EXHIBIT 10.06
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of November __, 1997, between
CONSOLIDATION CAPITAL CORPORATION, a Delaware corporation (the "Company"), and
XXXXXXX X. XXXXXXX, a resident of the State of Minnesota (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company wishes to secure the services of the Executive
and the Executive wishes to furnish such services to the Company pursuant to the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Employment: Term. The Company hereby agrees to employ the
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Executive, and the Executive hereby agrees to enter into such employment, as
Executive Vice President and Chief Financial Officer of the Company, for the
period commencing on the date of the closing of the Company's initial public
offering (the "Commencement Date") and ending on the date two years from the
Commencement Date, unless terminated sooner pursuant to Section 5 hereof. The
initial two year term shall be extended for additional successive periods of one
year each, on the same terms and conditions contained herein, unless six months
prior written notice is given by the Company of its intention to terminate the
term of this Agreement without cause. For purposes hereof, the period of
Executive's employment hereunder is referred to as the "Term."
2. Duties and Extent of Services.
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(a) During the Term, the Executive shall serve as Executive Vice
President and Chief Financial Officer of the Company with such duties and
responsibilities as are consistent with such positions, and shall so serve
faithfully and to the best of his ability, under the direction and supervision
of the Company's Board of Directors (the "Board").
(b) The Executive shall serve as a Director of the Company if elected
to such position in accordance with law and hold such other positions and
executive offices of the Company and/or of any of the Company's subsidiaries or
affiliates as may from time to time be authorized by the Board, provided that
each such position shall be commensurate with the Executive's standing in the
business community as Executive Vice President and Chief Financial Officer of
the Company. The Executive shall not be entitled to any compensation other than
the compensation provided for herein for serving during the Term as a Director
of the Company or in any other office or position
of the Company, or any of its subsidiaries or affiliates, unless the Board shall
have specifically approved such additional compensation.
(c) The Executive shall devote his full business time, attention and
efforts to his duties hereunder. The Executive shall diligently perform to the
best of his ability all of the duties required of him as Executive Vice
President and Chief Financial Officer of the Company, and in the other positions
or offices of the Company or its subsidiaries or affiliates required of him
hereunder. The Executive shall faithfully adhere to, execute and fulfill all
policies established by the Company. Notwithstanding the foregoing provisions of
this Section, the Executive may participate in charitable, civic, political,
social, trade, or other non-profit organizations to the extent such
participation does not materially interfere with the performance of his duties
hereunder, and may serve as a non-management director of business corporations
(or in a like capacity in other for-profit organizations) so long as it does not
materially interfere with the Executive's obligations hereunder.
(d) The Executive shall not be required to relocate to Washington,
D.C., to perform his duties hereunder, but acknowledges and agrees that he will
be in Washington, D.C. to the extent necessary to perform his duties hereunder.
Instead, the Company will provide, at its sole cost and expense, office space in
or around the city of Minneapolis, from which the Executive will perform his
duties under the terms of this Agreement. The Executive understands that he
will be required to travel from time to time in order to perform his duties
hereunder (including travel to Washington, D.C.) and agrees to undertake such
travel as part of his duties to the Company under the terms of this Agreement.
3. Compensation
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(a) Base Salary. Effective as of the Commencement Date, the Company
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shall pay the Executive a base salary (the "Base Salary") equal to Three Hundred
Thousand Dollars ($300,00.00) per year, payable on a regular basis in accordance
with the Company's regular payroll policies in effect from time to time, but not
less frequently than monthly. On at least an annual basis, the Board will
review the Executive's performance and may make increases to such Base Salary
if, in its sole discretion, any such change is warranted. The Base Salary for
the first calendar year of the Term shall be personally guaranteed by Xxxxxxxx
X. Xxxxxxx ("Ledecky"), pursuant to an instrument in form and substance
satisfactory to both the Executive and Ledecky, to be executed at the time of
the execution of this Agreement (the "Base Salary Guaranty").
(b) Annual Bonus. The Executive shall be entitled to receive an
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annual bonus payment during the first twelve month period within the Term of Two
Hundred Thousand Dollars ($200,000.00) (the "Annual Bonus Payment"), payable in
such number of payments and at such time as the Board may determine, but in no
event later than the end of each calendar year during the Term. It is
contemplated that a bonus at least equal to the bonus payment during the first
year of the Term will be paid during each twelve month period during the
remainder of the Term.
