EXHIBIT 10.26
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, entered into as of this 1st day of February, 1997,
between XXXXXXXXX BROS., INC., an Illinois corporation (the "Employer"), and
XXXXXX XXXXXXXXX, Chicago, Illinois (the "Employee").
W I T N E S S E T H:
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WHEREAS, Employee has been employed by Employer in an executive
capacity as its Chairman of the Board and his services thereunder have been of
great benefit to the business and affairs of Employer; and
WHEREAS, Employer desires to enter into this Agreement for the purpose
of securing the compensation and other benefits provided herein; and
WHEREAS, in view of the substantial value which Employee's services
have contributed to Employer's well being, Employer is desirous of entering into
this Agreement to make certain that it shall have the benefit of Employee's
continuing services;
NOW, THEREFORE, in consideration of the mutual premises and agreements
herein contained, the parties do hereby agree as follows:
1. Employment Period. Employer hereby employs Employee, and Employee
hereby agrees to remain in the employ of the Employer, to serve as its Chairman
of the Board as of the date hereof and terminating on January 31, 2000 (the
"Employment Period").
2. Duties. The Employee shall have the authority and duties of the
Chairman of the Board of the Employer as described in the Employer's By-Laws, as
amended, and shall exercise such other authority and perform such other duties
as are normally attendant to the position of chairman of the board of a
corporation. Employee agrees that during the Employment Period he shall devote
his full business time exclusively to the business affairs of the Employer, its
subsidiaries and affiliates.
3. Compensation. Subject to the terms and provisions hereof, during
the Employment Period, Employee shall be compensated for his services to
Employer in the following manner:
(a) Base Compensation. He shall receive an annual salary of
$125,000, payable in monthly or more frequent installments
in accordance with Employer's remuneration policy respecting
executives.
(b) Employee Benefits. He shall be a participant, to the extent
he meets all eligibility requirements of general
application, in any and all employee welfare benefit plans
maintained by Employer, including, but not limited to, group
term life insurance, hospitalization, medical and disability
plans.
4. Termination. If (i) at any time or from time to time during the
term of this Agreement, Employee shall be unable to perform his duties hereunder
because of death, any physical or mental illness or other disability for a
period of three (3) consecutive months following the commencement of such
incapacity (collectively, the foregoing being referred to herein as
"Disability"), or (ii) this Agreement shall not be renewed at the expiration of
the Employment Period, this Agreement shall terminate and Employer and Employee
shall have no further obligation hereunder, except that Employer agrees
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to make payment of severance compensation to Employee consisting of the
continuation of base compensation for a period of six months in the aggregate
amount of $62,500, payable in five equal monthly installments in the amount of
$10,416.67 each on the last day of each of the five months next succeeding the
month in which this agreement shall have terminated and a final monthly
installment payment in the amount of $10,416.65 on the last day of the sixth
month next succeeding the month in which said Employment Period shall have
expired, as outlined above, plus a continuation for such six month period of the
employee benefits theretofore made available to Employee in accordance with the
provisions of Paragraph 3(b) of this Agreement. In the event that Employer
terminated Employee's employment hereunder for any reason other than cause or
Disability before the expiration of the Employment Period, Employer shall
nevertheless be obligated to continue to pay base compensation and to make
employee benefits available to Employee during the remaining term of the
Employment Period as provided in Paragraph 3 hereof and, following the
expiration of the Employment Period, Employee shall be entitled to receive
severance compensation consisting of the continuation of base compensation for a
period of six months in the aggregate amount of $62,500 payable in five equal
monthly installments in the amount of $10,416.67 each on the last day of each of
the five months next succeeding the month in which said Employment Period shall
have expired and a final monthly installment payment of $10,416.65 on the last
day of the sixth month in which said Employment Period shall have expired, plus
a continuation during such six month period of the employee benefits theretofore
made available to Employee in accordance with the provisions of Paragraph 3(b)
of this Agreement. For purposes of this Agreement, termination hereof for cause
shall mean any termination of this Agreement
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by Employer as a consequence of the continuing gross dereliction of duty by
Employee or any refusal by him to act in accordance with the reasonable, lawful
and ethical direction of Employer's Board of Directors or officers of Employer
having the authority to direct Employee with respect to the conduct of his
activities.
5. Confidentiality. It is recognized that services to be rendered
by Employee hereunder may involve the presence of confidential information or
trade secrets relating to Employer and its business. In this regard, Employee
does hereby agree that, without the prior written consent of Employer, he will
not voluntarily disclose or publish during the term of this Agreement and for a
period of 2 years after the expiration or termination thereof any confidential
information or trade secrets relating to the business of Employer.
6. Remedies. Employee acknowledges that Employer would be
irrevocably injured by a violation of Paragraph 5 hereof and agrees that
Employer shall be entitled to an injunction restraining Employee from any actual
or threatened breach of Paragraph 5 and to any appropriate equitable remedy,
without the posting of any bond or other security being required on the part of
Employer.
7. Amendment. This Agreement may be amended by mutual agreement of
the parties without the consent of any other person and no person, other than
the parties hereto, shall have any rights under or interest in this Agreement or
the subject matter hereof, except as provided herein.
8. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail, postage prepaid, return receipt requested, to Employer at its
principal executive offices
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or to Employee at the last address filed by him in writing with Employer, as the
case may be.
9. Nonalienation. The interests of Employee under this Agreement are
not subject to the claims of his creditors, other than Employer and its
subsidiaries, and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered.
10. Successors. This Agreement shall be binding upon, and inure to
the benefit of, Employer and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of Employer's assets and business.
11. Prior Agreements. This Agreement cancels and supersedes any
employment agreement entered into between the Employer and the Employee prior to
the day and year first above written.
12. Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Illinois.
13. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by arbitration in the
City of Chicago by three arbitrators, one of whom shall be appointed by
Employer, one by Employee, and the third of whom shall be appointed by the first
two arbitrators. If either party fails to appoint an arbitrator or if the first
two arbitrators cannot agree on the appointment of the third arbitrator, then
the third arbitrator shall be appointed by the Xxxx of the Business School at
the University of Chicago. The arbitration shall be conducted in accordance with
the rules of the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this paragraph. Judgment
upon the award rendered by the arbitrators may be entered in any court
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having jurisdiction thereof. All costs of the arbitration, which may include
attorney's fees, shall be assessed as ordered by the arbitrators.
14. Counterparts. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
IN WITNESS WHEREOF, the Employee has hereunto set his hand, and the
Employer has caused there presents to be executed in its name and on its behalf
and its corporate seal to be hereunto affixed and attested to by its Secretary,
all as of the day and year first above written.
/s/ Xxxxxx Xxxxxxxxx
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Employee
XXXXXXXXX BROS., INC.
By: /s/ Xxxxxxx Xxxxxxx
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Its: Chairman
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ATTEST:
/s/ Xxxxxx X. Xxxx
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Its: Secretary
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