive for Good
Reason or by the Company for Cause shall be communicated by Notice of
Termination to the Company or the Executive, as the case may be. For purposes
hereof, a "Notice of Termination" means a written notice given in accordance
with Article 26 of the Agreement which sets forth (a) the specific termination
provision in this Agreement relied upon by the party giving such notice, (b) in
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reasonable detail the specific facts and circumstances claimed to provide a
basis for such termination of employment, and (c) if the Termination Date is
other than the date of receipt of such Notice of Termination, the Termination
Date shall be any later date, not more than 15 days after the giving of such
Notice, specified in such notice; provided, however, that if no Notice of
Termination is given, the Termination Date shall be the last date on which
Executive is employed by the Company.
ARTICLE 4. COMPENSATION
4.1 Base Salary. For all services rendered by the Executive during the
Term, the Company shall pay the Executive as compensation a base annual salary
(the "Base Salary"), payable in appropriate installments to conform with regular
payroll dates for salaried personnel of the Company. On the Effective Date, the
annual rate of the Executive's Base Salary shall be $310,000 (the "Annual Base
Salary Rate"). Commencing in 2005, the Executive's Annual Base Salary Rate may
be increased on or about March 1 each year. The timing of the annual increase
shall coincide with increases of other top executives, in accordance with
Company policy.
4.2 Bonus. In addition to the Base Salary provided for in Section 4.1 and
the other benefits provided for in this Agreement, the Executive shall be
eligible, upon the achievement of certain goals established and communicated to
the Executive by the COO or the CEO, to receive an annual bonus, under the
Company's Executive Incentive Plan, of up to 100% of his base salary (with a
midpoint/target of 50% of his base salary as described in the Company's
executive bonus plan) for the year for which the bonus is to be paid. The annual
bonus, if any, shall be paid within 90 days after the end of the applicable
fiscal year of the Company. The Company agrees that, for the portion of fiscal
year 2003 during which Executive is employed by the Company, Executive's bonus
will be guaranteed at 75% of base salary earned, and for fiscal year 2004,
Executive's bonus will be guaranteed at 50% of base salary earned.
ARTICLE 5. STOCK AWARDS
5.1 Restricted Stock. In addition to the Base Salary and bonus provided to
the Executive pursuant to Article 4 and subject to Section 14(a) below,
Executive shall be granted 15,000 shares of restricted common stock of the
Company on the Effective Date with the restriction lapsing on December 31, 2006
(the "2003 Restricted Share Grant"). Executive acknowledges and agrees that the
2003 Restricted Share Grant shall be in lieu of all other stock based
compensation programs that the Company has granted or will grant to executives
in the Company for fiscal years 2003 through 2004. Provided, however, if
similarly situated executives receive more stock based compensation than
Executives under the Company's stock based compensation programs for fiscal
years 2003 through 2004, Executive shall be awarded additional stock based
compensation in order to equalize his stock based compensation to other
similarly situated executives. If the Executive's employment is terminated by
reason of death, Total Disability, by the Company for any reason other than for
Cause, or by the Executive for Good Reason, all restrictions on such restricted
shares and any other restricted stock granted to Executive shall immediately
lapse. If the Executive's employment is terminated by the Company for Cause or
by the Executive other than for Good Reason, all shares of restricted common
stock granted under this Article 5 or otherwise as to which the restrictions
have not lapsed as of the Termination Date shall be forfeited to the Company.
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ARTICLE 6. OTHER EMPLOYEE BENEFITS
6.1 Participation in Benefit Plans. During the Term, the Executive shall
be entitled to participate in any and all Plans (as defined in Section 18(a)) if
and to the extent the Executive is eligible to participate in accordance with
the terms and provisions of any such Plan. Notwithstanding the foregoing, all
vesting periods under all Plans shall be waived and the Executive, upon
termination of employment for any reason before the age of retirement under
those Plans, shall be considered to have attained the minimum retirement age
provided in those Plans (except where waiving such period would violate ERISA).
Nothing in this Section 6.1 is intended, or shall be construed, to require the
Company to institute any particular plan, program or benefit. If the Executive
is prohibited from participating in, or accruing benefits under, any such Plan,
the Company shall provide the Executive with comparable benefits outside such
Plan.
6.2 Relocation Expenses. The Company shall reimburse Executive for the
costs of relocating from Boca Raton, Florida to the Atlanta, Georgia
metropolitan area in accordance with its Relocation Policy in effect as of the
Effective Date, provided that such relocation is completed by June 30, 2004.
