EXHIBIT 10.16
FOUNDER'S MANAGEMENT EMPLOYMENT AGREEMENT
This Management Employment Agreement (this "Agreement") is by and between
LandCare USA Management Co., L.P., a Delaware limited partnership ("Employer"),
and Xxxxxx X. Xxxxxxxx ("Executive"), and is dated May ___, 1998, but shall
become effective only on the date of the consummation of the initial public
offering of the common stock of LandCare USA, Inc. (the "Effective Date").
R E C I T A L S
A. As of the Effective Date, LandCare USA, Inc., a Delaware corporation
("LandCare USA"), will be engaged primarily in the business of providing
landscaping services, including design, installation, construction and
maintenance, and related services businesses (collectively, the "Business").
B. Employer is engaged primarily in the business of providing management
services to LandCare USA.
C. Employer desires to employ Executive in a confidential relationship
pursuant to which Executive has become and will continue to become familiar with
and aware of information as to LandCare USA's customers, specific manner of
doing business (including the processes, techniques and trade secrets utilized
by LandCare USA), and future plans with respect thereto, all of which have been
and will be established and maintained at significant expense to LandCare USA.
This information includes trade secrets and constitutes a valuable asset of
LandCare USA.
D. LandCare USA is intended to be a third-party beneficiary of this
Agreement.
E. The parties hereto desire to agree to the various matters described
herein and to memorialize their agreements as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, it is hereby agreed as follows:
A G R E E M E N T
1. EMPLOYMENT AND DUTIES.
(a) Employer hereby employs Executive to serve as Senior Vice President
and Chief Operating Officer of LandCare USA. As such, Executive shall have
responsibilities, duties and authority reasonably accorded to and expected of an
officer holding such position with LandCare USA. Executive hereby accepts this
employment upon the terms and conditions herein contained and agrees to devote
substantially all of his business time, attention and efforts to promote and
further the business of Employer and LandCare USA. Executive shall not, during
the term of his employment hereunder, be engaged in any other business activity
pursued for gain, profit or other pecuniary advantage if such activity
interferes in any material respect with Executive's duties and responsibilities
hereunder. The foregoing limitations shall not be construed as prohibiting
Executive from making passive personal investments in such form or manner as
will neither require his services in the operation or affairs of the companies
or enterprises in which such investments are made nor violate the terms of
paragraph 3 hereof.
(b) Executive shall faithfully adhere to, execute and fulfill all lawful
policies established by Employer from time to time.
2. COMPENSATION. For all services rendered by Executive, Employer shall
compensate Executive as follows:
(a) BASE SALARY. Commencing on the Effective Date or, at the option of
Employer, the first day of the month during which the Effective Date occurs or
the first day of the month immediately following the date on which the Effective
Date occurs, the base salary payable to Executive shall be $ 150,000.00 per
year, payable on a regular basis in accordance with Employer's standard payroll
procedures but not less frequently than monthly. On at least an annual basis,
Employer will review Executive's performance and may make increases, but not
decreases, to such base salary if, in its discretion, any such increase is
warranted.
(b) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION. Executive
shall be entitled to receive additional benefits and compensation from Employer
in such form and to such extent as specified below:
(i) Coverage, subject to contributions required of employees of
Employer generally, for Executive and his dependent family members under
health, hospitalization, disability, dental, life and other insurance
plans that Employer may have in effect from time to time for the benefit
of its executives.
(ii) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Executive in the performance of his
services pursuant to this Agreement. All reimbursable expenses shall be
appropriately documented in reasonable
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detail by Executive upon submission of any request for reimbursement, and
in a format and manner consistent with Employer's expense reporting
policy.
(iii) Employer shall provide Executive with such other executive
perquisites as may be deemed appropriate for Executive by Employer, and
Executive shall be entitled to participate in all other employee benefits
as are available from time to time to all employees of LandCare USA and
its affiliates.
