Exhibit (d)(6)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of August 8, 2002 between U.S. LABORATORIES INC.,
a Delaware corporation ("Company"), and XXXXXXXXX XXXXXX, a resident of
California ("Executive") to be effective as of the Effective Time.
RECITALS
A. Executive is presently employed by Company as its Chief Executive
Officer.
B. Company, Bureau Veritas, S.A., a societe anonyme organized under the
laws of the French Republic ("Parent"), and Voice Acquisition Corp., a Delaware
corporation and an indirect wholly-owned subsidiary of Parent ("Purchaser"),
are parties to that certain Agreement and Plan of Merger dated as of August 8,
2002 (the "Merger Agreement") providing for the acquisition by Parent of
Company. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Merger Agreement. Parent together with its
Affiliates are collectively referred to as the "BV Group."
C. This Agreement is one of the employment agreements contemplated by the
Merger Agreement to be entered into by Company and certain executives of
Company.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Employment. On the terms and subject to the conditions hereof, Company
hereby employs Executive for the term (the "Term") commencing at the Effective
Time and, unless earlier terminated pursuant to the terms hereof, ending on
December 31, 2005, and Executive hereby accepts such employment. For purposes
of this Agreement, the "Effective Time" shall be consummation of the Offer, as
defined in the Merger Agreement. During the Term, Executive shall devote his
entire and exclusive working time, energy and skills to such employment and
shall not render any services of a business, commercial or professional nature
to any person or organization other than Company or its subsidiaries or be
engaged in any other business activity, without the prior written consent of
the Board of Directors of Company. Executive may make and manage personal
business investments of Executive's choice and serve in any capacity with any
civic, educational or charitable organization without seeking or obtaining
approval by the Board of Directors; provided that such activities and services
do not interfere or conflict with the performance of duties hereunder or create
any conflict of interest with such duties.
2. Duties, Offices.
2.1 Executive shall serve as Chief Executive Officer, President and one
of the directors of Company and will, under the direction of the Board of
Directors of Company and in accordance with the policies of Parent in effect
from time to time (the "Policies"), faithfully and to the best of his
ability perform the duties of Chief Executive Officer and President. In such
capacity, Executive shall have primary responsibility for overseeing the
business affairs of Company and its subsidiaries and shall perform such
executive duties as are generally associated with the positions of Chief
Executive Officer and President. Executive shall have such
additional duties of an executive nature with respect to other segments of
the business of the BV Group in the United States engaged in the same or
related fields as Company is engaged in, as well as such other duties of an
executive nature, as the Board of Directors of the Company may from time to
time assign to Executive. It is understood that the principal executive
offices of Company are contemplated to be relocated to the East Coast of the
United States as promptly as reasonably practicable after the Effective
Time. Executive shall provide his services from such location and from such
other locations as may be necessary for Executive to fulfill his obligations
hereunder as Chief Executive Officer and President of Company, it being
understood that his duties hereunder also will involve extensive travel.
Executive will report to the Board of Directors of Company, and it is
currently contemplated that Executive will also report to the Chief
Executive Officer of Parent.
2.2 Executive shall serve without additional compensation, if elected or
appointed thereto, in one or more offices or as a director of any member of
the BV Group as the Board of Directors of any member of the BV Group may
require.
3. Compensation And Benefits. During the Term, Executive shall be
entitled, subject to applicable federal, state and local withholding
obligations, to the following:
3.1 Through December 31, 2002, continuation of his base salary at the
same rate as currently in effect which is a salary at the annual rate of
Three Hundred Thousand Dollars ($300,000) and from January 1, 2003 through
December 31, 2003, a base salary at the annual rate of Four Hundred Thousand
Dollars ($400,000), subject to annual increase thereafter at the discretion
of the Board of Directors of Company, but in no event less than the annual
increase in the Consumer Price Index for Urban Wage Earners and Clerical
Workers--U.S. City Average (the "Base Salary"). The Base Salary shall be
paid to Executive in installments in accordance with the payroll procedures
of Company as in effect from time to time.
3.2 Commencing in respect of 2003, a bonus of up to 70% of Base Salary
determined in accordance with Parent policy for the award of such bonuses.
