EMPLOYMENT CONTRACT
This
Employment Contract (“Agreement”) is executed and delivered as of August 21,
2006, by and between Xxxx Security International, Inc., a Delaware corporation
(“Company”), and Xxxxx X. Xxxxxxx, Xx., an individual (“Employee”).
RECITALS
The
Company and Employee are parties to an Employment Contract dated August 12,
2003, as amended by an Amendment to Employment Contract dated October 25,
2003.
This Agreement replaces in its entirety the Employment Contract dated August
12,
2003, as amended. The Company conducts diversified businesses, including,
without limitation, a security business segment and a car wash business segment
(“Business”). The Employee is an executive with extensive experience in
corporate management. The Employee is currently the Chief Executive Officer
and
Chairman of the Board of Directors of the Company. The Company desires to
retain
Employee as Chairman and Chief Executive Officer and the Employee desires
to
accept the position offered.
Employee
has been and will be employed by Company in a confidential relationship wherein
Employee is familiar with and aware of information as to the specific manner
of
doing business and the customers of Company and its affiliates and the Company’s
future plans. The information Employee has and will have knowledge of is
trade
secrets and constitutes valuable goodwill of Company. Employee recognizes
that
the Business of Company is dependent upon a number of trade secrets and
confidential business information, including customer lists, customer data
vendor information and design information. The protection of these trade
secrets
is of critical importance to Company. Company will sustain great loss and
damage
if, for whatever reason, during the term of this Agreement or Employee’s
employment with Company and for a period following the termination of this
Agreement or Employee’s employment, Employee should violate the provisions of
paragraph 4 of this Agreement. Further, Employee acknowledges that any such
violation would cause irreparable harm to Company and that Company would
be
entitled, without limitation, to injunctive relief to remedy such
violation.
NOW,
THEREFORE,
in
consideration of the mutual promises, terms and conditions set forth herein
and
the performance of each, the parties hereby agree as follows:
1
1.
Services.
(a)
Company hereby employs Employee as its Chief Executive Officer, and the material
duties of Employee and Employee’s titles and duties may not be changed without
the Employee’s consent. Employee shall be appointed the Chairman of the
Company’s Board of Directors. Employee shall be provided an office from where he
shall work.
(b)
Employee hereby accepts employment upon the terms and conditions contained
in
this Agreement. Employee shall faithfully adhere to, execute and fulfill
all
directions and policies established by the Board of Directors of the
Company.
2.
Compensation.
(a)
For
all services to be rendered by Employee to Company, Company shall pay Employee
an initial salary computed and earned ratably over twelve months at the
rate of
Four Hundred Fifty Thousand Dollars ($450,000) per year, commencing on
the date
hereof, payable in accordance with Company’s normal payroll procedures. The rate
of Employee’s salary may be adjusted from time to time during the term of this
Agreement, upon the consent of Employee and the Board of Directors of the
Company or the compensation committee thereof.
(b)
Employee shall be awarded three separation option grants for common stock
under
the Corporation’s Stock Option Plan at an exercise price equal to the close of
market on the date of grant. The first grant shall be an option exercisable
into
450,000 shares of common stock to be awarded by the Compensation Committee
within two days of the date of this Agreement, the second option grant
(“Second
Grant”) shall be awarded within five days of the first yearly anniversary date
of this Agreement’s execution and the third option grant (“Third Grant”) shall
be awarded within five days of the second yearly anniversary date of this
Agreement’s execution. The amount of shares (“Option Shares”) the Second Grant
and Third Grant shall be exercisable into shall be determined by the Company’s
Compensation Committee. When determining the amount of the Option Shares,
for
the Second Grant and Third Grant, the Compensation Committee shall commission
a
compensation study of the Chief Executive Officer position to be prepared
on the
same basis as the Chief Executive Officer Market Analysis Study prepared
by
Compensation Resources, Inc dated August 2006. The Compensation Committee
shall
award an amount of Option Shares for the Second Grant and Third Grant so
that
the Black-Scholes Value of the Option Shares, at time of grant, when added
to
the $450,000 compensation being paid under Paragraph 2(a) of this Agreement
equals no less then the “market consensus total direct compensation” amount paid
by the comparable companies to their chief executive officers, as set forth
in
the compensation study obtained by the Compensation Committee. The Compensation
Committee shall obtain two separate studies, the first study to be used
for the
Second Grant, shall be no older then one month prior to the date of the
Second
Grant and the second study, to be used for the Third Grant, shall be no
older
then one month prior to the date of the Third Grant. The options with respect
to
each of the grants shall be fully vested on the date of the grant. Employee
and
the Company acknowledge that the Company does not have a restricted stock
plan.
