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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated and effective as of
the 1st day of April, 1999, ("EFFECTIVE DATE") by and between MARKETING
SPECIALISTS SALES COMPANY, a Texas corporation with its principal place of
business at 00000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 ("Company"), XXXXXXX X.
XXXX, an individual residing in Texas ("Employee") and, for certain limited
purposes, BROMAR INC., a California corporation ("Bromar").
PRELIMINARY STATEMENTS
A. Employee and Bromar, a wholly owned subsidiary of the Company, entered into
an Employment Contract which became effective upon the merger of Bromar and any
affiliate of the Company ("BROMAR CONTRACT").
B. As part of its national integration strategy, the Company is restructuring
the management team to improve the Company's performance and insure the
Company's position as a leader in the industry.
C. The Company and Employee desire to terminate the Bromar Contract in order to
facilitate the execution by Company and Employee of a new employment agreement
and to provide for Employee's continued employment relationship with the
Company.
In consideration of the foregoing and the mutual covenants set forth
herein, Company and Employee, each intending to be legally bound, hereby agree
as follows:
STATEMENT OF AGREEMENT
1. Termination of Bromar Contract. Upon execution of this Agreement by all
parties hereto, the Bromar Contract shall automatically terminate and no longer
be valid or binding on any of the parties hereto or thereto without any further
action by any person or entity. This Agreement shall contain the entire
agreement of the parties regarding the matters contained herein and shall
supercede all prior agreements as stated in detail in Section 24 of this
Agreement. For the express limited purpose of evidencing its agreement to
terminate the Bromar Contract upon the execution of this Agreement, Bromar shall
execute this Agreement.
2. Employment Relationship. Company hereby employs Employee, and Employee hereby
accepts such employment, upon the terms and conditions set forth in this
Agreement. Such employment relationship will continue for the stated term of
this Agreement or until the earlier termination of such relationship pursuant to
the termination provisions hereof.
3. Position and Responsibilities of Employee. Employee will initially be
employed by Company as President of Business Development. After Employee has
been employed by Company under the terms of this Agreement for at least six (6)
months, Employee's job title may be changed from time to time, at the discretion
of Company management. Employee will devote all of Employee's business time,
skill, energies, abilities, and attention to the performance of his employment
duties and the furtherance of Company's interests, and agrees to perform his
duties (as they may be assigned or modified by Company from time to time) in
good faith and in a manner designed to maintain and increase the good will and
reputation of Company and its affiliates. Employee acknowledges the fiduciary
duties owed to Company as a result of Employee's employment responsibilities and
the trust and confidence placed in Employee by Company, including the duties of
loyalty, due care, and good faith.
4. Relocation. Employee acknowledges and agrees that as of the Effective Date of
this Agreement his position will be based in Dallas, Texas at the Company's
corporate headquarters. Employee agrees to relocate from California to Dallas,
Texas. Company agrees to pay all of Employee's relocation expenses in accordance
with its relocation policies including, but not limited to, paying Employee an
amount equal to one (1) month's salary to help facilitate Employee's relocation.
5. Compensation. For all services rendered by Employee pursuant to this
Agreement, Company will pay to Employee, and Employee will accept as full
compensation hereunder, the following:
(a) Salary. As of the Effective Date of this Agreement, Employee will
receive a base salary (the "SALARY") of Twenty Seven Thousand Five Hundred
Dollars ($27,500.00) per month. The Salary will be subject to all
applicable federal, state, and local withholding requirements and will be
payable in accordance with the normal payroll practices and procedures of
Company. Employee's Salary shall be reviewed annually by the
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Board of Directors of the Company ("BOARD") or by a Compensation Committee
duly appointed by the Board ("COMPENSATION COMMITTEE") for such purpose and
may, at any time after the first anniversary hereof, be increased if the
business conditions of the Company and the industry in which the Company
operates warrant such increase. After the first anniversary hereof,
Employee's Salary may be decreased by the Board or Compensation Committee
only if (i) the Company's actual financial performance during such fiscal
year (as such performance is reflected in audited financial statements
prepared by the Company's independent auditor) is less than the budgeted
EBITDA for such fiscal year, and (ii) a majority of the members of the
Board approves such decrease. In no event shall any decrease be applied
retroactively. While bonuses or other perquisites may also be awarded to
Employee from time to time, those amounts are excluded from the term
"Salary" as used in this Agreement.
