EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 26/th/ day of November, 2002, by and between XXXXX X. XXXX (the
"Executive") and XXX RIVER INC., a Georgia corporation (the "Company");
W I T N E S S E T H:
WHEREAS, the Executive has been employed by the Company as the Chief
Financial Officer of the Company since November 1989; and
WHEREAS, the Company desires to continue to employ the Executive, and
the Executive desires to continue to be employed by the Company, on the terms
and conditions contained herein; and
WHEREAS, to induce the Executive to continue in the employ of the
Company, the Company wishes to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
Section 1. Employment
1.1. Duties. Subject to the terms hereof, the Company hereby employs
the Executive as the Chief Financial Officer of the Company, and the Executive
hereby accepts such employment. The Executive agrees that during the employment
of the Executive pursuant to this Agreement, the Executive shall devote his full
business time and attention to the business of the Company. The Executive shall
report exclusively to and shall be accountable exclusively to the Company's
Chief Executive Officer.
1.2. Other Activities. The Executive may, without limitation, (i)
serve on corporate, civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(iii) manage personal investments, provided such activities do not materially
interfere with the performance of the Executive's responsibilities to the
Company hereunder. The parties hereto expressly understand and agree that to the
extent the Executive has engaged in any such activities prior to the date of
this Agreement, any subsequent conduct of activities similar in nature and scope
to such previous activities shall not be deemed to materially interfere with the
performance of the Executive's duties hereunder.
Section 2. Compensation; Expenses
2.1. Salary. Commencing on the date of this Agreement, the Company
shall pay the Executive a base salary (the "Base Salary") at a rate equal to the
rate being paid to the Executive immediately prior to the execution of this
Agreement. During the term of this Agreement, the Company will not reduce the
Executive's salary (unless such reduction applies generally to all salaried
employees), and the Company will fairly consider the Executive for salary
increases, based upon objective criteria, at least as often as salaried
employees generally are considered for increases.
2.2. Bonus. In addition to the Base Salary, the Company shall pay
the Executive, for each fiscal year ending during the term of this Agreement, an
annual bonus (the "Bonus") pursuant to the Xxx River Inc. Management Incentive
Plan (the "MIP") in existence as of the date hereof, or any comparable or
successor plan. The Bonus shall be computed based upon a target level of
participation at or above the Executive's target level of
participation in the MIP as of the date of this Agreement. The Company shall not
reduce the target level to which the Executive is assigned unless target levels
are reduced to substantially the same extent for all senior executives of the
Company. The Bonus shall be payable in cash promptly after the date on which the
audited financial statements of the Company are first available for the fiscal
year for which the Bonus is awarded, unless the Executive shall otherwise timely
elect to defer the receipt of such Bonus under any deferred compensation plan of
the Company then in effect.
2.3. Expenses. The Executive shall be reimbursed promptly for all
reasonable business-related expenses incurred by the Executive in accordance
with the policies and procedures of the Company applicable to other senior
executives thereof.
Section 3. Term; Termination of Agreement.