3. NON-COMPETITION AGREEMENT.
(a) Executive shall not, during the period of his employment by or with
Employer, and for a period of two (2) years immediately following the
termination of his employment under this Agreement, for any reason whatsoever,
except as provided herein, directly or indirectly, for himself or on behalf of
or in conjunction with any other person, company, partnership, corporation or
business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any business in direct competition with Employer or
LandCare USA or any of their respective subsidiaries, within 100 miles of
where Employer or any of LandCare USA's subsidiaries has a physical
location (the "Territory");
(ii) call upon any person who is, at that time, an employee of
Employer or LandCare USA (including the respective subsidiaries thereof)
in a sales or managerial capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of Employer or
LandCare USA (including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of
Employer or LandCare USA (including the respective subsidiaries thereof)
for the purpose of soliciting or selling products or services in direct
competition with Employer or LandCare USA;
(iv) call upon any prospective acquisition candidate, on Executive's
own behalf or on behalf of any competitor, which candidate was, to
Executive's actual knowledge, either called upon by Employer or LandCare
USA (including the respective subsidiaries thereof) or for which Employer
or LandCare USA made an acquisition analysis, for the purpose of acquiring
such entity or all or substantially all of such entity's assets.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Executive from (i) participating in the activities as and to the extent
described on Schedule 13.1 to the Agreement and Plan of Organization dated as of
March 17, 1998 to which LandCare USA and
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Executive are parties, or (ii) acquiring as a passive investment not more than
two percent (2%) of the capital stock of a competing business the stock of which
is traded on a national securities exchange or on an over-the-counter or similar
market.
(b) Because of the difficulty of measuring economic losses to Employer and
LandCare USA as a result of a breach of the foregoing covenant, and because of
the immediate and irreparable damage that could be caused to Employer and
LandCare USA for which they would have no other adequate remedy, Executive
agrees that the foregoing covenant may be enforced by LandCare USA or Employer
in the event of breach or threatened breach by Executive, by injunctions,
restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of Employer or LandCare USA, as the case may be
(including LandCare USA's subsidiaries) on the Effective Date of this Agreement
and the current plans of LandCare USA (including LandCare USA's subsidiaries);
but it is also the intent of Employer and Executive that such covenants be
construed and enforced in accordance with the changing activities, business and
locations of Employer and LandCare USA, as the case may be (including LandCare
USA's subsidiaries) throughout the term of these covenants, whether before or
after the date of termination of the employment of Executive. For example, if,
during the term of these covenants, Employer or LandCare USA, as the case may be
(including LandCare USA's subsidiaries) engage in new and different activities
related to the Business, enter a new business related to the Business or
establish new locations for their current activities or businesses in addition
to or other than the activities or businesses enumerated under the Recitals
above or the locations currently established therefor, then Executive will be
precluded from soliciting the customers or employees of such new activities or
businesses or from such new locations and from directly competing with such new
businesses within 100 miles of all then-established operating location(s)
through the term of these covenants.
It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with Employer or LandCare USA
(including LandCare USA's subsidiaries), or similar activities or business in
locations the operation of which, under such circumstances, does not violate
clause (i) of paragraph 3(a), Executive shall not be chargeable with a violation
of this paragraph 3 if Employer or LandCare USA (including LandCare USA's
subsidiaries) shall thereafter enter the same, similar or a competitive (i)
business, (ii) course of activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth herein are
unreasonable, then it is the intention of the parties that such
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restrictions be enforced to the fullest extent which the court deems reasonable,
and this Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 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 Employer or
LandCare USA, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by LandCare USA or Employer of such
covenants. It is specifically agreed that the period of two (2) years following
termination of employment stated at the beginning of this paragraph 3, during
which the agreements and covenants of Executive made in this paragraph 3 shall
be effective, shall be computed by excluding from such computation any time
during which Executive is in violation of any provision of this paragraph 3.
4. TERM; TERMINATION; RIGHTS ON TERMINATION.
(a) The term of this Agreement shall begin on the Effective Date and
continue for five (5) years (the "Term"), unless terminated sooner as herein
provided, and shall continue thereafter on a year-to-year basis on the same
terms and conditions contained herein in effect as of the time of renewal. This
Agreement and Executive's employment may be terminated in any one of the
followings ways:
(i) TERMINATION AS A RESULT OF EMPLOYEE'S DEATH. The death of
Executive shall immediately terminate this Agreement with no severance
compensation due to Executive's estate.
