EMPLOYMENT AGREEMENT
Exhibit
10.2
This
Employment Agreement (this “Agreement”) by and between Employers Holdings, Inc.,
a Nevada corporation (the “Company”) and Xxx X. Xxxxxx (the “Employee”) is
entered into as of the 17th day of December, 2008, effective as of January
1, 2009 (the “Effective Date”).
RECITALS
A. The Employee has knowledge and
experience applicable to the position of Executive Vice President, Corporate and
Public Affairs.
B. The Company desires to continue to
employ the Employee to perform certain services for the Company, its parent, if
any, and their respective subsidiaries and affiliates (the “Company
Affiliates”), as may be required or requested of the Employee in her position as
Executive Vice President, Corporate and Public Affairs, and the Employee desires
to continue to be so employed by the Company and to perform such services for
the Company and the Company Affiliates.
In
consideration of the premises above and mutual covenants and promises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are mutually acknowledged, the parties agree as follows:
TERMS
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1.
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Employment.
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The Company agrees to continue to
employ the Employee and the Employee accepts such continued employment upon the
terms and conditions specified herein. The Employee agrees to continue to devote
substantially all of her time and effort during working hours in the performance
of the duties called for herein and agrees that any other non-employment related
duties (i.e., industry related groups, service on boards, etc.) will not be
allowed to materially interfere with the performance of the duties called for
herein.
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2.
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Term.
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The term of this Agreement shall
commence on the Effective Date, and continue for three (3) years (the “Initial
Term”), until December 31, 2011, and, thereafter, shall automatically renew for
successive two (2) year periods (each, an “Additional Term;” the Initial Term
and any Additional Terms, collectively the “Term”), unless either party gives
written notice to the other no later than six (6) months prior to expiration of
the Initial Term or any Additional Term, as applicable, of an intent not to
renew this Agreement; subject, however to earlier termination of the Employee's
employment with the Company in accordance with this Agreement (the “Termination
Date”). The expiration of this Agreement at the end of the Term, in
and of itself, shall not constitute, nor be construed or interpreted as, a
termination of the Employee's employment that would make her eligible for
benefits or payments under Section 7 below. This Agreement shall
expire upon the termination of the Employee's employment for any reason, subject
to the provisions of subsection 10(h) below.
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3.
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Services and
Duties.
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The Employee shall continue to serve as
Executive Vice President, Corporate and Public Affairs and shall perform such
duties as may be assigned by the Chief Executive Officer from time to
time. At the request of the Board of Directors of the Company (the
“Board”), the Employee shall also serve as a director of the Company and/or one
or more of the Company Affiliates at no additional compensation. The
Employee agrees that upon the termination of her employment with the Company,
she shall resign from the Board and any and all boards of the Company Affiliates
effective on the Termination Date.
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4.
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Compensation and
Benefits.
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(a)
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During the term of this Agreement,
the Company shall pay to the Employee an annual salary of not less than
$235,000 (“Base
Salary”), which
amount shall be paid
according to the Company’s regular payroll practices. The
Company agrees to review the Base Salary on an annual basis and adjust the
salary to comply with the executive compensation policy in effect at the
time of the review. Any increase made to the annual salary
will establish the new Base Salary for the Employee. All
payments made pursuant to this Agreement, including but not limited to
this subsection 4(a), shall be reduced by and subject to withholding for
all federal, state, and local taxes and any other
withholding required by applicable laws and
regulations.
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(b)
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The Company will provide an annual
incentive (the “Annual Incentive”) to the Employee during the Term
based on the Employee’s and the Company’s performance, as determined by the Board (or a
committee thereof) in its sole discretion. In this regard, the
Board (or a committee thereof) shall set an annual incentive target of not
less than forty-five percent (45%) of Base Salary, and the Annual
Incentive shall be paid in accordance with the
Company’s regular practice for its senior
officers, as in effect from time to time. To the extent not duplicative of
the specific benefits provided herein, the Employee shall be eligible to
participate in all incentive compensation, retirement, supplemental
retirement, and deferred compensation plans, policies and arrangements
that are provided generally to other senior officers of the Company at a
level (in terms of the amount and types of benefits and incentive
compensation that the Employee has the opportunity to
receive and the terms thereof) determined in the sole discretion of the
Board (or a committee thereof).
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(c)
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The Employee agrees that the
amounts payable and benefits provided under this Agreement, including but
not limited to any
amounts payable or benefits provided under this Section 4 and Section 7
constitute good, valuable and separate consideration for the
non-competition, assignment and release of liability
provisions
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contained herein. The Employee
acknowledges that she
is aware of the effect of the non-competition, assignment and release of
liability provisions contained herein and agrees that the amounts payable
and benefits provided under this Agreement, including but not limited to
the amounts payable and benefits provided under
this Section 4 and Section 7, if any, constitute sufficient consideration
for her agreement to these provisions.
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(d)
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In addition to the compensation
called for in this Agreement, the Employee shall be entitled to
receive any and all
employee benefits and perquisites generally provided from time to time to
other similarly situated officers of the Company as well as the benefits
and perquisites listed on “Exhibit A” attached hereto and incorporated
herein by this reference.
