EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into as of the 26/th/ day of November, 2002, by and between XXXXXXX X. XXXXXXXX
(the "Executive") and XXX RIVER INC., a Georgia corporation (the "Company");
W I T N E S S E T H:
WHEREAS, the Executive has been employed by the Company as the
Chief Operating Officer of the Company since November 1989; and
WHEREAS, the Company desires to continue to employ the Executive,
and the Executive desires to continue to be employed by the Company, on the
terms and conditions contained herein; and
WHEREAS, to induce the Executive to continue in the employ of the
Company, the Company wishes to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein 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:
Section 1. Employment
1.1. Duties. Subject to the terms hereof, the Company hereby
employs the Executive as the Chief Operating Officer of the Company, and the
Executive hereby accepts such employment. The Executive agrees that during the
employment of the Executive pursuant to this Agreement, the Executive shall
devote his full business time and attention to the business of the Company. The
Executive shall report exclusively to and shall be accountable exclusively to
the Company's Chief Executive Officer.
1.2. Other Activities. The Executive may, without limitation, (i)
serve on corporate, civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(iii) manage personal investments, provided such activities do not materially
interfere with the performance of the Executive's responsibilities to the
Company hereunder. The parties hereto expressly understand and agree that to the
extent the Executive has engaged in any such activities prior to the date of
this Agreement, any subsequent conduct of activities similar in nature and scope
to such previous activities shall not be deemed to materially interfere with the
performance of the Executive's duties hereunder.
Section 2. Compensation; Expenses
2.1. Salary. Commencing on the date of this Agreement, the
Company shall pay the Executive a base salary (the "Base Salary") at a rate
equal to the rate being paid to the Executive immediately prior to the execution
of this Agreement. During the term of this Agreement, the Company will not
reduce the Executive's salary (unless such reduction applies generally to all
salaried employees), and the Company will fairly consider the Executive for
salary increases, based upon objective criteria, at least as often as salaried
employees generally are considered for increases.
2.2. Bonus. In addition to the Base Salary, the Company shall pay
the Executive, for each fiscal year ending during the term of this Agreement, an
annual bonus (the "Bonus") pursuant to the Xxx River Inc. Management Incentive
Plan (the "MIP") in existence as of the date hereof, or any comparable or
successor plan. The Bonus shall be computed based upon a target level of
participation at or above the Executive's target level of
participation in the MIP as of the date of this Agreement. The Company shall not
reduce the target level to which the Executive is assigned unless target levels
are reduced to substantially the same extent for all senior executives of the
Company. The Bonus shall be payable in cash promptly after the date on which the
audited financial statements of the Company are first available for the fiscal
year for which the Bonus is awarded, unless the Executive shall otherwise timely
elect to defer the receipt of such Bonus under any deferred compensation plan of
the Company then in effect.
2.3. Expenses. The Executive shall be reimbursed promptly for all
reasonable business-related expenses incurred by the Executive in accordance
with the policies and procedures of the Company applicable to other senior
executives thereof.
Section 3. Term; Termination of Agreement.
