EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), is made and
entered into as of this 6th day of September, 2000 (the "Effective Date"), by
and between ▇▇▇▇▇/▇▇▇▇▇▇, Inc. ("CBI"), a Delaware corporation, and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇., a resident of California (the "Executive").
W I T N E S S E T H:
WHEREAS, CBI is engaged in business in the State of California and
throughout the United States; and
WHEREAS, the Executive is a party to an Agreement of Merger
and Plan of Reorganization (the "Merger Agreement"), dated as of August 15,
2000, by and among ▇▇▇▇▇/▇▇▇▇▇▇ Holdings, Inc. ("Holdings," and CBI and Holdings
are collectively referred to as the "Company"), ▇▇▇▇▇/▇▇▇▇▇▇ Acquisition, Inc.,
the Executive, and Compensation Resource Group, Inc. ("CRG"), which contains
certain noncompetition and restrictive covenant provisions; and
WHEREAS, the Executive is a party to an employment agreement
with CRG, dated November 15, 1994, and amended effective April 1, 2000 (the
"Prior Employment Agreement"); and
WHEREAS, as part of the transaction described in the Merger
Agreement, CRG will be merged into ▇▇▇▇▇/▇▇▇▇▇▇ Acquisition, Inc. ("MergerSub"),
a Delaware corporation and a wholly-owned subsidiary of Holdings, and the Prior
Employment Agreement will be assigned to, and assumed by, CBI; and
WHEREAS, in connection with the transaction described in the
Merger Agreement, CBI desires to employ the Executive upon the terms and
conditions hereinafter set forth; and
WHEREAS, the Executive is willing to enter into this
Agreement, which is an amendment and restatement of the Prior Employment
Agreement, with respect to his employment and services upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, and for additional good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, CBI
hereby employs the Executive and the Executive hereby accepts such employment
upon the terms and conditions hereinafter set forth:
1. Term of Employment. The term of employment under this Agreement (the
"Term") will commence on the Effective Date and will extend through August 31,
2005 (the "Initial Termination Date"). On the Initial Termination Date, and on
each subsequent anniversary of the Initial Termination Date, the Term will be
automatically extended by 12 months unless the Executive or CBI gives notice to
the other, in writing, at least 90 days prior to the Initial Termination Date or
any such subsequent anniversary, of its desire to terminate this Agreement or
modify its terms. If such written notice is received within such time, this
Agreement will terminate at the end of the then-current Term.
2. Duties of the Executive.
(a) The Executive will report directly to the Chief Executive Officer
of Holdings and will be a member of the Holdings Executive Committee.
(b) The Executive will be the President and Chief Executive Officer of
MergerSub (and MergerSub, after the merger with CRG, is herein referred to
as the "Division").
(c) The Executive will have the authority to manage the Division,
including but not limited to the ability to hire and fire the Division's
employees, to control, subject to the approval of the Chief Executive
Officer of Holdings, the addition and/or disposition of assets,
liabilities, obligations, and employees to or from the Division, and will
have such duties and responsibilities as are customarily required of the
holder of the positions held by the Executive, and will also have the
authority to engage in the activities contemplated by the EBS Agreement (as
defined herein).
(d) The Executive agrees that during the term of this Agreement, he
will devote substantially all of his full professional and business-related
time, skills and best efforts to the businesses of the Company carried out
by the Division.
(e) Notwithstanding subsection (d) above, the Executive may (i) serve
on civic or charitable boards or committees, (ii) serve as a director or
trustee of other corporations or businesses with the approval of the Chief
Executive Officer or the Board of Directors of Holdings, and (ii) engage in
personal, passive investment activities; provided that such activities do
not materially interfere with the performance of his duties hereunder.
(f) Executive will be indemnified for actions performed in the course
of his employment to the same extent as other directors and officers of
Holdings, CBI and/or of the Division.
3. Compensation.
(a) Base Salary. CBI will pay to the Executive an annual base salary
(the "Base Salary") of $100,000, which amount shall offset (but not below
zero) the amounts payable to the Executive under Section 3(b). The Base
Salary will be subject to all appropriate federal and state withholding
taxes and will be payable in accordance with the normal payroll procedures
of CBI.
(b) Commissions and Fees. Subject to Section 3(a), CBI will pay or
cause to be paid all commissions, fees, and other amounts due under the
Executive Benefit Specialist Agreement (the "EBS Agreement"), effective as
of July 1, 2000, by and between Executive and CRG.
