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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as
of the 1st day of June, 1997, by and between Xxxx X. Xxxxxx, a resident of the
State of Georgia ("Executive"), and IDN FORMATION CORP., a Georgia corporation
to be reincorporated in Delaware under the name "Industrial Distribution Group,
Inc." ("IDG").
W I T N E S S E T H:
WHEREAS, IDG is engaged in the business of providing flexible procurement
solutions for industrial users and certain other users that have maintenance,
repair, operating, and production supplies requirements; and
WHEREAS, IDG desires to induce Executive to enter into employment with IDG
for the period provided in this Agreement, and Executive is willing to accept
such employment with IDG on a full-time basis, all in accordance with the terms
and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereby covenant and agree as follows:
1. DUTIES AND EXTENT OF SERVICES
1.1 POSITION AND DUTIES. IDG hereby enters into this Agreement to
evidence and provide for the employment of Executive as Vice President and
Chief Financial Officer of IDG. Consistent with the policies, guidelines, and
directives adopted or established by the Board of Directors of IDG, acting
pursuant to and in accordance with lawful authority, and subject to the
direction of the Chief Executive Officer, Executive shall be responsible for
financial affairs, including financial reporting, banking relationships,
financial planning and budgeting, accounting, financial controls, and related
functions. Executive shall report directly to the Chief Executive Officer.
Executive agrees to serve, without additional compensation, in a similar
executive capacity with subsidiaries of IDG and in such other executive
capacities as may be designated by the Board of Directors of IDG, consistent
with the positions, responsibilities, and authority of Executive hereunder.
Neither Executive's employment hereunder nor any other position referred to in
the preceding sentence shall require Executive to relocate his primary
residence from his current location; provided, however, that IDG may require
Executive to relocate to the geographic area in which its Chief Executive
Officer or its Chief Operating Officer is situated if neither such officer is
then situated in the Atlanta, Georgia metropolitan area and IDG has otherwise
acted to relocate its principal offices from such metropolitan area. The
immediately preceding sentence represents a material and substantial part of
this Agreement.
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1.2 EXTENT OF SERVICES. Executive agrees to devote his full working time,
energy, and skill to the business of IDG and its affiliates and to the
promotion of IDG's interests and to discharge Executive's duties in good faith
and in a professional manner. Executive affirms and represents that he is under
no obligation to any former employer or other party that is in any way
inconsistent with, or that imposes any restriction upon, his acceptance of
employment hereunder with IDG, the employment of Executive by IDG, or
Executive's undertakings under this Agreement.
2. TERM
The term of this Agreement (the "Term") shall commence on June 1, 1997
(the "Effective Date") and shall continue for a three-year period, unless and
until this Agreement has been terminated in accordance with Section 7 hereto.
3. COMPENSATION
3.1 BASE SALARY. IDG shall pay to Executive a base annual salary
(the "Base Salary") of One Hundred Fifty Thousand Dollars ($150,000) for each
fiscal year during the Term (prorated for any partial fiscal year) subject,
however, to being increased for each fiscal year beginning January 1, 1998, to
such higher amount as may be approved by the Board of Directors of IDG. All
Base Salary shall be paid in equal periodic installments in accordance with
IDG's normal payroll policies, as may be in effect or modified during the Term.
3.2 GENERAL INCENTIVE COMPENSATION AND SAVINGS PROGRAMS. IDG hereby
agrees that, as of June 1, 1997, Executive shall be entitled to participate, to
an extent consistent with Executive's title and Base Salary, in an incentive
compensation program that shall be established by IDG, and in all savings
programs, including stock option or other stock-based compensation plans or
profit sharing plans, 401(k) plans, or other savings programs, as may be
established in general by IDG for similarly situated officers, other key
employees, or employees as a group.
Nothing contained herein and no action taken in respect of any bonus
(or otherwise in respect of this Section 3.2) shall create or be construed to
create a trust of any kind. Executive's right to receive any bonus pursuant to
this Section 3.2 shall be no greater than the right of an unsecured general
creditor of IDG to receive payment from IDG. Any bonus paid under this Section
3.2 or otherwise shall be paid from the general funds of IDG, and no special or
separate fund shall be established, and no segregation of assets shall be made,
to assure payment of any bonus hereunder.
