EXECUTION COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of June 22, 2004, by and
between XXXXXXXX'X INC., a Delaware corporation (the "Company"), and XXXXXX
XXXXXX, an individual residing in the State of Florida (the "Executive").
W I T N E S S E T H :
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WHEREAS, the Company desires to secure the services and employment of the
Executive on behalf of the Company and its subsidiaries and affiliates, and the
Executive desires to enter into such employment with the Company, upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, each intending to be legally bound
hereby, agree as follows:
1. Employment. On the terms and subject to the conditions set forth herein,
the Company hereby agrees to employ the Executive as the Chief Executive Officer
of the Company, and the Executive hereby agrees to accept such employment, for
the Employment Term (as defined in Section 3). During the Employment Term, the
Executive shall serve as the Chief Executive Officer of the Company and shall
report to the Board of Directors of the Company (the "Board"), and shall have
such responsibilities, duties and authority as are generally consistent and
customary with the position of Chief Executive Officer including, but not
limited to, selection of other senior executive officers, as appropriate,
subject to the oversight of the Board, and shall have such other powers and
perform such other duties as may from time to time be assigned to him by the
Board. The Executive shall also be elected to serve as a director of the Company
(or any parent company subsequently formed) and, if requested, as an executive,
officer and/or director of the Company's subsidiaries without additional
compensation, and shall be nominated to stand for election at each Annual or
Special Meeting of Shareholders (as applicable) as long as he serves as Chief
Executive Officer and such nomination shall be affirmatively recommended to the
shareholders for election.
2. Performance; Place of Employment. The Executive will serve the Company
faithfully and to the best of his ability and will devote his full business
time, energy, experience and talents to the business of the Company and its
subsidiaries and affiliates; provided, however, that it shall not be a violation
of this Agreement for the Executive to (a) manage his personal investments, (b)
with the prior consent of the Board (not to be unreasonably withheld or
conditioned) serve on for-profit corporate boards, other than those of the
Company and its subsidiaries, or, (c) with prior notice to the Board, to serve
on industry, civic, community, charitable, educational, or religious boards so
long, in the case of clause (b) and (c), as such service does not interfere with
the Executive's performance of his duties hereunder. The Executive will maintain
his principal office, and his principal place of work shall be, at the Company's
primary executive offices in Savannah, Georgia.
3. Employment Term. Subject to earlier termination pursuant to Section 6,
the term of employment of the Executive hereunder shall begin on June [_], 2004
(the "Commencement Date"), and shall continue through the date which is two (2)
years following the Commencement Date (the "Initial Term"); provided, however,
that upon the failure of the Company to give timely notice of non-renewal, such
term of employment shall be automatically extended by an additional one (1) year
beyond the end of the then-current term, unless, at least one hundred twenty
(120) days before the expiration of the Initial Term, or one hundred twenty
(120) days before any such subsequent anniversary thereof, as the case may be,
the Company gives notice to the Executive that the Company does not desire to
extend the term of this Agreement, in which case the term of employment
hereunder shall terminate as of the end of the Initial Term or the end of the
then-current one-year extension term, as applicable (the term of employment
hereunder, including any extensions, in accordance with this Section 3, shall be
referred to herein as the "Employment Term").
4. Compensation and Benefits.
(a) Base Salary. As compensation for his services hereunder and in
consideration of the Executive's other agreements hereunder, during the
Employment Term, the Company shall pay the Executive a base salary, payable in
equal installments in accordance with the Company's payroll procedures, at an
annual rate of Seven Hundred Fifty Thousand Dollars ($750,000), subject to
annual review by the Board (which amount shall not be decreased except upon
mutual consent of the Executive and the Company).
(b) Signing Bonus. In consideration of the Executive's agreements
hereunder, the Company shall pay the Executive a signing bonus of Five Hundred
Thousand Dollars ($500,000), payable as follows: One Hundred Thousand Dollars
($100,000) on the date of execution of this Agreement, and One Hundred Thousand
Dollars ($100,000) on each of July 30, 2004, August 31, 2004, September 30,
2004, and October 29, 2004.