(ii) TERMINATION ON ACCOUNT OF DISABILITY. If, as a result of
incapacity due to physical or mental illness or injury, Executive shall
have been absent from his full-time duties hereunder for six (6)
consecutive months, then thirty (30) days after receiving written notice
(which notice may occur before or after the end of such six (6) month
period, but which shall not be effective earlier than the last day of such
six (6) month period), Employer may terminate Executive's employment
hereunder provided Executive is unable to resume his full-time duties with
or without reasonable accommodation at the conclusion of such notice
period. Also, Executive may terminate his employment hereunder if his
health should become impaired to an extent that makes the continued
performance of his duties hereunder hazardous to his physical or mental
health or his life, provided that Executive shall have furnished Employer
with a written statement from a qualified doctor to such effect and
provided, further, that, at Employer's request made within thirty (30)
days of the date of such written statement, Executive shall submit to an
examination by a doctor selected by Employer who is reasonably acceptable
to Executive or Executive's doctor and such doctor shall have concurred in
the conclusion of Executive's doctor. In the event this Agreement is
terminated as a result of Executive's disability, Executive shall receive
from Employer, in a lump-sum payment due within thirty (30) days of the
effective date of termination, the base
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salary at the rate then in effect for whatever time period is remaining
under the Initial Term (as defined below) or for one (1) year, whichever
amount is greater; provided, however, that any such payments shall be
reduced by the amount of any disability insurance payments payable to
Executive as a result of such disability to the extent such disability
insurance is provided by Employer or LandCare USA or any of their
affiliates.
(iii) TERMINATION BY EMPLOYER FOR CAUSE. Employer may terminate this
Agreement immediately for "Cause", which shall be: (1) Executive's willful
and material breach of this Agreement, which breach either cannot be cured
or, if capable of being cured, is not cured within ten (10) days after
receipt of written notice of the need to cure; (2) Executive's gross
negligence in the performance or intentional nonperformance (continuing
for ten (10) days after receipt of written notice of need to cure) of any
of Executive's material duties and responsibilities hereunder; (3)
Executive's willful dishonesty, fraud or misconduct with respect to the
business or affairs of Employer or LandCare USA; (4) Executive's
conviction of a felony crime; or (5) Executive's confirmed positive
illegal drug test result. In the event of a termination for Cause,
Executive shall have no right to any severance compensation.
(iv) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. At any time after
commencement of employment, Employer may terminate Executive's employment
hereunder without Cause, and Executive may terminate his employment
hereunder for Good Reason (as defined below), in either case effective
thirty (30) days after written notice. If Executive is terminated by
Employer without Cause or if Executive terminates Executive's employment
hereunder for Good Reason during the first three (3) years of the Term
(the "Initial Term"), Executive shall receive from Employer, in a lump-sum
payment due on the effective date of termination, the base salary at the
rate then in effect for whatever time period is remaining under the
Initial Term of this Agreement or for one (1) year, whichever amount is
greater. If Executive is terminated by Employer without Cause or should
Executive terminate for Good Reason after the Initial Term, Executive
shall receive from Employer, in a lump-sum payment due on the effective
date of termination, one year's salary at the base salary rate then in
effect. Further, any termination without Cause by Employer or by the
Executive for Good Reason shall operate to shorten the period set forth in
paragraph 3(a) and during which the terms of paragraph 3 apply to one (1)
year from the date of termination of employment. If Executive resigns or
otherwise terminates his employment hereunder without Good Reason,
Executive shall receive no severence compensation, and the provisions of
paragraph 3 hereof shall apply. If Executive is terminated by Employer
without Cause or if Executive terminates his employment hereunder for Good
Reason, (1) Employer shall make the insurance premium payments
contemplated by COBRA for a period of 12 months after such termination,
and (2) Executive shall be entitled to receive a pro rated portion of any
annual bonus to which Executive would have been entitled for the year
during which the termination occurred had Executive not been terminated.
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(b) DEFINITION OF "GOOD REASON". Executive shall have "Good Reason" to
terminate this Agreement and his employment hereunder if, without Executive's
consent, (i) Executive is demoted by means of a reduction in authority,
responsibilities, duties or title to a position of materially less stature or
importance within LandCare USA than the position described in Section 1 hereof,
or (ii) Employer breaches this Agreement in any material respect and fails to
cure such breach within ten days after Executive delivers written notice and a
written description of such breach to Employer, which notice shall specifically
refer to this section of this Agreement.
(c) CHANGE IN CONTROL OF LANDCARE USA. In the event of a "Change in
Control of LandCare USA" (as defined below) during the Initial Term, paragraph
11 below shall apply.