(b) Discretionary Bonuses. Employee may, at the sole discretion of Company
management, be given one or more bonuses during the term of this Agreement.
No portion of any bonus will be vested in or earned by Employee unless
Employee is employed by, and in good standing with, Company on the date
such bonus is paid.
(c) Benefits and Perquisites.
(i) Employee Benefit Plans. The Company may make employment benefits
and perquisites, such as vacation pay and insurance coverage,
available to Employee to the extent and on the terms that such
benefits and perquisites are made available to other
similarly-situated executives. This provision does not alter Company's
right to modify or eliminate any benefit plan from time to time and
does not guarantee the continuation of any kind or level of benefit or
perquisite.
(ii) Long-Term Incentive Plan. The parent corporation of the Company
has adopted an incentive plan to reward and retain members of senior
management and key employees through the grant of senior management
stock appreciation rights ("SMARTs Plan"). Employee shall be eligible
to participate in the SMARTs Plan and shall receive such rights and
number of shares as determined and awarded by the SMARTs Plan
Committee from time to time in accordance with the terms and
conditions of the SMARTs Plan.
(iii) Automobile Allowance. During the term of this Agreement, Company
shall pay Employee an automobile allowance in accordance with the
guidelines established and approved by the Company, in its sole and
exclusive discretion.
(iv) Country Club Membership. During the term of this Agreement, the
Company shall make available for Employee's use a country club
membership to a Dallas area country club selected by the Company and
to which Employee is admitted. Company shall bear the costs of any
country club initiation fee, monthly dues, and business related
entertainment and meal expenses. Employee shall be financially
responsible for any and all personal expenses incurred by Employee or
Employee's family at the country club including, but not limited to,
meal expenses and facility usage fees.
(v) Reimbursement of Expenses. Company recognizes that Employee will
incur legitimate business expenses in the course of rendering services
to Company hereunder. Accordingly, Company will reimburse Employee for
all business expenses that are deemed by Company to be reasonable,
necessary, and consistent with Company's established policies and
procedures.
6. Term; Automatic Renewal. The stated term of this Agreement and the employment
relationship created hereunder will be and remain in effect for one (1) year,
commencing on the date hereof, unless sooner terminated in accordance with the
termination provisions hereof. Upon its expiration, this Agreement will be
automatically renewed for successive one (1) year terms until it is terminated
in accordance with the termination provisions hereof.
7. Termination. The employment relationship between Employee and Company created
hereunder will terminate before the expiration of the stated term (or any
renewal term) of this Agreement upon the occurrence of any one of the following
events:
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(a) Death or Permanent Disability. The death or permanent disability of
Employee. For purposes of this Agreement, the "PERMANENT DISABILITY" of
Employee will mean Employee is disabled to the extent that, after making
all reasonable accommodations required by applicable state or federal law,
Employee has been unable to perform the essential functions of his job for
the greater of (1) 120 consecutive days, (2) 150 days out of a continuous
period of 300 days, or (3) any period relating to the determination of
permanent disability that is specified by applicable state or federal law.
The determination of whether Employee is able to perform the essential
functions of his job will be made by a physician who is licensed as an
M.D., skilled in the specialty area applicable to Employee's disability,
and selected by Company.
(b) Termination for Cause. The following events, which for purposes of this
Agreement will constitute "cause" for termination:
(i) Employee's failure to perform his job duties or to comply with
Company's policies and procedures after written notice from the Board
or of any of the following senior officers of the Company: Xxxx X.
Xxxxxx, Xxxxxxx X. Xxxx or Xxxxxx X. Xxxxxxxx, and a reasonable
opportunity to remedy such failure;
(ii) Employee's refusal to perform his job duties or to comply with
orders or directives communicated to Employee by any senior officer of
Company or the Board;
(iii) Employee's commission of any act or omission that has an adverse
financial impact upon Company, any act of fraud or dishonesty by
Employee that relates to or affects Company's business in any way, or
Employee's conviction of a crime of moral turpitude or of any felony;
(iv) Employee's use of any illegal drug, or the use of any controlled
substance which interferes with Employee's performance of his
employment duties (as determined in the discretion of the Board);
(v) Employee's breach of any provision of this Agreement, breach of
any fiduciary duty owed to Company, or self-dealing to Company's
detriment.