3.3 WITHHOLDINGS, PAYROLL TAXES AND OTHER DEDUCTIONS. The payment of
Base Salary and any other compensation hereunder shall be subject to
withholdings and payroll taxes required by applicable law, and such other
deductions as may be required under IDG's employee benefit plans in which
Executive has elected to participate.
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4. BENEFITS.
During Executive's employment hereunder, Executive shall:
(a) be eligible to participate in employee fringe benefits and any
pension or profit sharing plans that may be provided by IDG for its
executive employees in general in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
(b) be eligible to participate in any medical and health plans or
other employee welfare benefit plans that may be provided by IDG for its
executive employees in general in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
(c) be entitled to annual paid vacation in accordance with IDG
policy that may be applicable to executive employees from time to time;
and
(d) be entitled to sick leave, sick pay, and disability benefits in
accordance with any IDG policy that may be applicable to executive
employees from time to time.
5. CONFIDENTIAL INFORMATION
5.1 DEFINITION. For purposes of this Agreement, "Confidential
Information" shall mean any and all trade secrets and other information
considered by IDG as being confidential and concerning the business and affairs
of IDG, including but not limited to (a) product specifications, discoveries,
improvements, processes, marketing and service methods or techniques, formulae,
designs, styles, specifications, data bases, computer programs (whether in
source code or object code), know-how, strategies, data, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, and any other information, however documented, that is a trade
secret of IDG, or any of its affiliates within the meaning set forth in
O.C.G.A. ss. 10-1-761; (b) information concerning the business and affairs of
IDG (which includes, but is not limited to, historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, business plans, the names and background of key
personnel, personnel training and techniques and materials, and sales
techniques and materials of IDG), however documented; and (c) notes, analyses,
compilations, studies, summaries, and other material prepared by or for IDG
containing or based, in whole or in part, on any information included in the
foregoing; provided, however, Confidential Information shall not include any
information that Executive demonstrates was or became generally known or
available to the public other than as a result of an unauthorized or unlawful
disclosure directly or indirectly by Executive.
5.2 ACKNOWLEDGMENTS AND AGREEMENTS BY EXECUTIVE. Executive hereby
acknowledges, agrees, and covenants as follows:
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(a) Executive's employment hereunder creates a relationship of
confidence and trust between Executive and IDG and its affiliates with
respect to the Confidential Information of IDG and its affiliates and
other information pertaining to the businesses of any client or customer
of IDG or its affiliates that may be made known to Executive by IDG or
any of its affiliates, or by any client or customer of IDG or any of its
affiliates, or learned by Executive during the period of Executive's
employment under this Agreement.
(b) Executive possesses or will possess Confidential Information that
has been, or will be, created, discovered, or developed by, or
otherwise becomes known or disclosed to Executive (including, without
limitation, information created, discovered, or developed by, or made
known to, Executive during the period of Executive's employment hereunder
or during discussions with or investigations of IDG in contemplation of
such employment), which information Executive acknowledges has or may
have commercial value to IDG or its affiliates in the businesses in which
they are or proposed to be engaged.
(c) Executive hereby agrees that Executive will keep confidential and
Will hold for IDG's sole benefit all Confidential Information, which
Executive acknowledges is, or shall be, proprietary to IDG or its
affiliates.
(d) Executive also agrees that Executive will not, without the prior
approval of the Board of Directors of IDG, use for Executive's benefit or
disclose at any time during Executive's employment by IDG, or thereafter,
except to the extent required for the performance by Executive of
Executive's duties as an employee of IDG, any information obtained or
developed by Executive while in the employ of IDG with respect to the
products, employees, financial affairs, or methods of design,
distribution, marketing, service, or procurement of any customer, client,
or supplier of IDG or any of its affiliates, or any confidential matter
with respect thereto, except information that at the time is generally
known to the public other than as a result of disclosure by Executive not
permitted hereunder.
(e) Executive acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 5 would be
inadequate and, therefore, agrees that IDG shall be entitled to injunctive
relief in addition to any other available rights and remedies in case of
any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting IDG or any of its
affiliates from pursuing any other rights and remedies available for any
such breach or threatened breach.
(f) Executive agrees that upon termination of Executive's employment
by IDG for any reason, Executive shall forthwith return to IDG, or destroy
to the satisfaction of IDG, all Confidential Information in whatever form
such information is in the possession of Executive or under Executive's
control, and shall additionally return all documents and other property
that is in Executive's possession or under Executive's
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control and belonging to IDG or any of its affiliates that Executive does
not otherwise have a valid independent right to possess or control.