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5.
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Insurance.
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The Employee agrees to submit to a
physical examination at a reasonable time as requested by the Company for the
purpose of the Company’s obtaining life insurance on the life of the Employee
for the benefit of the Company; provided, however, that the Company shall bear
the costs for such examinations and shall pay all premiums on any life insurance
obtained as a result of such examinations. The Employee further
agrees to submit to drug testing in accordance with the Company's policies and
procedures.
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6.
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Termination.
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(a)
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The Company, at any time, may
terminate this Agreement and the Employee's employment immediately for
“Cause”. Cause is defined
as:
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(i)
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A material breach of this
Agreement by the Employee;
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(ii)
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Failure or inability of the Employee to
obtain or maintain any required licenses or
certificates;
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(iii)
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Willful violation by the Employee
of any law, rule or regulation, including but not limited to any material
insurance law or regulation, which violation may, as determined by the
Company, adversely affect the ability of the Employee to perform her
duties hereunder or may subject the Company to liability or negative
publicity; or
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(iv)
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Conviction or commission of or the
entry of a guilty plea or plea of no contest to any felony
or to any other crime involving moral
turpitude.
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(b)
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The Employee may terminate this
Agreement and her employment with the Company immediately for
“Good
Reason,” which shall
mean the occurrence of any of the following events with respect to which the
Employee has notified the Company of the existence thereof within no more
than ninety (90) days of the initial existence thereof and which is not
cured by the Company within thirty (30) days of the Company’s receipt of written notice from the Employee of
the events alleged to constitute such Good
Reason:
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(i)
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A material diminution in the
Employee’s base
compensation;
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(ii)
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A material diminution in the
Employee’s authority, duties or
responsibilities; or
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(iii)
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Any other action or inaction that
constitutes a material breach by the Company of this Agreement (as may be
amended from time to time).
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(c)
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The Company may also terminate
this Agreement and the Employee's employment upon the occurrence of
one or more of the
following events or reasons, subject to applicable law (or, in the case of
subsection 6(c)(i) below, termination of this Agreement and the Employee's
employment will be automatic):
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(i)
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Death of the
Employee;
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(ii)
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The Employee is deemed to be disabled in
accordance with the policies of the Company or the law or if the Employee
is unable to perform the essential job functions of the
Employee’s position with the Company, with
or without reasonable accommodation, for a period of more than 100 business days in
any 120 consecutive business day period. The Employee is entitled to any
and all short term or long term disability programs, like any other
employee, in accordance with the terms of such programs and the policies
of the Company;
or
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(iii)
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At any time for any other reason
or no reason in the sole and absolute discretion of the
Company.
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7.
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Payments Upon
Termination.
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(a)
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Qualifying
Termination and Severance Pay. If the Company
terminates the Employee's employment prior to the expiration
of the Term but other than during the CIC Period (as defined below) for
any reason other than as specified above
in
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subsection 6(a) for Cause,
subsection 6(c)(i) by reason of the death of the Employee, or
subsection 6(c)(ii)
for disability, or if the Employee terminates her employment for Good
Reason pursuant to subsection 6(b), the Employee shall receive the
following severance pay (the “Severance Pay”):
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(i)
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In lieu of any further salary
payments to the Employee for periods subsequent to
the Termination Date and in lieu of any severance benefit otherwise
payable to the Employee, an amount equal to one and one half (1 ½) times Base Salary, payable in
equal bi-weekly installments on the Company’s regular payroll dates as in effect on such
Termination Date, for eighteen (18) months following the
Termination Date, commencing with the payroll date applicable
to the first full payroll period following the Termination
Date; provided,
however, that such payments shall be delayed to the extent
required under Section 25 below. The payments shall be subject
to normal payroll deductions.
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(ii)
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Continuation of the medical,
dental and vision insurance coverage in effect on the Termination Date for
a period of eighteen
(18) months following the Termination Date with the Company paying the
employer portion of the premium and the Employee paying the employee
portion, including dependents if applicable, of the premium during such
eighteen (18) month period, provided that the Employee elects to
continue such insurance coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended (“COBRA”). The Employee is solely
responsible for taking the actions necessary to exercise her rights under
COBRA for the insurance coverage the Employee
has in effect, including coverage for dependents if applicable, on the
Termination Date.
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(b)
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Severance
Pay as Liquidated Damages. The parties agree, in
the event of a material breach of this Agreement by the Company with respect to which the
Employee has given notice and that is not cured, in either case, in
accordance with subsection 6(b), following which the Employee terminates
her employment for Good Reason, that actual damages are speculative and
that the amount of the Severance Pay or, if
applicable, the CIC Severance Pay (as defined below) set forth herein is
liquidated damages and is a reasonable estimate of what damages would be
for a material breach of this Agreement.