(c) Annual Incentive Bonus; Stock Options. (1) During the Employment Term,
the Executive shall be entitled to participate in the Company's incentive bonus
plan (comprised of a cash and stock component), the terms and conditions of
which shall be determined by the Board or a committee thereof. Such incentive
bonus will have a target amount of 1.00 times the Executive's annual base salary
and may be up to 1.25 times the Executive's annual base salary, at the rate of
base salary in effect in accordance with Section 4(a) during the period with
respect to which such bonus is payable, if all performance targets are fully
satisfied at the highest level; provided, however, that the incentive cash bonus
to which the Executive may otherwise become entitled for calendar year 2004
shall be a minimum of Two Hundred Fifty Thousand Dollars ($250,000), separate
and apart from the signing bonus in Section 4(b).
(2) The Executive shall also be entitled to participate in the stock option
plan established by the Company, pursuant to which the Executive shall receive
options, granted on the date of execution of this Agreement at the market price
of the Company's stock at the close of business on the date immediately
preceding execution of the this Agreement, to purchase an aggregate of five
hundred thousand (500,000) shares of Class A Common Stock of the Company, with
one hundred thousand (100,000) shares vesting immediately and one hundred
thousand (100,000) vesting annually, on the anniversary date of this Agreement,
over the next four years. All such options shall be accelerated and vest
immediately upon a Change of Control (as defined
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below), upon the Executive's death or disability, upon termination of employment
by the Company for other than Cause, as hereinafter defined, or upon termination
by the Executive for Good Reason, as hereinafter defined. Upon such cessation of
the Executive's employment, the Executive shall have not less than one hundred
twenty (120) days to exercise or forfeit such fully vested option shares;
provided, however, that the Executive shall have not less than one (1) year in
the event such cessation is as a result of the Executive's death or disability.
(d) Retirement, Medical, Dental and Other Benefits. During the Employment
Term, the Executive shall, in accordance with the terms and conditions of the
applicable plan documents and all applicable laws, be eligible to participate in
the various retirement, medical, dental and other employee benefit plans made
available by the Company, from time to time, for its senior executive officers.
(e) Vacation; Sick Leave. During the Employment Term, the Executive shall
be entitled to four (4) weeks of vacation per year, and to sick leave in
accordance with the Company's policies and practices with respect to its senior
executive officers.
(f) Expenses. The Executive shall be reimbursed by the Company for all
reasonable business expenses, including travel costs, actually incurred by him
in connection with the performance of his duties hereunder in accordance with
policies established by the Company from time to time and upon receipt by the
Company of appropriate documentation. In addition, the Company shall reimburse
the Executive for housing expenses and travel to and from Savannah, Georgia and
the Executive's primary residence in Sarasota, Florida. The Company further
agrees that reasonable moving and relocation expenses as incurred by the
Executive will be paid by the Company. For purposes of the moving and relocation
benefits, the Executive's Nashville, Tennessee residence shall be applicable.
(g) Indemnification; D&O Insurance. The Company shall indemnify the
Executive for any liability he incurs arising from his actions within the scope
and course of his employment hereunder in accordance with the form of Indemnity
Agreement to be executed herewith and to be applicable during the term hereof
and the Company's Certificate of Incorporation and By-laws, provided that (i)
the Executive conducted himself in good faith, and (ii) the Executive reasonably
believed that his actions were in the best interests of the Company. During the
Employment Term, the Company shall maintain a directors' and officers' liability
insurance policy covering the Executive in an amount and on terms customary for
similarly situated companies and with coverage and on other terms reasonably
determined by the Board.
(h) Legal Fees. The Company shall reimburse the Executive for reasonable
attorney's fees the Executive incurs in connection with the negotiation,
preparation and/or execution of this Agreement up to Twenty-Five Thousand
Dollars ($25,000), subject to the receipt by the Company of a statement from
such attorney including rates and hours. If it becomes necessary for either
party to file a lawsuit to enforce this Agreement, and if a final judgment is
rendered by the court in such a lawsuit, the non-prevailing party shall pay the
reasonable attorney's fees and costs incurred by the prevailing party.
(i) Automobile. The Company shall pay to the Executive a car allowance of
Seven Hundred Fifty Dollars ($750) per month and shall promptly reimburse the
Executive for any expenses incurred by the Executive to maintain the car.
