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Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
2nd day of April 2001 by and between XXXXX XXXXXX ("Xxxxxx") and INSURANCE AUTO
AUCTIONS, INC., an Illinois corporation ("Company").
RECITALS
WHEREAS, the Company desires to employ Xxxxxx and Xxxxxx desires to be
employed by the Company upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed that:
1. EMPLOYMENT. The Company hereby employs Xxxxxx, and Xxxxxx hereby
accepts employment with the Company, as Chief Financial Officer, whose duties
include overseeing the financial and accounting aspects of the Company and its
affiliated companies. Xxxxxx shall be an executive of the Company and shall be
subject to the direction and control of the President and Chief Executive
Officer of the Company and the Board of Directors of the Company (the "Board").
Xxxxxx shall devote all of his business time and services to the business and
affairs of the Company. Xxxxxx shall also perform such other executive-level
duties consistent with his position as Chief Financial Officer as may be
assigned to him from time to time by the Chief Executive Officer, including
serving as an officer and/or director of the Company's operating subsidiaries.
The duties and services to be performed by Xxxxxx hereunder shall be
substantially rendered at the Company's principal offices as determined by the
Board, except for reasonable travel on the Company's business incident to the
performance of Xxxxxx'x duties.
2. COMPENSATION. As compensation for Xxxxxx'x services provided
hereunder, the Company agrees to provide the following compensation:
2.1. BASE SALARY. While this Agreement is in effect, the Company agrees
to pay to Xxxxxx a base salary at the rate of $195,000 per annum commencing on
the date hereof ("Base Salary"). The Base Salary shall be subject to annual
review by the Board and any committee thereof ("Committee") or the Compensation
Committee and may be increased by the Board in their sole and absolute
discretion but may not be decreased. Such salary shall be payable to Xxxxxx in
such equal periodic payments as the Company generally pays its employees, but in
no event less frequently than monthly.
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2.2. INCENTIVES. As additional compensation for performance of the
services rendered by Xxxxxx during the term of this Agreement, the Company will
pay to Xxxxxx, in cash, a performance bonus equal to forty percent (40%) of
Xxxxxx'x annual salary based upon the achievement of objectively quantifiable
and measurable goals and objectives which shall be determined, in advance, by
the Compensation Committee of the Board with respect to each fiscal year of the
Company. This amount is hereinafter referred to as "Incentive Compensation." As
additional compensation for accepting employment with the Company, the Company
will pay to Xxxxxx, in cash, a signing bonus of $35,000. This signing bonus
shall be paid in one lump payment payable as of the date of this agreement.
2.3. OPTIONS. The Company shall cause the Committee delegated by the
Board to administer the Option Plan (as defined below) to grant to Xxxxxx an
option to purchase 100,000 shares of the Company's common stock (the "Option").
The Option shall be granted under the Company's 1991 Stock Option Plan, as
amended (the "Option Plan"). The exercise price of the Option granted pursuant
to this Section 2.3 shall be equal to 100% of the fair market value of the
common stock on the close of business on the day before the day that Xxxxxx
becomes employed by the Company subject to the vesting and termination
provisions as described below. The Option shall become exercisable in four equal
annual installments beginning on the first anniversary of the grant date, and,
except as provided below, shall be subject to the usual terms and conditions of
options issued pursuant to and in accordance with the Option Plan.
2.4. BENEFITS. During the term of his employment or for such time as
otherwise provided in this Agreement, Xxxxxx shall be entitled to participate in
such vacation, auto allowance, benefit plans, fringe benefits, life insurance,
medical and dental plans (beginning on the first day of employment), retirement
plans and other programs as are offered from time to time by the Company and are
described in the Company's employee benefit handbooks. Xxxxxx shall be entitled
to four weeks of paid vacation each calendar year, subject to any limitations on
carryover of unused vacation generally applicable to employees. Xxxxxx shall be
authorized to incur necessary and reasonable travel, entertainment and other
business expenses in connection with his duties hereunder. In connection with
expenses pursuant to this Section 2.4, the Company shall reimburse Xxxxxx for
such expenses upon presentation of an itemized account and appropriate
supporting documentation, all in accordance with the Company's generally
applicable policies.
2.5. INDEMNIFICATION. The Company shall indemnify Xxxxxx in accordance
with the terms of the Company's standard form of Indemnification Agreement.