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(c)
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Conditions
to Severance Pay
or CIC Severance Pay. The Employee agrees
and acknowledges that the following must be satisfied by the Employee
before she is entitled to the Severance Pay or, if applicable, the CIC
Severance Pay provided for
herein:
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(i)
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That the Employee returns any and all equipment, software,
data, property and information of the Company and the Company
Affiliates, including
documents and records or copies thereof relating in any way to any
proprietary information of the Company or any of the Company
Affiliates whether prepared by the Employee
or any other person or entity. That the Employee further agrees that
she shall not retain any
proprietary information of the Company or any of the Company
Affiliates after the
Termination
Date;
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(ii)
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That the Employee executes a Global Release of Liability, in
a form to be
determined by the Company in its sole discretion, which releases the Company and the Company
Affiliates from liability for any and all
claims, complaints and causes of
action, whether based in law or
equity, arising
from, related
to or associated with
the Employee’s employment by the Company or under this Agreement and that such release has become
effective and non-revocable. That the Employee further acknowledges and
agrees that she has not made and
will not make any
assignment of any claim, cause or right of action, or any right of any
kind whatsoever, arising from, related to or associated with the employment
of the Employee by the Company;
and
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(iii)
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That the Employee reaffirms the covenants contained
herein, in writing,
including, but not limited to, the covenants set forth in Section 10.
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Notwithstanding anything in this
Agreement to the contrary, in any case where the first and
last days of the applicable release and nonrevocability
periods provided for in the Global Release of
Liability (the
“Applicable Release
Period”) are in two separate taxable
years, any payments required to be made to the Employee under this Agreement that are treated as deferred
compensation for purposes of Section 409A (as defined below) shall be made in the later taxable
year, as soon as
practicable, but in no event later than thirty (30) days following the conclusion of the
Applicable Release Period.
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(d)
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Voluntary
Termination by the Employee. The Employee may terminate
her employment and this Agreement for reasons other
than those identified in subsection 6(b) upon not less than
sixty (60) days prior written notice.
If the Employee terminates
her employment and this Agreement pursuant to this
subsection
7(d), she shall be entitled only to the
following:
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(i)
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Any unpaid salary through the
Termination
Date;
and
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(ii)
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Payment for any accrued and unused
vacation as of the
Termination Date.
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(e)
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Qualifying
Change in Control Termination. If, before the expiration of the
Term, the Company terminates the Employee's
employment within the period commencing six (6) months prior
to and ending eighteen (18) months following a Change in
Control (as defined
below), such period referred to herein as
the “CIC
Period,” for any reason other than as specified above in subsection
6(a) for Cause, subsection 6(c)(i) for the death of the Employee, or subsection 6(c)(ii) for disability, or if the
Employee terminates her employment and this Agreement for Good Reason pursuant to subsection 6(b), the Employee shall receive the severance
pay set forth in
subsections (i) and (ii) below (the “CIC Severance Pay”), provided that if the
Employee’s employment is
terminated during the
six (6) month period
prior to a Change in
Control, the Employee
shall be
entitled to CIC
Severance Pay only if such termination (x) was by the Company other than for Cause but
at the request or direction of
any person that has entered into an agreement
with the Company the consummation of which would constitute a Change in
Control, (y) was by the Employee for Good Reason and the circumstance or event
that constitutes Good
Reason occurred at the request or direction of such
person or (z) was by the Company without Cause and
the Employee reasonably demonstrates that such termination
was otherwise in
connection with or in anticipation of a Change in Control; and if the Employee is not
entitled to CIC Severance Pay hereunder, then the Employee's termination of employment will not be deemed to
have occurred during the CIC Period for purposes of subsection 7(a):
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(i)
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In lieu of any further salary
payments to the Employee for periods subsequent to the Termination Date and in lieu of any severance
benefit otherwise payable to the Employee, a lump sum cash payment equal to two (2) times the sum of (A) Base Salary and (B) the
average of the
annual bonus amounts
earned by the Employee for the three (3) years preceding the year in which the Change in Control occurs; provided, however, that if the
Termination Date occurs prior to January 1, 2010, then (B) shall instead be the average of the annual bonus
amounts earned by the Employee in 2007 and 2008. Such payment shall be made as soon
as practicable (but in no event later than sixty (60) days) following the Termination Date; provided, however, that
such payments shall
be delayed to the extent required under Section 25 below; and
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(ii)
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Continuation of the medical, dental and
vision insurance coverage in effect on
the Employee's
Termination Date for a period of
eighteen (18) months following the Termination Date with the Company paying the
employer portion of the premium and the Employee paying the employee
portion, including dependents if applicable, of the premium during
such eighteen
(18)-month period, provided that the
Employee elects to continue such insurance coverage under COBRA.
The Employee is solely responsible for taking the actions necessary to
exercise her rights
under
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COBRA for the insurance coverage
the Employee has in effect, including coverage for dependents if applicable, on the
Termination
Date.
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(f)
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Definition
of Change in Control.