3.1. Term; Termination. The Term of this Agreement shall commence
on the date first set out above and shall continue in effect for a period of
three (3) years, with the term automatically extending on the first and each
subsequent anniversary of the Agreement for one additional year, unless the
Executive or the Company gives written notice to the other prior to any
anniversary date that the Agreement will not be so extended; provided, however,
upon the occurrence of a "Change in Control" as defined hereinbelow, this
Agreement shall automatically renew for a term of three (3) years from the
Change in Control Date, subject thereafter to further automatic renewal and/or
notice of termination as provided above. This Agreement shall also terminate
upon the occurrence of any of the following events:
(a) the death or total disability of the Executive (total
disability meaning the failure of the Executive to perform his normal
required services hereunder for a period of six consecutive months during
the term hereof by reason of the Executive's mental or physical
disability) (a "Disability Termination Event");
(b) termination by the Company of the Executive's employment
hereunder for "Good Cause," which shall exist upon the occurrence of any
of the following: (i) the Executive is convicted of, pleads guilty to, or
confesses to any felony or any act of fraud, misappropriation or
embezzlement, (ii) the Executive engages in a fraudulent act to the
material damage or prejudice of the Company, or (iii) the Executive
otherwise fails to comply with the terms of this Agreement or deviates
from any written policies or procedures of the Company, in either such
case to the material detriment of the Company and, within 30 days after
written notice from the Company of such failure or deviation, the
Executive has not corrected such failure (in any such case, a "Good Cause
Termination Event");
(c) termination by the Company of the Executive's employment
hereunder for any reason other than as a result of a Good Cause
Termination Event (a "No Cause Termination Event");
(d) termination by the Executive of the Executive's employment
hereunder for "Good Reason", which shall mean (i) the assignment to the
Executive of any duties inconsistent in any material respect with the
Executive's position (including status, offices, titles and reporting
requirements), authority or duties or responsibilities as contemplated by
(S) 1 hereof or any other action by the Company that results in a
material diminishment in such position, authority, duties or
responsibilities, other than action or inaction on the part of the
Company that is corrected by the Company within 30 days after receipt of
written notice thereof given by the Executive, (ii) any failure by the
Company to comply with the terms of this Agreement, including, without
limitation, Sections 2 and 5 hereof, which is not corrected by the
Company within 30 days after receipt of written notice thereof given by
the Executive, (iii) the Company's requiring the Executive to be based at
any office or location more than 50 miles away from that at which the
Executive is based as of the date of this Agreement; provided, however,
the Company may require travel reasonably consistent with past practices
in the performance of the Executive's responsibilities, or (iv) any
purported termination by the Company of the Executive's employment
pursuant to this Agreement other than as
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permitted herein, in each such case without the prior written consent of
the Executive (in any such case, a "Good Reason Termination Event");
(e) voluntary termination by the Executive of the Executive's
employment hereunder other than for "Good Reason" (as defined above) (a
"Voluntary Termination Event"); or
(f) voluntary termination by the Executive of the Executive's
employment hereunder more than ninety (90) days and less than one hundred
eighty (180) days following the effective date of a "Change in Control" (as
defined below) (a "Change in Control Termination Event").
3.2. Notice of Termination. Any termination of the Executive's
employment hereunder by the Company or the Executive (other than by reason of
death) shall be communicated by a Notice of Termination to the other party
hereto given in accordance with the requirements of (S) 7.10 of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, and (ii) sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
3.3 Change in Control.
(a) The term "Change in Control" for purposes of this Agreement
shall mean a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") as in effect at the time of such "change in
control", provided that such a change in control shall be deemed to have
occurred at such time as
(i) any "person" (as that term is used in Sections 13(d) and 14(d)
(2) of the Exchange Act), other than Xxxxxx X. Xxxxxx, Xx., is or
becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) directly or indirectly, of securities representing 30%
or more of the combined voting power for election of directors of the
then outstanding securities of the Company or any successor of the
Company;
(ii) during any period of two consecutive years or less, individuals
who at the beginning of such period constitute the Board cease, for
any reason, to constitute at least a majority of the Board, unless the
election or nomination for election of each new director was approved
by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period;
(iii) the shareholders of the Company approve any reorganization,
merger, consolidation or share exchange as a result of which the
common stock of the Company shall be changed, converted or exchanged
into or for securities of another corporation (other than a merger
with a wholly-owned subsidiary of the Company) or any dissolution or
liquidation of the Company or any sale or the disposition of 50% or
more of the assets or business of the Company; or
(iv) the shareholders of the Company approve any reorganization,
merger, consolidation or share exchange unless (A) the persons who
were the beneficial owners of the outstanding shares of the common
stock of the Company immediately before the consummation of such
transaction beneficially own securities representing 66 2/3% or more
of the combined voting power for election of directors of the then
outstanding securities of the Company or any successor or survivor
corporation in such transaction immediately following the consummation
of such transaction and (B) the number of shares of the common stock
of such successor or survivor corporation beneficially owned by the
persons described in (S) 3.3(a)(iv)(A) immediately following the
consummation of such transaction is beneficially owned by each such
person in substantially the same proportion that each such person had
beneficially owned shares of the Company common
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stock immediately before the consummation of such transaction,
provided (C) the percentage described in (S) 3.3(a)(iv)(A) of the
beneficially owned shares of the successor or survivor corporation and
the number described in (S) 3.3(a)(iv)(B) of the beneficially owned
shares of the successor or survivor corporation shall be determined
exclusively by reference to the shares of the successor or survivor
corporation which result from the beneficial ownership of shares of
common stock of the Company by the persons described in (S)
3.3(a)(iv)(A) immediately before the consummation of such transaction.