If in the future the Company develops a restricted stock plan that is approved
by the Company’s shareholders, at Employee’s option, the Second Grant and Third
Grant will be made in restricted stock and not in options. If restricted
stock
is used, the amount of restricted stock to be given Employee shall be determined
in the same manner as the amount of options was to be determined.
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(c)
Employee shall be paid a bonus equal the following percentages of the purchase
price or sales price, as applicable, of any business sold or purchased
by the
Company (“M&A Bonus”): (i) one percent (1%) of the sales price of any car
washes sold, except for the sale transactions currently under contract
for the
car wash located at 0000 X. Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx and 00 X.
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx for which no M&A Bonus will be
due; and (ii) three (3) percent of the purchase or sales price of any other
business sold or purchased, the three (3) percent amount shall be reduced
by the
amount of any fee paid to an investment banker hired by the Company where
the
investment banker located the transaction and conducted all negotiations,
no
deduction will be made for a fee paid to any investment banker for a fairness
opinion or other valuation. For purposes of this Paragraph 2(b) a business
shall
be any collection of personal or real property that earned revenue as a
going
concern or is projected to earn revenue as a going concern, whether sold
or
purchased in the form of an asset acquisition or the sale or purchase of
a
business entity. The M&A Bonus shall be payable in cash at the time that the
business sale or business purchase is consummated. If a purchase or sale
transaction triggers a Change of Control Event, as defined in Paragraph
2(f)
below, the M&A Bonus and the Change of Control Bonus under Paragraph 2(f)
shall not be both paid, only the larger of M&A Bonus or the Change of
Control Bonus would be due from the Company to the Employee.
3
(d)
To
the extent that Company, from time to time in its sole discretion, offers
or
provides any of the following to its employees, then Employee, on an equal
basis
with such other employees, shall be entitled to: (i) participation in all,
if
any, life, health, medical, hospital, accident and disability insurance
programs
of Company in existence for the benefit of its employees and for which
Employee
qualifies; (ii) participation in all, if any, pension, retirement, profit
sharing or stock purchase plans for which Employee qualifies; and (iii)
participation in any other employee benefits which Company accords to its
employees and for which Employee qualifies.
(e)
During the term of Employee’s employment with Company, Employee shall be
entitled to reimbursement for reasonable business expenses, including gasoline,
incurred on behalf of Company. Reimbursement for business expenses will
be
provided to Employee on the same basis and under the same guidelines as
are
applicable to all of Company’s employees. The Company shall lease a vehicle for
Employee’s personal use. The leased vehicle shall be a premium car of Employee’s
choice but will not be a super premium vehicle such as a Rolls Royce or
Bentley.
The expense of the leased vehicle may not exceed $1,500 per month.