For purposes of this Agreement,
a “Change in Control” shall be deemed to have occurred
if the event set forth in any one of the following paragraphs shall have
occurred:
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(i)
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Any one person, or more than one
person acting as a
group, acquires ownership of stock of the Company that, together with stock held by
such person or group, constitutes more than 50% of the total fair market
value or total voting power of the stock of the Company;
or
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(ii)
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Any one person, or more than one person acting as a
group, acquires (or has acquired during the twelve (12)-month period ending on the date
of the most recent acquisition by such person or persons) ownership of
stock of the Company possessing 35% or more of the total
voting power of the
stock of the
Company;
or
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(iii)
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A majority of members of the
Board is replaced during any
twelve (12)-month period by directors whose
appointment or election is not endorsed by a majority of the members of
the Board before the date of the
appointment or
election;
or
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(iv)
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Any one person or group acquires (or has
acquired during the immediately preceding twelve (12)-month period ending
on the date of the most recent acquisition) assets of the Company with an
aggregate gross fair market value of not less than forty percent (40%)
of the aggregate gross fair market value of the assets of the Company
immediately prior to such acquisition. For this purpose, gross
fair market value shall mean the fair value of the affected assets
determined without regard to any liabilities associated
with such assets.
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Notwithstanding the foregoing, (1)
a “Change in Control” shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the holders of the common
stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate
ownership in an entity that owns all or substantially all of
the assets of the Company immediately following such
transaction or series of transactions, and (2) a “Change in Control” shall not be deemed to have occurred as
result of any
secondary offering of Company common stock to the general public through a
registration statement filed with the Securities and Exchange
Commission. The
Board
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shall determine whether a Change
in Control has occurred hereunder in a manner consistent with the
provisions of Section 409A.
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(g)
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No
Duplication of Payments or Benefits. Notwithstanding any
provision of this Agreement to the contrary, the Employee shall not be eligible
to receive any payments or benefits under both subsections 7(a) and 7(e); but rather, to the extent the
conditions set forth in subsection 7(a) and subsection 7(e) are satisfied, the Employee shall be eligible to
receive benefits under only subsection 7(e).
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(h)
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Golden
Parachute (Section
280G) Excise
Taxes.
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(i)
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Subject to subsection 7(h)(ii) below, if it is determined that any payment or benefit received or
to be received by the Employee, whether pursuant to this
Agreement or otherwise (the “Severance Payments”), is a “parachute payment” within the meaning of
section 280G of the Internal Revenue Code (the
“Code”) (all such payments and benefits,
including the Severance Payments as applicable, but excluding the Gross-Up
Payment (as defined below) being hereinafter called
“Total Payments”) that will be subject (in whole or part)
to the tax imposed
under section 4999 of the Code (the
“Excise Tax”), then the Company shall pay to
the Employee on or as soon as practicable
following the day on which the Excise Tax is remitted by the Employee (but not later than the end of
the taxable year following the year in which the Excise Tax is
incurred and subject
to the provisions set forth in Section 25 below, including if applicable,
the Six Month Delay (as defined in such section)) an additional amount (the
“Gross-Up Payment”) such that the net amount
retained by the Employee, after deduction of any Excise
Tax on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up
Payment, shall be equal to the Total
Payments.
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(ii)
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In the event that the amount of
the Total Payments does not exceed 110% of the largest amount that would
result in no portion of the Total Payments being subject
to the Excise Tax (the “Safe Harbor”), the non-cash portion of the Total Payments
shall first be
reduced (if necessary, to zero), and the cash portion of the Total Payments shall thereafter be reduced (if
necessary, to zero)
so that the amount of the Total Payments is equal to the Safe
Harbor.
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(iii)
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For purposes of determining
whether any of the Total Payments will be subject to the Excise Tax and
the amount of such Excise Tax, (A) no portion of the Total Payments
shall be taken into
account which, in the opinion of tax counsel (“Tax
Counsel”) selected by the Board in existence immediately prior to
the Change in Control, does not constitute
a
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“parachute payment” within the meaning of section
280G(b)(2) of the
Code, including by
reason of section 280G(b)(4)(A) of the Code, (B) the Severance Payments shall be
reduced only to the extent necessary so that the Total Payments (other
than those referred to in clause (A)) in their entirety constitute
reasonable compensation for services actually rendered within the
meaning of section 280G(b)(4)(B) of the Code
or are otherwise not subject to disallowance as deductions by reason of
section 280G of the Code, in the
opinion of Tax Counsel, and (C) the value of any non-cash benefit or any deferred payment or benefit
included in the Total Payments shall be determined by the Company's independent
auditor in
accordance with the
principles of sections 280G(d)(3) and (4) of the
Code. If the Employee disputes the Company's
calculations (in whole or in part), the reasonable
opinion of Tax Counsel with respect to the matter in dispute shall
prevail.
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(iv)
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If the Excise Tax is finally
determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, the Employee shall repay to the Company, at
the time that the amount of such reduction in Excise Tax is finally
determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income
and employment taxes imposed on the Gross-Up Payment being repaid by the
Employee to the extent that such repayment results in a reduction in
Excise Tax and/or a federal, state or local income or employment tax
deduction) plus interest on the amount of
such repayment at 120% of the rate provided in section 1274(b)(2)(B) of
the Code. If the Excise Tax is determined to exceed the amount
taken into account hereunder in calculating the Gross-Up Payment
(including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up Payment),
the Company shall make an additional Gross-Up Payment in respect of such
excess (plus any interest, penalties or additions payable by the Employee
with respect to such excess) at the
time that the amount of such excess is finally
determined.
