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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective as of
May 5, 2000 by and between The Xxxx Group Inc., a Louisiana corporation
(collectively with the affiliates and subsidiaries hereinafter referred to as
"Company"), and Xxxxxxx X. Xxxx ("Employee").
WHEREAS, the Company employs Employee and desires to continue such
employment relationship and Employee desires to continue such employment;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, and agreements contained herein, and for other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
accepts employment by the Company, on the terms and conditions set forth in this
Agreement.
2. Term of Employment. Subject to the provisions for earlier
termination provided in this Agreement, the term of this agreement (the "Term")
shall be two (2) years commencing on the date hereof, and shall be automatically
renewed on each day following the date hereof so that on any given day the
unexpired portion of the Term of this Agreement shall be two (2) years.
Notwithstanding the foregoing provision, at any time after the date
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hereof the Company or Employee may give written notice to the other party that
the Term of this Agreement shall not be further renewed from and after a
subsequent date specified in such notice (the "fixed term date"), in which event
the Term of this Agreement shall become fixed and this Agreement shall terminate
on the third anniversary of the fixed term date.
3. Employee's Duties. During the Term of this Agreement, Employee shall
serve as the Executive Vice President & Chief Operating Officer of the Company,
with such duties and responsibilities as may from time to time be assigned to
him by the board of directors of the Company (the "Board"), provided that such
duties are consistent with the customary duties of such position.
Employee agrees to devote his full attention and time during normal
business hours to the business and affairs of the Company and to use reasonable
best efforts to perform faithfully and efficiently his duties and
responsibilities. Employee shall not, either directly or indirectly, enter into
any business or employment with or for any person, firm, association or
corporation other than the Company during the Term of this Agreement; provided,
however, that Employee shall not be prohibited from making financial investments
in any other company or business or from serving on the board of directors of
any other company. Employee shall at all times observe and comply with all
lawful directions and instructions of the Board.
4. Base Compensation. For services rendered by Employee under this
Agreement, the Company shall pay to Employee a base salary ("Base
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Compensation") of $415,000.00 per annum payable in accordance with the Company's
customary pay periods and subject to customary withholdings. The amount of Base
Compensation shall be reviewed by the Board on an annual basis as of the close
of each fiscal year of the Company and may be increased as the Board may deem
appropriate. In the event the Board deems it appropriate to increase Employee's
annual base salary, said increased amount shall thereafter be the "Base
Compensation". Employee's Base Compensation, as increased from time to time, may
not thereafter be decreased unless agreed to by Employee. Nothing contained
herein shall prevent the Board from paying additional compensation to Employee
in the form of bonuses or otherwise during the Term of this Agreement.
5. Additional Benefits. In addition to the Base Compensation provided
for in Section 4 herein, Employee shall be entitled to the following:
(a) Expenses. The Company shall, in accordance with
any rules and policies that it may establish from time to time
for executive officers, reimburse Employee for business
expenses reasonably incurred in the performance of his duties.
It is understood that Employee is authorized to incur
reasonable business expenses for promoting the business of the
Company, including reasonable expenditures for travel,
lodging, meals and client or business associate entertainment.
Request for reimbursement for such expenses must be
accompanied by appropriate documentation.
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(b) Automobile Allowance. Employee shall be entitled
to receive a monthly automobile allowance of $850.00 (Eight
Hundred Fifty Dollars and 00/100) payable on the first of each
month during the Term, which will fully reimburse Employee for
the cost of leasing or purchasing, and the insurance,
therefor, of an automobile for Employee's business use. The
Company may increase as the Board deems appropriate. Employee
shall purchase and maintain automobile insurance covering the
automobile with such limits as may be required by the Company
from time to time. In addition to the foregoing, the Company
shall reimburse Employee for gasoline expenditures related to
use of such vehicle, provided the requests for reimbursement
are accompanied by appropriate documentation.
(c) Vacation. Employee shall be entitled to four (4)
weeks of vacation per year, without any loss of compensation
or benefits. Employee shall be entitled to carry forward any
unused vacation time.
(d) General Benefits. Employee shall be entitled to
participate in the various employee benefit plans or programs
provided to the employees of the company in general, including
but not limited to, health, dental, disability, 401K and life
insurance plans, subject to the eligibility requirements with
respect to each of such benefit plans or programs, and such
other benefits or
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perquisites as may be approved by the Board during the Term of
this Agreement. Nothing in this paragraph shall be deemed to
prohibit the Company from making any changes in any of the
plans, programs or benefits described in this Section 5,
provided the change similarly affects all executive officers
of the Company similarly situated.