3. TERMINATION.
3.1. AT WILL NATURE OF EMPLOYMENT. Employment with the Company is not
for a specific term and can be terminated by Xxxxxx or the Company at any time
for any reason, with or without cause. Any contrary representations that may
have been made or that may be made to Xxxxxx are superseded by this Agreement.
In addition, this Agreement shall terminate by reason of Xxxxxx'x death or the
substantial inability of Xxxxxx, by reason of physical or mental illness or
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accident, to perform his regular responsibilities hereunder indefinitely or for
a period of one hundred eighty (180) days (a "Disability").
3.2. COMPANY'S OBLIGATIONS ON TERMINATION APART FROM A CHANGE OF
CONTROL.
(a) NO OBLIGATIONS OTHER THAN AS REQUIRED BY LAW FOR VOLUNTARY
TERMINATION OR CAUSE. The Company shall have no obligations to pay Xxxxxx any
severance payments or continue to cover Xxxxxx and/or his beneficiaries under
the Company's health plan (other than as required by law) if this Agreement is
terminated for any of the following reasons:
(i) VOLUNTARY TERMINATION. Xxxxxx voluntarily terminates this
Agreement; or
(ii) CAUSE. The Company terminates Xxxxxx'x employment at any
time during the term of this Agreement for Cause. For purposes of
this Agreement, "Cause" shall mean:
(A) the willful and continued failure of Xxxxxx to
perform substantially his duties with the Company or one of
its affiliates (other than any such failure resulting from
incapacity due to medically documented illness or injury),
30 days after a written demand for substantial performance
is delivered to Xxxxxx by the Board which specifically
identifies the manner in which the Board believes that
Xxxxxx has not substantially performed his duties; or
(B) the willful engaging by Xxxxxx in illegal conduct
or misconduct which is injurious to the Company,
in each case as determined in the good faith opinion of the Board.
(b) DEATH AND DISABILITY OBLIGATIONS. If this Agreement is
terminated due to death or Disability, the Company shall pay to Xxxxxx (or his
legal representatives as the case may be) the specific obligations as set forth
below:
(i) DEATH. Xxxxxx'x employment shall terminate automatically
upon Xxxxxx'x death. If Xxxxxx'x employment under this Agreement
is terminated by reason of his death, the Company's sole
obligation to Xxxxxx'x legal representatives shall be to pay or
cause to be paid, within thirty (30) days of the Date of
Termination (as hereinafter defined), to such person or persons
as Xxxxxx shall have designated for that purpose in a notice
filed with the Company, or, if no such person shall have been so
designated, to his estate, the amount of Xxxxxx'x Accrued
Obligations (as hereinafter defined). Any amounts payable under
this Section 3.2(b)(i) shall be exclusive of and in addition to
any payments or benefits which Xxxxxx'x widow, beneficiaries or
estate may be entitled to receive pursuant to any
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pension plan, profit sharing plan, any employee benefit plan,
equity incentive plan or life insurance policy maintained by the
Company.
(ii) DISABILITY. If the Disability of Xxxxxx occurs, the
Company may give to Xxxxxx written notice in accordance with
Section 6.1 of this Agreement of its intention to terminate
Xxxxxx'x employment. In such event, Xxxxxx'x employment with the
Company shall terminate effective on the 30th day after receipt
of such notice by Xxxxxx (the "Disability Effective Date"),
unless within the 30-day period after such receipt, Xxxxxx
returns to full-time performance of his duties. The Company's
sole obligation to Xxxxxx shall be payment of Accrued Obligations
(as hereinafter defined) and the timely payment or provision of
other benefits, including disability and other benefits provided
by the Company to disabled executives and/or their families in
accordance with such Company plans, programs, practices and
policies relating to disability, if any.