(b) Change in Control Date. The term "Change in Control Date" for
purposes of this Agreement shall mean the date which includes the "closing"
of the transaction which results from a Change in Control or, if there is
no transaction which results from a Change in Control, the date of such
Change in Control as reported by the Company to the Securities and Exchange
Commission.
(c) Vesting of Equity-based Awards. All outstanding options,
restricted stock and other equity-based awards which have been granted to
Executive shall immediately vest on a Change in Control Date.
Section 4. Result of Termination.
4.1. Termination As Result of Voluntary or Good Cause Termination
Events. If the Executive's employment hereunder is terminated prior to its
expiration as a result of the occurrence of a Voluntary Termination Event or a
Good Cause Termination Event, as of the date of the termination of Executive's
employment hereunder, the Company shall have no further obligation to pay to the
Executive any Base Salary, Bonus or any other benefits pursuant to this
Agreement. If such termination occurs prior to the end of any pay period, the
Executive shall be entitled to receive a portion of the Base Salary for such pay
period prorated to the date on which the Executive's employment is terminated.
4.2. Termination As Result of No Cause, Good Reason or Change in
Control Termination Event.
(a) Severance Payments. If the Executive's employment hereunder is
terminated as a result of the occurrence of a No Cause Termination Event, a
Good Reason Termination Event, or a Change in Control Termination Event,
the Company shall pay to the Executive (i) the amount of Base Salary to
which Executive would be entitled upon a termination of employment under a
Voluntary Termination Event as described in (S) 4.1, and (ii) an amount
equal to the Bonus the Executive would have been paid had the Executive
remained employed throughout the year in which Executive's termination of
employment occurred multiplied by a fraction, the numerator of which is the
number of days during the year before Executive's termination of employment
and the denominator of which is 365, plus (iii) an amount equal to 200% of
Executive's aggregate annual Base Salary then in effect, plus 200% of the
Executive's target Bonus for the year in which occurs the termination of
employment and (iv) all reasonable business-related expenses incurred by
the Executive prior to such termination for which the Executive would have
been reimbursed pursuant to (S) 2.5 hereof (the amounts referred to in
clauses (i), (ii), (iii) and (iv) being the "Severance Payments"). Except
for the amount referred to in clause (ii), the Severance Payments shall be
paid by the Company to the Executive within 10 days after such termination.
The amount referred to in clause (ii) shall be paid as soon as is
practicable after it is capable of being determined.
(b) Severance Benefits. In addition to the Severance Payments, the
Company shall continue to provide to the Executive (i) coverage under the
healthcare, life insurance and accidental death and dismemberment plans
programs and policies described in (S) 5.1 in which the Executive was
covered immediately before the Executive's employment terminated as if
Executive had remained employed by the Company for 24 additional months
after the actual termination of Executive's employment with no reduction in
Executive's level of coverage,and (ii) credit as of the Executive's
termination date with an additional retirement benefit equivalent to two
additional "Years of Service" calculated and paid in the
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manner specified in the Xxx River Inc. Restricted Supplemental Executive
Retirement Plan as in effect on the earlier of the Change in Control Date
or the Executive's date of termination, as if the Executive had remained
employed by the Company and received the same Base Salary and target bonus
in effect as of the date of termination for 24 additional consecutive
months after the actual termination of his employment (the amounts referred
to in clauses (i) and (ii) being the "Severance Benefits"). At the end of
24 consecutive months following Executive's termination of employment, the
Company shall, subject to (S) 4.3, make available to the Executive whatever
healthcare continuation ("COBRA") coverage the Company would have been
required under applicable law to make available to the Executive as of his
employment termination date, or comparable coverage at comparable cost to
the Executive.