Between the Effective Date and the earlier of (i) the completion of Executive's
relocation to the Atlanta, Georgia metropolitan area and (ii) June 30, 2004, the
Company will reimburse Executive for transportation expenses between Atlanta and
Boca Raton, Florida and other temporary living expenses.
ARTICLE 7. DISABILITY BENEFITS
7.1 Termination on Total Disability. The Company may only terminate the
Executive's employment because of Executive's Total Disability (as defined
below) by giving Executive or his legal representative, as applicable, (a)
written notice to Executive in accordance with Section 26 of the Company's
intention to terminate Executive's employment pursuant to this Section 7.1 and
(b) a Certification delivered to Executive (as defined in Section 7.4).
Executive's employment shall terminate effective on the 30th day (the
"Disability Effective Date") after Executive's receipt of such notice unless,
before the Disability Effective Date, Executive shall have resumed the full-time
performance of Executive's duties hereunder.
7.2 Disability Benefits. If the Company terminates Executive's employment
by reason of Executive's Total Disability during the Term, the Company's sole
obligation to Executive under Articles 2 and 4 shall be to, in addition to all
vested rights arising from Executive's employment as specified in Section 6.1,
continue Executive's Base Salary for a period of 180 days following the last day
of the month in which Executive's employment is terminated.
7.3 Other Benefits. The rights of the Executive as enumerated under this
Article 7 upon any said termination of employment in the event of Total
Disability of Executive (which shall be treated as retirement for purposes of
all Company Plans and benefits) are in addition to any and all other rights and
benefits to which the Executive is entitled (or those in which the Executive is
otherwise vested or which the Executive has otherwise earned), under the terms
of this Agreement (including but not limited to those rights described in
Articles 5, 6, 11, and 12).
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7.4 Definition of Total Disability. For purposes of this Agreement, "Total
Disability" means any medically determinable physical or mental impairment that
has lasted for a continuous period of not less than six (6) months and can
reasonably be expected to be permanent or of indefinite duration, and that
renders Executive unable to perform the duties required under the Agreement.
Such determination shall be made by written certification ("Certification") of
Executive's Total Disability by a physician jointly selected by the Company and
the Executive; provided that if the Company and Executive cannot reach agreement
on the physician, the Certification shall be by a panel of physicians consisting
of one physician selected by the Company, one physician selected by the
Executive and a third physician jointly selected by those two physicians.
ARTICLE 8. REIMBURSEMENT OF EXPENSES
The Company recognizes that the Executive will incur, from time to time,
expenses for the benefit of the Company and in furtherance of the Company's
business, including, but not limited to, expenses for entertainment, travel and
other business expenses. The Executive shall be reimbursed for all said expenses
in accordance with the Company's policy and practice applicable thereto. In the
event of the termination of the Executive's employment for any reason, the
Company shall reimburse the Executive (or in the event of death, his personal
representative) for expenses incurred by the Executive on behalf of the Company
prior to the Termination Date to the extent such incurred expenses have not been
previously reimbursed by the Company.
ARTICLE 9. VACATION
Commencing January 1, 2004, the Executive shall be entitled to four (4)
weeks paid vacation during each calendar year.
ARTICLE 10. TERMINATION COMPENSATION
Upon the termination of the Executive's employment by the Executive for
Good Reason or by the Company other than for Cause, the Executive (or in the
event of his subsequent death, his designated beneficiary) shall be paid the
greater of (i) the Base Salary for the remaining Term of this Agreement, or (ii)
the amount Executive would be entitled to under the Company's Severance Pay Plan
applicable to senior executives in effect from time to time.
ARTICLE 11. REIMBURSEMENT OF CERTAIN EXPENSES
The Company shall reimburse the Executive for all legal costs and
expenses, including attorneys' fees, reasonably incurred by the Executive in
connection with any dispute or disputes arising out of violations of a
Confidential Retirement and Consulting Agreement between the Executive and Xxxx
Xxx Corporation dated as of August 31, 2001 (the "Consulting Agreement"),
provided that:
(a) the alleged violations of the Consulting Agreement arise from
the Executive's acceptance of employment with and employment by the Company; and
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(b) immediately prior to the Effective Date, Executive was not in
fact in violation of any provision of the Consulting Agreement which is the
subject of such a dispute; and
(c) the Company shall have the right to select counsel to represent
Executive in any dispute arising out of the Consulting Agreement.
Executive represents that except for the Consulting Agreement, he is not a party
to nor bound by any covenant, including a non-compete or non-solicitation
agreement, by virtue of any prior employment or arrangement.