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(v)
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The Employee and the Company shall
each reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the
existence or amount
of liability for Excise Tax with respect to the Total
Payments. The Company also shall pay to the Employee all legal
fees and expenses incurred by the Employee in connection with any tax
audit or proceeding to the extent attributable to the application of section 4999 of the
Code to any payment or benefit provided hereunder. Such payments shall be
made within sixty (60) business days after delivery of the Employee's
written request for payment accompanied with such evidence of fees and
expenses incurred as the Company reasonably
may require (but in no event shall any such payment be made after the
end
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of the calendar year following the
calendar year in which the expenses were incurred), provided that no such
payment shall be made in respect of fees or expenses incurred by the
Employee after the later of the tenth (10th) anniversary of the effective
date of the Employee's termination with the Company or the Employee's
death and, provided further, that, upon the Employee’s “separation from
service” (as such term is defined under
Section 409A) with the Company, in no event shall any additional such
payments be made prior to the date that is six (6) months after the date
of the Employee’s “separation from
service” to the
extent such payment delay is required under section 409A(a)(2)(B)
of the Code.
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8.
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Licensing.
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The Employee has obtained and
possesses, or will obtain and possess, and will maintain throughout the Term
hereof, all licenses, approvals, permits, and authorization (the “Licenses”)
necessary to perform the Employee’s duties hereunder (if any). Any
costs, attorneys’ fees, investigation fees or other expenses incurred in
connection with obtaining or maintaining such Licenses shall be borne by the
Company, provided that payment of such fees or costs by the Company shall be
made no later than the end of the year following the year in which the expenses
were incurred. The Employee warrants that the Employee is fully
eligible, under all standards and requirements, to obtain, possess, and maintain
such Licenses and that the Employee will commit no acts during the Term hereof
that would jeopardize or eliminate the Employee’s ability to possess or maintain
such Licenses.
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9.
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Rules and
Regulations.
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The Employee shall observe, enforce,
and comply with the policies, philosophies, strategies, rules, and regulations
of the Company, as they may be promulgated and/or modified from time to time,
and shall carry out and perform the orders, directions, and policies of the
Company, as they may be stated and/or amended from time to time, either orally
or in writing. A violation of this Section 9 by the Employee is a
material breach of this Agreement.
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10.
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Restrictive
Covenants.
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In consideration of the amounts payable
and benefits provided under Section 4, and, if applicable, Section 7 and
subsection 10(a), the other compensation paid hereunder, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
the parties, the parties agree to the following provisions of this Section
10:
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(a)
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Non-Competition. The Employee understands and agrees that the
Company and the
Company Affiliates do
business throughout the State of Nevada and other states. The Employee further understands and agrees
that she is a high ranking officer of
the Company and will
have access to confidential and trade secret information and goodwill of the Company and the Company Affiliates
that
will
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allow the Employee to unfairly compete with the
Company and the
Company Affiliates justifying this restriction.
If the Employee's
employment is
terminated (by either
the Employee or the Company), during the Term, for any reason other than
as specified above in subsection 6(c)(i) by reason of the death of the Employee, or
subsection 6(c)(ii) for disability, then for a period of eighteen (18) months commencing on the Termination Date, the Employee agrees that, without the written
permission of the Company, she will not engage (whether as
owner, partner, controlling stockholder, controlling investor, employee,
adviser, consultant,
or otherwise) in any business that is in direct competition with the
business being conducted by the Company or
any of the
Company
Affiliates as of the Termination
Date, in Nevada
or in any other state in which the
Company is conducting such business (the “Non-Compete Area”) as of the Termination Date.
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(b)
|
Non-Solicitation. Without limiting the generality
of the foregoing, the
Employee agrees that
for a period of eighteen (18) months following the Employee's termination of
employment (for any
reason, by either the
Employee or the Employer), she will not, without the prior
written consent of the Company, directly or indirectly solicit or attempt
to solicit, within the Non-Compete Area, any business from any person or
entity that the Company or any of the Company Affiliates
called upon,
solicited, or conducted business with as of such termination date, any persons or entities that
have been customers of the Company or any of the Company Affiliates
or recruit any person
who has been or is an employee of the Company or any of the Company
Affiliates, during
the preceding one
(1)-year period from
such termination date. In addition, the Employee agrees that she shall not directly or
indirectly solicit or encourage any employee of the Company or any of the Company Affiliates to go to work for or with
the
Employee for a period
of one
(1)-year following
such termination date.
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(c)
|
In the event the Employee violates subsection 10(a) or 10(b), the applicable period of time during which the respective restriction applies will automatically be extended for
the period of time from which the Employee began such violation until
she permanently ceases such
violation. If any provision of this covenant
is invalid in whole or in part, it will be limited, whether as
to time, area
covered, or otherwise as and to the extent required for its validity under
the applicable law and as so limited, will be
enforceable.
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(d)
|
Confidential
Information.