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(j) Services Furnished. The Company shall furnish the Executive with office
space, secretarial and/or administrative assistance, office supplies, support
services and such other facilities and services as shall be suitable to the
Executive's position and adequate for the performance of his duties hereunder,
including but not limited to providing personnel, support services and
technology and third party consultants and advisors (including legal counsel, if
needed) sufficient to enable the Executive to perform all of his obligations
under applicable laws such as the Executive's certification obligations under
The Xxxxxxxx-Xxxxx Act of 2002 and the rules promulgated thereunder.
5. Covenants of the Executive. The Executive acknowledges that in the
course of his employment with the Company he has and will become familiar with
the Company's and its subsidiaries' and affiliates' trade secrets and with other
confidential information concerning the Company and its subsidiaries and
affiliates, and that his services are of special, unique and extraordinary value
to the Company and its subsidiaries and affiliates. Therefore, the Company and
the Executive mutually agree that it is in the interest of both parties for the
Executive to enter into the restrictive covenants set forth in this Section 5
and that such restrictions and covenants are reasonable given the nature of the
Executive's duties and the nature of the Company's business.
(a) Noncompetition. During the Employment Term and for eighteen (18) months
thereafter following termination of the Employment Term, the Executive shall
not, within any jurisdiction or marketing area in which the Company or any of
its subsidiaries or affiliates is doing business during the Executive's
employment or as of the date of termination (as applicable), directly or
indirectly, own, manage, operate, control, be employed by or participate in the
ownership, management, operation or control of, or be connected in any manner
with, any business substantially of the type and character engaged in or
competitive with that conducted by the Company or any of its subsidiaries or
affiliates; provided, that the Executive's ownership of securities of up to two
percent (2%) or less of any class of securities of a public company shall not,
by itself, be considered to be competition with the Company or any of its
subsidiaries or affiliates.
(b) Nonsolicitation. During the Employment Term and for twelve (12) months
following termination of the Employment Term, the Executive shall not, directly
or indirectly, (i) employ, solicit for employment or otherwise contract for the
services of any individual who is or was (within one hundred eighty (180) days
of the termination date) an employee of the Company or any of its subsidiaries
or affiliates; (ii) otherwise induce or attempt to induce any employee of the
Company or its subsidiaries or affiliates to leave the employ of the Company or
such subsidiary or affiliate, or in any way knowingly interfere with the
relationship between the Company or any such subsidiary or affiliate and any
employee respectively thereof; or (iii) solicit or attempt to solicit any
client, customer, supplier, licensee or other business relation of the Company
or any subsidiary or affiliate of the Company or induce any such client,
customer, supplier, licensee or business relation to cease doing business with
the Company or such subsidiary or affiliate, or interfere in any way with the
relationship between any such client, customer, supplier, licensee or business
relation and the Company or any subsidiary or affiliate thereof.
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(c) Nondisclosure; Inventions. For the Employment Term and thereafter, (i)
the Executive shall not divulge, transmit or otherwise disclose (except as
legally compelled by court order, and then only to the extent required, after
prompt notice to the Board of any such order), directly or indirectly, other
than in the regular and proper course of business of the Company and its
subsidiaries, any customer lists, trade secrets or other confidential knowledge
or information with respect to the operations or finances of the Company or any
of its subsidiaries or affiliates or with respect to confidential or secret
processes, services, techniques, customers or plans with respect to the Company
or its subsidiaries or affiliates (all of the foregoing collectively hereinafter
referred to as, "Confidential Information"), and (ii) the Executive will not
use, directly or indirectly, any Confidential Information for the benefit of
anyone other than the Company and its subsidiaries or affiliates; provided,
however, that the Executive has no obligation, express or implied, to refrain
from using or disclosing to others any such knowledge or information which is or
hereafter shall become available to the general public other than through
disclosure by the Executive. All Confidential Information, new processes,
techniques, know-how, methods, inventions, plans, products, patents and devices
developed, made or invented by the Executive, alone or with others, while an
employee of the Company which are related to the business of the Company and its
subsidiaries and affiliates shall be and become the sole property of the
Company, unless released in writing by the Board, and the Executive hereby
assigns any and all rights therein or thereto to the Company.