(f)
Upon
the occurrence of a Change of Control Event, as hereafter defined, Employee
shall be paid a lump sum cash bonus of 2.99 times the Employee’s average total
compensation (base salary plus any bonuses plus the value of any option
award,
valued using the Black Scholes formulae) over the past five years (“Change of
Control Bonus”). It is the intent of both the Company and the Employee that the
amount of the Change of Control Bonus to be paid to Employee under this
Paragraph 2(f) shall be calculated so that the amount is .01 % less then
the
amount that would be considered to be a “parachute payment” within the meaning
of Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended
(the
“Code”), or any comparable successor provisions that would result in the payment
being subject to the excise tax imposed by Section 4999 of the Code, or
any
comparable successor provisions. The Change of Control Bonus shall be paid
to
Employee within ten (10) business days of the Change of Control Event that
trigged the Change of Control Bonus. For purposes of this Agreement a Change
of
Control Event shall be any of the events set forth in items (i) through
and
including (iii) below:
(i)
the
acquisition in one or more transactions by any “Person”, excepting Employee, as
the term “Person” is used for purposes of Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), of “Beneficial
Ownership” (as the term beneficial ownership is used for purposes or Rule 13d-3
promulgated under the 0000 Xxx) of the fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding voting securities (the
“Voting Securities”). For purposes of this Paragraph 2(f)(i), Voting Securities
acquired directly from the Company and from third parties by any Person
shall be
included in the determination of such Person’s Beneficial Ownership of Voting
Securities.
4
(ii)
the
approval by the shareholders of the Company of: (A) a merger, reorganization
or
consolidation involving the Company, if the shareholders of the Company
immediately before such merger, reorganization or consolidation do not
or will
not own directly or indirectly immediately following such merger, reorganization
or consolidation, more than fifty percent (50%) of the combined voting
power of
the outstanding Voting Securities of the corporation resulting from or
surviving
such merger, reorganization or consolidation in substantially the same
proportion as their ownership of the Voting Securities immediately before
such
merger, reorganization or consolidation, or (B) a complete liquidation
or
dissolution of the Company, or (C) an agreement for the sale or other
disposition of 50% or more of the assets of the Company and a distribution
of
the proceeds of the sale to the shareholders.
(iii)
the
acceptance by shareholders of the Company of shares in a share exchange,
if the
shareholders of the Company immediately before such share exchange do not
or
will not own directly or indirectly following such share exchange more
than
fifty percent (50%) of the combined voting power of the outstanding Voting
Securities of the corporation resulting from or surviving such share exchange
in
substantially the same proportion as the ownership of the Voting Securities
outstanding immediately before such share exchange.
3.
Term.
The
period of Employee’s employment with the Company shall commence on the date of
this Agreement and shall continue for three years thereafter, unless sooner
terminated in accordance with the provisions of this Agreement (“Term”). After
expiration of the Term, Employee’s employment shall continue thereafter on an
at-will month-to-month basis, until terminated by either party to the Agreement.
During the month-to-month period the provisions of this Agreement shall
no
longer apply but Employee shall continue to be paid the Employee’s base salary
and any bonus earned under the provisions of Paragraph 2(c).
5
4.
Noncompetition Covenants.
(a)
Employee agrees that the noncompetition covenants contained in this Paragraph
4
are a material and substantial part of this Agreement.
(b)
Employee covenants that during Employee’s employment with Company and for three
months following the termination of Employee’s employment (regardless of the
reason for the termination) the Employee shall not, directly or indirectly,
without the prior express written consent of Company, do any of the things
set
forth in item (i) through (v) below:
(i)
engage, as an officer, director, shareholder, owner, partner, joint venturer,
agent, or in a managerial capacity, whether as an employee, independent
contractor, consultant, advisor or sales representative, in the security
industry or in the car wash services industry within the United States
(“the
Territory”);
(ii)
call
upon any person who is, at the time of the contact, an employee of Company
or
its affiliates, if the purpose and intent of the contact is to entice such
employee away from or out of the employ of Company or its
affiliates;
(iii)
call upon any person or entity which is, at the time of the contact, a
customer
of the Company or its affiliates for the purpose of soliciting or selling
any of
the items or services which are the items or services offered by the Company
or
its affiliates;
(iv)
disclose the identity of the customers of Company or its affiliates, whether
in
existence or proposed, to any person, firm, partnership, corporation or
other
entity whatsoever, for any reason or purpose whatsoever;
(v)
promote, or assist, financially or otherwise, any person, firm, partnership,
corporation or other entity whatsoever to do any of the above;
For
the
purposes of this Agreement, the term “affiliates” shall mean one or more of: (A)
each subsidiary of Company, and (B) each other entity under the direct
or
indirect control of the Company.