The
Employee acknowledges
that she has had or will have access to
the confidential information of the Company and the
Company
Affiliates
(including, but not limited to, records regarding sales, price and cost
information, marketing plans, customer names, customer lists, sales
techniques, distribution plans or procedures, and other material relating to the
business conducted by
the Company and the Company Affiliates), proprietary, or trade secret
information (the “Confidential
Information”), and
agrees never to use the Confidential Information other than for the sole
benefit of the Company and the
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12
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Company Affiliates and further agrees to never
disclose such Confidential Information (except as may be required by
regulatory authorities or as may be required by law) to any entity or
person that is not an officer or employee of the Company or a Company Affiliate
at the time of such
disclosure (unless at
such time such Confidential Information is subject to a policy of the
Company or a Company
Affiliate restricting
disclosure to non-officers), in which case disclosure shall
be limited solely to
officers of the
Company or the
applicable Company Affiliate at the time of such disclosure,
without the prior written consent of the Company. The Employee further acknowledges that this
covenant to maintain Confidential Information is necessary to
protect the goodwill
and proprietary interests of the Company and the Company
Affiliates and the
restriction against the disclosure of Confidential Information is
reasonable in light of the consideration and other value the Employee has
received or will receive pursuant to this
Agreement and
otherwise pursuant to her employment by the
Company.
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(e)
|
From and following the Employee's termination of employment, the Employee agrees to cooperate with the
Company and the
Company Affiliates in
any litigation, administrative proceeding,
investigation or audit involving any matters with which the Employee has knowledge of from
her employment with the Company.
The Company shall reimburse
the
Employee for
reasonable expenses, including reasonable compensation for
services rendered at her hourly rate of compensation
as of such termination date, incurred in providing such
assistance and approved by the Company. The Company shall reimburse the
Employee for such expenses incurred in accordance with the policies
and procedures of the
Company, but in no event no later than the end of the year
following the year in which the expenses were incurred.
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(f)
|
In the event of a violation of
this Section 10, the Company and the Company
Affiliates shall be
entitled to any form of relief at law or equity, and the
parties agree and acknowledge that injunctive relief is an appropriate,
but not exclusive, remedy to enforce the provisions hereof. The existence of any claim or
cause of action of the Employee against the Company, whether
predicated on this
Agreement or otherwise, shall not constitute a defense of the
Company’s enforcement of the covenants set
forth in this Section 10. The Employee hereby submits to the
jurisdiction of the courts of the State of Nevada and federal courts
therein for the
purposes of any actions or proceedings instituted by the Company to
enforce its rights under this Agreement, to seek money damages or seek
injunctive relief. The Employee further acknowledges and agrees
(i) that the obligations contained in
Section 10 of this
Agreement are
necessary to protect the interests of the Company and the Company
Affiliates,
(ii) that the restrictions contained herein
are fair, do not
unreasonably restrict the Employee's further employment and business
opportunities, and
are commensurate with the compensation arrangements set out in this
Agreement and
(iii) that such compensation arrangements
constitute separate consideration for the obligations set forth in this
Section 10.
The covenants contained in Section
10 shall each
be
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13
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construed as an agreement independent of any other
provisions of this Agreement. Both parties intend to make the
covenants of Section 10 binding only to the extent that it may be lawfully
done under existing applicable laws. If a court of competent jurisdiction decides any part of
any covenant is overly broad, thereby making the covenant unenforceable,
the parties agree that such court shall substitute a reasonable,
judicially enforceable limitation in place of the offensive part of the
covenant and as so modified the covenant
shall be as fully enforceable as set forth herein by the parties
themselves in the modified form.
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(g)
|
The Employee acknowledges that it is possible
that the corporate structure of the Company could change during the term
of this Agreement.
The Employee hereby acknowledges and affirms
that the Company may assign its rights under this Agreement, including but not limited to its
rights to enforce the covenants set forth in subsections 10(a), 10(b) and
10(c), to a
third-party without
the approval of or additional consideration to the Employee. The Employee acknowledges and agrees that the
consideration called for herein is good and sufficient consideration for
the Company's right to assign its rights under this
Agreement.
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(h)
|
Subsections 10(a) through
(g), inclusive, of this Agreement
shall survive either termination of the employment relationship
and/or termination of this Agreement
for the full period set forth in subsections 10(a) through
(g),
inclusive.
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11.
|
Work for
Hire.
|
The Employee agrees that any work,
invention, idea or report that she produces or that results from or is suggested
by the work the Employee does on behalf of the Company or any of the Company
Affiliates is “work for hire” (hereinafter referred to as “Work”) and will be
the sole property of the Company. The Employee agrees to sign any
documents, during or after employment that the Company deems necessary to
confirm its ownership of the Work, and the Employee agrees to cooperate with the
Company to allow the Company to take advantage of its ownership of such
Work.
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12.
|
Assignment of
Agreement.
|
The Employee agrees that her services
are unique and personal and that, accordingly, the Employee may not assign her
rights or delegate her duties or obligations under this Agreement. The Company
may assign its rights, duties, and obligations under this Agreement to any
successor to its business. This Agreement shall inure to the benefit
of and be binding upon the Company’s successors and assigns.