6. NO RECRUITMENT; NON-COMPETITION
6.1 PROHIBITED ACTIVITIES. During Executive's employment hereunder and
for one (1) year after the termination of Executive's employment hereunder,
Executive will not, directly or indirectly, for any reason, for his own
account, or on behalf of or together with any other person:
(a) solicit, induce, or conspire with, or attempt to solicit,
induce, or conspire with, any of the officers or employees of IDG or any
of its affiliates (IDG and its affiliates collectively being "IDG" for
purposes of this Section 6) to terminate their employment or relationship
with, or to compete against, IDG;
(b) solicit or induce, or attempt to solicit or induce, any of the
customers or suppliers of IDG, with whom Executive has dealt with or
otherwise has or had direct dealings with during the twenty-four (24)
month period prior to such attempted solicitation or inducement, to
terminate their business relationship with IDG;
(c) divert or attempt to divert any or all of such customers' or
suppliers' business with them from them in violation of this Agreement or
applicable law (including the violation of any trade secrets law); or
(d) be engaged as an officer or director or in any other managerial
or sales capacity or as an owner, co-owner, or other investor of or in,
whether as an employee, independent contractor, consultant or advisor, or
sales representative or distributor of any kind, in a business that sells
any products or provides any services in competition with IDG within a
radius of 100 miles of each location in which IDG was engaged in business
on the date hereof or, to the extent permitted by and enforceable under
applicable law, in which IDG is so engaged on the date of Executive's
termination.
Notwithstanding the foregoing, Executive may own and hold as a
passive investment up to one percent (1%) of the outstanding capital stock of a
competing entity if that class of capital stock is listed for trading or
quotation on a national or regional stock exchange registered with the SEC or
on The Nasdaq Stock Market.
6.2 DAMAGES. Because of the difficulty in measuring the economic losses
that may be incurred by IDG as a result of any breach by Executive of the
covenants in Section 6.1, and because of the immediate and irreparable damage
that could be caused to IDG for which it would have no other adequate remedy,
Executive agrees that IDG may enforce the provisions of Section 6.1 by any
equitable or legal means, including seeking an appropriate injunction or
restraining order against Executive if a breach of any of those provisions
occurs.
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6.3 REASONABLE RESTRAINT. The parties hereto each agree that
Sections 6.1 and 6.2 impose a reasonable restraint on Executive in light
of the position of Executive with IDG, the activities and business of IDG
on the date hereof, and the current business plans of IDG (of which
Executive acknowledges that he is aware).
6.4 SEVERABILITY; REFORMATION. The covenants in this Section 6 are
severable and separate, and the unenforceability of any specific covenant
in this Section 6 is not intended by any party hereto to, and shall not,
affect the provisions of any other covenant in this Section 6. If any
court of competent jurisdiction shall determine that the scope, time, or
territorial restrictions set forth in Section 6.1 are unreasonable as
applied to Executive, the parties hereto acknowledge their mutual
intention and agreement that those restrictions be enforced to the fullest
extent the court deems reasonable, and thereby shall be reformed to that
extent as applied to Executive.
6.5 INDEPENDENT COVENANT. All of the covenants in this Section 6 are
intended by each party hereto to be, and shall be construed as, an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against IDG,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by IDG of any covenant in this Section 6. It is
specifically agreed that the period specified in Section 6.1 shall be
computed by excluding from that computation any time during which
Executive is in violation of any provision of Section 6.1.
6.6 MATERIALITY. IDG and Executive hereby agree that this Section 6
is a material and substantial part of this Agreement.