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(c) Incentive Bonus. The Company will develop a written Incentive
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Bonus Plan (the "Bonus Plan") setting forth the criteria under which the
Executive and other officers and key employees of the Company will be eligible
to receive year-end incentive bonus compensation. The Bonus Plan will provide
for the Executive to earn up to 100% of his Base Salary in bonus compensation,
payable out of a bonus pool determined by the Board or a compensation committee
thereof. Subject to the provisions of Section 3(f) hereof, such bonus payments
shall be made to the Executive as soon as practicable after the end of each
calendar year during the Term.
(d) Employee Stock Purchase Plan. The Executive shall be entitled to
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participate in the Company's 1997 Employee Stock Purchase Plan in accordance
with the terms set forth therein.
(e) 1997 Long-Term Incentive Plan. The Executive shall be entitled to
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participate in the Company's 1997 Long-Term Incentive Plan in accordance with
the terms set forth therein.
(f) Deferral. The Executive may elect to defer payment of all or any
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part of the Annual Bonus Payment or incentive bonus compensation amount payable
in accordance with Section 3(b) and Section 3(c) hereof with respect to any
calendar year during the Term, by giving the Company written notice thereof not
later than June 30 of such year. Additionally, in the event that in respect of
any fiscal year of the Company any amount of Base Salary, Annual Bonus Payment,
incentive bonus compensation or any other amount payable to the Executive
hereunder or otherwise, shall, either alone or in combination with other amounts
payable hereunder or otherwise, result in a payment by the Company that shall
not be currently deductible by it pursuant to the provisions of Section 162(m)
of the Internal Revenue Code, as amended, or like or successor provisions (a
"Non-Deductible Amount"), the Company may elect to defer the payment of the Non-
Deductible Amount. Any amounts, so deferred, either by election of the Executive
or by election of the Company, shall be credited to a bookkeeping account in the
name of the Executive as of the date scheduled for payment hereunder. Such
amounts shall be credited with interest as of each June 30 during the term of
deferral, compounded annually, at a rate per annum equal to the annual rate of
interest announced by Citibank, N.A. in New York, New York as its base rate in
effect on such June 30, but in no event shall such rate exceed 9%. The entire
amount credited to such bookkeeping account shall be paid to the Executive on a
date to be chosen by the Company, but in no event later than the first
anniversary of the termination of the Executive from employment with the
Company.
(g) Option Grant. In connection with the execution and delivery of
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this Agreement, and pursuant to the terms of the Company's 1997 Long-Term
Incentive Plan (the "Option Plan"), the Executive will be granted options (the
"Options") to purchase five hundred thousand (500,000) shares of the Company's
Common Stock (the "Common Stock"), on and pursuant to the terms of the Option
Plan and an award agreement. Each Option will be granted at a price equal to
the price at which shares of Common Stock are sold to the public in the IPO (the
"Offering Price"). Subject to the next sentence hereof, the Options will be
exercisable with respect to 25% of the shares underlying the Options on each
anniversary of the date of grant.
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Notwithstanding the foregoing, the vesting of the Options will accelerate, (i)
upon a Change In Control (as defined in the Option Plan) in which case all
Options will be exercisable immediately, and (ii) upon the expiration of the
Term for any reason other than "for cause" pursuant to Section 5(c) hereunder,
in which case all Options will be exercisable immediately.
(h) Car Allowance. The Executive shall receive a monthly car
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allowance of $750 during the Term of this Agreement.
(i) In addition, no later than sixty (60) days after the Commencement
date, the Company will purchase from a financial institution acceptable to the
Executive and place in a deferred compensation plan an annuity contract (the
"Annuity Contract") that will provide to the Executive, for each year of the
Executive's life beginning at the age of 55 and ending at the age of 75, an
annual payout of One Hundred Thousand Dollars ($100,000.00). Notwithstanding
anything contained herein to the contrary, the Annuity Contract will become the
property of the Executive upon termination of his employment hereunder.
4. Benefits.
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(a) Standard Benefits. During the Term, the Executive shall be
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entitled to participate in any and all benefit programs and arrangements now in
effect and hereinafter adopted and generally made available by the Company to
its senior officers, including but not limited to, 4 weeks of paid vacation
during each year of the Term in accordance with the policies and procedures of
the Company as in effect from time to time for its senior officers, pension
plans, contributory and non-contributory Company welfare and benefit plans,
disability plans, and medical, death benefit and life insurance plans for which
the Executive shall be eligible, or may become eligible during the Term.