ARTICLE 12. POST-TERMINATION OBLIGATIONS
All payments and benefits provided to the Executive under this Agreement
shall be subject to the Executive's reasonable compliance with the following
provisions during the Term and following the termination of the Executive's
employment:
12.1 Assistance in Litigation. The Executive shall, upon reasonable
notice, furnish such information and assistance to the Company as may reasonably
be required by the Company in connection with any litigation in which it is, or
may become, a party, and which arises out of facts and circumstances known to
the Executive. The Company shall promptly reimburse the Executive for his
out-of-pocket expenses incurred in connection with the fulfillment of his
obligations under this Section 12.1.
12.2 Confidential Information. The Executive shall not disclose or reveal
to any unauthorized person any trade secret or other confidential information
relating to the Company, its subsidiaries or affiliates, or to any businesses
operated by them, and the Executive confirms that such information constitutes
the exclusive property of the Company; provided, however, that the foregoing
shall not prohibit the Executive from disclosing such information to the extent
necessary or desirable in connection with obtaining financing for the Company
(or furnishing such information under any agreements, documents or instruments
under which such financing may have been obtained) or otherwise disclosing such
information to third parties or governmental agencies in furtherance of the
interests of the Company, or as may be required by law.
(a) Noncompetition. The Executive shall not: (a) during the Term of
the Agreement and for one (1) year thereafter, without the prior written consent
of the Company, engage, directly or indirectly, as a licensee, owner, manager,
consultant, officer, employee, director, investor or otherwise, in any business
in material competition with the Activewear business of the Company; or (b)
usurp for his own benefit any corporate opportunity under consideration by the
Company during his employment, unless the Company shall have finally decided not
take advantage of such corporate opportunity. The restrictions of part (a) of
this Section 12.3 shall not apply to a passive investment by the Executive
constituting ownership of less than five percent (5%) of the equity of any
entity engaged in any business described in part (a) of this Section 12.3. The
Executive acknowledges that the possible restrictions on his activities which
may occur as a result of his performance of his obligations under this Section
12.3 are required for the reasonable protection of the Company.
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12.3 Failure to Comply. In the event that the Executive shall fail to
comply with any provision of this Article 12, and such failure shall continue
for thirty (30) days following delivery of notice thereof by the Company to the
Executive, all rights hereunder of the Executive and any person claiming under
or through him shall thereupon terminate and no person shall be entitled
thereafter to receive any payments or benefits hereunder (except for
indemnification rights under the Company's Bylaws, or other documents or
policies and under the Company's director and officer liability insurance
policies, and for benefits under Plans as provided in Section 6.1 which have
been earned or otherwise fixed or determined to be payable prior to such
termination).
ARTICLE 13. BENEFICIARY
The Executive shall name one or more primary beneficiaries and one or more
contingent beneficiaries, who shall be entitled to receive any amounts payable
following the death of the Executive under this Agreement, which beneficiary or
beneficiaries shall be subject to change from time to time by Executive giving
notice in writing to the Board. A beneficiary may be a trust or other entity, an
individual or the Executive's estate. If the Executive fails to designate a
beneficiary, primary or contingent, then and in such event, such benefit shall
be paid to the surviving spouse of the Executive or, if he shall leave no
surviving spouse, then to the Executive's estate. If a named beneficiary
entitled to receive any death benefit is not living or in existence at the death
of the Executive or dies prior to asserting a written claim for any such death
benefit, then and in any such event, such death benefit shall be paid to the
other primary beneficiary or beneficiaries named by the Executive who shall be
living or in existence, if any, otherwise to the contingent beneficiary or
beneficiaries named by the Executive who shall then be living or in existence,
if any; but if there are no primary or contingent beneficiaries then living or
in existence, such benefit shall be paid to the surviving spouse of the
Executive or, if he shall leave no surviving spouse, then to the Executive's
estate. If a named beneficiary is receiving or is entitled to receive payments
of any such death benefits and dies before receiving all of the payments due
him, any remaining benefits shall be paid to the other primary beneficiary or
beneficiaries named by the Executive who shall then be living or in existence,
if any, otherwise to the contingent beneficiary or beneficiaries named by the
Executive who shall then be living or in existence, if any, but if there are not
primary or contingent beneficiaries then living or in existence, the balance
shall be paid to the estate of the beneficiary who was last receiving the
payments.