7. TERMINATION OF EMPLOYMENT
7.1 BY IDG. (a) Executive's employment under this Agreement may be
terminated by IDG at any time for good cause. For the purposes of this
Section 7.1, "good cause" shall mean: (i) Executive's breach of a material
provision of this Agreement; (ii) the conviction or indictment (or its
procedural equivalent) of, or the entering of a plea of guilty or no
contest by, Executive with respect to an act or acts involving moral
turpitude that constitutes a felony under applicable law; (iii) the
commission by Executive of an act or acts of dishonesty that subjects IDG
or any of its affiliates to material loss or detriment, including the
misappropriation (or attempted misappropriation) of any of IDG or any of
its affiliate's funds, as determined by the Board of Directors of IDG; or
(iv) Executive's habitual neglect of, or refusal to perform, Executive's
duties under this Agreement, or deliberate and intentional disregard of
lawful instructions from the Board of Directors of IDG; provided, however,
that with respect to clauses (i) and (iv) above, Executive shall have
received written notice of such alleged breach, neglect, refusal, or
disregard, as the case may be, from the Board of Directors of IDG and
shall have failed within thirty (30) days after the receipt of such notice
to cure and correct such alleged breach, neglect, refusal, or disregard
(or to begin in good faith to effect such cure and correction if such cure
or correction cannot practically be completed within such 30-day period).
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(b) If Executive's employment is terminated under this Section 7.1, IDG
shall have no further obligation to Executive hereunder except to pay to
Executive, in cash on the effective date of such termination, any amount
accrued but unpaid hereunder as of the termination date, and except for the
provisions contained in Sections 5, 6, and 8, which shall specifically survive
such termination.
7.2 BY DEATH. If Executive dies, this Agreement shall terminate on the
date of Executive's death. In such event, IDG shall pay promptly to Executive's
designated beneficiary or, if no designated beneficiary, to Executive's estate,
any compensation or other amount earned or accrued as of the date of
Executive's death but not yet paid and any other payments to which Executive is
entitled pursuant to Section 3 or Section 4 hereof. If this Agreement is
terminated pursuant to this Section 7.2, Executive or his estate shall be
entitled to receive a cash payment equal to the present value (based on IDG's
then current cost of borrowing) of his Base Salary for the balance of the Term,
payable within 30 days of the date of termination. Executive shall also be
entitled to receive the bonus payment provided for in Section 3.2 hereof for
the fiscal year in which the termination occurred. Further, all stock options
theretofore granted to Executive by IDG shall remain in force and effect and
shall be exercisable until their expiration date, provided that any such
options otherwise subject to vesting based solely on the lapse of time shall be
immediately vested in full.
7.3 BY DISABILITY. If Executive becomes unable to perform his normal
duties hereunder as a result of his incapacity due to physical or mental
illness for a period of at least one hundred eighty (180) consecutive days, IDG
shall have the option to terminate this Agreement upon the expiration of such
period (the "Disability Date"). In such an event, IDG shall pay to Executive
(within thirty (30) days thereof) all amounts accrued but unpaid as of the
Disability Date and, in the manner and at the times set forth in Section 3.1
above, an amount equal to the difference between (a) the Base Salary payable
for the remainder of the Term and (b) the monthly payments made to Executive
under any disability insurance coverage provided to Executive pursuant to
Section 4 hereof. Executive shall also be entitled to receive the bonus payment
provided for in Section 3.2 hereof for the fiscal year in which the termination
occurred. Further, all stock options theretofore granted to Executive by IDG
shall remain in force and effect and shall be exercisable until their
expiration date, provided that any such options otherwise subject to vesting
based solely on the lapse of time shall be immediately vested in full. If
Executive's employment is terminated by IDG as a result of a disability, as
provided in this Section 7.3, this Agreement shall terminate and neither party
shall have any further obligation to the other, except as provided above, and
except for the provisions contained in Sections 5, 6, and 8, which shall
specifically survive such termination.
7.4 BY DISCHARGE. If Executive's employment under the terms of this
Agreement is terminated by IDG for any reason other than cause, death, or
disability (in any such case a "Discharge"), then IDG shall pay to Executive,
on the date of Discharge, a lump sum cash amount equal to the present value of
the sum of (a) the greater of (i) twelve (12) months Base Salary, and (ii) the
amount of Base Salary that otherwise would have been payable to Executive for
the remainder of the Term plus (b) the bonus payment provided for in Section
3.2 hereof for the fiscal year in which the termination occurs. For purposes of
the present value calculation
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required by the preceding sentence, the parties shall use as a rate IDG's then
current cost of borrowing. Such payment shall be in addition to other payments,
if any, to which Executive is entitled pursuant to Section 3 or Section 4
hereof. In addition, all stock options theretofore granted to Executive shall
remain in force and effect and shall be exercisable until their expiration
date, provided that any such options otherwise subject to vesting based solely
on the lapse of time shall be immediately vested in full. The provisions of
Sections 5, 6, and 8 shall continue without regard to such Discharge or
termination of this Agreement.