The bonus shall consist of four components weighted as follows: 20% shall be
based on achievement of BV Group financial results, 30% on achievement of
Company financial results, 20% on implementation of specific goals and 30%
on Executive achieving personal objectives. The financial results, goals and
objectives shall be determined by Parent in consultation with Executive at
the commencement of calendar year 2003 and annually thereafter. The bonus in
respect of any calendar year shall be payable promptly after completion of
the audited financial statements of Parent and its subsidiaries for such
year.
3.3 Participation, to the extent Executive meets all eligibility
requirements, in all United States employee benefit plans maintained by
Company and made available to other senior executive officers of Company
employed in the United States, including, but not limited to, group
hospitalization, medical and disability plans, life insurance plans, and
retirement plans.
3.4 Reimbursement for reasonable and necessary expenses incurred by
Executive in the performance of his duties hereunder and approved by
Company, including, but not limited to, expenses for entertainment, travel,
meals, hotel accommodations, professional seminars and business telephone
expenses, subject to the submission by Executive of the
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documentation necessary to support the deductibility of such expenses by
Company on its federal and state income tax returns, in such form as Company
may from time to time require.
3.5 Executive shall be entitled to four (4) weeks of vacation during
each calendar year. Vacations may be taken in accordance with the Company's
standard vacation policies in effect relating to senior executive employees
employed in the United States. If Executive fails to use any vacation
accrued during the calendar year, Executive may carryover such vacation into
the following calendar year. However, Executive will not accrue any
additional vacation time in that following calendar year until Executive has
used the previously accrued vacation time. The Company will not compensate
Executive for accrued, but unused, vacation time that remains at the end of
a calendar year. Executive shall be entitled to such holidays as are made
available to executive employees of Company employed in the United States.
3.6 The Company will continue to pay all expenses associated with the
lease and operation of the 2002 BMW X-5 SUV currently in use by Executive.
The Company will pay all expenses associated with the lease and operation by
Executive of a comparable vehicle at the conclusion of the lease term.
Executive shall, at his option, assume the lease of the 2001 Lexus LX470
currently used by Executive's spouse, or return the vehicle and cancel the
lease. The Company will pay any fees incurred if Executive elects to cancel
the Lexus lease.
3.7 The grant of a stock option ("Option") to purchase that number of
shares of capital stock of Parent having an aggregate exercise price of
$1,000,000. The Option shall be awarded pursuant to the terms, and subject
to the conditions, of the Parent Stock Option Plan of 2003 and related Share
Repurchase Agreement.
4. Termination.
4.1 Termination on Death, Disability, For Cause and Otherwise. The
employment of Executive hereunder shall terminate prior to December 31, 2005
immediately upon the happening of any of the following:
4.1.1 the death of Executive;
4.1.2 the Disability of Executive; Executive being deemed to have a
"Disability" if Executive shall be unable, by virtue of illness or
physical or mental disability or incapacity to perform Executive's
essential job functions hereunder, whether with or without reasonable
accommodations in substantially the manner and to the extent required
hereunder prior to the commencement of such disability for a total
period of ninety (90) days, whether or not such days are consecutive,
during any consecutive twelve (12) month period;
4.1.3 the termination of this Agreement by Company for Cause;
"Cause" meaning:
4.1.3.1 the inability of Executive to perform his duties because
of the entry against Executive of an injunction, restraining order or
other type of judicial judgment, decree or order
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which would prevent or hinder Executive from performing his duties;
4.1.3.2 Executive's material default or other material breach of
his obligations under this Agreement, other than as a result of
Disability; provided that the Company has first given Executive
written notice and a reasonable opportunity of not less than 15 days
to cure the condition giving rise to the alleged breach;
4.1.3.3 (a) misconduct, dishonesty or insubordination; (b) use of
illegal drugs or abuse of alcohol such as to interfere with the
performance of Executive's obligations hereunder; (c) excessive
absenteeism or material or serious neglect of his duties hereunder;
(d) conviction of or plea of guilty or nolo contendre to a felony or
crime involving moral turpitude, dishonesty, theft or fraud; or (e)
material failure by Executive to comply with applicable laws or
governmental regulations with respect to Company operations or the
performance of Executive's duties;
4.1.3.4 aiding a competitor of Company to the detriment of
Company; or
4.1.3.5 Executive's wilfull failure or refusal to perform his
responsibilities hereunder, which failure is not cured within 15 days
after written notice; or
4.1.4 the termination of this Agreement by Company at Company's
election (subject to the provisions of Section 5.4) for reasons other
than death, Disability or Cause.