(c) Gross Up Payment. If all or any portion of the Severance
Payments, the Severance Benefits or any other payment made to the Executive
by or on behalf of the Company under this (S) 4.2 is subject to excise tax
under (S) 4999 of the Internal Revenue Code of 1986, as amended (which
shall be referred to in this (S) 4.2(c) as the "Code"), the Company shall
pay to the Executive a "Gross Up Payment." The term "Gross Up Payment" as
used in this Agreement shall mean a payment to or on behalf of the
Executive which shall be sufficient to pay (i) 100% of any excise tax
described in this (S) 4.2(c), (ii) 100% of any federal, state and local
income tax and social security tax and other employment tax on the payment
described in clause (i) above, and (iii) any interest or penalties assessed
by the Internal Revenue Service on Executive which are related to the
payment of such excise tax unless such interest or penalties are
attributable to Executive's willful misconduct or negligence. A Gross Up
Payment shall be made by the Company promptly after either the Company or
the Company's independent accountants determine that any payments and
benefits called for under this Agreement together with any other payments
and benefits made available to the Executive by the Company and any other
person will result in the Executive's being subject to an excise tax under
(S) 4999 of the Code or such an excise tax is assessed against the
Executive as a result of any such payments and other benefits if the
Executive takes such action as the Company reasonably requests under the
circumstances to mitigate or challenge such excise tax. Any determinations
under this (S)4.2(c) shall be made in accordance with (S) 280G of the Code
and any applicable related regulations (whether proposed, temporary or
final) and any related Internal Revenue Service rulings and any related
case law and, if the Company reasonably requests that the Executive take
action to mitigate or challenge, or to mitigate and challenge, any such tax
or assessment and Executive complies with such request, the Company shall
provide Executive with such information and such expert advice and
assistance from the Company's independent accountants, lawyers and other
advisors as the Executive may reasonably request and shall pay for all
expenses incurred in effecting such compliance and any related fines,
penalties, interest and other assessments.
(d) Other than the Severance Payments, the Severance Benefits and
the Gross Up Payment, the Company shall have no further obligation to pay
the Executive any Base Salary, Bonus or any other benefits pursuant to this
Agreement if the Executive's employment hereunder is terminated as a result
of the occurrence of a No Cause Termination Event, a Good Reason
Termination Event or a Change in Control Termination Event.
4.3. Employment with Successor Employer. If, after a No Cause, Good
Reason or Change in Control Termination Event, the Executive accepts employment
with a successor employer that offers coverage under healthcare, life insurance
and accidental death and dismemberment plans, programs and policies
substantially comparable to those plans, programs and policies afforded the
Executive by the Company, the Company's obligation to provide coverage under
such plans, programs and policies shall cease as and to the extent substantially
comparable benefits become available to the Executive through the successor
employer. The Executive shall keep the Company informed of any successor
employer and the healthcare, life insurance and accidental death and
dismemberment plans, programs and policies offered by any such employer. This
(S) 4.3 shall not confer any right on the Company (independent of its rights
under applicable law) to fail to make available healthcare continuation coverage
as is required by applicable law to the Executive, any dependent or former
dependent of the Executive or other beneficiary entitled to such coverage.
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4.4. Termination As Result of Disability Termination Event. If the
Executive's employment hereunder is terminated as a result of a Disability
Termination Event, as of the date of the termination of the Executive's
employment hereunder, the Company shall have no further obligation to pay the
Executive any Base Salary, Bonus or any other benefits pursuant to this
Agreement. If such termination occurs prior to the end of any pay period, the
Executive shall be entitled to receive a portion of the Base Salary and Bonus
for such pay period prorated to the date on which the Executive's employment is
terminated as provided in (S) 4.2(a)(i) above. Notwithstanding the foregoing, if
this Agreement is terminated as a result of the (a) death of the Executive, the
Executive's family shall be entitled to receive benefits at least equal to those
provided by the Company to surviving families of senior executives of the
Company under such plans, programs and policies relating to family death
benefits, if any, in effect on the date of the Executive's death, or (b) total
disability of the Executive as described in ss. 3.1(a), in addition to the
benefits contemplated by (S) 5.1, the Executive shall be entitled to receive
disability and other benefits (provided that the Executive has paid applicable
premiums therefor) at least equal to those provided by the Company to disabled
employees and their families in accordance with such plans, program and policies
relating to disability, if any, in effect on the date of the Executive's total
disability.