(d) Nondisparagement. During the Employment Term and thereafter, neither
the Company nor the Executive shall take any action to disparage or publicly
criticize one another (including their respective affiliates, employees,
officers, directors or owners). Nothing contained in this Section 5(d) shall
preclude the Executive from enforcing his rights under this Agreement.
(e) Return of Company Property. All Confidential Information, files,
records, correspondence, memoranda, notes or other documents (including, without
limitation, those in computer-readable form) or property relating or belonging
to the Company or its subsidiaries or affiliates, whether prepared by the
Executive or otherwise coming into his possession in the course of the
performance of his services under this Agreement, shall be the exclusive
property of the Company and shall be delivered to the Company, and not retained
by the Executive (including, without limitation, any copies thereof), promptly
upon request by the Company and, in any event, promptly upon termination of the
Employment Term.
(f) Enforcement. The Executive acknowledges that a breach of his covenants
contained in this Section 5 may cause irreparable damage to the Company and its
subsidiaries and affiliates, the exact amount of which would be difficult to
ascertain, and that the remedies at law for any such breach or threatened breach
would be inadequate. Accordingly, the Executive agrees that if he breaches or
threatens to breach any of the covenants contained in this Section 5, in
addition to any other remedy which may be available at law, the Company and its
subsidiaries and affiliates shall be entitled to specific performance and
injunctive relief to prevent the breach or any threatened breach thereof without
bond or other security or a showing that monetary damages will not provide an
adequate remedy.
(g) Scope of Covenants. The Company and the Executive further acknowledge
that the time, scope, geographic area and other provisions of this Section 5
have been specifically
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negotiated by sophisticated commercial parties and agree that they consider the
restrictions and covenants contained in this Section 5 to be reasonable and
necessary for the protection of the interests of the Company and its
subsidiaries and affiliates, but if any such restriction or covenant shall be
held by any court of competent jurisdiction to be void but would be valid if
deleted in part or reduced in application, such restriction or covenant shall
apply with such deletion or modification as may be necessary to make it valid
and enforceable. The restrictions and covenants contained in each paragraph of
this Section 5 shall be construed as separate and individual restrictions and
covenants and shall each be capable of being severed without prejudice to the
other restrictions and covenants or to the remaining provisions of this
Agreement.
6. Termination. The employment of the Executive hereunder shall
automatically terminate at the end of the Employment Term. The employment of the
Executive hereunder and the Employment Term may also be terminated at any time
by the Company with or without Cause. For purposes of this Agreement, "Cause"
shall mean: (i) embezzlement, theft or misappropriation by the Executive of any
property of the Company or its subsidiaries or affiliates; (ii) any breach by
the Executive of the Executive's covenants under Section 5; (iii) any breach by
the Executive of any other material provision of this Agreement which breach is
not cured, to the extent susceptible to cure, within fourteen (14) days after
the Company has given notice to the Executive describing such breach; (iv)
misconduct in the discharge of the Executive's duties (after receiving written
notice from the Board specifying the manner in which he is alleged to have
failed properly to discharge his duties and having had the opportunity to cure
such failure within thirty (30) days from receipt of such notice); (v) any act
by the Executive constituting a felony or otherwise involving theft, fraud,
dishonesty or misrepresentation; (vi) the Executive's breach of his fiduciary
obligations to the Company or its parent or subsidiaries; or (vii) any chemical
or alcohol dependence by the Executive which adversely affects the performance
of his duties and responsibilities to the Company or its parent or subsidiaries.
If, after the expiration of any applicable cure period, the Company asserts that
grounds exist for termination with Cause, it shall so notify the Executive and
within fifteen (15) days shall afford the Executive a hearing before the Board
regarding any disputed facts. The Board shall make a determination regarding the
existence of "Cause" upon completion of such hearing; provided, however, that
any determination that Cause exists shall require the affirmative vote of
two-thirds of the Directors other than the Executive. If any such determination
remains pending after such fifteen (15) day period, the Company shall be
entitled to suspend (with pay and benefits) the Executive's duties pending
determination of the existence of Cause. Any determination or decision as to
"Cause" must be made in good faith and must be reasonable given the relevant
facts and circumstances. The employment of the Executive may also be terminated
at any time by the Executive by notice of resignation delivered to the Company
not less than ninety (90) days prior to the effective date of such resignation.