(d) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason provided above, Executive shall be entitled to receive all compensation
earned and all benefits and reimbursements due through the effective date of
termination. Additional compensation subsequent to termination, if any, will be
due and payable to Executive only to the extent and in the manner expressly
provided herein. All other rights and obligations of Employer and Executive
under this Agreement shall cease as of the effective date of termination, except
that Employer's obligations under paragraph 8 herein and Executive's obligations
under paragraphs 3, 5, 6, 7 and 9 herein shall survive such termination in
accordance with their terms.
(e) BREACH BY EMPLOYER. If termination of Executive's employment arises
out of Employer's failure to pay Executive on a timely basis the amounts to
which Executive is entitled under this Agreement or as a result of any other
breach of this Agreement by Employer, as determined by a court of competent
jurisdiction or pursuant to the provisions of paragraph 15 below, Employer shall
pay all amounts and damages to which Executive may be entitled as a result of
such breach, including interest thereon and all reasonable legal fees and
expenses and other costs incurred by Executive to enforce his rights hereunder.
Further, none of the provisions of paragraph 3 shall apply in the event this
Agreement is terminated as a result of a breach by Employer.
5. RETURN OF EMPLOYER PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of Employer, LandCare USA
or their representatives, vendors or customers which pertain to the business of
Employer or LandCare USA shall be and remain the property of Employer or
LandCare USA, as the case may be, and be subject at all times to their
discretion and control. Likewise, all correspondence, reports, records, charts,
advertising materials and other similar data pertaining to the business,
activities or future plans of Employer or LandCare USA which is collected by
Executive shall be delivered promptly to Employer without request by it upon
termination of Executive's employment.
6. INVENTIONS. Executive shall disclose promptly to Employer any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable
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or not, which are conceived or made by Executive, solely or jointly with
another, during the period of employment or within one (1) year thereafter, and
which are directly related to the business or activities of Employer or LandCare
USA and which Executive conceives as a result of his employment by Employer.
Executive hereby assigns and agrees to assign all his interests therein to
Employer or its nominee. Whenever requested to do so by Employer, Executive
shall execute any and all applications, assignments or other instruments that
Employer shall deem necessary to apply for and obtain Letters Patent of the
United States or any foreign country or to otherwise protect Employer's or
LandCare USA's interest therein.
7. TRADE SECRETS. Executive agrees that Executive will not, during or
after the Term of this Agreement with Employer, disclose the terms of Employer's
or LandCare USA's relationships or agreements with their respective vendors or
customers or any other significant or material trade secret of Employer or
LandCare USA, whether in existence or proposed, to any person, firm,
partnership, corporation or business for any reason or purpose whatsoever,
except and only to the extent required by law or legal process following notice
to Employer and LandCare USA.
8. INDEMNIFICATION. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by Employer or
LandCare USA against Executive), by reason of the fact that Executive is or was
performing services under this Agreement, then Employer shall indemnify
Executive against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, as actually and reasonably incurred by Executive in
connection therewith to the maximum extent permitted by applicable law. The
advancement of expenses shall be mandatory to the extent permitted by applicable
law. In the event that both Executive and Employer are made a party to the same
third-party action, complaint, suit or proceeding, Employer agrees to engage
counsel, and Executive agrees to use the same counsel, provided that if counsel
selected by Employer shall have a conflict of interest that prevents such
counsel from representing Executive, Executive may engage separate counsel and
Employer shall pay all reasonable attorneys' fees of such separate counsel.
Employer shall not be required to pay the fees of more than one law firm except
as described in the preceding sentence, and shall not be required to pay the
fees of more than two law firms under any circumstances. Executive cannot be
held liable to Employer or LandCare USA for errors or omissions made in good
faith or where Executive has not exhibited gross, willful, and wanton negligence
in connection with such conduct, error or omission.
9. NO PRIOR AGREEMENTS. Executive hereby represents and warrants to
Employer that the execution of this Agreement by Executive and his employment by
Employer and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Executive hereby indemnifies Employer against any and all liability,
expenses and other costs and amounts incurred by Employer, including, but not
limited to, attorneys' fees and expenses of investigation, as a result of any
claim by any third party that such third party may now have or may hereafter
come to have against Employer based upon or
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arising out of any non-competition agreement, invention or secrecy agreement
between Executive and such third party which was in existence as of the date of
this Agreement.