Section 5. Additional Employment Benefits
5.1. Benefits. The Company shall provide the Executive with such
healthcare, life, accidental death and dismemberment and disability insurance as
the Board shall authorize from time to time for the benefit of senior executives
of the Company generally. In addition, the Executive shall have the right to
participate in all incentive, savings and retirement plans (including without
limitation "non-qualified" plans) available to senior executives of the Company
generally and to receive such additional fringe benefits as the Board shall
authorize from time to time for the benefit of senior executives of the Company
generally.
5.2. Vacation. The Executive shall receive at least four (4) weeks
of paid vacation time each calendar year during the term of his employment
hereunder, which vacation shall be prorated if the Executive's employment
hereunder is terminated prior to December 31 of any year.
Section 6. Covenants
6.1. Confidential Information. Other than in connection with
performing his duties in good faith hereunder, during and for a period of two
years subsequent to termination of the Executive's employment for any reason,
the Executive hereby agrees that he will hold in confidence any confidential
information relating to the business or operations of the Company ("Confidential
Information") and will not use or disclose the same to any third party for any
reason (unless disclosure is compelled by judicial or administrative process, or
in the reasonable opinion of the Executive's counsel, by other requirements of
law). For purposes of this Agreement, the term "Confidential Information" means
any secret, confidential or proprietary information possessed by the Company
relating to the Company's businesses, including, without limitation, customer
lists, details of client or consultant contracts, current and anticipated
customer requirements, pricing policies, price lists, market studies, business
plans, operational methods, marketing plans or strategies, product development
techniques or flaws, computer software programs (including object codes and
source codes), data and documentation, database technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods, techniques, processes,
future business plans, licensing strategies, advertising campaigns, financial
information and data, business acquisition plans and new personnel acquisition
plans that has not become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
the Company. Confidential Information shall not include information (a) known by
the Executive prior to his employment by the Company in any capacity, (b)
ascertained by the Executive other than in his capacity as the Chief Financial
Officer of the Company, (c) ascertainable or obtained from public or published
sources, or (d) that is or becomes known to the public (other than through a
breach of this Agreement).
6.2. Non-solicitation of Employees. If the Executive's employment
hereunder is terminated for any reason, the Executive agrees that he shall not,
during the two year period after the date of such termination,
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without the Company's prior written consent, (a) directly or indirectly,
knowingly solicit or encourage to leave the employment of the Company, any
salaried employee of the Company with whom Executive had contact, knowledge of
or association at any time during the one year period immediately preceding
Executive's termination of employment, or (b) hire or assist any other person or
entity in hiring any salaried employee (other than the personal secretary of the
Executive or a relative of the Executive) who has left the employment of the
Company within one year of such termination of the Executive's employment and
with whom Executive had contact, knowledge of or association at any time during
the one year period immediately preceding Executive's termination of employment;
provided, however, that the Executive shall not be prohibited from hiring any
employee of the Company whose employment has been terminated by the Company
without good cause.
6.3. Non-solicitation of Customers. If the Executive's employment
hereunder is terminated for any reason, the Executive agrees that he shall not,
during the two year period after the date of such termination, call on or
solicit on his own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise, for the
purpose of competing with the Company, any customers of the Company with whom
the Executive had contact at any time during the one year period immediately
preceding the applicable termination event.
6.4. No Waiver. This (S) 6 is intended to provide rights to the
Company which are in addition to, not in lieu of, those rights the Company has
under the common law or applicable statutes, including the common law or
applicable statutes for the protection of confidential information or trade
secrets.
Section 7. Miscellaneous
7.1. Indemnification. The Company shall indemnify and hold the
Executive harmless to the fullest extent permitted under applicable law as it
presently exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than said law permitted prior to such amendment)
against all expense, liability and loss (including attorneys' fees, judgements,
fines, ERISA excise taxes or penalties and amounts to be paid in settlement)
incurred in connection with any asserted or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he was an officer, director or employee of the Company or its
former parent, Braelan Corp. ("Braelan") or was serving at the request of the
Company or Braelan as an officer, director, employee, fiduciary or agent of
another corporation or other entity. In the event that the Executive shall
receive written notice of any claim or proceeding against him that, if
successful, might result in a claim under this (S) 7.1, the Executive shall give
written notice to the Company of such claim or proceeding and shall permit the
Company to participate in the defense of such claim or proceeding by counsel of
the Company's own choosing and at the expense of the Company. In addition, upon
the written request of the Company, the Company may assume at its own expense
the defense of any such claim or proceeding, provided that the Executive may
participate at his expense in any such defense to the extent he may deem
necessary or appropriate to protect his interests. Upon the final determination
of any such claim or proceeding, the defense of which has been assumed by the
Company, the Company shall fully discharge at its own expense all liability of
the Executive and shall be entitled at its own expense, but without any
liability of the Executive therefor, to compromise or settle any such claim or
proceeding upon terms reasonably satisfactory to both the Company and the
Executive.