7. Severance. (a) If the Executive's employment hereunder is terminated
during the Employment Term (1) by the Company other than for Cause and not due
to disability (as determined in good faith and consistent with the Company's
long term disability policy) or death, (2) by the Executive for Good Reason (as
defined in paragraph (b) of this Section 7), or (3) upon non-renewal by the
Company, the Executive shall be entitled to receive as severance, and the
Company shall pay, an amount equal to two (2) times the sum of (x) the
Executive's then current annual salary and (y) the greater of (i) the
Executive's most recent annual incentive
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bonuses and (ii) the arithmetic mean of the Executive's annual incentive bonuses
for the two (2) most recent years, payable in a lump sum on the eighth day after
the date the Executive signs the release referenced below in favor of the
Company and its subsidiaries. In addition, in the event that the Executive's
employment is terminated other than for Cause or death, or in the event that the
Executive terminates his employment for Good Reason, as defined herein, the
Executive shall be entitled to continued healthcare coverage equivalent to the
coverage received while employed by the Company, for a period of one (1) year
from the date of termination or until the Executive receives coverage from a
subsequent employer, whichever event occurs sooner; provided, however, that,
thereafter, he shall be entitled to elect to continue his health benefits
pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended
("COBRA"). If the Executive's employment is terminated otherwise than as
described in this Section 7, the Executive shall not be entitled to any
severance, termination pay or similar compensation or benefits. As a condition
of receiving any severance for which he otherwise qualifies under this Section
7, the Executive agrees to execute, deliver and not revoke (within the time
period permitted by applicable law) a general release of the Company and its
subsidiaries and affiliates and their respective officers, directors, employees
and owners from any and all claims, obligations and liabilities of any kind
whatsoever arising from or in connection with the Executive's employment or
termination of employment with the Company or this Agreement (including, without
limitation, civil rights claims), in such form as is attached hereto as Exhibit
A. The Executive acknowledges and agrees that, except as specifically described
in this Section 7, all of the Executive's rights to any compensation (other than
base salary earned through the date of termination of employment), benefits,
bonuses or severance from the Company or its subsidiaries or affiliates after
termination of the Employment Term shall cease upon such termination.
(b) For purposes of this Agreement, "Good Reason" shall mean the
occurrence, without the Executive's consent, of any of the following events
(without the Executive's express written consent): (i) a reduction by the
Company in the Executive's base salary stated in Section 4(a) or a reduction in
the target bonus stated in Section 4(c), (ii) a diminution in the Executive's
duties with respect to the Company, or (iii) any material breach of this
Agreement by the Company. For the avoidance of doubt, termination by the
Executive for Good Reason is conditioned on the Executive's delivery of a
written notice of resignation delivered to the Company not less than thirty (30)
days prior to the effective date of such resignation, as set forth in Section 6.
8. Change In Control. (a) Within twelve (12) months after a Change in
Control (as defined in paragraph (b) of this Section 8), the Company may, on
ninety (90) business days' prior notice to the Executive, terminate the
Employment Term. In such circumstances, except where the Company has previously
issued a notice of termination for Cause pursuant to Section 7 or the Employment
Term is terminated by reason of the Executive's death or disability, the Company
shall: (i) pay to the Executive an amount equal to two hundred ninety-nine
percent (299%) of the Executive's last year's base salary and annual incentive
bonus as in effect on the date of the Executive's termination of employment
(payable, at the Company's option, in a lump-sum or ratably over the longer of
the Employment Term otherwise remaining or one year following the date of the
Executive's termination, as applicable). The payments set forth in this Section
8 are hereinafter referred to as the "Change in Control Severance". Payment of
the Change in Control Severance shall be subject to the following conditions:
(i) as a condition
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precedent to any such Change in Control Severance, the Executive agrees to
execute, deliver and not revoke (within the time period permitted by applicable
law) a general release of the Company and its subsidiaries and affiliates and
their respective officers, directors, employees and owners in the form of
Exhibit A hereto.