(e) Options. Upon the resignation for Good Reason as
defined in Section 7 (e), discharge as defined in Section 7
(c) (i), or disability as defined in Section 7 (d), Employee
shall be considered as immediately and totally vested in any
and all stock options or other similar awards previously made
to Employee by the Company or its subsidiaries under a "Long
Term Incentive Plan" duly adopted by the Board (such options
or similar awards are hereinafter collectively referred to as
"Options"). In the event that the Options become vested under
this paragraph, employee will be allowed not less than one
year from the date of such vesting in which to exercise such
options.
6. Confidential Information. Employee, during the Term, may have access
to and become familiar with confidential information, secrets and proprietary
information concerning the business and affairs of the Company. As to such
confidential information, Employee agrees as follows:
(a) During the employment of Employee with the
Company and thereafter Employee will not, either directly or
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indirectly, disclose to any third party without the written
permission of the Company, nor use in any way (except as
required in the course of his employment with the Company) any
confidential information, secret or proprietary information of
the Company. In the event of a breach or threatened breach of
the provisions of this Section 6 (a), the Company shall be
entitled, in addition to any other remedies available to the
Company, to an injunction restraining Employee from disclosing
such confidential information.
(b) Upon termination of employment of Employee, for
whatever reason, Employee shall surrender to the Company any
and all documents, manuals, correspondence, reports, records
and similar items then or thereafter coming into the
possession of Employee which contain any confidential, secret
or proprietary information of the Company.
7. Termination This Agreement may be terminated prior to the end of its
Term as set forth below:
(a) Resignation (other than for Good Reason).
Employee may resign, including by reason of retirement, his
position at any time by providing written notice of
resignation to the Company in accordance with Section 11
hereof. In the event of such resignation, except in the case
of resignation for Good Reason (as defined below), this
Agreement shall terminate and Employee shall
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not be entitled to further compensation pursuant to this
Agreement other than the payment of any unpaid Base
Compensation accrued hereunder as of the date of Employee's
resignation.
(b) Death. If Employee's employment is terminated due
to his death, one (1) year of Employee's Base Compensation
shall be paid by the Company in lump sum in cash within thirty
(30) days after Employee's death to Employee's surviving
spouse or estate, and one (1) year of paid group health and
dental insurance benefits shall be provided by the Company to
Employee's surviving spouse and the minor children, and after
said payments and provision of insurance benefits, this
Agreement shall terminate and the Company shall have no
obligations to Employee or his legal representatives with
respect to this Agreement other than the payment of any unpaid
Base Compensation previously accrued hereunder.
(c) Discharge.
(i) The Company may terminate Employee's
employment for any reason at any time upon written
notice thereof delivered to Employee in accordance
with Section 11 hereof. In the event that Employee's
employment is terminated during the Term by the
Company for any reason other than his Misconduct or
Disability (both as defined
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below), then (A) the Company shall pay in lump sum in
cash to Employee, within fifteen (15) days following
the date of termination, an amount equal to the
product of (i) Employee's Base Compensation as in
effect immediately prior to Employee's termination,
multiplied by (ii) the Remaining Term, (B) for the
Remaining Term, the Company, at its cost, shall
provide or arrange to provide Employee (and, as
applicable, Employee's dependents) with disability,
accident and group health insurance benefits
substantially similar to those which Employee (and
Employee's dependents) were receiving immediately
prior to Employee's termination; however, the welfare
benefits otherwise receivable by Employee pursuant to
this clause (B) shall be reduced to the extent
comparable welfare benefits are actually received by
Employee (and/or Employee's dependents) during such
period under any other employer's welfare plan(s) or
program(s) , with Employee being obligated to
promptly disclose to the Company any such comparable
welfare benefits, (C) in addition to the
aforementioned compensation and benefits, the Company
shall pay in lump sum in cash to Employee within
fifteen (15) days following the date of termination
an amount equal to the product of (i) Employee's
highest bonus paid by the Company during the
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most recent two (2) years immediately prior to the
Date of Termination, multiplied by (ii) the Remaining
Term, and (D) Employee shall be considered as
immediately and totally vested in any and all Options
previously made to Employee by Company or its
subsidiaries.