(c) OBLIGATIONS FOR ALL OTHER TERMINATION REASONS. For any other
reason, upon the termination of this Agreement and Xxxxxx'x employment hereunder
apart from a Change of Control, the Company shall pay to Xxxxxx an amount equal
to the sum of (i) Xxxxxx'x annual base salary at the time Xxxxxx'x employment is
terminated; plus (ii) Xxxxxx'x average annual bonus received over the eight (8)
fiscal quarters of the Company immediately preceding Company's fiscal quarter
during which Xxxxxx'x employment is terminated, without exceeding Xxxxxx'x
target bonus for Company's fiscal year during which Xxxxxx'x employment is
terminated, provided, however, that Xxxxxx shall receive his target bonus if he
is terminated within his first eight (8) fiscal quarters with the Company; plus
(iii) Xxxxxx'x auto allowance for the Company's fiscal year during which
Xxxxxx'x employment is terminated. In addition, the Company shall provide, at
Company's expense, continued coverage for Xxxxxx and his beneficiaries for a
period extending through the earlier of the date Xxxxxx begins any subsequent
full-time employment for pay and the date that is one (1) year after Xxxxxx'x
termination of employment, under the Company's health plan covering Xxxxxx and
Xxxxxx'x beneficiaries, provided that Xxxxxx properly elects coverage pursuant
to Title I, Part 6 of the Employee Retirement Income Security Act of 1974, as
amended ("COBRA").
3.3. COMPANY'S OBLIGATIONS ON TERMINATION DUE TO A CHANGE OF CONTROL.
(a) DEFINITIONS.
(i) For purposes of this Agreement, a "Change of Control"
shall mean:
(A) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (for the purposes of this Section 3.3, a "Person") of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 50% or more of the
voting power of the then outstanding voting securities of the
Company
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entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection (a), any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company shall not constitute a Change of Control; or
(B) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided,
however, that any individual (other than an individual whose
initial assumption of office occurs as a result of an actual
or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board) who becomes a
director subsequent to the date hereof whose election or
nomination for election was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board; or
(C) consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business
Combination") unless, following such Business Combination, (i)
all or substantially all of the individuals and entities who
were the beneficial owners of the Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the
Outstanding Company Voting Securities and (ii) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(D) approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
(ii) For purposes of this Agreement, "affiliated companies"
shall include any company controlled by, controlling or under
common control with the Company.
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(iii) For purposes of this Agreement, "Involuntary
Termination" shall mean Xxxxxx'x voluntary termination following
(A) a change in Xxxxxx'x position with the Company which
materially reduces Xxxxxx'x level of responsibility, (B) a
reduction in Xxxxxx'x Base Salary, or (C) a change in Xxxxxx'x
place of employment, which is more than seventy-five (75) miles
from Xxxxxx'x place of employment prior to the change, provided
and only if such change or reduction is effected without Xxxxxx'x
written concurrence.
(iv) For purposes of this Agreement, "Date of Termination"
shall mean (A) if Xxxxxx'x employment is terminated by the Company
for Cause, or by Xxxxxx, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may
be, (B) if Xxxxxx'x employment is terminated by the Company for
other than for Cause or Disability, the date on which the Company
notifies Xxxxxx of such termination and (C) if Xxxxxx'x employment
is terminated by reason of death or Disability, the date of death
of Xxxxxx or the Disability Effective Date, as the case may be.
(v) For purposes of this Agreement, "Accrued Obligations"
shall mean the sum of (A) Xxxxxx'x Base Salary through the Date of
Termination to the extent not theretofore paid, (B) the greater of
(I) the product of (x) any Incentive Compensation paid to or
deferred by Xxxxxx for the fiscal year preceding the fiscal year
in which Xxxxxx'x Date of Termination occurs (annualized in the
event that Xxxxxx was not employed by the Company for the whole of
such fiscal year) and (y) a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (II) the
average of the past three (3) years' annual bonuses, provided,
however, that Xxxxxx shall receive his target bonus if he is
terminated within his first eight (8) fiscal quarters with the
Company (such greater amount being the "Highest Annual Bonus") and
(C) any compensation previously deferred by Xxxxxx (together with
any accrued interest or earnings thereon) and any accrued vacation
pay, in each case to the extent not theretofore paid.
Notwithstanding the foregoing, in no event will Xxxxxx be entitled
to a duplication of any Incentive Compensation payments.