(b) For purposes of this Agreement, "Change in Control" shall mean: (i) the
acquisition by any person or group of persons (as such term is defined in Rule
13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended to
date) of shares carrying more than fifty percent (50%) of the voting rights at
general meetings of the Company, (ii) the shareholders of the Company approve a
merger or consolidation of the Company with any other company, other than (x) a
merger or consolidation which actually results in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (y) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no person or group of persons acquires more than fifty percent (50%) of
the combined voting power of the Company's then outstanding securities, or (iii)
the shareholders of the Company approve a plan of complete liquidation of the
Company or an arrangement for the sale or disposition of the Company or all or
substantially all of the Company's overall assets or any transaction having a
similar effect; provided, that no Change of Control shall be deemed to result
from any corporate changes to the Company's certificate of incorporation or
by-laws at the Company not resulting from one of the events specified above or
from any change in the relative rights and powers of one or more classes of the
Company's capital stock whether effected by contract or otherwise, in each case
to the extent that they result from or are related to the settlement of any
criminal or civil litigation or do not result in the occurrence of any of the
events specified in clauses (i) through (iii) of this definition.
(c) The amounts payable pursuant to this Section 8 shall be in lieu of any
other severance payments (including, but not limited to that provided for in
Section 7 above) to which the Executive may be entitled on termination of the
Employment Term, and the Executive acknowledges that he shall not, thereupon, be
entitled to payment of severance pursuant to the Company's severance plans,
policies or practices in effect on the date of this Agreement or in effect from
time to time. Notwithstanding the foregoing, all unvested options shall vest and
any restrictions on restricted stock, if applicable, shall lapse upon a Change
of Control.
(d) To the extent that the amount of any payments under this Section 8, or
any other payment in the nature of compensation (within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")), to or
for the benefit of the Executive, whether paid or payable pursuant to this
Agreement or otherwise by the Company (the "Payments"), are subject to the
excise tax provisions of Section 4999 of the Code, the Company shall pay the
Executive a tax equalization payment ("Tax Equalization Payment") in accordance
with this Section 8(d), in addition to the payments otherwise payable under this
Section 8. The Tax Equalization Payment shall be in an amount that when added to
the Payments will place the Executive in the same after-tax (including, without
limitation, income taxes, excise taxes, and any interest and penalties imposed
with respect thereto) position as if the excise tax penalty of Section 4999 of
the Code, did not apply to any of the Payments. The amount of this Tax
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Equalization Payment shall be determined by the Company's independent
accountants and shall be remitted to the applicable United States federal, state
and local tax jurisdictions. All fees of the accounting firm for such
determination shall be borne by the Company. The Executive shall notify the
Company in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of a Tax Equalization
Payment (as an additional Tax Equalization Payment). The Executive shall
cooperate with the Company to determine whether, and how, to contest such claim.
The Company shall bear and pay directly all costs and expenses (including
additional taxes, interest and penalties) incurred in connection with such claim
and/or contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for excise tax or income tax (including interest and penalties
with respect thereto) imposed as a result of such claim and/or contest and
payment of costs and expenses.
9. Notice. Any notices required or permitted hereunder shall be in writing
and shall be deemed to have been given when personally delivered or when mailed,
certified or registered mail, or sent by reputable overnight courier, postage
prepaid, to the addresses set forth as follows:
If to the Company: Xxxxxxxx'x Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
With copies (which shall not
constitute notice) to: White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. Xxxx Xxxxxxxxx, Esq.
If to the Executive: Xxxxxx Xxxxxx
______________________
Xxxxxxxx, Xxxxxxx 00000
With copies (which shall not
constitute notice) to: Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx III
Xxxxxx X. Xxxxx III
or to such other address as shall be furnished in writing by either party to the
other party; provided that such notice or change in address shall be effective
only when actually received by the other party.
10. General.
(a) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York applicable to contracts executed and to be performed entirely within said
State.