(c) Bonus & Retirement Plans. The Executive will be entitled to
participate in all annual bonus, incentive, savings and retirement plans,
practices, policies and programs applicable generally (i) to other peer
executives of the Company or (ii) to the employees of the Division.
(d) Loan. As of the Effective Date, the Executive shall receive from
Holdings an amount that, when added to a $1,000,000 advance received by
Executive from Holdings pursuant to a letter agreement dated September 6,
2000, between Holdings and Executive, will equal $5.2 million ("Loan
Proceeds"). The Loan Proceeds will be subject to a promissory note (the
"Promissory Note") in the principal amount of $5.2 million, which
Promissory Note shall be dated as of the Effective Date and shall be
substantially in the form attached hereto as Exhibit A.
(e) Option Grant. The Executive will receive, on the Effective Date,
an option to purchase 40,000 shares of common stock of Holdings at an
exercise price per share equal to the fair market value of such common
stock on the date of grant, which grant will be made under Holdings' 1998
Stock Option Plan (the "Option Plan") pursuant to the standard stock option
purchase agreement which employees customarily enter into with Holdings in
conjunction with the grant of stock options under the Option Plan (the form
of which is attached hereto as Exhibit B), which agreement will be entered
into by each of Holdings and the Executive. Such options will vest
immediately upon grant, and will be subject to the terms of the Option
Plan.
(f) EBITDA Bonus.
Within 60 days of the close of business on each of the
following dates (each, a "Bonus Determination Date"): December 31,
2000, June 30, 2001, December 31, 2001, December 31, 2002, December 31,
2003, the Executive will, if the Division achieves 90% of the "EBITDA
Target" (all of which targets are cumulative and are set forth on
Exhibit C hereto) for such Bonus Determination Date, receive the
following:
(i) a cash payment in the amount of $875,000 plus interest
computed at the rate of 7.5% per annum, compounded monthly, from the
Effective Date to and through the date of disbursement, plus a cash
payment equal to the product calculated by multiplying $1,300,000 by
the rate of 6.3% per annum, from the Effective Date through the date
of disbursement (the "EBITDA Cash Bonus");
provided, however, that the EBITDA Cash Bonuses
relating the June 30, 2001 and December 31, 2001 Bonus
Determination Dates will each be for $437,500 plus interest
computed at the rate of 7.5% per annum, compounded monthly,
from the Effective Date to and through the date of
disbursement; and
provided, further, that if the Division does not
achieve 90% of the EBITDA Target as of a Bonus Determination
Date, the Executive will receive the EBITDA Cash Bonus
relating to such Bonus Determination Date within 60 days of
the next subsequent Bonus Determination Date as of which the
Division achieves 90% of the cumulative EBITDA Target for such
subsequent Bonus Determination Date, if any; and
provided, further, that if the Division does not
achieve 90% of the EBITDA Target for the December 31, 2003
Bonus Determination Date, but does achieve 90% of the EBITDA
Target for any subsequent target date set forth on Exhibit C
hereto, all unpaid EBITDA Cash Bonuses not previously paid
will be paid within 60 days of such achievement, and
(ii) a vested ten-year option to purchase 15,000 shares of common
stock (the "EBITDA Stock Option Bonus") of Holdings at a price per
share equal to the fair market value of such common stock on the date
of grant, adjusted in amount and form to account for any stock splits,
stock dividends, conversions, purchases or liquidations that modify,
transform, or otherwise affect the shares of such Holdings common
stock, which grant will be made under a written compensatory benefit
plan (as such term is defined in Rule 701 promulgated under the
Securities Act of 1933, as amended), and pursuant to a written stock
option purchase agreement (the form of which is attached hereto as
Exhibit D) that provides for registration of the shares issuable upon
the exercise of any such option on terms similar to those of other
holders of options granted by Holdings;
provided, however, that the EBITDA Stock Option
Bonuses relating the June 30, 2001 and December 31, 2001 Bonus
Determination Dates will each be options to purchase 7,500
shares of Holdings common stock; and
provided, further, that if the Division does not
achieve 90% of the EBITDA Target as a Bonus Determination
Date, the Executive will receive the EBITDA Stock Option Bonus
relating to such Bonus Determination Date within 60 days of
the next subsequent Bonus Determination Date as of which the
Division achieves 90% of the cumulative EBITDA Target for such
subsequent Bonus Determination Date, if any; and
provided, further, that if the Division does not
achieve 90% of the EBITDA Target for the December 31, 2003
Bonus Determination Date, but does achieve 90% for the year
ended December 31, 2004 or the year ended December 31, 2005 of
the EBITDA Target as set forth on Exhibit E hereto, all
ungranted EBITDA Stock Bonuses not previously granted will be
granted within 60 days of such achievement.