10. ASSIGNMENT; BINDING EFFECT. Executive understands that Employer has
selected Executive for employment by it on the basis of Executive's personal
qualifications, experience and skills. Executive agrees, therefore, that
Executive cannot assign all or any portion of Executive's performance under this
Agreement. Subject to the preceding two (2) sentences and the express provisions
of paragraph 12 below, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors and assigns.
11. CHANGE IN CONTROL.
(a) Executive understands and acknowledges that LandCare USA may be merged
or consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of LandCare USA hereunder or
that LandCare USA may undergo another type of Change in Control. In the event
such a merger or consolidation or other Change in Control is initiated prior to
the end of the Initial Term, then the provisions of this paragraph 11 shall be
applicable.
(b) In the event of a pending Change in Control wherein LandCare USA and
Executive have not received written notice at least five (5) business days prior
to the anticipated closing date of the transaction giving rise to the Change in
Control from the successor to all or a substantial portion of LandCare USA's
business and/or assets that such successor is willing as of the closing to
assume and agree to perform LandCare USA's and/or Employer's obligations under
this Agreement in the same manner and to the same extent that LandCare USA
and/or Employer is hereby required to perform, then Executive may elect to
terminate his employment and shall be entitled to receive in one lump sum on the
effective date of such termination, an amount equal to three times his annual
base salary then in effect, and the non-competition provisions of paragraph 3
shall apply for a period of one (1) year from the effective date of termination.
(c) In any Change in Control situation, if Executive is terminated by
Employer without Cause at any time during the twelve (12) months immediately
following the closing of the transaction giving rise to the Change in Control,
or Executive terminates for Good Reason at any time during the twelve (12)
months immediately following the closing of the transaction giving rise to the
Change in Control, Executive shall be entitled to receive in one lump sum on the
effective date of such termination an amount equal to three (3) times his annual
base salary then in effect, and the non-competition provisions of paragraph 3
shall apply for a period of one (1) year from the effective date of termination.
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(d) For purposes of applying paragraph 4 under the circumstances described
in (b) and (c) above, the effective date of termination will be the date of
termination and all compensation, reimbursements and lump-sum payments due
Executive must be paid in full by Employer. Further, Executive will be given
sufficient time and opportunity to elect whether to exercise all or any of
Executive's vested options to purchase LandCare USA common stock, such that
Executive may convert the options to shares of LandCare USA common stock at or
prior to the closing of the transaction giving rise to the Change in Control, if
Executive so desires.
(e) A "Change in Control" shall be deemed to have occurred if:
(i) any person, other than LandCare USA or an employee benefit plan
of LandCare USA, and other than Notre Capital Ventures II, L.L.C. or any
entity controlled by it, acquires directly or indirectly the beneficial
ownership (as defined in Section 13(d) of the Securities Exchange Act of
1934, as amended) of any voting security of LandCare USA and immediately
after such acquisition such person is, directly or indirectly, the
Beneficial Owner of voting securities representing 50% or more of the
total voting power of all of the then-outstanding voting securities of
LandCare USA;
(ii) the following individuals no longer constitute a majority of
the members of the Board of Directors of LandCare USA: (A) the individuals
who, as of the closing date of LandCare USA's initial public offering,
constitute the Board of Directors of LandCare USA (the "Original
Directors"); (B) the individuals who thereafter are elected to the Board
of Directors of LandCare USA and whose election, or nomination for
election, to the Board of Directors of LandCare USA was approved by a vote
of at least two-thirds (2/3) of the Original Directors then still in
office (such directors becoming "Additional Original Directors"
immediately following their election); and (C) the individuals who are
elected to the Board of Directors of LandCare USA and whose election, or
nomination for election, to the Board of Directors of LandCare USA was
approved by a vote of at least two-thirds (2/3) of the Original Directors
and Additional Original Directors then still in office (such directors
also becoming "Additional Original Directors" immediately following their
election);
(iii) the stockholders of LandCare USA shall approve a merger,
consolidation, recapitalization, or reorganization of LandCare USA, a
reverse stock split of outstanding voting securities, or consummation of
any such transaction if stockholder approval is not obtained, other than
any such transaction which would result in at least 75% of the total
voting power represented by the voting securities of the surviving entity
outstanding immediately after such transaction being Beneficially Owned by
at least 75% of the holders of outstanding voting securities of LandCare
USA immediately prior to the transaction, with the voting power of each
such continuing holder relative to other such continuing holders not
substantially altered in the transaction; or
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(iv) the stockholders of LandCare USA shall approve a plan of
complete liquidation of LandCare USA or an agreement for the sale or
disposition by LandCare USA of 50% or more of the total assets of LandCare
USA.