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(c)
The
Company will sustain significant losses and damages, if Employee breaches
the
covenants in this Paragraph 4. There is no adequate monetary remedy for
the
immediate and irreparable damage that would be caused to Company by Employee’s
breach of its non-competition covenants. Employee agrees that, in the event
of a
breach by him of the foregoing covenants, such covenants may be enforced
by
Company by, without limitation, injunctions and restraining orders.
(d)
It is
agreed by the parties that the covenants in this Paragraph 4 impose a reasonable
restraint on Employee in light of the activities and business of Company
on the
date of the execution of this Agreement and the future plans of
Company.
(e)
The
covenants in this Paragraph 4 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions
of any
other covenant. If any court of competent jurisdiction shall determine
that the
scope, time or territorial restrictions set forth are unreasonable, then
it is
the intention of the parties that such restrictions be enforced to the
fullest
extent which the court deems reasonable, and the Agreement shall thereby
be
reformed.
(f)
The
covenants in this Paragraph 4 shall be construed as independent of any
other
provision of this Agreement and the existence of any claim or cause of
action of
Employee against Company whether predicated on this Agreement, or otherwise,
shall not constitute a defense to the enforcement by Company of such covenants.
It is specifically agreed that the duration of the noncompetition covenants
stated above shall be computed by excluding from such computation all time
during which Employee is in violation of any provision of this Paragraph
4 and
all time during which there is pending in any court of competent jurisdiction
any action (including any appeal from any judgment) brought by any person,
whether or not a party to this Agreement, in which action Company seeks
to
enforce the agreements and covenants of Employee or in which any person
contests
the validity of such agreements and covenants or their enforceability or
seeks
to avoid their performance or enforcement. Provided that, no such exclusion
shall include the period of time within which Employee has ceased violating
this
paragraph, whether or not as a result of being in compliance with Court
injunction or doing so voluntarily, and whether or not any action is pending
against Employee, and provided that no such exclusion shall include the
time an
action is pending, if the action is finally determined in Employee’s
favor.
5.
Confidential Information.
It is
expressly acknowledged by the Employee that customer lists, orders, current
and
closed out orders, prospect lists, documents containing the names or addresses
of existing or potential customers, information regarding the Company’s
financial condition or business plans, the methods by which the Company
serves
its customers or conducts its operations, as well as other business procedures,
are the property of the Company and constitute confidential information
or trade
secrets of the Company (“Confidential Information”). Employee agrees to maintain
the confidentiality of the Confidential Information and further agrees
that
Employee will not, directly or indirectly, use or disclose Confidential
Information to any natural or legal person, other than authorized employees
or
agents of the Company, during the Term or thereafter. All Confidential
Information and all correspondence, reports, charts, products, records,
designs,
patents, plans, manuals, Afield
guides,@
memoranda, advertising materials, lists and other data or property collected
by
or delivered to Employee by or on behalf of Company, its representatives,
customers and government entities (including, without limitation, customers
obtained for Company by Employee), and all other materials compiled by
Employee
which pertain to the business of Company shall be and shall remain the
property
of Company, shall be subject at all times to its discretion and control
and
shall be delivered, together with any and all copies thereof, promptly
to
Company upon request at any time and without request upon completion or
other
termination of Employee’s employment hereunder.
7
6.
Inventions.