14
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13.
|
Indemnification of the
Employee.
|
The Company shall indemnify the
Employee and hold her harmless for acts or decisions made by her in good faith
while performing services for the Company or any of the Company Affiliates to
the maximum extent allowed by law. The Company shall also use its
reasonable efforts to obtain coverage for her under any insurance policy now in
force or hereinafter obtained during Term covering the officers and directors of
the Company against lawsuits, subject to the business judgment of the
Board. The Company shall pay all expenses, including attorneys’ fees
of an attorney selected and retained by the Company to represent the Employee,
actually and necessarily incurred by the Employee in connection with the defense
of such act, suit, or proceeding and in connection with any related appeal,
including the cost of court settlements, provided that, to the extent required
by Section 409A, any such payment by the Company shall be made no later than the
end of the year following the year in which the expenses were
incurred.
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14.
|
Notices.
|
Any notice, document, or other
communication (hereinafter “Notice”) which either party may be required or may
desire to give to the other party shall be in writing, and any such notice may
be given or delivered personally or by mail or facsimile. Any such
notices given or delivered personally shall be given or delivered by hand to an
officer of the entity to which they are being given or delivered or the
individual, as the case may be, and shall be deemed given or delivered when so
given or delivered by hand. Any such notices given or delivered by
facsimile will be deemed given or delivered upon receipt by the sender of a
successful facsimile transmission to the facsimile number below, and any such
notices given or delivered by mail shall be deemed given or delivered three (3)
days after it is deposited in the U.S. mail, certified or registered mail,
return receipt requested, with all postage and fees prepaid, addressed to the
person or entity in question as follows:
If
to the Employee:
Xxx
X. Xxxxxx
To
the address (or facsimile number, if applicable) on record with the
Company
If
to the Company:
Chief
Executive Officer
00000
Xxxxxxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000-0000
Fax: (000)
000-0000
15
or,
in either case, to such other address as either party may have previously
notified the other pursuant to the provisions of this Section 14.
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15.
|
Severability.
|
In the event that any provision hereof
shall be declared by a court of competent jurisdiction to be void or voidable as
contrary to law or public policy, such declaration shall not affect the
continuing validity or enforceability of any other provisions hereof insofar as
it may be reasonable and practicable to continue to enforce such other provision
in the absence of the provision which shall have been declared to be void and
voidable.
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16.
|
Remedy for
Breach.
|
Both parties recognize that the
services to be performed by the Employee are special and unique. The
Company will have the right to seek and obtain damages and any available
equitable remedies for the Employee’s breach of this Agreement. The
Employee's remedy for any breach of this Agreement is strictly limited to the
Severance Pay or CIC Severance Pay, as the case may be, called for
herein.
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17.
|
Mitigation of
Damages.
|
The Employee shall not be required to
mitigate damages or the amount of any payment provided under this Agreement by
obtaining other employment or otherwise after the termination of employment
hereunder, and any amounts earned by the Employee, whether from self-employment
or other employment shall not reduce the amount of any Severance Pay or CIC
Severance Pay, as the case may be, called for herein.
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18.
|
Attorneys' Fees and
Costs.
|
In any claim or dispute between the
parties arising out of or associated with this Agreement or the breach hereof or
otherwise arising out of or associated with the Employee’s employment by the
Company, the prevailing party shall be entitled to recover all reasonable
attorneys' fees, expenses, and costs thereof or associated therewith, provided
that, to the extent required by Section 409A, any such payment by the Company
shall be made no later than the end of the year following the year in which such
fees, expenses and costs were incurred. The term “prevailing party”
means the party obtaining substantially the relief sought via litigation or
through an action in arbitration.
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19.
|
Integration, Amendment, and
Waiver.
|
This Agreement and such other written
agreements referenced in this Agreement, constitute the entire agreement between
the parties pertaining to the subject matter contained in it except as expressly
provided herein, and supersedes all prior agreements, representations,
assurances, and understandings of the parties, including any prior employment
agreements. No
16
amendment
of, addition to, or modification of this Agreement shall be binding unless
executed in writing by the parties. Any term or provision of this
Agreement may be waived in a signed writing at any time by the party that is
entitled to the benefit thereof, provided, however, that any waiver shall apply
only to the specific event or omission waived and shall not constitute a
continuing waiver. Any term or provision of this Agreement may be
amended or supplemented at any time by a written instrument executed by all the
parties hereto.
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20.
|
Captions.
|
The captions and section headings of
this Agreement are for convenience and reference only, and shall have no effect
on the interpretation or construction of this Agreement.
|
21.
|
Applicable
Law.
|
The substantive laws of the State of
Nevada shall govern the validity, construction, interpretation, performance, and
effect of this Agreement.
|
22.
|
Arbitration.
|
Any controversy, cause of action or
claim related to or arising out of or in connection with the Employee’s
employment with the Company, including but not limited to termination of such
employment or under this Agreement, other than an action to enforce the
provisions of Section 10 herein or the breach thereof, shall be settled by
arbitration according to the rules of the American Arbitration Association
applicable to disputes arising in Nevada and under Nevada law. Any
party to the arbitration may enter judgment upon the award rendered by the
arbitrator in any court having jurisdiction thereof. The arbitrator
shall not be entitled to amend or alter the terms of this
Agreement. Notwithstanding this Section 22, the Company shall be
entitled to seek any available equitable remedy for enforcement of provisions of
this Agreement.