(ii) Notwithstanding the foregoing
provisions of this Section 7, in the event Employee
is terminated because of Misconduct, the Company
shall have no obligations pursuant to this Agreement
after the Date of Termination other than the payment
of any unpaid Base Compensation accrued through the
Date of Termination. As used herein, "Misconduct"
means (a) the continued failure by Employee to
substantially perform his duties with the Company
(other than any such failure resulting from
Employee's incapacity due to physical or mental
illness or any such actual or anticipated failure
after the issuance of a Notice of Termination by
Employee for Good Reason), after a written demand for
substantial performance is delivered to Employee by
the Board, which demand specifically identifies the
manner in which the Board believes that Employee has
not substantially performed his duties, (b)
the-engaging by Employee in conduct which is
demonstrably and materially injurious to the Company,
monetarily or otherwise (other
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than such conduct resulting from Employee's
incapacity due to physical or mental illness or any
such actual or anticipated conduct after the issuance
of a Notice of Termination by Employee for Good
Reason), or (c) Employee's conviction for the
commission of a felony. Anything contained in this
Agreement to the contrary notwithstanding, the Chief
Executive officer of the Company shall have the sole
power and authority to terminate the employment of
Employee on behalf of the Company.
(d) Disability. If Employee shall have been absent
from the full-time performance of Employee's duties with the
Company for ninety (90) consecutive calendar days as a result
of Employee's incapacity due to physical or mental illness,
Employee's employment may be terminated by the Company for
"Disability" and Employee shall not be entitled to further
compensation pursuant to this Agreement, except that Employee
shall (1) be paid monthly (but only for up to a twelve (12)
month period beginning with the Date of Termination) the
amount by which Employee's monthly Base Compensation exceeds
the monthly benefit received by Employee pursuant to any
disability insurance covering Employee; (2) continue to
receive paid group health and dental insurance benefits for
Employee and his dependents for up to twelve (12) month period
beginning with Date of Termination; and
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(3) be considered as immediately and totally vested in any and
all options previously granted to Employee by Company or its
subsidiaries.
(e) Resignation for Good Reason. Employee shall be
entitled to terminate his employment for Good Reason as
defined herein. If Employee terminates his employment for Good
Reason he shall be entitled to the compensation and benefits
provided in Paragraph 7 (c) (i) hereof. "Good Reason" shall
mean the occurrence of any of the following circumstances
without Employee's express written consent unless such breach
or circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination given in
respect hereof:
(1) the material breach of any of the
Company's obligations under this Agreement without
Employee's express written consent,
(2) the continued assignment to Employee of
any duties inconsistent with the office of Executive
Vice President and Chief Operating Officer;
(3) the failure by the Company to pay to
Employee any portion of Employee's compensation on
the date such compensation is due;
(4) the failure by the Company to continue
to provide Employee with benefits substantially
similar to those enjoyed
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by other executive officers who have entered into
similar employment agreements with Employer under any
of the Company's medical, health, accident, and/or
disability plans in which Employee was participating
immediately prior to such time; or
(5) the failure of the Company to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 13 hereof.
In addition, the occurrence of any Corporate Change
(as defined below), shall constitute "Good Reason" hereunder,
but only if Employee gives notice of his intent to terminates
his employment within ninety (90) days following the effective
date of such Corporate Change.
A "Corporate Change" shall occur if (i) the Company
shall not be the surviving entity in any merger or
consolidation (or survives only as a subsidiary of another
entity), (ii) the Company sells all or substantially all of
its assets to any other person or entity (other than a
wholly-owned subsidiary), (iii) the Company is to be dissolved
and liquidated, (iv) when any "person" as defined in Section
3(a)(9) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and as used in Sections 13 (d) and 14
(d) thereof, including a "group" as defined in Section 13 (d)
of the
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Exchange Act but excluding any 10% or larger
shareholder of record of the Company as of January
10, 2000, directly or indirectly, becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act, as amended from time to time), of
securities of the Company representing 20% or more of
the combined voting power of the Company's then
outstanding securities which are entitled to vote
with respect to the election of the directors of the
Company; or (v) as a result of or in connection with
a contested election the members of the Board as of
the date of this Agreement shall cease to constitute
a majority of the Board. "Contested" as used herein
shall not include election by a majority of the
current Board.
(f) Notice of Termination. Any purported
termination of Employee's employment by the Company
under Sections 7(c)(ii) or 7(d), or by Employee under
Section 7(e), shall be communicated by written Notice
of Termination to the other party hereto in
accordance with Section 11 hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean
a notice which, if by the Company and is for
Misconduct or Disability, shall set forth in
reasonable detail the reason for such termination of
Employee's employment, or in the case of resignation
by Employee for Good Reason, said notice must specify
in reasonable detail the basis for such resignation.