4.2 Termination For Good Reason. Executive may terminate his employment
hereunder during the Term for Good Reason. At least thirty (30) days prior
to any termination for Good Reason, Executive shall deliver to Company a
notice of termination which sets forth the provision or provisions of this
Section 4.2 relied upon by Executive as the basis for asserting a
termination for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean the occurrence of one or more of the following circumstances,
without Executive's express written consent, which are not remedied by
Company within thirty (30) days after receipt of Executive's notice of
termination:
4.2.1 an assignment to Executive of any duties materially
inconsistent with his positions, duties, responsibilities and status
with Company or any material limitation of the powers of Executive not
consistent with the powers of Executive contemplated by Section 2;
4.2.2 a reduction in Executive's Base Salary as in effect from time
to time;
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4.2.3 the failure of Company to continue to maintain Executive as
(a) its President and Chief Executive Officer and (b) as a member of its
Board of Directors at all times for so long as he shall serve as Chief
Executive Officer of Company;
4.2.4 any other material breach by Company of its obligations under
this Agreement; or
4.2.5 a Change of Control.
A "Change of Control" means: (i) the consummation of the acquisition
by a third party which is not an affiliate of Company of more than 50%
of the outstanding voting securities of Company (other than the
acquisition contemplated pursuant to the Merger Agreement), (ii) the
consummation of a merger, consolidation or other reorganization of
Company (other than the merger contemplated by the Merger Agreement or a
simple reincorporation of Company in another jurisdiction) if after
giving effect to such merger, consolidation or other reorganization of
Company, the stockholders of Company immediately prior to such merger,
consolidation or other reorganization do not represent more than 50% of
the voting securities (on a fully diluted basis) of the surviving or
resulting entity after such merger, consolidation or other
reorganization, or (iii) the sale of all or substantially all of the
assets of Company to a third party which is not an affiliate of Company.
5. Payments Following Termination.
5.1 Death. If Executive's employment is terminated as a result of his
death, then, in lieu of any other compensation hereunder, Company shall pay
to Executive's estate the Base Salary which would otherwise be payable to
Executive up to the end of the month in which Executive's death occurs, a
pro rata portion of his bonus for such year based on the number of days of
Executive's employment during such year, accrued and unpaid vacation time up
to the date of death and any reimbursable expenses owed to Executive
hereunder as of the date of death. The bonus shall be payable promptly after
completion of the audited financial statements of Parent and its
subsidiaries for such year. In addition, the Option and any other option
granted to Executive shall continue to be exercisable as and to the extent
provided for in the Option Plan.
5.2 Disability. If Executive's employment is terminated as a result of
Disability, then, in lieu of any other compensation hereunder, Company shall
pay to Executive the Base Salary which would otherwise be payable to
Executive up to the date of termination, a pro rata share of his bonus for
such year based on the number of days of Executive's employment during such
year, accrued and unpaid vacation time up to the date of termination and any
reimbursable expenses owed to Executive hereunder as of the date of
Disability. The bonus shall be payable promptly after completion of the
audited financial statements of Parent and its subsidiaries for such year.
In addition, the Option and any other option granted to Executive may
continue to be exercisable, if at all, to the extent provided for in the
Option Plan.
5.3 Termination By Company For Cause or by Executive Other than for Good
Reason. If Executive's employment is terminated for Cause or by the
Executive (other than for
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Good Reason), then Company shall pay to Executive the Base Salary which
would otherwise be payable to Executive up to the date of termination, any
reimbursable expenses owed to Executive and accrued and unpaid vacation time
up to the date of termination and Executive shall not be entitled to any
bonus payment pursuant to Section 3.2, to exercise any portion of the
Option, whether or not then vested, or to any other compensation hereunder.