Employee shall disclose promptly to Company any and all conceptions and
ideas
for inventions, improvements, and valuable discoveries, whether patentable
or
not, which are conceived or made by Employee solely or jointly with another
during the period of employment or within three months thereafter and which
are
related to the business or activities of Company. Employee hereby assigns
and
agrees to assign all his interests therein to Company or its nominee. Whenever
requested to do so by Company, Employee shall execute any and all applications,
assignments or other instruments that Company shall deem necessary to apply
for
and obtain Letters Patent of the United States or any foreign country or
to
otherwise protect Company’s interest therein. These obligations shall continue
beyond the termination of employment with respect to inventions, improvements
and valuable discoveries, whether patentable or not, conceived, made or
acquired
by Employee during the period of employment, and shall be binding upon
Employee’s heirs, assigns, executors, administrators and other legal
representatives.
8
7.
Termination; Rights of Termination.
(a)
Employee’s employment under this Agreement may be terminated during the term
hereof in any one or more of the following ways:
(i)
Employee shall be terminated automatically upon the death or resignation
of
Employee. The parties agree that Employee may resign as either or both
Chief
Executive Officer or Chairman of the Board, at any time without such resignation
constituting a breach of this Agreement.
(ii)
By
the Company upon Employee=s
inability to perform his duties under this Agreement because of illness
or
physical or mental disability or other incapacity which continues for a
period
of 120 days consecutively during any one-year period;
(iii)
By
the Company upon written notice to the Employee any time after: (i) the
occurrence of a Change of Control Event; and (ii) the payment to Employee
of the
Change of Control Bonus, as provided in Paragraph 2(f) of this Agreement.
(iv)
By
the Company upon written notice to Employee upon the Employee’s causing material
harm to the Company by Employee engaging in willful misconduct, or a felony.
For
purposes of this Paragraph 7(a)(iv) material harm is caused to the Company,
if
the Company incurs expenses of Five Hundred Thousand ($500,000) Dollars
or more.
The written notice sent by the Company must specify the nature of the willful
misconduct or felony.
(v)
By
Company upon written notice to Employee any time after: (i) a majority
vote of
the Board of Directors that Employee no longer be employed by the Company;
and
(ii) payment to Employee of a lump sum cash payment of 2.99 times the Employee’s
average total compensation (base salary plus any bonuses plus the value
of any
option award, valued using the Black Scholes formulae) over the past five
years
(“Severance Payment”). It is the intent of both the Company and the Employee
that the amount of the Severance Payment to be paid to Employee under this
Paragraph 7(a)(v) shall be calculated so that the amount is .01 % less
then the
amount that would be considered to be a “parachute payment” within the meaning
of Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended
(the
“Code”), or any comparable successor provisions that would result in the payment
being subject to the excise tax imposed by Section 4999 of the Code, or
any
comparable successor provisions.
(vi)
By
Employee upon written notice to the Company, if the Company (i) requires
Employee to perform his duties from an office that is located more then
a fifty
mile radius from Fort Lauderdale, Florida or (ii) changes Employee’s duties and
authority as the Company’s Chief Executive Officer. The Company shall pay to
Employee the Severance Payment in cash within ten days of Employee’s resignation
under this Paragraph 7(a)(vi).
9
(b)
Upon
termination of Employee’s employment under Paragraph 7(a) for any reason,
Employee shall be entitled to receive Employee’s salary accrued through the date
of termination, plus any employee benefits which by their terms and provisions
continue after such termination.
(c)
In the event of termination of Employee’s
employment under this Agreement for any reason provided in this paragraph
7, or
if Employee resigns prior to the expiration of the term of this Agreement,
all
rights and obligations of Company and Employee under this Agreement shall
cease
immediately, except that Employee’s and the Company’s obligations under
Paragraphs 4, 5, 6, 7 and 15 herein shall survive such termination. After
such
termination Employee shall have no right to receive any compensation hereunder
except as set forth this Paragraph 7.
8.
Complete Agreement.
This
Agreement is the final, complete and exclusive statement and expression
of the
agreement between Company and employee, it being understood that there
are no
oral representations, understandings or agreements covering the same subject
matter as this Agreement. This Agreement supersedes, and cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous
discussions, correspondence, or oral or written agreements of any kind.