(b) Expense Reimbursement/Provision of Equipment. The Company agrees
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to reimburse the Executive for all reasonable and necessary travel, business
entertainment and other business out-of-pocket expenses (including travel to
Washington, D.C.) incurred or expended by him in connection with the performance
of his duties hereunder upon presentation of proper expense statements or
vouchers or such other supporting information as the Company may reasonably
require of the Executive. The Company will, at its sole cost and expense,
provide to the Executive a computer, computer printer, copier, facsimile machine
and such other office equipment as Executive shall reasonably request from time
to time for use by the Executive to carry out his duties hereunder.
(c) Other Executive Perquisites. The Company shall provide the
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Executive with other executive perquisites as may be available to or deemed
appropriate for the Executive by the Board or a compensation committee thereof.
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5. Termination. This Agreement and the Executive's employment with
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the Company may be terminated in any one of the following ways:
(a) Death. In the event of the death of the Executive during the
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Term, this Agreement shall automatically terminate, and the Company shall have
no further obligations hereunder except as provided in Section 5(g) below.
(b) Disability. In the event of the "permanent disability" (as
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hereinafter defined) of the Executive during the Term, the Company shall have
the right, upon written notice to the Executive, to terminate the Executive's
employment hereunder, effective upon the giving of such notice (or such later
date as shall be specified in such notice). In the event of such termination,
and subject to the provisions of Section 5(g) below, the Company shall have no
further obligations hereunder, except that the Executive shall be entitled to
be paid his Base Salary under Section 3(a) hereof for a period of two (2) years
from the effective date of termination; provided, however, that the Company
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shall only be required to pay that amount of the Executive's Base Salary which
shall not be covered by long-term disability payments, if any, to the Executive.
In addition, upon termination for permanent disability, the Executive shall
continue to participate in any and all pension, insurance and other benefit
plans and programs of the Company during the period the Executive is continuing
to receive his Base Salary. Thereafter, the Executive's rights to participate
in such programs and plans, or to receive similar coverage, if any, shall be as
determined under such programs. For purposes of this Section, "permanent
disability" means any disability as defined under the Company's applicable
disability insurance policy or, if no such policy is available, any physical or
mental disability or incapacity that renders the Executive incapable of
performing the services required of him in accordance with his obligations under
Section 2 hereof for a period of four (4) consecutive months or for shorter
periods aggregating six (6) months during any twelve-month period.
(c) Cause. The Company shall have the right, upon written notice to
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the Execu tive, to terminate the Executive's employment under this Agreement for
"Cause" (as hereinafter defined), effective upon the giving of such notice (or
such later date as shall be specified in such notice), and the Company shall
have no further obligations hereunder, except to pay the Executive any amounts
otherwise payable pursuant to Section 5(g) below. It is understood and agreed
that notwithstanding anything contained in this Agreement to the contrary, in
the case of termination by the Company of the Executive for Cause, the Annual
Bonus Payment for the calendar year in which termination occurs shall be
forfeited. The Executive's right to participate in any of the Company's
retirement, insurance and other benefit plans and programs shall be as
determined under such programs and plans. For purposes of this Agreement,
"Cause" means:
(i) fraud, embezzlement or gross insubordination on the part of
the Executive or material breach by the Executive of his obligations
under Sections 6 or 7 hereof;
(ii) a material breach of, gross negligence with respect to,
or the willful failure or refusal by the Executive to perform and
discharge, his duties, responsibilities or obligations under this Agreement
(other than under Sections 6 and 7 hereof, which shall be
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governed by clause (i) above, and other than by reason of disability or
death) that is not corrected within ten (10) days following written notice
thereof to the Executive by the Company, such notice to state with
specificity the nature of the breach, failure or refusal; provided that if
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such breach, failure or refusal cannot reasonably be corrected within ten
(10) days of written notice thereof, correction shall be commenced by the
Executive within such period and may be corrected within a reasonable
period thereafter;
(iii) conviction of or the entry of a plea of nolo contendere by
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the Executive of any felony; or
(iv) illegal drug use or alcohol abuse by the Executive.