5.4 Termination by Company Without Cause or by Executive With Good
Reason. If Executive's employment hereunder is terminated by Company
pursuant to Section 4.1.4 or by Executive for Good Reason, then, in lieu of
any other compensation hereunder:
5.4.1 Company shall pay to Executive the Base Salary payable through
the end of the Term (i.e. through December 31, 2005), a pro rata share
of the bonus for the year in which termination occurs based on the
number of days Executive's employment continued during such year (such
bonus being payable promptly after completion of the audited financial
statements of Parent and its subsidiaries for such year), any
reimbursable expenses owed to Executive and accrued and unpaid vacation
time through the date of termination;
5.4.2 any unexercised portion of the Option, vested or unvested, and
any other option granted to Executive shall terminate as provided for in
the Option Plan;
5.4.3 provided that Executive timely elects continuation of medical,
dental and vision coverage for himself and his eligible dependents, the
Company shall pay all COBRA premiums for a period of eighteen months or
until December 31, 2005, whichever is earlier.
5.4.4 if the Company terminates this Agreement without Cause prior
to January 1, 2003, then the Company will cause the Escrow Agent, as
such term is defined in that certain Contingent Payment Agreement dated
the date hereof among Bureau Veritas Holdings, Inc., a Delaware
corporation, Purchaser and Executive (the "CP Agreement"), to release to
Executive in its entirety the $5 million escrow fund deposited by
Purchaser with the Escrow Agent in connection with the purchase of
Executive's shares as provided for in the CP Agreement.
6. Confidentiality; Unfair Competition.
6.1 Executive recognizes and acknowledges that the business of Company
is highly competitive and that during the course of his employment he will
have access to significant proprietary and confidential information
belonging to Company and the BV Group. Executive therefore covenants and
agrees, for the duration of this Agreement and at all times following its
termination, that he will not use (other than in furtherance of Company's
business interests during the Term) or disclose any confidential proprietary
information of Company or any member of the BV Group, including, but not
limited to patents, patent rights, inventions and intellectual property
rights, techniques, know-how, trade secrets, software, technical designs,
trademarks, trademark rights, tradenames, tradename rights, copyrights,
customer and supplier lists, manufacturing processes, business plans,
strategic plans, marketing information and other
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business and financial information of or related to Company or members of
the BV Group. Executive shall retain all such Information in trust for the
sole benefit of Company. The obligations of Executive under this Section 6.1
shall not apply to any information which (a) was part of the public domain
prior to the date of this Agreement other than as a result of unauthorized
disclosure by Executive, (b) becomes part of the public domain by reason of
disclosure by some third person who did not acquire the information from
Executive, or (c) becomes part of the public domain by reason of disclosure
by Executive where such disclosure is made during the Term in furtherance of
Company's business interests.
6.2 Executive acknowledges and confirms his obligations under the Unfair
Competition Agreement, including without limitation the obligation not to
compete with Parent and its Affiliates as provided pursuant to Section 2
thereof. Such provision provides that:
"Until the later of (i) the fifth anniversary of the Effective Time or
(ii) the third anniversary of the date on which the Principal is no
longer employed by the Company, its successors or assigns or any other
affiliate of the Parent or Purchaser (the "Restricted Period"),
Principal shall not, as principal, proprietor, director, officer,
partner, shareholder, employee, member, manager, consultant, agent,
independent contractor or otherwise, for himself or on behalf of any
other person or entity (except the Company, its successors or assigns or
any affiliate of the Company, the Parent or Purchaser, in either case at
the Company's request), directly or indirectly, engage in, or enter
into, in any of the counties of the State of California listed in
Schedule 1 hereto or anywhere else in the United States in which the
Company operates or does business in (x) the business of engineering
inspection and testing or (y) any other business conducted by the
Company or any of its affiliates as of the date of such termination or
expiration of employment of the Principal; provided that the direct or
indirect ownership by Principal as an inactive investor of not more than
five percent of the outstanding voting securities of an entity listed
for trading on a national stock exchange or quoted on any nationally
recognized automated quotation system shall not be deemed a violation of
the provisions of this Agreement."