3.1. Term; Termination. The Term of this Agreement shall commence
on the date first set out above and shall continue in effect for a period of
three (3) years, with the term automatically extending on the first and each
subsequent anniversary of the Agreement for one additional year, unless the
Executive or the Company gives written notice to the other prior to any
anniversary date that the Agreement will not be so extended; provided, however,
upon the occurrence of a "Change in Control" as defined hereinbelow, this
Agreement shall automatically renew for a term of three (3) years from the
Change in Control Date, subject thereafter to further automatic renewal and/or
notice of termination as provided above. This Agreement shall also terminate
upon the occurrence of any of the following events:
(a) the death or total disability of the Executive (total
disability meaning the failure of the Executive to perform his normal
required services hereunder for a period of six consecutive months during
the term hereof by reason of the Executive's mental or physical
disability) (a "Disability Termination Event");
(b) termination by the Company of the Executive's employment
hereunder for "Good Cause," which shall exist upon the occurrence of any
of the following: (i) the Executive is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud, misappropriation or
embezzlement, (ii) the Executive engages in a fraudulent act to the
material damage or prejudice of the Company, or (iii) the Executive
otherwise fails to comply with the terms of this Agreement or deviates
from any written policies or procedures of the Company, in either such
case to the material detriment of the Company and, within 30 days after
written notice from the Company of such failure or deviation, the
Executive has not corrected such failure (in any such case, a "Good Cause
Termination Event");
(c) termination by the Company of the Executive's employment
hereunder for any reason other than as a result of a Good Cause
Termination Event (a "No Cause Termination Event");
(d) termination by the Executive of the Executive's employment
hereunder for "Good Reason", which shall mean (i) the assignment to the
Executive of any duties inconsistent in any material respect with the
Executive's position (including status, offices, titles and reporting
requirements), authority or duties or responsibilities as contemplated by
(S) 1 hereof or any other action by the Company that results in a
material diminishment in such position, authority, duties or
responsibilities, other than action or inaction on the part of the
Company that is corrected by the Company within 30 days after receipt of
written notice thereof given by the Executive, (ii) any failure by the
Company to comply with the terms of this Agreement, including, without
limitation, Sections 2 and 5 hereof, which is not corrected by the
Company within 30 days after receipt of written notice thereof given by
the Executive, (iii) the Company's requiring the Executive to be based at
any office or location more than 50 miles away from that at which the
Executive is based as of the date of this Agreement; provided, however,
the Company may require travel reasonably consistent with past practices
in the performance of the Executive's responsibilities, or (iv) any
purported termination by the Company of the Executive's employment
pursuant to this Agreement other than as
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permitted herein, in each such case without the prior written consent of
the Executive (in any such case, a "Good Reason Termination Event"); or
(e) voluntary termination by the Executive of the Executive's
employment hereunder other than for "Good Reason" (as defined above) (a
"Voluntary Termination Event").
3.2. Notice of Termination. Any termination of the Executive's
employment hereunder by the Company or the Executive (other than by reason of
death) shall be communicated by a Notice of Termination to the other party
hereto given in accordance with the requirements of (S) 7.10 of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, and (ii) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
3.3 Change in Control.
(a) The term "Change in Control" for purposes of this Agreement
shall mean a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") as in effect at the time of such "change in
control", provided that such a change in control shall be deemed to have
occurred at such time as
(i) any "person" (as that term is used in Sections 13(d) and
14(d)(2) of the Exchange Act), other than Xxxxxx X. Xxxxxx, Xx.,
is or becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) directly or indirectly, of securities
representing 30% or more of the combined voting power for
election of directors of the then outstanding securities of the
Company or any successor of the Company;
(ii) during any period of two consecutive years or less,
individuals who at the beginning of such period constitute the
Board cease, for any reason, to constitute at least a majority of
the Board, unless the election or nomination for election of each
new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the
beginning of the period;
(iii) the shareholders of the Company approve any reorganization,
merger, consolidation or share exchange as a result of which the
common stock of the Company shall be changed, converted or
exchanged into or for securities of another corporation (other
than a merger with a wholly-owned subsidiary of the Company) or
any dissolution or liquidation of the Company or any sale or the
disposition of 50% or more of the assets or business of the
Company; or
(iv) the shareholders of the Company approve any reorganization,
merger, consolidation or share exchange unless (A) the persons
who were the beneficial owners of the outstanding shares of the
common stock of the Company immediately before the consummation
of such transaction beneficially own securities representing 66
2/3% or more of the combined voting power for election of
directors of the then outstanding securities of the Company or
any successor or survivor corporation in such transaction
immediately following the consummation of such transaction and
(B) the number of shares of the common stock of such successor or
survivor corporation beneficially owned by the persons described
in (S) 3.3(a)(iv)(A) immediately following the consummation of
such transaction is beneficially owned by each such person in
substantially the same proportion that each such person had
beneficially owned shares of the Company common stock immediately
before the consummation of such transaction, provided (C) the
percentage described in (S) 3.3(a)(iv)(A) of the beneficially
owned shares of the successor or survivor corporation and the
number described in (S) 3.3(a)(iv)(B) of the beneficially owned
shares of the successor or survivor corporation shall be
determined exclusively by reference to the shares of the
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successor or survivor corporation which result from the
beneficial ownership of shares of common stock of the Company by
the persons described in (S) 3.3(a)(iv)(A) immediately before the
consummation of such transaction.