ARTICLE 14. INDEMNIFICATION
(a) In addition to the fees and expenses specified in Article 11
above, the Company shall indemnify the Executive to the maximum extent permitted
by applicable law for any and all liability of the Executive arising out of any
action or claim that Executive's employment by the Company violates or is in
breach of the Consulting Agreement. Notwithstanding the foregoing, the maximum
amount payable by the Company hereunder in the event Executive must pay any
amounts under Section 14 of the Consulting Agreement, exclusive of Executive's
legal fees, if any, shall be $450,000, net of taxes.
(b) The Company shall indemnify the Executive during his employment
and thereafter to the maximum extent permitted by applicable law for any and all
liability of the
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Executive arising out of, or in connection with his employment by the Company;
provided, that in no event shall such indemnity of the Executive at any time
during the period of his employment by the Company be less than the maximum
indemnity provided by the Company at any time during such period to any other
officer or director under an indemnification insurance policy or the bylaws or
charter of the Company or by agreement.
ARTICLE 15. NO SET-OFF OR MITIGATION
Executive's right to receive when due the payments and other benefits
provided for under this Agreement is absolute, unconditional and not subject to
set-off, counterclaim or legal or equitable defense. Time is of the essence in
the performance by the Company of its obligations under this Agreement. Any
claim which the Company may have against Executive, whether for a breach of this
Agreement or otherwise, shall be brought in a separate action or proceeding and
not as part of any action or proceeding brought by Executive to enforce any
rights against the Company under this Agreement. Executive shall not have any
duty to mitigate the amounts payable by the Company under this Agreement by
seeking new employment or self-employment following termination. Except as
specifically otherwise provided in this Agreement, all amounts payable pursuant
to this Agreement shall be paid without reduction regardless of any amounts of
salary, compensation or other amounts which may be paid or payable to Executive
as the result of Executive's employment by another employer or self-employment.
ARTICLE 16. SUCCESSORS
This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company by purchase,
merger, consolidation or otherwise to all or substantially all of the business
assets of the Company, to assume expressly and agree in writing to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Any successor to
the business or assets of the Company which assumes or agrees to perform this
Agreement by operation of law, contract, or otherwise shall be jointly and
severally liable with the Company under this Agreement as if such successor were
the Company.
ARTICLE 17. NO WAIVER
Executive's failure to insist upon strict compliance with any provision of
this Agreement shall not be deemed a waiver of such provision or any other
provision of this Agreement. A waiver of any provision of this Agreement shall
not be deemed a waiver of any other provision, and any waiver of any default in
any such provision shall not be deemed a waiver of any later default thereof or
of any other provision.
ARTICLE 18. DEFINITIONS
For purposes of this Agreement, the terms specified below shall have the
following meanings:
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(a) "Plans" mean the Company's retirement, health, disability, life
insurance, long-term disability insurance, long-term incentive plans,
nonqualified deferred compensation and tax-qualified retirement plans or
any other plans or benefits offered by the Company to its executives
generally, including the Company's Supplemental Executive Retirement Plan.
(b) "Taxes" means federal, state, local or other income or other taxes.
ARTICLE 19. SEVERABILITY
All agreements and covenants contained herein are severable, and in the
event any of them shall be held to be invalid by a competent court, this
Agreement shall be interpreted as if such invalid agreements or covenants were
not contained herein.
ARTICLE 20. ASSIGNMENT PROHIBITED
This Agreement is personal to each of the parties hereto, and neither
party may assign nor delegate any of his or its rights or obligations hereunder
without first obtaining the written consent of the other party; provided,
however, that nothing in this Article 20 shall preclude (a) the Executive from
designating a beneficiary to receive any benefit payable under this Agreement
upon his death, (b) the executors, administrators, or other legal
representatives of the Executive or his estate from assigning any rights under
this Agreement to the person or persons entitled thereto or (c) the Company from
assigning this Agreement to any successor of the Company in accordance with the
provisions of Article 16.
ARTICLE 21. NO ATTACHMENT
Except as otherwise provided in this Agreement or required by applicable
law, no right to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
ARTICLE 22. HEADINGS
The headings of articles, paragraphs and sections herein are included
solely for convenience of references and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
ARTICLE 23. GOVERNING LAW
The parties intend that this Agreement and the performance hereunder and
all suits and special proceedings hereunder shall be construed in accordance
with and under and pursuant to the laws of the State of Georgia and that in any
action, special proceeding or other proceeding that may be brought arising out
of, in connection with, or by reason of this Agreement, the laws of the State of
Georgia shall be applicable and shall govern to the exclusion of the law or any
other forum, without regard to the jurisdiction in which any action or special
proceeding may be instituted.