6.3 Executive agrees until the later of (a) the fifth anniversary of the
Effective Time or (b) the third anniversary of the date on which Executive
is no longer employed by Company or any other member of the BV Group for any
reason whatsoever, Executive shall not, as principal, proprietor, director,
officer, partner, shareholder, employee, member, manager, consultant, agent,
independent contractor or otherwise, for himself or on behalf of any other
person or entity (except Company or an affiliate of Company, in either case
at Company's request), directly or indirectly:
6.3.1 approach, solicit or accept business from, or otherwise do
business or communicate in any way with any Customer at the time (except
to the extent necessary solely to ascertain whether such person or
entity is a Customer as
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defined herein) in connection with (i) engineering inspection and
testing services and related businesses or (ii) any other product or
service similar to any provided by Company or any other member of the BV
Group at the time of such termination or expiration;
6.3.2 approach, counsel or attempt to induce any person who is then
in the employ of Company or its affiliates to leave the employ of
Company or its U.S. Affiliates; or
6.3.3 aid, assist or counsel any other person, firm or corporation
to do any of the above.
As used in this Section 6.3, "Customer" means (a) any person who was a
customer of Company or of any other member of the BV Group at any time
during the two-year period prior to the date of termination or expiration of
Executive's employment or (b) any prospective customer to whom, during the
two-year period prior to the date of termination or expiration of
Executive's employment, (i) Company or any member of the BV Group had made a
written offer of services or (ii) Executive had personally made an offer of
services.
6.4 Executive shall not, at any time during the Term or thereafter,
disrupt, disparage, impair or interfere with the business of Company or any
other member of the BV Group, whether by way of disrupting its relationships
with customers, agents, representatives or vendors, disparaging or
diminishing the reputation of such Company or other member of the BV Group
or otherwise.
6.5 All written materials, records and documents made by Executive or
coming into Executive's possession during the Term or thereafter concerning
the business or affairs of Company or any other member of the BV Group,
together with all intellectual and industrial property rights attached
thereto shall be the sole property of Company and its affiliates; and, upon
termination of Executive's employment or at the request of Company at any
time during Executive's employment, Executive shall promptly deliver the
same to Company or any other member of the BV Group designated by it.
Executive shall render to Company or to any other member of the BV Group
designated by it such reports of the activities undertaken by Executive or
conducted under Executive's direction pursuant hereto during the Term as
such company may reasonably request.
6.6 Executive hereby agrees that any and all improvements, inventions,
discoveries, developments, creations, formulae, processes, methods, designs
and works of authorship, and any documents, things, or information relating
thereto, whether patentable or not (individually and collectively, "Work
Product") within the scope of or pertinent to any field of business or
research in which Company or any other member of the BV Group is engaged or
is considering engaging, which Executive may conceive or make, or may have
conceived or made during Executive's employment with Company, whether before
or after the date hereof and whether alone or with others, at any time
during or outside of normal working hours, and all intellectual property
rights attached thereto shall be and remain the sole and exclusive property
of Company. Company shall have the full right to use, assign, license or
transfer all rights to or relating to Work Product. Executive shall,
whenever requested to do so by Company (whether
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during Executive's employment or thereafter), at Company's expense, execute
any and all applications, assignments, or other instruments, and do all
other things (including giving testimony in any legal proceeding) which
Company may deem necessary or appropriate in order to (a) apply for, obtain,
maintain, enforce, or defend letters patent or copyright registrations of
the United States or any other country for any Work Product, or (b) assign,
transfer, convey, or otherwise make available to Company and its affiliates
any right, title or interest which Executive might otherwise have in any
Work Product. Executive shall promptly communicate, disclose, and, upon
request, report upon and deliver all Work Product to Company, and shall not
use or permit any Work Product to be used for any purpose other than on
behalf of Company and its affiliates, whether during Executive's employment
or thereafter.
6.7 In view of the services which Executive will perform, which services
are special, unique, extraordinary and intellectual in character and which
will place Executive in a position of confidence and trust with the
customers and employees of Company and its Affiliates and will provide to
Executive access to confidential financial information, trade secrets,
"know-how" and other confidential and proprietary information Executive
expressly acknowledges that the restrictive covenants set forth in this
Section 6 are reasonable and are necessary to protect and maintain the
proprietary and other legitimate business interests of Company and its
Affiliates and that the enforcement of such restrictive covenants will not
prevent Executive from earning a livelihood. Executive further acknowledges
that the remedy at law for any breach or threatened breach of this Section
6, if such breach or threatened breach is held by the court to exist, will
be inadequate and, accordingly, that Company and its Affiliates shall, in
addition to all other available remedies, be entitled to injunctive relief
without being required to post bond or other security and without having to
prove the inadequacy of the available remedies at law. Executive waives
trial by jury and agrees not to plead or defend on grounds of adequate
remedy at law or any element thereof in an action by Company and/or any
Affiliate against Executive for injunctive relief or for specific
performance of any obligation pursuant to this Agreement. The period of time
during which the provisions of Section 6 shall apply shall be extended by
the length of time during which Executive is in breach of the terms of this
Section 6. Company shall provide to Executive notice of any such alleged
breach as soon as practicable after Company has reason to believe that a
breach has occurred.