(b) Change in Control Date. The term "Change in Control Date"
for purposes of this Agreement shall mean the date which includes the
"closing" of the transaction which results from a Change in Control or,
if there is no transaction which results from a Change in Control, the
date of such Change in Control as reported by the Company to the
Securities and Exchange Commission.
(c) Vesting of Equity-based Awards. All outstanding options,
restricted stock and other equity-based awards which have been granted to
Executive shall immediately vest on a Change in Control Date.
Section 4. Result of Termination.
4.1. Termination As Result of Voluntary or Good Cause
Termination Events. If the Executive's employment hereunder is terminated prior
to its expiration as a result of the occurrence of a Voluntary Termination Event
or a Good Cause Termination Event, as of the date of the termination of
Executive's employment hereunder, the Company shall have no further obligation
to pay to the Executive any Base Salary, Bonus or any other benefits pursuant to
this Agreement. If such termination occurs prior to the end of any pay period,
the Executive shall be entitled to receive a portion of the Base Salary for such
pay period prorated to the date on which the Executive's employment is
terminated.
4.2. Termination As Result of No Cause or Good Reason
Termination Event.
(a) Severance Payments. If the Executive's employment hereunder
is terminated as a result of the occurrence of a No Cause Termination
Event or a Good Reason Termination Event, the Company shall pay to the
Executive (i) the amount of Base Salary to which Executive would be
entitled upon a termination of employment under a Voluntary Termination
Event as described in (S) 4.1, and (ii) an amount equal to the Bonus the
Executive would have been paid had the Executive remained employed
throughout the year in which Executive's termination of employment
occurred multiplied by a fraction, the numerator of which is the number
of days during the year before Executive's termination of employment and
the denominator of which is 365, plus (iii) an amount equal to 200% of
Executive's aggregate annual Base Salary then in effect, plus 200% of the
Executive's target Bonus for the year in which occurs the termination of
employment and (iv) all reasonable business-related expenses incurred by
the Executive prior to such termination for which the Executive would
have been reimbursed pursuant to (S) 2.5 hereof (the amounts referred to
in clauses (i), (ii), (iii) and (iv) being the "Severance Payments").
Except for the amount referred to in clause (ii), the Severance Payments
shall be paid by the Company to the Executive within 10 days after such
termination. The amount referred to in clause (ii) shall be paid as soon
as is practicable after it is capable of being determined.
(b) Severance Benefits. In addition to the Severance Payments,
the Company shall continue to provide to the Executive coverage under the
healthcare, life insurance and accidental death and dismemberment plans
programs and policies described in (S) 5.1 in which the Executive was
covered immediately before the Executive's employment terminated as if
Executive had remained employed by the Company for 24 additional months
after the actual termination of Executive's employment with no reduction
in Executive's level of coverage (the amounts referred to herein being
the "Severance Benefits"). At the end of 24 consecutive months following
Executive's termination of employment, the Company shall, subject to (S)
4.3, make available to the Executive whatever healthcare continuation
("COBRA") coverage the Company would have been required under applicable
law to make available to the Executive as of his employment termination
date, or comparable coverage at comparable cost to the Executive.