For purposes of this Agreement, "EBITDA" means gross revenues
generated by the Division less the sum of all commissions or
fees paid to sales agents, producers, officers and employees
of the Division, and all operating and direct expenses of
Division, but excluding interest (except as hereafter
provided), federal and state taxes, depreciation and any
amortization arising out of the reorganization (but including
amortization in respect of intangible assets owned by CRG as
of the date hereof and intangible assets hereafter acquired by
the Division) of the Division. In calculating EBITDA, for
purposes of determining whether the Division achieved an
EBITDA Target, (i) all business conducted by the Division
during the calendar year (or applicable six month period) with
existing clients of Holdings and/or CBI and new clients of the
Division, will be included in EBITDA, (ii) the Executive will
have authority to reject business originated outside of the
Division such that it is not included as part of the Division
as the Executive deems appropriate, and (iii) all business
generated during the applicable calendar year by the ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & Associates acquisition and any other acquisitions
concluded by the Division (which acquisitions will only be
conducted upon the mutual agreement of the Executive and Chief
Executive Officer of Holdings), shall be included in EBITDA
(and all costs, including interest, fees, depreciation,
amortization and other financing costs, incurred in connection
with the acquisitions referred to this clause (iii) and in
connection with any attempted acquisitions by or for the
Division, whether or not such attempted acquisitions ever
close, shall also be included in EBITDA).
4. Executive Benefits. The Executive and his eligible dependents will be
eligible to participate in the welfare benefit plans, practices, policies and
programs provided by the Company or the Division (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the Company or
the Division; provided, however, that the Executive and his eligible dependents
must meet any and all eligibility provisions required under such welfare benefit
plans. In addition, CBI will purchase and maintain through the earlier of the
fourth anniversary of the Effective Date or the Executive's termination of
employment, a declining term life insurance policy with an initial death benefit
of $5.2 million (payable to his spouse if living, otherwise payable equally to
his children then living), which policy will at all times provide a death
benefit equal to the outstanding principal balance (plus accrued interest) of
the loan evidenced by the Promissory Note, and CBI will provide for a lump sum
declining disability benefit with an initial disability benefit equal to $5.2
million (payable to the Executive), and will provide at all times a lump sum
disability benefit equal to the outstanding principal balance (plus accrued
interest) of the loan evidenced by the Promissory Note.
5. Perquisites. CBI will provide the Executive such perquisites of
employment as are commonly provided to other senior executives of the Company
and/or the Division. In addition to the foregoing, CBI will: (1) pay the
Executive's annual membership dues for organizations which are business related,
which will include, without limitation, (i) the Vintage Club, (ii) the
California Club, (iii) the Castle Pines Golf Club, and (iv) the World
Presidents' Organization; (2) pay the Executive's annual membership dues for
industry organizations related to the Executive's job duties or the business of
the Company, including the Association for Advanced Life Underwriting; and (3)
provide the Executive with the use of an automobile that CBI leases in its own
name and for which CBI pays all insurance premiums, and that is acceptable to
CBI and to the Executive, and CBI will also pay all expenses for the upkeep and
operation of such automobile (with the exception of gasoline) as documented by
the Executive.
6. Fringe Benefits. The Executive will be entitled to fringe benefits in
accordance with the plans, practices, programs and policies as in effect
generally with respect to other peer executives of the Company.
7. Vacations. The Executive will be entitled to four (4) weeks paid
vacation during each calendar year, and may carry over two (2) weeks of unused
vacation to the next succeeding calender year; provided, however, that at no
time may the Executive have accumulated more than six (6) weeks of vacation,
unless the vacation accrual policies of the Company, CBI, or the Division are
more favorable, in which case such policies will control.
8. Reimbursement of Expenses. CBI recognizes that the Executive will incur
legitimate business expenses in the course of rendering services to CBI
hereunder. Accordingly, CBI will promptly reimburse the Executive, upon
presentation of receipts or other reasonably adequate documentation, for all
necessary and reasonable business expenses incurred by the Executive in the
course of rendering services to CBI under this Agreement; provided, however,
that preapproval will be necessary for expenses relating to the purchase or
lease of fixed assets with a value of $10,000 or greater.