6.8 If any portion of the provisions of Section 6 is held to be
unenforceable for any reason, including but not limited to the duration of
such provision, the territory being covered thereby or the type of conduct
restricted therein, the parties agree that the court is authorized and
directed to modify the duration, geographic area and/or other terms of such
provisions to the maximum benefit of Company as permitted by law, and, as so
modified, said provision shall then be enforceable. If the courts of any one
or more jurisdictions hold such provisions wholly or partially unenforceable
by reason of the scope thereof or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect
Company's right to the relief provided for herein in the courts of any other
jurisdictions as to breaches or threatened breaches of such provisions in
such other jurisdictions, the above provisions as they relate to each
jurisdiction being, for this purpose, severable into diverse independent
covenants.
7. Indemnity.
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7.1 Company shall indemnify and hold Executive harmless, to the maximum
extent permitted by law and by the Certificate of Incorporation and/or the
Bylaws of Company, against judgments, fines, amounts paid in settlement of
and reasonable expenses incurred by Executive in connection with the defense
of any action or proceeding (or any appeal therefrom) in which Executive is
a party by reason of his position as an executive officer and director of
the Company or for any acts or omissions made in good faith in the
performance of any of the duties of Executive as an officer or director of
Company.
7.2 To the extent that Company maintains officers' and directors'
liability insurance, Executive will be covered under such policy.
8. Miscellaneous.
8.1 Notices. All notices, demands or other communications required or
provided hereunder shall be in writing and shall be deemed to have been
given and received when delivered in person or transmitted by facsimile
transmission to the respective parties, or five (5) days after dispatch by
certified mail, postage prepaid, addressed to the parties at the addresses
set forth below or at such other addresses as such parties may designate by
notice to the other parties, in accordance with the provisions of this
Section 8.1:
If to Company: U.S. Laboratories Inc.
c/o Bureau Veritas, S.A.
00 xxx, Xxxxx des Reflets
La Defense 2
00000 Xxxxxxxxxx, Xxxxxx
Attention: Francois
Tardan and Xxxx-France
Saugnac
Telecopier:
011-33-1-91-52-92
with a copy to: Xxxxxx Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X.
Xxxxxx
Telecopier: (000) 000-0000
If to Executive: Xx. Xxxxxxxxx Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: O'Melveny & Xxxxx LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopier: (000) 000-0000
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8.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of Delaware without giving effect to
conflict of laws principles thereof.
8.3 Severability. If any provision of this Agreement is held invalid or
unenforceable, the remainder shall nevertheless remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall nevertheless remain in full force and
effect in all other circumstances.
8.4 Entire Agreement. This Agreement together with the Unfair
Competition Agreement represent the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede and replace
in their entireties all prior agreements and understandings, oral or
written, between the parties hereto with respect to the subject matter
hereof and thereof, including that certain Employment Agreement dated as of
May 30, 1998 among the parties hereto. No other representations, promises,
agreements or understandings regarding the subject matter hereof shall be of
any force or effect unless in writing, executed by the party to be bound,
and dated subsequent to the date hereof.
8.5 Mergers and Consolidation; Assignability. Subject to the right of
Executive to terminate this Agreement for Good Reason pursuant to Section
4.2.5, if Company, or any Successor Company, as defined in this Section 8.5,
shall at any time be merged or consolidated into or with any other
corporation or corporations, or if substantially all of the assets of
Company or any such Successor Company shall be sold or otherwise transferred
to another corporation, the provisions of this Agreement shall be binding
upon and shall inure to the benefit of the continuing corporation or the
corporation resulting from such merger or consolidation or the corporation
to which such assets shall be sold or transferred ("Successor Company") and
any such assignment of this Agreement shall be binding upon, and this
Agreement shall continue to inure to the benefit of, Executive. This
Agreement may be assigned without Executive's consent to any member of the
BV Group in connection with the underwritten public offering of the
securities of such member. Without Executive's prior written consent, except
as provided in the two foregoing sentences, this Agreement shall not be
assignable by Company or by any Successor Company. This Agreement shall not
be assignable by Executive.