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(c) Gross Up Payment. If all or any portion of the Severance
Payments, the Severance Benefits or any other payment made to the
Executive by or on behalf of the Company under this (S) 4.2 is subject to
excise tax under (S) 4999 of the Internal Revenue Code of 1986, as
amended (which shall be referred to in this (S) 4.2(c) as the "Code"),
the Company shall pay to the Executive a "Gross Up Payment." The term
"Gross Up Payment" as used in this Agreement shall mean a payment to or
on behalf of the Executive which shall be sufficient to pay (i) 100% of
any excise tax described in this (S) 4.2(c), (ii) 100% of any federal,
state and local income tax and social security tax and other employment
tax on the payment described in clause (i) above, and (iii) any interest
or penalties assessed by the Internal Revenue Service on Executive which
are related to the payment of such excise tax unless such interest or
penalties are attributable to Executive's willful misconduct or
negligence. A Gross Up Payment shall be made by the Company promptly
after either the Company or the Company's independent accountants
determine that any payments and benefits called for under this Agreement
together with any other payments and benefits made available to the
Executive by the Company and any other person will result in the
Executive's being subject to an excise tax under (S) 4999 of the Code or
such an excise tax is assessed against the Executive as a result of any
such payments and other benefits if the Executive takes such action as
the Company reasonably requests under the circumstances to mitigate or
challenge such excise tax. Any determinations under this (S)4.2(c) shall
be made in accordance with (S) 280G of the Code and any applicable
related regulations (whether proposed, temporary or final) and any
related Internal Revenue Service rulings and any related case law and, if
the Company reasonably requests that the Executive take action to
mitigate or challenge, or to mitigate and challenge, any such tax or
assessment and Executive complies with such request, the Company shall
provide Executive with such information and such expert advice and
assistance from the Company's independent accountants, lawyers and other
advisors as the Executive may reasonably request and shall pay for all
expenses incurred in effecting such compliance and any related fines,
penalties, interest and other assessments.
(d) Other than the Severance Payments, the Severance Benefits
and the Gross Up Payment, the Company shall have no further obligation to
pay the Executive any Base Salary, Bonus or any other benefits pursuant
to this Agreement if the Executive's employment hereunder is terminated
as a result of the occurrence of a No Cause Termination Event or a Good
Reason Termination Event.
4.3. Employment with Successor Employer. If, after a No Cause or
Good Reason Termination Event, the Executive accepts employment with a successor
employer that offers coverage under healthcare, life insurance and accidental
death and dismemberment plans, programs and policies substantially comparable to
those plans, programs and policies afforded the Executive by the Company, the
Company's obligation to provide coverage under such plans, programs and policies
shall cease as and to the extent substantially comparable benefits become
available to the Executive through the successor employer. The Executive shall
keep the Company informed of any successor employer and the healthcare, life
insurance and accidental death and dismemberment plans, programs and policies
offered by any such employer. This (S) 4.3 shall not confer any right on the
Company (independent of its rights under applicable law) to fail to make
available healthcare continuation coverage as is required by applicable law to
the Executive, any dependent or former dependent of the Executive or other
beneficiary entitled to such coverage.
4.4. Termination As Result of Disability Termination Event. If
the Executive's employment hereunder is terminated as a result of a Disability
Termination Event, as of the date of the termination of the Executive's
employment hereunder, the Company shall have no further obligation to pay the
Executive any Base Salary, Bonus or any other benefits pursuant to this
Agreement. If such termination occurs prior to the end of any pay period, the
Executive shall be entitled to receive a portion of the Base Salary and Bonus
for such pay period prorated to the date on which the Executive's employment is
terminated as provided in (S) 4.2(a)(i) above. Notwithstanding the foregoing, if
this Agreement is terminated as a result of the (a) death of the Executive, the
Executive's family shall be entitled to receive benefits at least equal to those
provided by the Company to surviving families of senior executives of the
Company under such plans, programs and policies relating to family death
benefits, if any, in effect on the date of the Executive's death, or (b) total
disability of the Executive as described in (S) 3.1(a), in addition to the
benefits contemplated by (S) 5.1, the Executive shall be entitled to receive
disability and other benefits (provided that the Executive has paid applicable
premiums therefor) at least equal to those provided by the
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Company to disabled employees and their families in accordance with such plans,
program and policies relating to disability, if any, in effect on the date of
the Executive's total disability.