(b) SEVERANCE BENEFITS FOR TERMINATION WITHIN TWO (2) YEARS OF A
CHANGE OF CONTROL. If Xxxxxx'x employment with the Company terminates by
reason of Xxxxxx'x Involuntary Termination (as defined in Section
3.3(a)(iii) above) or termination by the Company without Cause (as defined
in Section 3.2(a)(ii)) above) within two (2) years of the effective date of
the Change of Control, Xxxxxx shall be entitled to receive the following:
(i) Company must pay Xxxxxx an amount equal to 150% of the sum of
(A) Xxxxxx'x Base Salary and (B) his Highest Annual Bonus; (ii)
Company shall also pay Xxxxxx any Accrued Obligations; and (iii)
Company shall provide, at its expense, continued coverage of
Xxxxxx and Xxxxxx'x beneficiaries for eighteen (18) months after
the Date of Termination or until Xxxxxx commences any full-time
employment, whichever comes first,
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under the Company's health plan covering Xxxxxx and Xxxxxx'x
beneficiaries, provided, however, that Xxxxxx properly elects
coverage pursuant to COBRA.
(c) SEVERANCE BENEFITS FOR TERMINATION AFTER THE SECOND YEAR
FOLLOWING A CHANGE OF CONTROL. If Xxxxxx is terminated after the second
year following a Change of Control, the Company's obligations are as set
forth in Section 3.2 of this Agreement.
(d) STOCK OPTIONS AFTER A CHANGE OF CONTROL. Subject to Section
2.3 of this Agreement, all Xxxxxx'x outstanding stock options to purchase
Company common stock shall accelerate and become fully exercisable.
3.4. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY; EXCISE TAX GROSS-UP. A
"Gross-Up Payment" (as defined below) shall be made to Xxxxxx when payments of
compensation payable to Xxxxxx on termination of employment in connection with a
Change of Control, including, without limitation, the vesting of an option or
other non-cash benefit or property, whether pursuant to the terms of any
applicable plan, arrangement or agreement with the Company or any of its
affiliated companies (the "Total Payments") would trigger a tax imposed on
Xxxxxx under Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Excise Tax").
For purposes hereof, the Gross-Up Payment shall mean a payment to
Xxxxxx in such amount as is necessary to ensure that the net amount retained by
Xxxxxx, after reduction for any Excise Tax (including any penalties or interest
thereon) on the Total Payments and any federal, state and local income or
employment tax and Excise Tax on the Gross-Up Payment provided for by this
Section 3.4, but before reduction for any federal, state or local income or
employment tax on the Total Payments, shall be equal to the Total Payments.
3.5. EXCLUSIVE BENEFITS. If more than one benefit due to termination
becomes payable under Sections 3.2 or 3.3, the greatest of such benefits shall
become payable to the exclusion of all other such benefits and shall be in lieu
of any other severance or similar benefits that would otherwise be payable under
any other agreement, plan, program or policy of the Company. Notwithstanding
anything in the prior sentence to the contrary, Xxxxxx shall be entitled to
benefits and incentives under all benefit plans and equity incentive plans,
policies and programs (except as expressly excluded herein, including, without
limitation, Section 2.3 of this Agreement) according to the terms of such
benefit plans and equity incentive plans, policies and programs as in effect
from time to time, including any acceleration of vesting provisions in the
Company's option plans, including any benefits under the Executive Severance
Plan for Officers.
4. INVENTIONS AND CREATIONS. Xxxxxx agrees that all inventions,
discoveries, improvements, ideas and other contributions (collectively
"Inventions") whether or not copyrighted or copyrightable, patented or
patentable, or otherwise protectable in law, which are conceived, made,
developed or acquired by Xxxxxx, either individually or jointly, during his
employment with the Company or any of its subsidiaries, and which relate in any
manner to the business of the Company or any of its subsidiaries, shall belong
to the Company and Xxxxxx does
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hereby assign and transfer to the Company his entire right, title and interest
in the Inventions. Xxxxxx agrees to promptly and fully disclose the Inventions
to the Company, in writing if requested by the Company, and to execute and
deliver any and all lawful application, assignment and other documents which the
Company requests for protecting the Inventions in the United States or any other
country. The Company shall have the full and sole power to prosecute such
applications and to take all other action concerning the Inventions, and Xxxxxx
will cooperate fully within a lawful manner, at the expense of the Company, in
the preparation and prosecution of all such applications and in any legal
actions and proceedings concerning the Inventions. The provisions of this
Section 4 shall survive the termination of this Agreement.