(f) If it shall be determined that any payment or distribution by
LandCare USA or Employer or any other person to or for the benefit of
Executive (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Excise
Tax"), as a result of the termination of employment of Executive in the
event of a Change in Control, then Employer, LandCare USA or the successor
to LandCare USA shall pay an additional payment (a "Gross-Up Payment") in
an amount such that after payment by Executive of all taxes, including,
without limitation, any income taxes and Excise Tax imposed on the
Gross-Up Payment, Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed on the Payments. Such amount will be due
and payable by Employer, LandCare USA or the successor to LandCare USA
within ten (10) days after Executive delivers written request for
reimbursement accompanied by a copy of Executive's tax return(s) showing
the Excise Tax actually incurred by Executive.
12. COMPLETE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto relating to the subject matter hereof and
supersedes any other employment agreements or understandings, written or
oral, between Employer and/or LandCare USA and Executive. This Agreement
is not a promise of future employment. Executive has no oral
representations, understandings or agreements with Employer and/or
LandCare USA or any of its officers, directors or representatives covering
the same subject matter as this Agreement. This written Agreement is the
final, complete and exclusive statement and expression of the agreement
between Employer and Executive and of all the terms of this Agreement, and
it cannot be varied, contradicted or supplemented by evidence of any prior
or contemporaneous oral or written agreements. This written Agreement may
not be later modified except by a further writing signed by a duly
authorized officer of Employer and Executive, and no term of this
Agreement may be waived except by writing signed by the party waiving the
benefit of such term.
13. NOTICE. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To Employer: LandCare USA Management Co. L. P.
c/o XXXX XX, Inc.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Law Department
Telephone: 713/000-0000
Fax: 713/000-0000
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with a copy to: General Counsel
LandCare USA, Inc.
Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: 713/000-0000
Fax: 713/000-0000
To Executive: Xxxxxx X. Xxxxxxxx
__________________
__________________
Notice shall be deemed given and effective on the earlier of three (3)
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 by means of hand delivery or delivery by Federal Express
or other courier service. Either party may change the address for notice
by notifying the other party of such change in accordance with this
paragraph 13.
14. 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 any way to describe, interpret, define or
limit the extent or intent of the Agreement or of any part hereof.
15. ARBITRATION.With the exception of the provisions hereof
providing for enforcement by means of equitable remedies, any unresolved
dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration, conducted before a panel of
three (3) arbitrators in Houston, Texas, in accordance with the National
Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA") then in effect, provided that the parties
may agree to use arbitrators other than those provided by the AAA. The
arbitrators shall not have the authority to add to, detract from, or
modify any provision hereof nor to award punitive damages to any injured
party. A decision by a majority of the arbitration panel shall be final
and binding. Judgment may be entered on the arbitrators' award in any
court having jurisdiction. The direct expenses of any arbitration
proceeding shall be borne by Employer; however, each party shall be
responsible for payment of its counsel fees and related expenses. The
arbitrator shall, however, have the right and discretion to award counsel
fees and expenses (including reasonable travel expenses) to either party
as part of the arbitrator's final judgment.
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16. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Texas.
17. COUNTERPARTS. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed an original
and all of which together shall constitute but one and the same
instrument.
18. THIRD-PARTY BENEFICIARY. LandCare USA is intended to be a
third-party beneficiary under this Agreement, and shall be entitled to
enforce the provisions hereof benefitting LandCare USA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written, but effective as of the
Effective Date.
LANDCARE USA MANAGEMENT CO., L.P.
By: LUSA, GP, Inc.
By:________________________
Xxxxxxx X. Xxxxxxx
Vice President
EXECUTIVE
_________________________________
Xxxxxx X. Xxxxxxxx
LANDCARE USA, INC.
By:______________________________
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