8.6 Amendment. This Agreement may not be canceled, changed, modified,
or amended orally, and no cancellation, change, modification or amendment
hereof shall be effective or binding unless in a written instrument signed
by Company and Executive. A provision of this Agreement may be waived only
by a written instrument signed by the party against whom or which
enforcement of such waiver is sought.
8.7 No Waiver. The failure at any time either of Company or Executive
to require the performance by the other of any provision of this Agreement
shall in no way affect the full right of such party to require such
performance at any time thereafter, nor shall the waiver by either Company
or Executive of any breach of any provision of this Agreement be taken or
held to constitute a waiver of any succeeding breach of such or any other
provision of this Agreement.
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8.8 Execution. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.9 Headings. The headings contained in this Agreement are for
reference purposes only, and shall not affect the meaning or interpretation
of this Agreement.
8.10 Affiliate. For the purposes hereof, the term "Affiliate" means any
person controlling, controlled by or under common control with any other
person.
8.11 Additional Obligations. Both during and after the Term, Executive
shall, upon reasonable notice, furnish Company with such information as may
be in Executive's possession, and cooperate with Company, as may reasonably
be requested by Company (and, after the Term, with due consideration for
Executive's obligations with respect to any new employment or business
activity) in connection with any litigation in which Company or any
Affiliate is or may become a party. Company shall reimburse Executive for
all reasonable expenses incurred by Executive in fulfilling Executive's
obligations under this Section 8.11. The Company shall use its best efforts
to assure that requests for Executive's assistance under this Section 8.11
do not interfere with Executive's obligations to any subsequent employer.
8.12 No Conflict. Executive represents and warrants that Executive is
not subject to any agreement, order, judgement or decree of any kind which
would prevent Executive from entering into this Agreement or performing
fully Executive's obligations hereunder.
8.13 Survival. Executive's obligations as set forth in Section 6
represent independent covenants by which Executive is and shall remain bound
notwithstanding any breach or claim of breach by the Company, and shall
survive the termination or expiration of this Agreement.
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
COMPANY:
U.S. LABORATORIES INC.
By: /s/ XXXXXX X'XXXXX
-----------------------------
Name: XxxxXx X'Xxxxx
Title: Vice President
EXECUTIVE:
By: /s/ XXXXXXXXX XXXXXX
-----------------------------
Xxxxxxxxx Xxxxxx
Schedule 1
List of California Counties
Alameda Orange
Alpine Placer
Xxxxxx Plumas
Butte Riverside
Calaveras Sacramento
Colusa San
Xxxxxx
Contra Costa San Bernardino
Del San
Norte Diego
El
Dorado San Francisco
Fresno San
Xxxxxxx
Xxxxx San Xxxx Obispo
Humboldt San
Mateo
Imperial Santa
Xxxxxxx
Inyo Santa
Xxxxx
Xxxx Santa
Xxxx
Kings Shasta
Lake Sierra
Lassen Siskiyou
Los
Angeles Xxxxxx
Xxxxxx Sonoma
Marin Stanislaus
Mariposa Xxxxxx
Mendocino Tehama
Merced Trinity
Modoc Tulare
Mono Tuolumne
Monterey Ventura
Napa Yolo
Nevada Yuba
Alameda Orange
Alpine Placer
Xxxxxx Plumas
Butte Riverside
Calaveras Sacramento
Colusa San
Xxxxxx
Contra Costa San Bernardino
Del San
Norte Diego
El
Dorado San Francisco
Fresno San
Xxxxxxx
Xxxxx San Xxxx Obispo
Humboldt San
Mateo
Imperial Santa
Xxxxxxx
Inyo Santa
Xxxxx
Xxxx Santa
Xxxx
Kings Shasta
Lake Sierra
Lassen Siskiyou
Los
Angeles Xxxxxx
Xxxxxx Sonoma
Marin Stanislaus
Mariposa Xxxxxx
Mendocino Tehama
Merced Trinity
Modoc Tulare
Mono Tuolumne
Monterey Ventura
Napa Yolo
Nevada Yuba