5. NON-COMPETITION; NON-SOLICITATION; CONFIDENTIAL INFORMATION.
5.1. NON-COMPETITION AGREEMENT. Xxxxxx hereby acknowledges and agrees
that the Company actively engages in its business throughout all of North
America. Accordingly, Xxxxxx agrees that during the Non-Competition Period (as
defined below), Xxxxxx will not, directly or indirectly, whether as a partner,
officer, shareholder, advisor, employee or otherwise, promote, participate,
become employed by, or engage in any activity or other business similar to the
Company's business or any entity engaged in a business competitive with the
Company's business in any state within the United States as well as in Canada or
Mexico. If Xxxxxx fails to comply with the provisions of this Section 5.1, the
Company may, in addition to pursuing all other remedies available to the Company
under law or in equity as a result of such breach, cease payment of all
severance benefits under Section 3. For purposes hereof, "Non-Competition
Period" shall mean the period commencing on the date hereof and ending eighteen
(18) months after the later of the termination of Xxxxxx'x employment hereunder
or Xxxxxx'x submission of his resignation, or removal of Xxxxxx as Chief
Financial Officer of the Company and the Company's payment and provision of
Change of Control severance benefits pursuant to Section 3.3.
5.2. NON-SOLICITATION AGREEMENT. During the term of this Agreement and
for a period of eighteen (18) months thereafter, Xxxxxx shall not, directly or
indirectly, individually or on behalf of any Person (as defined below) solicit,
aid or induce (a) any then current employee of the Company to leave the Company
in order to accept employment with or render services for Xxxxxx or such Person
or (b) any customer, client, vendor, lender, supplier or sales representative of
the Company or similar persons engaged in business with the Company to
discontinue the relationship or reduce the amount of business done with the
Company. "Person" means any individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization, a governmental entity, or any
department, agency or political subdivision thereof, or an accrediting body.
5.3. CONFIDENTIAL INFORMATION. Xxxxxx acknowledges and agrees that he
is in possession of and will be exposed to during the course of, and incident
to, his employment by and affiliations with the Company, Confidential
Information (as defined herein) relating to the Company and its affiliated
companies. For purposes hereof, "Confidential Information" shall mean all
proprietary or confidential information concerning the business, finances,
financial statements, properties and operations of the Company and its
affiliated companies, including,
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without limitation, all customer and prospective customer and supplier lists,
know-how, trade secrets, business and marketing plans, techniques, forecasts,
projections, budgets, unpublished financial statements, price lists, costs,
computer programs, source and object codes, algorithms, data, and other original
works of authorship, along with all information received from third parties and
held in confidence by the Company and its affiliated companies (including,
without limitation, personnel files and employee records). During the
Non-Competition Period and at all times thereafter, Xxxxxx will hold the
Confidential Information in the strictest confidence and will not disclose or
make use of (directly or indirectly) the Confidential Information or any portion
thereof to or on behalf of himself or any third party except (a) as required in
the performance of his duties as an employee, director or shareholder of the
Company, (b) as required by the order of any court or similar tribunal or any
other governmental body or agency of appropriate jurisdiction; provided, that
Xxxxxx shall, to the extent practicable, give the Company prior written notice
of any such disclosure and shall cooperate with the Company in obtaining a
protective order or such similar protection as the Company may deem appropriate
to preserve the confidential nature of such information. The foregoing
obligations to maintain the Confidential Information shall not apply to any
Confidential Information which is or, without any action by Xxxxxx, becomes
generally available to the public. Upon termination of any employment or
consulting relationship between the Company and Xxxxxx, Xxxxxx shall promptly
return to the Company all physical embodiments of the Confidential Information
(regardless of form or medium) in the possession of or under the control of
Xxxxxx.
5.4. SCOPE OF RESTRICTION. The parties have attempted to limit the
scope of the covenants set forth in Section 5 to the extent necessary. The
parties recognize, however, that reasonable people may differ in making such
determination. Consequently, the parties hereby agree that if the scope and
duration of such covenants would, but for this provision, be deemed by a court
of competent authority to be unreasonable or otherwise unenforceable, such court
may modify such covenants to the extent that such court determines to be
necessary in order to grant enforcement thereof as so modified.