Section 5. Additional Employment Benefits
5.1. Benefits. The Company shall provide the Executive with such
healthcare, life, accidental death and dismemberment and disability insurance as
the Board shall authorize from time to time for the benefit of senior executives
of the Company generally. In addition, the Executive shall have the right to
participate in all incentive, savings and retirement plans (including without
limitation "non-qualified" plans) available to senior executives of the Company
generally and to receive such additional fringe benefits as the Board shall
authorize from time to time for the benefit of senior executives of the Company
generally.
5.2. Vacation. The Executive shall receive at least four (4)
weeks of paid vacation time each calendar year during the term of his employment
hereunder, which vacation shall be prorated if the Executive's employment
hereunder is terminated prior to December 31 of any year.
Section 6. Covenants
6.1. Confidential Information. Other than in connection with
performing his duties in good faith hereunder, during and for a period of two
years subsequent to termination of the Executive's employment for any reason,
the Executive hereby agrees that he will hold in confidence any confidential
information relating to the business or operations of the Company ("Confidential
Information") and will not use or disclose the same to any third party for any
reason (unless disclosure is compelled by judicial or administrative process, or
in the reasonable opinion of the Executive's counsel, by other requirements of
law). For purposes of this Agreement, the term "Confidential Information" means
any secret, confidential or proprietary information possessed by the Company
relating to the Company's businesses, including, without limitation, customer
lists, details of client or consultant contracts, current and anticipated
customer requirements, pricing policies, price lists, market studies, business
plans, operational methods, marketing plans or strategies, product development
techniques or flaws, computer software programs (including object codes and
source codes), data and documentation, database technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods, techniques, processes,
future business plans, licensing strategies, advertising campaigns, financial
information and data, business acquisition plans and new personnel acquisition
plans that has not become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
the Company. Confidential Information shall not include information (a) known by
the Executive prior to his employment by the Company in any capacity, (b)
ascertained by the Executive other than in his capacity as the Chief Operating
Officer of the Company, (c) ascertainable or obtained from public or published
sources, or (d) that is or becomes known to the public (other than through a
breach of this Agreement).
6.2. Non-solicitation of Employees. If the Executive's employment
hereunder is terminated for any reason, the Executive agrees that he shall not,
during the two year period after the date of such termination, without the
Company's prior written consent, (a) directly or indirectly, knowingly solicit
or encourage to leave the employment of the Company, any salaried employee of
the Company with whom Executive had contact, knowledge of or association at any
time during the one year period immediately preceding Executive's termination of
employment, or (b) hire or assist any other person or entity in hiring any
salaried employee (other than the personal secretary of the Executive or a
relative of the Executive) who has left the employment of the Company within one
year of such termination of the Executive's employment and with whom Executive
had contact, knowledge of or association at any time during the one year period
immediately preceding Executive's termination of employment; provided, however,
that the Executive shall not be prohibited from hiring any employee of the
Company whose employment has been terminated by the Company without good cause.
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6.3. Non-solicitation of Customers. If the Executive's employment
hereunder is terminated for any reason, the Executive agrees that he shall not,
during the two year period after the date of such termination, call on or
solicit on his own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise, for the
purpose of competing with the Company, any customers of the Company with whom
the Executive had contact at any time during the one year period immediately
preceding the applicable termination event.
6.4. No Waiver. This (S) 6 is intended to provide rights to the
Company which are in addition to, not in lieu of, those rights the Company has
under the common law or applicable statutes, including the common law or
applicable statutes for the protection of confidential information or trade
secrets.