A Notice of Termination given by Employee
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pursuant to Section 7(e) shall be effective even if
given after the receipt by Employee of notice that
the Board has set a meeting to consider terminating
Employee for Misconduct. Any purported termination
for which a Notice of Termination is required which
is not effected pursuant to this Section 7(f) shall
not be effective.
(g) Date of Termination, Etc. "Date of
Termination" shall mean the date specified in the
Notice of Termination, provided that the Date of
Termination shall be at least 15 days following the
date the Notice of Termination is given.
Notwithstanding the foregoing, in the event Employee
is terminated for Misconduct, the Company may refuse
to allow Employee access to the Company's offices
(other than to allow Employee to collect his personal
belongings under the Company's supervision) prior to
the Date of Termination.
(h) Mitigation. Employee shall not be
required to mitigate the amount of any payment
provided for in this Section 7 by seeking other
employment or otherwise, nor shall the amount of any
payment provided for in this Agreement be reduced by
any compensation earned by Employee as a result of
employment by another employer, except that any
severance amounts payable to Employee pursuant to the
Company's severance plan or policy for employees in
general shall reduce the amount otherwise payable
pursuant to Sections 7(c)(i) or 7(e).
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(i) Excess Parachute Payments.
Notwithstanding anything in this Agreement to the
contrary, to the extent that any payment or benefit
received or to be received by Employee hereunder in
connection with the termination of Employee's
employment would, as determined by tax counsel
selected by the Company, constitute an "Excess
Parachute Payment" (as defined in Section 280G of the
Internal Revenue Code), the Company shall fully
"gross-up" such payment so that Employee is in the
same "net" after-tax position he would have been if
such payment and gross-up payments had not
constituted Excess Parachute Payments.
8. Non-Compete.
8.1 No Other Activities. Employer agrees that during the term of this
Agreement, he shall not, directly or indirectly, represent or otherwise engage
in or participate in, the business or ventures of any person, firm, partnership,
association, or corporation other than the Company, without first obtaining the
written consent of the Company. Employee further agrees that during the term of
this Agreement, he shall not, directly or indirectly, solicit or attempt to
solicit any products or agreements for the purpose of using the products or
agreements in the formation of a business outside of the Company, regardless of
whether any such products or the subject of such agreements are then being
handled by the Company.
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8.2 Non-Disclosure. Employee further agrees that he will not, during or
after the term of his employment, disclose to any person, firm, partnership,
association, or corporation, the names and addresses of any past or present
customers, or prospective customers, of the Company, any of their methods or
practices of obtaining business, their trade secrets, consultant contracts and
the details thereof, their pricing policies, their operational methods, their
marketing plans or strategies, their business acquisition plans and all other
information pertaining to the business of the Company that is not publicly
available. Employee agrees to keep all information gained as a result of his
relationship with the Company on a confidential basis and shall not disclose
that information to anyone not authorized by the Company to receive information.
If Employee should cease, either voluntarily or involuntarily, to be an employee
of the Company, he hereby expressly agrees that, for a period of two (2) years
following termination of his employment, he shall not assist any competitor or
prospective competitor located in the territories serviced by the Company (as
set forth in Attachment 1 or otherwise) during his employment in any way
detrimental to the Company through the use of any information gained as a result
of his employment with the Company. Employee agrees that all computer programs,
print-outs, customer lists, methods, forms, systems and procedures used by the
Company constitute the exclusive property and will remain the exclusive property
of the Company and agrees that he will not disclose any of these matters without
the prior written permission of the Company.
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8.3 Non-Solicitation, etc. In further consideration of the other terms
and provisions of this Agreement, and to protect the vital interests of the
Company, upon termination of his employment for any reason, for a period of two
(2) years after the termination of his employment, Employee agrees and binds
himself that he shall not, directly or indirectly, or as a member, shareholder,
officer, director, consultant or employee of any other person or entity, compete
with the Company or own, manage, operate, join, control or participate in the
ownership, management, operation, or control of, or become employed by, consult
or advise, or be connected in any manner with any business or activity which is
in actual, direct or indirect competition or anticipated competition with the
Company, within those counties, parishes, municipalities or other places listed
in Attachment 1 annexed hereto and made a part hereof, so long as the Company,
or carries on the business presently conducted by the Company, being the supply
of industrial piping systems for new construction and retrofit projects, which
includes design and engineering services, piping system fabrication,
manufacturing and sale of specialty pipe fittings, design and fabrication of
pipe support systems and industrial and commercial construction and maintenance.