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ARTICLE 24. BINDING EFFECT
This Agreement shall be binding upon, and inure to the benefit of, the
Executive and his heirs, executors, administrators and legal representatives and
the Company and its permitted successors and assigns.
ARTICLE 25. COUNTERPARTS
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
ARTICLE 26. NOTICES
All notices, requests and other communications to any party under this
Agreement shall be in writing (including facsimile transmission or similar
writing) and shall be given to such party at its address or facsimile number set
forth below or such other address or telefacsimile number as such party may
hereafter specify for the purpose by notice to the other party:
(a) If to the Executive:
Xx. Xxxxx X. Xxxxx
000 Xxxxxxxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
(b) If to the Company:
Xxxxxxx Corporation
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (ii) if given by any other
means, when delivered at the address specified in this Article 26.
ARTICLE 27. MODIFICATION OF AGREEMENT
No waiver or modification of this Agreement or of any covenant, condition,
or limitation herein contained shall be valid unless in writing and duly
executed by the party to be charged therewith. No evidence of any waiver or
modification shall be offered or received in evidence at any proceeding,
arbitration, or litigation between the parties hereto arising out of or
affecting this Agreement, or the rights or obligations of the parties hereunder,
unless such waiver or modification is in writing, duly executed as aforesaid.
The parties further agree that the provisions of this Article 27 may not be
waived except as herein set forth.
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ARTICLE 28. TAXES
To the extent required by applicable law, the Company shall deduct and
withhold all necessary Taxes required by law to be withheld from any payments
made pursuant to the terms of this Agreement.
ARTICLE 29. DISPUTE RESOLUTION
(a) Except as to actions described in Section 6 herein, this
Section shall apply for purposes of any disputes which arise
under this Agreement as follows: in the event of any dispute
under this Agreement, the party who has the claim under this
Agreement shall give the party to whom the claim is against
reasonable notice and, except in an emergency situation, a
reasonable opportunity to cure. The party who has the claim
agrees to promptly submit such dispute to binding arbitration.
The arbitration hearing shall be completed within 90 days of
the first to occur of the notice referred to above or
submission to arbitration if no such notice is given.
(b) Such arbitration shall be conducted in accordance with this
Agreement and, where not inconsistent, the appropriate
commercial arbitration rules of the American Arbitration
Association ("AAA"), and shall be held in Xxxxxx County,
Georgia at such location within Xxxxxx County as shall be
determined by the AAA. Each side shall name one arbitrator.
The two arbitrators shall select a third arbitrator either by
mutual agreement or from a list submitted by the AAA in
accordance with AAA rules. The arbitrators shall permit
reasonable discovery in accordance with Federal Rules of Civil
Procedure and the local Rules of the U.S. District Court for
the Northern District of Georgia. The arbitrators shall make
written findings of fact and conclusions of law reflecting the
appropriate substantive law. The decision of the arbitrators
shall be rendered within 30 days of the close of the
arbitration hearing and shall be final and binding. The
Company shall pay all of the expenses of arbitration
(including the expenses of the arbitrators and the AAA).
(c) In any arbitration proceeding pursuant to subsection (ii)
above, this Agreement shall be governed as to all matters,
including validity, interpretation, and enforcement, by the
laws of the State of Georgia, except as superseded by the laws
of the United States.
(d) The parties agree that any attempt to avoid arbitration by
instituting procedures in any other forum will constitute a
material breach under this Agreement and will cause
irreparable harm to the other party, including, but not
limited to disrupting business and incurring legal expenses,
thereby requiring an immediate judicial order to return the
cause to arbitration and terminate any other proceedings.
Judicial orders to enforce the arbitration provisions of this
Agreement and otherwise in aid of arbitration may be entered
by the federal and state courts located in Xxxxxx County,
Georgia at any time prior to or after a final decision by
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the arbitrators, and the parties hereby submit to personal
jurisdiction in the State of Georgia and to venue in such
courts.
ARTICLE 30. RECITALS
The Recitals to this Agreement are incorporated herein and shall
constitute an integral part of this Agreement.
ARTICLE 31. EFFECT OF PRIOR AGREEMENTS
Other than as expressly provided herein, this Agreement supersedes and
replaces any prior agreement, understanding or arrangement (whether written or
oral) between the Company and the Executive. Each of the parties hereto has
relied on his or its own judgment in entering into this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
EXECUTIVE
/s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
WITNESS:
________________________________________
XXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Its: Senior Vice President
----------------------
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