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23.
|
Authorization.
|
The Company and the Employee,
individually and severally, represent and warrant to the other party that it has
the authorization, power and right to deliver, execute and fully perform the
obligations under this Agreement in accordance with its terms. The Employee
represents and warrants to the Company that there is no restriction or
limitation, by reason of this Agreement or otherwise, upon the Employee’s right
or ability to enter into this Agreement and fulfill her obligations under this
Agreement.
|
24.
|
Acknowledgment.
|
The Employee acknowledges that she has
been given a reasonable period of time to study this Agreement before signing
it. The Employee certifies that she has fully read, has received an
explanation of, and completely understands the terms, nature, and effect of this
Agreement. The Employee further acknowledges that she is executing
this Agreement freely, knowingly, and
17
voluntarily
and that the Employee’s execution of this Agreement is not the result of any
fraud, duress, mistake, or undue influence whatsoever. In executing
this Agreement, the Employee does not rely on any inducements, promises, or
representations by the Company or any person other than the terms and conditions
of this Agreement.
|
25.
|
Section
409A.
|
Notwithstanding
anything to the contrary in this Agreement, the payment of consideration,
compensation, and benefits pursuant to this Agreement shall be interpreted and
administered in a manner intended to avoid the imposition of additional taxes
under section 409A of the Code and the regulations and guidance promulgated
thereunder (“Section 409A”). Notwithstanding any provision to the contrary in
this Agreement or otherwise, no payment or distribution under this Agreement or
otherwise that constitutes an item of “deferred compensation” under Section 409A
and becomes payable by reason of the termination of the Employee’s employment
hereunder shall be made to the Employee unless and until the termination of the
Employee’s employment constitutes a “separation from service” (as such term is
defined in Section 409A).
In
addition, no such payment or distribution of deferred compensation shall be made
to the Employee prior to the earlier of (a) the expiration of the six (6) month
period (the “Six Month Period”) measured from the date of the Employee’s
“separation from service” (as such term is defined in Section 409A), and (b) the
date of the Employee’s death, if the Employee is deemed at the time of such
separation from service to be a “specified employee” within the meaning of that
term under Section 409A (the “Six Month Delay”) and if such delayed commencement
is otherwise required to avoid an “additional tax” under section 409A(a)(1)(B)
of the Code. All payments and benefits that are delayed pursuant to the
immediately preceding sentence shall be paid to the Employee in a lump sum upon
expiration of such six (6) month period (or if earlier, upon the Employee’s
death).
Notwithstanding
the foregoing provisions, to the extent permitted under Section 409A, any
separate payment or benefit under this Agreement or otherwise shall not be
“deferred compensation” subject to Section 409A and the Six Month Delay to the
extent provided in the exceptions in Treasury Regulation section 1.409A-1(b)(4)
and (b)(9) and any other applicable exception or provision under Section
409A. Further, each individual installment payment that becomes
payable under this Agreement and each payment of the Severance Pay or if
applicable, the CIC Severance Pay shall be a “separate payment” under Section
409A. Specifically, to the extent the provisions of Treasury
Regulation section 1.409A-1(b)(9) are applicable to the Severance Pay or if
applicable, the CIC Severance Pay, the portion of such severance pay set forth
in respectively, subsection 7(a)(i) or subsection 7(e)(i) above that is less
than the limit prescribed under Treasury Regulation section
1.409A-1(b)(9)(iii)(A) (or any successor provision) (the “Separation Pay
Amount”) shall be payable to the Employee in the manner prescribed in subsection
7(a)(i) or subsection 7(e)(i), as applicable, without regard to the Six Month
Delay. Following the Six Month Delay, (1) to the extent applicable,
the Employee shall receive a lump sum cash payment equal to the Severance Pay or
CIC Severance Pay, as applicable, she otherwise would have received during the
Six Month Period (absent the Six Month Delay) less the Separation Pay Amount and
(2) the Employee shall receive the remainder of his Severance Pay or CIC
Severance Pay, as applicable, in the manner prescribed by subsection 7(a) or
subsection 7(e), as applicable.
18
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
|
COMPANY:
|
EMPLOYEE:
|
|||||
|
By:
|
By:
|
|||||
|
/s/
Xxxxxxx X. Xxxxx
|
|
/s/ Xxx X. Xxxxxx |
|
|||
|
Name:
Xxxxxxx X. Xxxxx
|
Name:
Xxx X. Xxxxxx
|
|||||
| Chief Executive Officer | ||||||
19
Appendix
A
Perquisites
1.
Automobile Allowance in the amount of $1,200.00 per month
2.
Annual Executive Physical Examination as a part of the Company’s executive
wellness program
3.
Life Insurance as a part of the Company’s group life insurance program in an
amount equal to three (3) times the Employee’s Base Salary
20