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(b) Jurisdiction. Any judicial proceeding brought against the Executive
regarding any dispute arising out of this Agreement or any matter related hereto
may be brought in the courts of the State of Georgia, or in any United States
District Court sitting in Georgia, and, by execution and delivery of this
Agreement, the Executive accepts the exclusive jurisdiction of such courts. The
Executive hereby agrees that service of any process, summons, notice or document
by U.S. registered mail addressed to the Executive shall be effective service of
process for any action, suit or proceeding brought against the Executive in any
such court. The Executive hereby irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. The Executive
agrees that a final judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon the Executive and may be
enforced in any other courts to whose jurisdiction the Executive is or may be
subject, by suit upon such judgment.
(c) Construction and Severability. If any provision of this Agreement shall
be held invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired, and the parties undertake to implement
all efforts which are necessary, desirable and sufficient to amend, supplement
or substitute all and any such invalid, illegal or unenforceable provisions with
enforceable and valid provisions which would produce as nearly as may be
possible the result previously intended by the parties without renegotiation of
any material terms and conditions stipulated herein.
(d) Assignability. The Executive may not assign his interest in or delegate
his duties under this Agreement. This Agreement is for the employment of the
Executive, personally, and the services to be rendered by him under this
Agreement must be rendered by him and no other person. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Company and
its successors and assigns. Without limiting the foregoing and notwithstanding
anything else in this Agreement to the contrary, the Company may assign this
Agreement to, and all rights hereunder shall inure to the benefit of, any
subsidiary of the Company or any person, firm or corporation resulting from the
reorganization of the Company or succeeding to the business or assets of the
Company by purchase, merger, consolidation or otherwise.
(e) Warranty by the Executive. The Executive represents and warrants to the
Company that the Executive is not subject to any contract, agreement, judgment,
order or decree of any kind, or any restrictive agreement of any character, that
restricts the Executive's ability to perform his obligations under this
Agreement or that would be breached by the Executive upon his performance of his
duties pursuant to this Agreement.
(f) Compliance with Rules and Policies. The Executive shall perform all
services in accordance with the policies, procedures and rules established by
the Company and the Board. In addition, the Executive shall comply with all
laws, rules and regulations that are generally applicable to the Company or its
subsidiaries and their respective employees, directors and officers.
(g) Withholding Taxes. All amounts payable hereunder shall be subject to
the withholding of all applicable taxes and deductions required by any
applicable law.
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(h) Entire Agreement; Modification. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof,
supersedes all prior agreements and undertakings, both written and oral, and may
not be modified or amended in any way except in writing by the parties hereto.
(i) Duration. Notwithstanding the Employment Term hereunder, this Agreement
shall continue for so long as any obligations remain under this Agreement.
(j) Survival. The covenants set forth in Section 5 of this Agreement shall
survive and shall continue to be binding upon the Executive notwithstanding the
termination of this Agreement for any reason whatsoever.
(k) Waiver. No waiver by either party hereto of any of the requirements
imposed by this Agreement on, or any breach of any condition or provision of
this Agreement to be performed by, the other party shall be deemed a waiver of a
similar or dissimilar requirement, provision or condition of this Agreement at
the same or any prior or subsequent time. Any such waiver shall be express and
in writing, and there shall be no waiver by conduct. Pursuit by either party of
any available remedy, either in law or equity, or any action of any kind, does
not constitute waiver of any other remedy or action. Such remedies are
cumulative and not exclusive.
(l) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
(m) Section References. The words Section and paragraph herein shall refer
to provisions of this Agreement unless expressly indicated otherwise.
* * *
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto executed this Agreement as of the day and year first written above.
XXXXXXXX'X INC.