9. Working Facilities. The Executive will be furnished an office,
administrative assistance and such other facilities and services suitable to his
position and adequate for the performance of his duties ("Working Facilities"),
which will be consistent with the reasonable policies of CBI. Unless agreed to
by the Executive, during the term of this Agreement his Working Facilities will
be in the Los Angeles metropolitan area.
10. Termination.
(a) Death or Permanent Disability. The employment relationship between
the Executive and CBI created hereunder will terminate before the
expiration of the stated Term of this Agreement upon the occurrence of the
death or permanent disability of the Executive. For the purpose of this
Agreement, "permanent disability" of the Executive will mean "disability"
as defined under CBI's long-term disability plan.
(b) Termination for Corporate Cause. CBI may terminate the employment
relationship between the Executive and CBI created hereunder before the
expiration of the stated Term of this Agreement for Corporate Cause. The
following events, actions or inactions by the Executive will constitute
"Corporate Cause" for purposes of this Agreement:
(i) Executive's failure to rectify any material breach of (or
failure to perform any reasonable obligation of Executive under) this
Agreement within 30 days after written notice of such breach for
failure to perform given by the Chief Executive Officer of Holdings or
his designee, which breach materially and adversely affects Holdings;
(ii) any gross misconduct or gross negligence in the performance
of his duties that materially and adversely affects Holdings; and
(iii) a material breach of the Intellectual Property and
Confidentiality Agreement between the Executive and CBI, to be entered
into by the Executive and CBI simultaneously with or subsequent to the
execution of this Agreement.
(c) Termination for Non-Corporate Cause. CBI may terminate the
employment relationship between the Executive and CBI created hereunder
before the expiration of the stated Term of this Agreement for
Non-Corporate Cause. "Non-Corporate Cause" for purposes of this Agreement
means:
(i) the commission of an act of fraud, embezzlement or dishonesty
by the Executive that involves a material breach of trust and is
materially and demonstrably injurious to the Company; and
(ii) the conviction of the Executive for a felony involving moral
turpitude.
(d) Constructive Termination. The Executive may terminate his
employment before the expiration of the stated Term of this Agreement upon
a Constructive Termination, and such termination will be treated in all
respects as if it had been a termination of employment by CBI without cause
in accordance with Section 11(e). "Constructive Termination" means upon the
occurrence of any of the following:
(i) a material change, diminution, or reduction in Executive's
position, duties or authority;
(ii) a downward change in Executive's title;
(iii) a requirement to which Executive does not consent that his
Working Facilities be located outside of the Los Angeles metropolitan
area; or
(iv) a material reduction in (or a failure to pay or provide)
Executive's Base Salary, earned annual bonus (including a material
change in or failure to abide by any benefit plan for the benefit of
the employees of CBI or the Division), benefits, vacation time,
expense reimbursements, or Working Facilities other than as permitted
by this Agreement, or any other material breach by the Company of this
Agreement.
(e) Resignation by the Executive with Notice. The Executive may
terminate his employment before the expiration of the stated Term of this
Agreement upon ninety (90) days prior written notice to CBI. CBI retains
the right after proper notice of the Executive's voluntary termination to
require the Executive to cease his employment immediately; provided,
however, in such event, CBI will remain obligated to pay the Executive his
Base Salary during the shorter of (i) the ninety (90) day notice period,
and (ii) the remaining Term of this Agreement (the "Notice Period"), and to
continue all benefits, perquisites, and all other forms of compensation
that the Executive would otherwise be entitled, except for the use of the
Working Facilities. During the Notice Period, the Executive will provide
such consulting services to CBI as CBI may reasonably request and will
provide reasonable assistance to CBI in training his successor and
generally preparing for an orderly transition. Notwithstanding the
foregoing, the provisions of this subsection (e) do not apply to a
Constructive Termination.