Section 7. Miscellaneous
7.1. Indemnification. The Company shall indemnify and hold the
Executive harmless to the fullest extent permitted under applicable law as it
presently exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted prior to such amendment)
against all expense, liability and loss (including attorneys' fees, judgements,
fines, ERISA excise taxes or penalties and amounts to be paid in settlement)
incurred in connection with any asserted or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he was an officer, director or employee of the Company or its
former parent, Braelan Corp. ("Braelan") or was serving at the request of the
Company or Braelan as an officer, director, employee, fiduciary or agent of
another corporation or other entity. In the event that the Executive shall
receive written notice of any claim or proceeding against him that, if
successful, might result in a claim under this (S) 7.1, the Executive shall give
written notice to the Company of such claim or proceeding and shall permit the
Company to participate in the defense of such claim or proceeding by counsel of
the Company's own choosing and at the expense of the Company. In addition, upon
the written request of the Company, the Company may assume at its own expense
the defense of any such claim or proceeding, provided that the Executive may
participate at his expense in any such defense to the extent he may deem
necessary or appropriate to protect his interests. Upon the final determination
of any such claim or proceeding, the defense of which has been assumed by the
Company, the Company shall fully discharge at its own expense all liability of
the Executive and shall be entitled at its own expense, but without any
liability of the Executive therefor, to compromise or settle any such claim or
proceeding upon terms reasonably satisfactory to both the Company and the
Executive.
7.2. No Disclosure. Each party hereto agrees that if the
Executive's employment by the Company is terminated for any reason whatsoever,
each party hereto will keep confidential and not make any public disclosures
concerning the circumstances relating to such termination.
7.3. No Litigation. The Executive represents and warrants to the
Company that there are no litigation proceedings pending or, to his knowledge,
threatened against the Executive in his individual capacity or in any capacity
that might give rise to a claim for indemnification under (S) 7.1 hereof.
7.4. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the Executive and his executor, administrator, heirs,
personal representative and assigns, and the Company and its successors and
assigns; provided, however, that the Executive shall not be entitled to assign
or delegate any of his rights or obligations hereunder without the prior written
consent of the Company. Subject to the foregoing, there are no third party
beneficiaries of this Agreement.
7.5. No Mitigation. In no event shall the Executive be obligated
to seek employment in mitigation of amounts payable to the Executive pursuant to
(S) 4 hereof, and the employment of the Executive after the termination of the
Executive's employment by the Company shall not affect in any way or offset any
amounts payable to the Executive pursuant to this Agreement.
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7.6. Fees. The Company agrees to pay to the Executive to the
fullest extent permitted by law all fees and expenses (including reasonable
attorneys' fees) incurred by the Executive in seeking to enforce any provision
of this Agreement, provided that the Executive shall refund such fee and expense
payments if it is finally judicially determined that the Executive is not
entitled to any relief.
7.7. Governing Law. This Agreement shall be deemed to be made
in, and in all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the State of Georgia, without reference to
principles of conflict of laws. No provision of this Agreement or any related
document shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or drafted such
Provision.
7.8. Survival of Certain Agreements. The agreements and
covenants set forth in (S) 6 hereof shall survive the termination of the
Executive's employment under this Agreement for any reason.
7.9. Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
7.10. Notices. Unless otherwise agreed to in writing by the
parties hereto, all communications provided for hereunder shall be in writing
and shall be deemed to be given when delivered in person or five (5) business
days after being sent by first class mail, certified, return receipt requested,
and addressed as follows:
(a) If to the Executive, addressed to:
Xxxxxxx X. Xxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
(b) If to the Company, addressed to:
Xxx River Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Board of Directors
c/o Corporate Secretary
or to such other person or address as shall be furnished in writing by any party
to the other prior to the giving of the applicable notice or communication.
7.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
7.12. Entire Agreement. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
7.13. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its Affiliates for which the Executive may qualify, nor, except as set
forth in (S) 7.15 below, shall anything herein limit or otherwise affect such
rights as the Executive may have under any other agreements with the Company or
any of its Affiliates. Amounts which are vested benefits or which the Executive
is otherwise entitled to receive under any plan or program of the Company or any
of its Affiliates at or subsequent to the date on which his employment hereunder
is terminated shall be payable in accordance with such plan or program.
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7.14. Severability. In the event that any provision of this
Agreement shall be deemed invalid or unenforceable, the remaining provisions of
this Agreement shall remain in full force and effect.
7.15. Prior Agreements. This agreement replaces and supersedes
that certain agreement dated as of October 31, 1997 concerning the subject
matter hereof, which Agreement is hereby cancelled as of the effective date of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY
XXX RIVER INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairman
[CORPORATE SEAL]
ATTEST:
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
Secretary
THE EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
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