7.2. No Disclosure. Each party hereto agrees that if the Executive's
employment by the Company is terminated for any reason whatsoever, each party
hereto will keep confidential and not make any public disclosures concerning the
circumstances relating to such termination.
7.3. No Litigation. The Executive represents and warrants to the
Company that there are no litigation proceedings pending or, to his knowledge,
threatened against the Executive in his individual capacity or in any capacity
that might give rise to a claim for indemnification under (S) 7.1 hereof.
7.4. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the Executive and his executor, administrator, heirs,
personal representative and assigns, and the Company and its
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successors and assigns; provided, however, that the Executive shall not be
entitled to assign or delegate any of his rights or obligations hereunder
without the prior written consent of the Company. Subject to the foregoing,
there are no third party beneficiaries of this Agreement.
7.5. No Mitigation. In no event shall the Executive be obligated to
seek employment in mitigation of amounts payable to the Executive pursuant to
(S) 4 hereof, and the employment of the Executive after the termination of the
Executive's employment by the Company shall not affect in any way or offset any
amounts payable to the Executive pursuant to this Agreement.
7.6. Fees. The Company agrees to pay to the Executive to the fullest
extent permitted by law all fees and expenses (including reasonable attorneys'
fees) incurred by the Executive in seeking to enforce any provision of this
Agreement, provided that the Executive shall refund such fee and expense
payments if it is finally judicially determined that the Executive is not
entitled to any relief.
7.7. Governing Law. This Agreement shall be deemed to be made in,
and in all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the State of Georgia, without reference to
principles of conflict of laws. No provision of this Agreement or any related
document shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or drafted such
Provision.
7.8. Survival of Certain Agreements. The agreements and covenants
set forth in (S) 6 hereof shall survive the termination of the Executive's
employment under this Agreement for any reason.
7.9. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.10. Notices. Unless otherwise agreed to in writing by the parties
hereto, all communications provided for hereunder shall be in writing and shall
be deemed to be given when delivered in person or five (5) business days after
being sent by first class mail, certified, return receipt requested, and
addressed as follows:
(a) If to the Executive, addressed to:
Xxxxx X. Xxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
(b) If to the Company, addressed to:
Xxx River Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Board of Directors
c/o Corporate Secretary
or to such other person or address as shall be furnished in writing by any party
to the other prior to the giving of the applicable notice or communication.
7.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
7.12. Entire Agreement. This Agreement is intended by the parties
hereto to be the final expression of their agreement with respect to the subject
matter hereof and is the complete and exclusive statement
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of the terms thereof, notwithstanding any representations, statements or
agreements to the contrary heretofore made. This Agreement may be modified only
by a written instrument signed by each of the parties hereto.
7.13. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its Affiliates for which the Executive may qualify, nor, except as set
forth in (S) 7.15 below, shall anything herein limit or otherwise affect such
rights as the Executive may have under any other agreements with the Company or
any of its Affiliates. Amounts which are vested benefits or which the Executive
is otherwise entitled to receive under any plan or program of the Company or any
of its Affiliates at or subsequent to the date on which his employment hereunder
is terminated shall be payable in accordance with such plan or program.
7.14. Severability. In the event that any provision of this Agreement
shall be deemed invalid or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect.
7.15. Prior Agreements. This agreement replaces and supersedes that
certain agreement dated as of October 31, 1997 concerning the subject matter
hereof, which Agreement is hereby cancelled as of the effective date of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY
XXX RIVER INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxx, Xx.
Chairman
[CORPORATE SEAL]
ATTEST:
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Secretary
THE EXECUTIVE
/s/ Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
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