11. Compensation Upon Termination.
(a) General. Unless otherwise provided for herein, upon the
termination of the Executive's employment under this Agreement before the
expiration of the stated Term hereof for any reason, the Executive will be
entitled to:
(i) the salary earned by him before the effective date of
termination, as provided in Section 3(a) hereof, prorated on the basis
of the number of full days of service rendered by the Executive during
the year to the effective date of termination;
(ii) any accrued but unpaid amounts (calculated on a pro-rata
basis) pursuant to any bonus, incentive, savings, and retirement
plans, practices, policies and programs under which Executive is
eligible to participate;
(iii) employment expenses, club membership dues and payments of
respect of perquisites, as provided herein, incurred through the date
of termination;
(iv) any accrued vacation pay incurred through the date of
termination;
(v) any benefits to which the Executive is entitled under any
benefit plans, practices, programs or policies maintained by the
Company, CBI or the Division; and
(vi) any amount due under the EBS Agreement, pursuant to the
terms and provisions thereof.
The sum of the amounts described in clauses (i), through (vi) will be
hereinafter referred to as the "Accrued Obligations." The Accrued
Obligations (except for the Accrued Obligations under the EBS
Agreement, which will be paid in accordance with the provisions
thereof, and any amounts due pursuant to the terms of any applicable
benefit plans, practices, programs or policies, which shall be paid in
accordance with the terms thereof or the Company's customary practices)
will be paid to the Executive or his estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the date of
termination.
(b) Termination Because of Death or Permanent Disability. If the
Executive's employment hereunder terminates because of the death or
permanent disability of the Executive, the Executive will only be entitled
to payment of the Accrued Obligations as set forth in Section 11(a) above.
(c) Termination For Corporate Cause or Non-Corporate Cause. If the
employment relationship hereunder is terminated by CBI for Corporate Cause
or Non-Corporate Cause, the Executive will only be entitled to payment of
the Accrued Obligations as set forth in Section 11(a) (with the exception
of (a)(ii)) above.
(d) Resignation by Executive with Notice. If the Executive's
employment is terminated by the Executive pursuant to the provisions of
Section 10(e) hereof, the Executive will be entitled to receive his Base
Salary and enjoy and receive all benefits, perquisites, fringe benefits,
and all other forms of compensation to which the Executive would otherwise
have been entitled, enjoyed and received (except for the use of the Working
Facilities) during the Notice Period, and to receive payment of the Accrued
Obligations as set forth in Section 11(a) (with the exception of (a) (ii))
upon the termination of his employment.
(e) Constructive Termination or Termination by CBI without Cause. If
Executive's employment is terminated by Executive due to his Constructive
Termination as described in Section 9(d) above, or by CBI other than for
Corporate Cause or Non-Corporate Cause, Executive will be entitled to
receive a Constructive Salary and to continue to enjoy and receive all of
the benefits, perquisites, fringe benefits, and other forms of compensation
to which the Executive would otherwise have been entitled to enjoy or
receive (except for use of the Working Facilities) for and during the
remaining stated Term of this Agreement. The Executive will also (i) be
entitled to use and occupy, at CBI's sole expense, working facilities
(including secretarial support) substantially similar to the Working
Facilities for the remaining Term of this Agreement, and (ii) be entitled
to receive all commissions and payments due under the any EBS Agreement
that the Executive may be party to. "Constructive Salary" means an annual
salary, paid semi-monthly in an amount equal to the average annual salary
of the Company's other divisional presidents (which amount will be no less
than $325,000, per annum, less the present value of the renewal stream to
be paid under the EBS Agreement, using a 5% lapse rate, a 10% discount
rate, and a ten year term of calculation (which will not reduce such amount
below zero and will not require or allow any disgorgement or recover of
Constructive Salary payments already made), and which will for all purposes
of this subsection (e) be computed, paid, and awarded in the same manner as
the Executive's Base Salary is in accordance with Section 3(a), assuming
that the Base Salary is equal to the Constructive Salary. The obligations
of the Company to the Executive under this Agreement will not be mitigated
by any other employment secured by the Executive.