Date: June 22, 2004 By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Director
Date: June 22, 2004 /s/ Xxxxxx Xxxxxx
----------------------------- ---------------------------------------
Xxxxxx Xxxxxx
Exhibit A
GENERAL RELEASE
I, XXXXXX XXXXXX, for myself, my successors, administrators, heirs and
assigns, hereby fully release, waive and forever discharge XXXXXXXX'X INC. and
each of its predecessors, successors, subsidiaries and affiliated and parent
companies (collectively, the "Company"), and, in such capacities, all of the
shareholders, directors, officers, attorneys, employees, assigns and owners,
whether past, present or future, respectively, of, and any other person or
entity connected with, any of the foregoing (the "Released Parties") from any
and all administrative claims, actions, suits, debts, demands, damages, claims,
judgments, and/or liabilities of any nature, including costs, attorneys' fees
and expenses, whether known or unknown, arising out of my employment with or
separation from the Company, such as (by way of example only) any claims for
compensation, bonus, severance, or other benefits, claims for breach of
contract, wrongful discharge, workers' compensation benefits, tort claims (e.g.,
infliction of emotional distress, defamation, negligence, privacy, fraud,
misrepresentation), claims under federal, state, and local wage and hour laws
and wage payment laws, claims for reimbursements; and/or claims under the
following, in each case as amended: (1) Title VII of the Civil Rights Act of
1964 (race, color, religion, sex and national origin discrimination); (2) 42
U.S.C. ss. 1981 (discrimination); (3) 29 U.S.C. ss. 206(d)(1) (equal pay); (4)
Executive Order 11246 (race, color, religion, sex and national origin
discrimination); (5) Age Discrimination in Employment Act ("ADEA") and Executive
Order 11141 (age discrimination); (6) the Americans with Disabilities Act of
1990, 42 U.S.C. ss. 12101, et seq.; (7) the Family and Medical Leave Act; (8)
the Immigration Reform and Control Act; (9) the Employee Retirement Income
Security Act of 1974, 29 U.S.C. ss. 1001 et seq.; (10) the Vietnam Era Veterans
Readjustment Assistance Act; (11) xx.xx. 503-504 of the Rehabilitation Act of
1973 (handicap discrimination); and/or (12) any other claims under any other
state, federal, local, non-U.S. law, statute, regulation, or common law or
claims at equity relating to conduct or events occurring prior to the date on
which this General Release is fully executed, with regard to my employment with
the Company and the termination thereof.
This General Release shall not extend to or include any matter, occurrence
or event occurring after the execution of this General Release or the following:
(a) any rights or obligations under applicable law which cannot be waived or
released pursuant to an agreement, (b) any rights to payments or benefits under
Sections 7 and 8 of the Employment Agreement, dated as of June [_], 2004, by and
between the Company and myself (as amended or supplemented through the date
hereof, the "Agreement") to which I am entitled, (c) my rights of
indemnification and directors and officers liability insurance coverage to which
I may be entitled with regard to my service as an officer or director of the
Company, including, without limitation, as set forth in Section 4(g) of the
Agreement and in my Indemnification Agreement with the Company; (d) my rights
with regard to accrued benefits under any employee benefit plan, policy or
arrangement maintained by the Company or under COBRA; (e) my rights under the
provisions of the Agreement that are intended to survive my termination of
employment; and (f) my rights as a stockholder. I represent and warrant that, as
of the date of my execution of this General Release, I have not assigned or
transferred any claims of any nature I would otherwise have against the Company,
its successors or assigns.
By signing this General Release, I acknowledge that:
(i) I have read and fully understand the terms of this General Release
and have had the opportunity to negotiate its terms;
(ii) I have been advised and urged to consult with my attorneys
concerning the terms of this General Release, and that I have done so to
the extent I deem necessary;
(iii) I have agreed to this General Release knowingly and voluntarily;
(iv) I have been given twenty-one (21) days to consider this General
Release, and acknowledge that in the event that I execute this General
Release prior to the expiration of the twenty-one (21) day period, I hereby
waive the balance of said period;
(v) I will have seven (7) days following the execution of this General
Release to revoke this General Release and this General Release shall not
become effective or enforceable until the revocation period has expired.
Any revocation within this seven (7) day period must be submitted in
writing and personally delivered, or mailed to [Name, Address] and
postmarked, within seven (7) days of my execution of this General Release.
No payments or benefits provided for in Sections 7 and 8 of the Agreement
shall be paid or provided until after the seven (7) day period has expired
and the General Release has become effective. If this General Release is
revoked by me then I shall forfeit the payments and benefits set forth in
Sections 7 and 8 of the Agreement, and the Company shall not be required to
provide any such payment or other consideration; and
(vi) I have agreed that no provision of this General Release may be
modified, changed, waived or discharged unless such waiver, modification,
change or discharge is agreed to in writing and signed by the Company and
me.
---------------------------------------
XXXXXX XXXXXX
Dated:
---------------------------------
Sworn to before me this
day of , 20 .
-----------------------------
Notary Public
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