(d) Without Cause. The Company shall have the right, upon thirty (30)
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days' written notice given to the Executive, to terminate this Agreement for any
reason whatsoever. In the event of a termination without cause, the Executive
shall be entitled (i) to receive from the Company an amount equal to two times
his Base Salary at the rate then in effect plus any bonus he received during the
previous year, payable in a single lump sum at the time of termination without
cause and (ii) to participate in all pension, insurance and other benefit plan
programs or arrangements on terms identical to those applicable to other senior
officers of the Company. In the event this Agreement is terminated pursuant to
this Section 5(d), the Executive shall be released from his obligations under
Section 6 or Section 7 hereof and all Options previously granted to the
Executive that have not yet vested shall immediately vest and be exercisable.
(e) By Executive. The Executive shall have the right, exercisable at
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any time during the Term, to terminate this Agreement for any reason whatsoever,
upon six (6) months written notice to the Company. In such event, and other
than as provided by the terms of Section 5(g) below, the Company shall have no
further obligations hereunder and the Executive shall not be entitled to receive
any severance compensation. Notwithstanding anything contained in this
Agreement to the contrary, in the event of a termination by the Executive, the
amount of any unpaid Annual Bonus Payment for the calendar year in which the
termination occurs shall be forfeited.
(f) Effect of Termination. Upon the termination of the Executive's
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employment hereunder for any reason, the Company shall have no further
obligations hereunder, except as otherwise provided herein. The Executive,
however, shall continue to have the obligations provided in Section 6 and 7
hereof, except as otherwise provided herein. Without limiting the generality of
the foregoing, all Options granted to the Executive shall immediately vest and
be exercisable as of the date of any termination of this Agreement, other than a
termination pursuant to Section 5(c) or Section 5(e) hereof. Furthermore, upon
such termination, the Executive shall be deemed to have resigned immediately
from all offices and directorships held by him in the Company or any of its
subsidiaries.
(g) General Provisions. Upon termination of this Agreement for any
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reasons provided above, the Executive (or his estate or personal representative,
as applicable) shall be entitled to receive all compensation earned (including
a pro-rata portion of the Annual Bonus Payment in the event of a termination
pursuant to Section 5(a) or Section 5(b) hereof) and
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all benefits and reimbursements accrued and due through the effective date of
termination. Without limiting the generality of the foregoing, all Options
granted to the Executive shall immediately vest and be exercisable upon any
termination of this Agreement, other than a termination pursuant to Section 5(c)
or Section 5(e) hereof. Additional compensation subsequent to termination, if
any, will be due and payable to the Executive only to the extent and in the
manner expressly provided above. In the event that the Executive secures
employment with another entity during the period that any payment is continuing
pursuant to the provisions of this Section 5, the amounts to be paid hereunder
shall be reduced by the amount of the Executive's earnings from such other
employment.
6. Confidentiality. The Executive acknowledges that, by reason of
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his employment by the Company, he will have access to confidential information
of the Company and its subsidiaries and affiliates, including, without
limitation, information and knowledge pertaining to products, inventions,
discoveries, improvements, innovations, designs, ideas, trade secrets,
proprietary information, manufacturing, packaging, advertising, distribution and
sales methods, sales and profit figures, customer and client lists and
relationships between the Company, any of its subsidiaries or affiliates and
dealers, distributors, sales representatives, wholesalers, customers, clients,
suppliers and others who have business dealings with them ("Confidential
Information"). The Executive acknowledges that such Confidential Information is
a valuable and unique asset of the Company and its subsidiaries and affiliates
and covenants that, both during and after the Term, he will not disclose any
Confidential Information to any person (except as his duties as an employee of
the Company may require) without the prior written authorization of the Board.
The obligation of confidentiality imposed by this Section 6 shall not apply to
Confidential Information that otherwise becomes generally known in the industry
or to the public through no act of the Executive in breach of this Agreement or
any other party in violation of an existing confidentiality agreement with the
Company or any subsidiary or affiliate or which is required to be disclosed by
court order or applicable law.