Not by way of limitation or exclusion, Employee shall not, within the aforesaid
locations and during the aforesaid time period, call upon, solicit, advise or
otherwise do, or attempt to do, business with any customers or distributors of
the Company, with whom the Company had any dealings during the period of
Employee's employment hereunder or take away or interfere or attempt to
interfere with any custom,
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trade, business or patronage of the Company, or interfere with or attempt to
interfere with any officers, employees, distributors, representatives or agents
of the Company, or employ or induce or attempt to induce any of them to leave
the employ of the Company or violate the terms of their contracts, or any
employment arrangements, with the Company. Employee acknowledges and agrees that
any breach of the foregoing covenant not to compete would cause irreparable
injury to the Company and that the amount of injury would be impossible or
difficult to fully ascertain. Employee agrees that the Company shall, therefore,
be entitled to obtain an injunction restraining any violation, further violation
or threatened violation of the covenant not to compete hereinabove set forth, in
addition to any other remedies that the Company may pursue.
8.4 Duration. If the two (2) year period referred to in any of this
Article 8 shall be finally determined by a court to exceed the maximum period
which is permissible by applicable law, the said period shall be reduced to the
maximum period permitted by such law.
9. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Employee's continuing or future participation in any benefit, bonus,
incentive, or other plan or program provided by the Company or any of its
affiliated companies and for which Employee may qualify, nor shall anything
herein limit or otherwise adversely affect such rights as Employee may have
under any Options with the Company or any of its affiliated companies.
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10. Assignability. The obligations of Employee hereunder are personal
and may not be assigned or delegated by him or transferred in any manner
whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. The Company shall have the right to assign this
Agreement and to delegate all rights, duties and obligations hereunder, either
in whole or in part, to any parent, affiliate, successor or subsidiary
organization or company of the Company, so long as the obligations of the
Company under this Agreement remain the obligations of the Company.
11. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
Company at its principal office address, directed to the attention of the Board
with a copy to the Secretary of the Company, and to Employee at Employee's
residence address on the records of the Company or to such other address as
either party may have furnished to the other in writing in accordance herewith
except that notice of change of address shall be effective only upon receipt.
12. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise)
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to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required
to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle
Employee to compensation from the Company in the same amount and on the
same terms as he would be entitled to hereunder if he terminated his
employment for Good Reason, except that for purposes of implementing
the foregoing, the date on which any such succession becomes effective
shall be deemed the Date of Termination. As used herein, the term
"Company" shall include any successor to its business and/or assets as
aforesaid which executes and delivers the Agreement provided for in
this Section 13 or which otherwise becomes bound by all terms and
provisions of this Agreement by operation of law.
(b) This Agreement and all rights of Employee hereunder shall
inure to the benefit of and be enforceable by Employee's personal or
legal representatives, executors, administrators, successors, heirs
distributees, devisees and legatees. if Employee should die while any
amounts would be payable to him hereunder if he had continued to live,
all such amounts, unless otherwise
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provided herein, shall be paid in accordance with the terms of this
Agreement to Employee's devisee, legatee, or other designee or, if
there be no such designee, to Employee's estate.
14. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Employee and such officer as may be specifically
authorized by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or in compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. This Agreement is an integration of the parties
agreement; no agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party, except those which are set forth expressly in this Agreement. THE
VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF LOUISIANA.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to 'be an original but all of which
together will constitute one and the same instrument.
16. Arbitration. Either party may elect that any dispute or controversy
arising under or in connection with this Agreement be settled by arbitration in
Baton Rouge, Louisiana in accordance with the rules of the American
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Arbitration Association then in effect. If the parties cannot mutually agree on
an arbitrator, then the arbitration shall be conducted by a three arbitrator
panel, with each party selecting one arbitrator and the two arbitrators so
selected selecting a third arbitrator. The findings of the arbitrator(s) shall
be final and binding, and judgment may be entered thereon in any court having
Jurisdiction. The findings of the arbitrator(s) shall not be subject to appeal
to any court, except as otherwise provided by applicable law. The arbitrator(s)
may, in his or her (or their) own discretion, award legal fees and costs to the
prevailing party.
IN WITNESS WHEREOF, the parties have executed this Agreement on May 5,
2000 effective for all purposes as provided above.
THE XXXX GROUP INC.
By
Name: /s/Xxxx X. Xxxxxxx
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EMPLOYEE:
Name: /S/Xxxxxxx X. Xxxx
------------------
Xxxxxxx X. Xxxx
Executive Vice President and
Chief Operating Officer
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