12. Noncompetition. During the Term of Executive's employment with CBI, and
for two years following the termination of this Agreement (the "non-Competition
Period"), the Executive will not:
(a) in the United States, and in any other areas in which the Company
has done business within five (5) years preceding the Effective Date
(collectively, the "Territory"), directly or indirectly, either alone or in
partnership or jointly or in conjunction with any person or persons, firm,
association, syndicate, company or corporation as principal, agent,
employee, director, shareholder or in any other manner whatsoever (i) carry
on or be engaged in the business of marketing executive benefit and
insurance plans to large corporations and other organizations (the
"Business") or any other business which is in competition with the Business
as existing on the date hereof, or (ii) solicit business from, or sell to,
any of the Company's customers or prospective customers in the Territory or
any other person, firm or corporation in the Territory to whom the Company
has sold products within five (5) years preceding the date of this
Agreement where such solicitation or sale would involve the sale of
products competitive with the Business; provided, however, that nothing
herein will prohibit Executive from being an owner of not more than 5% of
the outstanding stock of any class of a corporation which is publicly
traded, so long as he has no active participation in the business of such
corporation; or
(b) directly or indirectly offer employment to any person who is
currently or was within the last year employed by the Company, or, is or
will be employed by the Company, except with the prior written consent of
the Company.
Nothing in this Section 12 or in any other Section of this Agreement will
shorten or adversely affect CBI's ability to enforce the noncompetition and
restrictive covenant provisions of the Merger Agreement for their entire five
year term.
13. Confidential Information. Executive will abide by the terms of the
Intellectual Property and Confidentiality Agreement.
14. Property of CBI. The Executive acknowledges that from time to time in
the course of providing services pursuant to this Agreement he will have the
opportunity to inspect and use certain property, both tangible and intangible,
of CBI and the Executive hereby agrees that such property will remain the
exclusive property of CBI, and the Executive will have no right or proprietary
interest in such property, whether tangible or intangible, including, without
limitation, CBI's customer and supplier lists, contract forms, books of account,
computer programs and similar property.
15. Equitable Relief. The Executive acknowledges that the services to be
rendered by him are of a special, unique, unusual, extraordinary, and
intellectual character, which gives them a peculiar value, and the loss of which
cannot reasonably or adequately be compensated in damages in an action at law,
and that a breach by him of any of the provisions contained in this Agreement
will cause CBI irreparable injury and damage. The Executive further acknowledges
that he possesses unique skills, knowledge and ability and that competition by
him in violation of this Agreement or by any other breach of the provisions of
this Agreement would be extremely detrimental to CBI. By reason thereof, the
Executive agrees that CBI will be entitled, in addition to any other remedies it
may have under this Agreement or otherwise, to injunctive and other equitable
relief to prevent or curtail any breach of this Agreement by him.
16. Assignment; Successors Bound. This Agreement is personal to the
Executive and may not be assigned in any way by the Executive without the prior
written consent of CBI. This Agreement may not be assigned by CBI without the
written consent of the Executive, except for an assignment (i) to an affiliate
of CBI, (ii) to a purchaser of substantially all of the assets or stock of CBI,
Holdings or the Division, or (iii) by operation of law. This Agreement will be
binding upon CBI and the Executive, their respective permitted assigns, heirs,
executors, administrators or successors in interest.
17. Severability and Reformation. The parties hereto intend all provisions
of this Agreement to be enforced to the fullest extent permitted by law. If,
however, any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future law, such provision will be fully
severable, and this Agreement will be construed and enforced as if such illegal,
invalid, or unenforceable provision were never a part hereof, and the remaining
provisions will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance.
18. Integrated Agreement. This Agreement constitutes the entire Agreement
between the parties hereto with regard to the subject matter hereof, and there
are no agreements, understandings, specific restrictions, warranties or
representations relating to said subject matter between the parties other than
those set forth herein or herein provided for.
19. Notices. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally, mailed by certified mail (return receipt
requested) or sent by overnight delivery service, or facsimile transmission to
the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice;
If to CBI:
▇▇▇▇▇/▇▇▇▇▇▇, Inc.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Executive:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Attention: ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Notice so given shall, in the case of notice so given by mail, be deemed to be
given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by facsimile transmission or personal
delivery, on the date of actual transmission or, as the case may be, personal
delivery.
20. Further Actions. Whether or not specifically required under the terms
of this Agreement, each party hereto will execute and deliver such documents and
take such further actions as will be necessary in order for such party to
perform all of his or its obligations specified herein reasonably implied from
the terms hereof.
21. Governing Law. This agreement will be governed by and construed in
accordance with the internal law, and not the law of conflicts, of the State of
California.
22. Counterparts. This Agreement may be executed in counterparts, each of
which will take effect as an original and all of which will evidence one and the
same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the Effective Date.
▇▇▇▇▇/▇▇▇▇▇▇, INC.
By:
Name:
Title:
EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
_________
Exhibit A: Promissory Note
_________
Exhibit B: EBITDA Targets through 2005