5.5. REMEDIES. The parties hereto recognize that the Company will
suffer irreparable injury in the event of a breach of the terms of Section 5 by
Xxxxxx. In the event of a breach of the terms of Section 5, the Company shall be
entitled, in addition to any other remedies and damages available and without
proof of monetary or immediate damage, to a temporary and/or permanent
injunction, without the necessity of posting a bond, to restrain the violation
of Section 5 by Xxxxxx or any Persons acting for or in concert with him. Such
remedy, however, shall be cumulative and nonexclusive and shall be in addition
to any other remedy which the parties may have.
5.6. COMMON LAW OF TORTS OR TRADE SECRETS. The parties agree that
nothing in this Agreement shall be construed to limit or negate the common law
of torts or trade secrets where it provides the Company with broader protection
than that provided herein.
5.7. SURVIVAL OF SECTION 5. The provisions of Section 5 shall survive
the termination of Xxxxxx'x employment and the termination of this Agreement.
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6. GENERAL PROVISIONS.
6.1. NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier service (charges
prepaid), sent by facsimile (with a copy sent via another method approved
herein), or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the Company and to Xxxxxx at the addresses
indicated below:
If to the Company: Insurance Auto Auctions, Inc.
000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: General Counsel
With copies to: Xxxxxx Xxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to Xxxxxx: Xxxxx Xxxxxx
1435 Xxxxx Court
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Xx. Xxxxxxxx, XX 00000
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With copies to: ------------------------------------
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or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
6.2. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this Agreement embodies the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
6.3. SUCCESSORS AND ASSIGNS. All covenants and agreements contained in
this Agreement by or on behalf of either party hereto shall bind such party and
its heirs,
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legal representatives, successors and assigns and inure to the benefit of the
other party hereto and their heirs, legal representatives, successors and
assigns.
6.4. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by the laws
of the State of Illinois without giving effect to the provisions thereof
regarding conflict of laws.
6.5. RESOLUTION OF DISPUTES; ARBITRATION. Should a dispute arise
concerning this Agreement, its interpretation or termination, or Xxxxxx'x
employment with the Company, either party may request a conference with the
other party to this Agreement and the parties shall meet to attempt to resolve
the dispute. Failing such resolution within thirty (30) days of ether party's
request for a conference, the Company and Xxxxxx shall endeavor to select an
arbitrator who shall hear the dispute. In the event the parties are unable to
agree on an arbitrator, Xxxxxx and Company shall request the American
Arbitration Association ("AAA") to submit a list of nine (9) names of persons
who could serve as an arbitrator. The Company and Xxxxxx shall alternately
remove names from this list (beginning with the party which wins a flip of a
coin) until one person remains and this person shall serve as the impartial
arbitrator. The arbitration shall be conducted in accordance with the National
Rules for the Resolution of Employment Disputes as promulgated by the AAA. The
decision of the arbitrator shall be final and binding on both parties. Each
party shall bear equally all costs of the arbitrator.
The arbitrator shall only have authority to interpret, apply or
determine compliance with the provisions set forth in this Agreement, but shall
not have the authority to add to, detract from or otherwise alter the language
of this Agreement.
6.6. REPRESENTATIONS OF XXXXXX. Xxxxxx hereby represents and warrants
to the Company that his execution, delivery and performance of this agreement
will not violate or result in any breach of any agreement, contract,
understanding or written policy to which Xxxxxx is subject as a result of any
prior employment, any investment or otherwise. Xxxxxx is not subject to any
agreement, contract or understanding which in any way restricts or limits his
ability to accept employment with the Company or perform the services
contemplated herein.
6.7. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
6.8. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
6.9. AMENDMENTS AND WAIVERS. No modification, amendment or waiver of
any provisions of this Agreement shall be effective unless approved in writing
by each of the parties hereto. The Company's failure at any time to enforce any
of the provisions of this Agreement
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shall in no way be construed as a waiver of such provisions and will not affect
the right of the Company to enforce each and every provision hereof in
accordance with its terms.
6.10. NON-ASSIGNMENT. This Agreement shall not be assigned by Xxxxxx.
SIGNATURE PAGE FOLLOWS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
INSURANCE AUTO AUCTIONS, INC.
By: /s/ Xxxxxx X. X'Xxxxx
----------------------------
Name: Xxxxxx X. X'Xxxxx
Title: President and Chief
Executive Officer
/s/ Xxxxx X. Xxxxxx
--------------------------------
XXXXX XXXXXX