7. Covenant Not to Compete.
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(a) Scope of Covenant. The Executive agrees that during the Term and
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for a period equal to the longer of (i) one (1) year commencing upon the
expiration or termination of the Executive's employment hereunder (for any
reason whatsoever) or (ii) the period during which the Executive is entitled to
receive and is receiving any payment pursuant to Section 5 hereof, the Executive
shall not, directly or indirectly, for himself or on behalf of or in conjunction
with any other person, persons, company, partnership, corporation or business of
whatever nature, without the prior written consent of the Company:
(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 selling any products or services in direct
competition with the Company within 100 miles of the principal executive
offices or the principal operations of the Company (the "Territory");
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(ii) call upon any person who is at that time, or who was at any
time within one (1) year prior to that time, an employee of the Company
(including the respective subsidiaries thereof) in a managerial capacity
for the purpose or with the intent of enticing such employee away from or
out of the employ of the Company (including the respective subsidiaries
thereof), provided that the Executive shall be permitted to call upon and
hire any member of his immediate family;
(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 the
Company (including the respective subsidiaries thereof) within the
Territory for the purpose of soliciting or selling products or services in
direct competition with the Company (including the respective subsidiaries
thereof) within the Territory; or
(iv) call upon any prospective acquisition candidate, on the
Executive's own behalf or on behalf of any competitor, which candidate was
either called upon by the Company (including the respective subsidiaries
thereof) or for which the Company (including the respective subsidiaries
thereof) made an acquisition analysis, for the purpose of acquiring such
entity;
provided, however, that nothing in this Section 7(a) shall be construed to
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preclude the Executive from making any investments in the securities of any
business enterprise whether or not engaged in competition with the Company or
any of its subsidiaries, to the extent that such securities are actively traded
on a national securities exchange or in the over-the-counter market in the
United States or on any foreign securities exchange.
(b) Reasonableness. It is agreed by the parties that the foregoing
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covenants in this Section 7 impose a reasonable restraint on the Executive in
light of the activities and business of the Company (including the Company's
subsidiaries) on the date of the execution of this Agreement and the current
plans of the Company (including the Company's subsidiaries); but it is also the
intent of the Company and the Executive that such covenants be construed and
enforced in accordance with the changing activities, business and locations of
the Company (including the Company's other subsidiaries) throughout the term of
this covenant.
(c) Severability. The covenants in this Section 7 are severable and
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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 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 this Agreement shall thereby be reformed.
(d) Enforcement by the Company not Limited. All of the covenants in
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this Section 7 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 the Executive against the Company, whether predicated
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in this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants. It is specifically agreed that the
period of one (1) year stated at the beginning of this Section 7, during which
the agreements and covenants of the Executive made in this Section 7 shall be
effective, shall be computed by excluding from such computation any time during
which the Executive is in violation of any provision of this Section 7.
(e) Change of Relevant Law. Notwithstanding any of the foregoing, if
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any appli cable law shall reduce the time period during which the Executive
shall be prohibited from engaging in any competitive activity described in
Section 7(a) hereof, the period of time for which the Executive shall be
prohibited from engaging in competitive activities pursuant to Section 7(a)
hereof shall be the maximum time permitted by law. However, in the event that
the time period specified by Section 7(a) shall be so reduced, then,
notwithstanding the provisions of Section 5 hereof, the Executive shall be
entitled to receive from the Company his Base Salary at the rate then in effect
solely for the longer of (i) the time period during which the provisions of
Section 7(a) shall be enforceable under the provisions of such applicable law,
or (ii) the time period during which the Executive is not engaging in any
competitive activity, but in no event longer than the term provided in Section
5.
8. Specific Performance. The Executive acknowledges that the
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services to be rendered by the Executive are of a special, unique and
extraordinary character and, in connection with such services, the Executive
will have access to confidential information vital to the Company's business
and the business of the Company's subsidiaries and affiliates. By reason of
this, the Executive consents and agrees that if the Executive violates any of
the provisions of Section 6 or 7 hereof, the Company and its subsidiaries and
affiliates would sustain irreparable injury and that monetary damages would not
provide adequate remedy to the Company or any of its subsidiaries or affiliates.
Therefore, the Executive hereby agrees that the Company and any affected
subsidiary and affiliate shall be entitled to have Sections 6 or 7 hereof
specifically enforced (including, without limitation, by injunctions and
restraining orders) by any court having equity jurisdiction. Nothing contained
herein shall be construed as prohibiting the Company or any of its subsidiaries
or affiliates from pursuing any other remedies available to it for such breach
or threatened breach, including the recovery of damages from the Executive.
9. Deductions and Withholding. The Executive agrees that the
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Company or its subsidiaries or affiliates, as applicable, shall withhold from
any and all compensation paid to and required to be paid to the Executive
pursuant to this Agreement, all Federal, state, local and/or other taxes which
the Company determines are required to be withheld in accordance with applicable
statutes or regulation from time to time in effect and all amounts required to
be deducted in respect of the Executive's coverage under applicable employee
benefit plans. For purposes of this Agreement and calculations hereunder, all
such deductions and withholdings shall be deemed to have been paid to and
received by the Executive.