This
Agreement may be modified, altered or otherwise amended only by a written
instrument executed by both Company and Employee.
9.
No Waiver; Remedies Cumulative.
No
waiver by the parties hereto of any default or breach of any term, condition
or
covenant of this Agreement shall be deemed to be a waiver of any subsequent
default or breach of the same or any other term, condition or covenant
contained
herein. No right, remedy or election given by any term of this Agreement
shall
be deemed exclusive but each shall be cumulative with all other rights,
remedies
and elections available at law or in equity.
10.
Assignment; Binding Effect.
Employee understands that Employee has been selected by Company on the
basis of
Employee’s personal qualifications, experience and skills. Employee agrees,
therefore, that he cannot assign all or any portion of this Agreement.
This
Agreement shall be binding upon and inure to the benefit of the parties
hereto
and Company’s successors and assigns. It is further understood and agreed that
Company may be merged or consolidated with another entity and that any
such
entity shall automatically succeed to the rights, powers and duties of
Company
hereunder.
10
11.
Notice.
All
notices or other communications required or permitted hereunder shall be
in
writing and may be given by depositing the same in the United States mail,
addressed to the party to be notified, postage prepaid and registered or
certified with return receipt requested, by overnight courier or by delivering
the same in person to such party.
|
To
Company:
|
Chief
Executive Officer
0000
Xxxxxxxx Xxxxx
Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
|
||
|
To
Employee:
|
Xxxxx
X. Xxxxxxx, Xx.
000
Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
|
Notice
shall be deemed given and effective the day personally delivered, the day
after
being sent by overnight courier and three days after the deposit in the
U. S.
mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or when actually received, if earlier. Either
party
may change the address for notice by notifying the other party of such
change in
accordance with this paragraph 11.
12.
Severability; Headings.
If any
portion of this Agreement is held invalid or inoperative, the other portions
of
this Agreement shall be deemed valid and operative and, so far as is reasonable
and possible, effect shall be given to the intent manifested by the portion
held
invalid or inoperative. The paragraph headings herein are for reference
purposes
only and are not intended in nay way to describe, interpret, define or
limit the
extent or intent of this Agreement or of any part hereof.
13.
Gender.
The use
of the masculine pronoun in this Agreement has been used for convenience
and
shall apply to the Employee even where the Employee is a female.
14.
Governing Law.
This
Agreement shall in all respects be construed in accordance with the laws
of the
State of New Jersey.
15.
Insurance and Indemnification.
(a)
Subject to applicable law, for a period of six (6) years following completion
of
the Term, the Company will: (i) indemnify Employee and his heirs and
representatives to the extent provided in the Company’s By-Laws in effect on the
date of this Agreement and will not amend, reduce or limit rights of indemnity
afforded to them or the ability of the Company to indemnify them, not hinder,
delay or make more difficult the exercise of such rights of indemnity and
(ii)
maintain director and officer liability insurance coverage providing Employee
with coverage (1) at least as favorable as the policies in effect immediately
prior to the date hereof covering the Company’s directors and officers or (2) as
favorable as is available at a cost to the Company of up to 125% of the
premiums
currently being paid by the Company.
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(b)
If
any claim is (or claims are) made against Employee and his heirs and
representatives, including legal counsel, arising from Employee=s
services as a director, officer and employee of the Company, within six
(6)
years from the expiration of the Term, the provisions of this Paragraph
15
respecting the Company’s By-Laws shall continue in effect until the final
disposition of all such claims.
(c)
The
Company agrees to provide written notice to Employee immediately upon learning
of any claim or threatened claim against Employee by any third party relating
to
or arising out of the business of the Company or Employee’s prior service as a
director, officer, employee or controlling shareholder of the Company.
The
Company further agrees to provide to Employee any complaints and other
relevant
documentation related to such claims immediately upon receipt of such
documentation.