7.5 BY EXECUTIVE. If (a) IDG significantly reduces Executive's authority
or duties as provided for in this Agreement or Executive's standing within IDG
as a function of Executive's title or responsibilities or Executive's
relationships with the Board or with other members of management of IDG, (b) a
change of control of IDG occurs that is not consented to by Executive, or (c)
Executive is required by IDG, without his consent, to relocate his primary
residence from his current location other than in accordance with Section 1.1,
then, in any such event, Executive may terminate this Agreement and such
termination shall be treated (subject to the provisions of the last sentence of
this Section 7.5) as if it were a Discharge under Section 7.4; provided that
the Board of Directors of IDG shall have received written notice from Executive
of any reduction described in clause (a) above upon which Executive proposes to
base a termination and IDG shall have failed within thirty (30) days thereafter
to reverse or cure the situation giving rise to the grounds asserted by
Executive. For purposes hereof, "change of control" shall mean (d) the
acquisition by a person or entity other than Executive or an affiliate of
Executive, whether in one or several transactions, by exchange, merger,
consolidation, assignment, stock spin-off, stock split-up, or other transaction
(other than pursuant to a registered underwritten public offering of voting
stock by IDG), of an amount of the voting stock of IDG, or of the right to vote
or to direct the voting of such amount of voting stock, sufficient to elect a
majority of the Board of Directors of IDG, or (e) a change in the membership of
the Board of Directors of IDG such that a majority of the members are persons
who are not Continuing Directors. For purposes of this Agreement, a "Continuing
Director" is a person who is a member of the Board of Directors of IDG on the
date hereof or a person who is elected as a director of IDG upon the nomination
by or approval of a majority of the Continuing Directors in office. If
Executive terminates this Agreement due to a change of control, then in lieu of
the payment provided for in Section 7.4(a), Executive shall receive a cash
payment equal to the present value (based on IDG's then current cost of
borrowing) of Executive's Base Salary for the remainder of the Term, or for a
period of two years, whichever period is longer, payable within thirty (30)
days of the date of the occurrence of such event.
7.6 BY MUTUAL CONSENT. Nothing contained in this Agreement shall prevent
the parties from acting by mutual consent with respect to any matter, including
the terms or conditions for a termination of this Agreement, provided that
evidence thereof is in a writing signed by the party to be bound thereby.
8. LEGAL EXPENSE REIMBURSEMENTS
8.1 INDEMNIFICATION LEGAL EXPENSES. Without limiting the scope of any
indemnification to which Executive is or may be entitled under applicable law
or pursuant to
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IDG's Certificate of Incorporation, Bylaws, or contract for indemnification of
officers or directors of IDG, IDG shall indemnify and hold Executive harmless
from and against the costs and expenses (including attorneys' fees and costs)
of Executive's defense with respect to any suit, investigation, or other action
or proceeding instituted or threatened against Executive by any person, agency,
body, or other entity that is based on, arises out of, or is related to any
position that Executive has after the date hereof with IDG or any of its
subsidiaries or other affiliates or otherwise related to the performance by
Executive of any duty or responsibility under this Agreement. To the maximum
extent permitted by applicable law, IDG agrees to advance to Executive the
amount of such costs and expenses as they are incurred by Executive (upon
written request by Executive therefor, accompanied by reasonably detailed
explanation of the basis for such advance(s)), and Executive agrees, to the
extent that such agreement may be required by applicable law to permit such
advances, to account to IDG for such advance(s), including to refund to IDG any
such amount that it may ultimately be determined (according to applicable law)
that Executive is not entitled to receive as indemnification or reimbursement
for such costs and expenses as a result of the final disposition of the
underlying suit, investigation, or other action or proceeding in respect of
which such costs or expenses were incurred. IDG agrees to take such corporate
action as may be necessary or advisable, if requested by Executive, to
authorize, approve, or effectuate and implement the rights conferred upon
Executive in this Section 8.1.