10. No Conflicts. The Executive hereby represents and warrants to
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the Company that his execution, delivery and performance of this Agreement and
any other agreement to be delivered pursuant to this Agreement will not (a)
require the consent, approval or action of any other
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person or (b) violate, conflict with or result in the breach of any of the terms
of, or constitute (or with notice or lapse of time or both, constitute) a
default under, any agreement, arrangement or understanding with respect to the
Executive's employment to which the Executive is a party or by which the
Executive is bound or subject including, without limitation, any non-competition
or non-disclosure provisions in agreements to which the Executive is or was a
party. The Executive hereby agrees to indemnify and hold harmless the Company
and its directors, officers, employees, agents, representatives, subsidiaries
and affiliates (and each such subsidiary's and affiliate's directors, officers,
employees, agents and representatives) from and against any and all losses,
liabilities or claims (including interest, penalties and attorneys' fees,
disbursements and related charges) based upon or arising out of the Executive's
breach of any of the foregoing representations and warranties.
11. Complete Agreement. This Agreement is not a promise of future
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employment. This Agreement embodies the entire agreement of the parties with
respect to the Executive's employment, compensation, perquisites and related
items and supersedes any other prior oral or written agreements, arrangements or
understandings between the Executive and the Company or any of its subsidiaries
or affiliates, and any such prior agreements, arrangements or understandings are
hereby terminated and of no further effect. This Agreement may not be changed
or terminated orally but only by an agreement in writing signed by the parties
hereto.
12. Waiver. The Waiver by the Company of a breach of any provision
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of this Agreement by the Executive shall not operate or be construed as a waiver
of any subsequent breach by him. The waiver by the Executive of a breach of any
provision of this Agreement by the Company shall not operate or be construed as
a waiver of any subsequent breach by the Company.
13. Governing Law; Jurisdiction.
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(a) This Agreement shall be subject to, and governed by, the laws of
the State of Delaware.
(b) Any action to enforce any of the provisions of this Agreement
shall be brought in a local or federal court within the District of Columbia.
The Parties consent to the jurisdiction of such court and to the service of
process in any manner provided by District of Columbia law. Each party
irrevocably waives any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such court
and any claim that such suit, action or proceeding brought in such court has
been brought in an inconvenient forum and agrees that service of process in
accordance with the foregoing sentences shall be deemed in every respect
effective and valid personal service of process upon such party.
(c) Assignability. This obligations of the Executive may not be
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delegated and, except with respect to the designation of beneficiaries in
connection with any of the benefits payable to the Executive hereunder, the
Executive may not, without the Company's written consent thereto, assign,
transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any interest herein. Any such attempted delegation or disposition
shall be null and void and without
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effect. The Company and the Executive agree that this Agreement and all of the
Company's rights and obligations hereunder may be assigned or transferred by the
Company to and shall be assumed by and be binding upon any successor to the
Company. The term "successor" means, with respect to the Company or any of its
subsidiaries, any corporation or other business entity which, by merger,
consolidation, purchase of the assets or otherwise acquires all or a material
part of the assets of the Company.
15. Severability. If any provision of this Agreement of any part
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thereof, including, without limitation, Sections 6 and 7 hereof, as applied to
either party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or remaining part thereof, which shall be
given full effect without regard to the invalid or unenforceable part thereof,
or the validity or enforceability of this Agreement.
If any court construes any of the provisions of Sections 6 or 7
hereof, or any part thereof, to be unreasonable because of the duration of such
provision or the geographic scope thereof, such court may reduce the duration or
restrict or redefine the geographic scope of such provision and enforce such
provision so reduced, restricted or redefined.
16. Notices. All notices to the Company or the Executive permitted
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or required hereunder shall be in writing and shall be delivered personally, by
telecopier or by courier service providing for next-day delivery or sent by
registered or certified mail, return receipt requested, to the following
addresses:
If to the Company:
Consolidation Capital Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: General Counsel
Fax: (202)
With a required copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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If to the Executive:
_________________________
_________________________
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Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party. Any such notice
shall be deemed given, if delivered personally, upon receipt; if telecopied,
when telecopied; if sent by courier service providing for next-day delivery, the
next business day following deposit with such courier service; and if sent by
certified or registered mail, three days after deposit (postage prepaid) with
the U.S. mail service.
17. Section Headings. The section headings contained in this
----------------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
CONSOLIDATION CAPITAL CORPORATION
__________________________________
By:
Its:
EXECUTIVE
__________________________________
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