(d)
Employee agrees that he will cooperate with and assist the Company, as
is
reasonably requested by the Company, in its defense of any action or proceeding
against the Company, its directors, officers, employees or affiliates arising
out of or in any way related to any transactions, events or other matters
which
occurred during the period of his employment with the Company, to the extent
that such cooperation and assistance will not impair Employee’s legal rights or
remedies or increase the likelihood that Employee will incur any liabilities
as
a result thereof. This Agreement shall not preclude Employee from testifying
in
such action or proceeding. In the event that Employee does cooperate with
and
assist the Company in its defenses of such an action or proceeding, the
Company
agrees to reimburse Employee for all reasonable expenses incurred by Employee
in
providing such assistance.
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16.
Arbitration.
(a)
Each
and every controversy or claim arising out of or relating to this Agreement
shall be settled by arbitration in Philadelphia, Pennsylvania, in accordance
with the commercial rules (the “Rules”) of the American Arbitration Association
then obtaining, and judgment upon the award rendered in such arbitration
shall
be final and binding upon the parties and may be confirmed in any court
having
jurisdiction thereof. Notwithstanding the foregoing, this Agreement to
arbitrate
shall not bar any party from seeking temporary or provisional remedies
in any
Court having jurisdiction. Notice of the demand for arbitration shall
be filed
in writing with the other party to this Agreement, which such demand
shall set
forth in the same degree of particularity as required for complaints
under the
Federal Rules of Civil Procedure the claims to be submitted to arbitration.
Additionally, the demand for arbitration shall be stated with reasonable
particularity with respect to such demand with documents attached as
appropriate. In no event shall the demand for arbitration be made after
the date
when institution of legal or equitable proceedings based on such claim,
dispute
or other matter in question would be barred by the applicable statutes
of
limitations.
(b)
The
arbitrators shall have the authority and jurisdiction to determine their
own
jurisdiction and enter any preliminary awards that would aid and assist
the
conduct of the arbitration or preserve the parties’ rights with respect to the
arbitration as the arbitrators shall deem appropriate in their discretion.
The
award of the arbitrators shall be in writing and it shall specify in detail
the
issues submitted to arbitration and the award of the arbitrators with respect
to
each of the issues so submitted.
(c)
Within sixty (60) days after the commencement of any arbitration proceeding
under this Agreement, each party shall file with the arbitrators its
contemplated discovery plan outlining the desired documents to be produced,
the
depositions to be take, if ordered by the arbitrators in accordance with
the
Rules, and any other discovery action sought in the arbitration proceeding.
After a preliminary hearing, the arbitrators shall fix the scope and content
of
each party’s discovery plan as the arbitrators deem appropriate. The arbitrators
shall have the authority to modify, amend or change the discovery plans
of the
parties upon application by either party, if good cause appears for doing
so.
(d)
The
award pursuant to such arbitration will be final, binding and
conclusive.
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(e)
Counsel to Company and Employee in connection
with the negotiation of and consummation of this Agreement shall be entitled
to
represent their respective party in any and all proceedings under this
Paragraph
or in any other proceeding (collectively, “Proceedings”). Company and Employee,
respectively, waive the right and agree they shall not seek to disqualify
any
such counsel in any such Proceedings for any reason, including but not
limited
to the fact that such counsel or any member thereof may be a witness in
any such
Proceedings or possess or have learned of information of a confidential
or
financial nature of the party whose interests are adverse to the party
represented by such counsel in any such Proceedings.
IN
WITNESS WHEREOF,
the
undersigned parties have executed this Agreement on the year and day above
written.
| XXXX SECURITY INTERNATIONAL, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxx | |
|
Xxxxxx X. Xxxxxx, Executive Vice President |
||
| |
|
|
| /s/ Xxxxx X. Xxxxxxx, Xx. | ||
|
Xxxxx X. Xxxxxxx, Xx. |
||
14