8.2 ATTORNEY'S FEES. If either Executive or IDG institutes an action
Against the other in order to enforce the terms of this Agreement, whether in
court or by arbitration, the prevailing party shall receive its reasonable
attorney's fees from the non-prevailing party. Both parties agree to submit to
the court or arbitrator(s), as the case may be, the issue of deciding which
party, if either, is the prevailing party for purposes of this Section 8.2, and
in such case to decide the amount of attorney's fees that is reasonable in the
circumstances.
8.3 SURVIVAL. The provisions of this Section 8 shall survive any
termination of Executive's employment or of this Agreement.
9. MISCELLANEOUS AND GENERAL
9.1 NON-ASSIGNABILITY. (a) Neither this Agreement nor any right or
interest hereunder may be assigned by Executive, Executive's beneficiaries, or
legal representatives without IDG's prior written consent; provided, however,
that nothing in this Section 9.1 will preclude Executive from designating a
beneficiary to receive any benefits payable hereunder upon Executive's death or
incapacity. Notwithstanding the foregoing, this Agreement and any right or
interest of IDG hereunder may be assigned by IDG to any of its affiliates
without the consent of Executive; provided, however, that in the event of such
an assignment without the consent of Executive, IDG will remain liable for the
payment of all amounts payable to Executive hereunder.
(b) Except as required by law, no right to receive payments under
this Agreement will be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment levy or similar
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process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action will be null, void and of no effect.
9.2 WAIVER. The waiver by any party to this Agreement of a breach by the
other party of any of the provisions of this Agreement shall not operate as or
be construed as a waiver of any different or subsequent breach.
9.3 ENTIRE AGREEMENT. This Agreement constitutes and expresses the entire
agreement of the parties with respect to the subject matter hereof.
9.4 GOVERNING LAW; CHOICE OF FORUM; ETC. (a) This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Georgia (without regard to its rules of conflicts of laws); and the
laws of that state shall govern all of the rights, remedies, liabilities,
powers, and duties of the parties under this Agreement and of any arbitrator or
arbitrators to whom any matter hereunder may be submitted for resolution by the
parties hereto.
(b) Any legal action or proceeding with respect to this Agreement
that alleges a breach of Sections 5, 6, or 8 shall be brought exclusively in
the federal or state courts located in the State of Georgia, assuming subject
matter jurisdiction thereof (which each party agrees not to challenge), and by
execution and delivery of this Agreement, Executive and IDG irrevocably consent
to the personal jurisdiction of such courts for the adjudication of such
matters; provided, however, that upon agreement of both parties, any such
matter may be submitted to arbitration pursuant to Section 9.4(c). Executive
and IDG irrevocably waive any objection, including any objection to the laying
of venue or based on the grounds of forum non conveniens, that either may now
or hereafter have to the bringing of any action or proceeding in such
jurisdiction for adjudication of such matter.
(c) Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, other than an allegation of a breach of
Sections 5, 6, or 8 hereof, shall be settled by arbitration in Atlanta, Georgia
in accordance with the applicable rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
9.5 SEVERABILITY. Should any clause or any other portion of this
Agreement be determined to be void or unenforceable for any reason, such
determination shall not affect the validity or enforceability of any other
clause or portion of this Agreement, all of which shall remain in full force
and effect, unless the result of any such invalidity or unenforceability shall
be to cause a material failure of consideration to the party seeking to sustain
the validity or enforceability of the subject provision.
9.6 NOTICES. All notices and other communications hereunder shall be
deemed to have been duly given on (a) the date of receipt if delivered
personally or (b) the third business day after deposit in the United States
Mail, if sent certified mail, postage prepaid, to IDG at its address provided
following its signature to this Agreement (Attention: Chief Executive Officer
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or Chief Operating Officer), or to Executive at the address provided following
Executive's signature to this Agreement, as the case may be, or to such other
address as one party shall have given to the other in accordance with this
provision.
9.7 EFFECT OF CAPTIONS AND HEADINGS. The captions and headings contained
herein are for convenience only, do not constitute a part of this Agreement,
and shall not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement, as an
instrument under seal, as of the day and year first written above.
[SEAL] "IDG"
Attest: INDUSTRIAL DISTRIBUTION GROUP, INC.
By:
-------------------------------- --------------------------------------
Secretary or Assistant Secretary Xxxxxxxx X. Xxxxx, President
Address: 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
"EXECUTIVE"
---------------------------------(SEAL)
XXXX X. XXXXXX
Address: 0000 Xxxxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
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