Any notice of discharge for cause will describe, the reason for the termination
of Employee's employment as well as the effective date of termination (which
date may be the date of such notice). If Company terminates Employee's
employment for any of the reasons set forth in this subsection (b), Company will
have no further obligations hereunder from and after the effective date of
termination (other than as specifically set forth in this Agreement and as
otherwise required by applicable law) and will have all other rights and
remedies available under this or any other agreement with Employee and at law or
in equity.
(c) Voluntary Resignation. Employee provides sixty (60) days written notice
to Company of his intention to terminate his employment relationship with
Company. Company retains the right, after notice of Employee's voluntary
termination, to require Employee to cease employment immediately; however,
in that event, Employee is entitled to his Salary and related benefits
during the sixty (60) day notice period.
(d) Other Reasons. Company may terminate Employee's employment at any time,
upon delivery of notice to Employee, in the event of a reduction in force,
restructuring, failure of a Company office or line of business with which
Employee is affiliated to achieve profitability goals established by
Company, relocation of a Company customer or principal in a manner that
limits Employee's ability to profitably serve the business needs of Company
and such customer or principal, or other business conditions or
circumstances warranting termination (as determined by Company, in its sole
discretion). For purposes of this Agreement, the term "principal" refers to
a producer, manufacturer, or vendor of packaged food products or product
lines of the types brokered by Company to its customers. In the event of
termination pursuant to this subsection, Employee will be eligible to
receive the compensation described in the subsection entitled "Termination
For Other Than Cause" provided that Employee executes a written separation
and release agreement provided by Company. Employee acknowledges that his
sole remedy for termination pursuant to this subsection will be the receipt
of the compensation specified in the subsection entitled "Termination For
Other Than Cause."
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8. Compensation Upon Termination.
(a) In General. Upon the termination of Employee's employment under this
Agreement before the expiration of the stated term (or renewal term) hereof
for any reason, and in addition to any other amounts that may be payable
under this Agreement, Employee is entitled to that portion of the Salary
earned by Employee up until and including the effective date of
termination.
(b) Termination For Other Than Cause. If the employment relationship
hereunder is terminated by Company for any reason other than cause (as
defined herein), then Employee will be entitled to receive, as
consideration for Employee's compliance with the restrictive covenants in
this Agreement dealing with Confidentiality, Unfair Competition, and
Solicitation, and in return for Employee's execution of a written
separation and release agreement provided by Company, (i ) payments in an
amount equal to one (1) year of his Salary, based on Employee's Salary in
effect at the time of termination as severance pay; (ii) payments in an
amount equal to one (1) year of Employee's COBRA premium payments, in the
event Employee elects to continue his medical coverage benefits obtained by
him through the Company and in effect as of the date of his termination,
and (iii) payments in an amount not to exceed $1200.00 per month as a car
allowance in the event Employee is obligated under a car lease or loan at
the time of his termination. All such payments will be subject to
applicable federal, state and local withholding requirements and shall be
paid to Employee in accordance with the Company's regular, bi-weekly
payroll schedule.
(c) Termination Due to Death, Permanent Disability or Voluntary
Resignation. If the employment relationship hereunder terminates due to the
death, permanent disability (as defined herein) or voluntary resignation of
Employee, then Employee, Employee's estate or Employee's guardian, as the
case may be, will be entitled to receive (i) payments in an amount equal to
one (1) year of Employee's Salary, based on Employee's Salary in effect at
the time of his death, permanent disability, or voluntary resignation, (ii)
payments in an amount equal to one (1) year of Employee's COBRA premium
payments in the event Employee or Employee's covered dependents elect to
continue the medical coverage benefits obtained by Employee through the
Company and in effect as of the date of his death or permanent disability
or voluntary resignation, and (iii) payments in an amount not to exceed
$1200.00 per month as a car allowance in the event Employee is obligated
under a car lease or loan at the time of his termination. All such payments
will be subject to applicable federal, state and local withholding
requirements and shall be paid to Employee, Employee's estate or Employee's
guardian, as the case may be, in accordance with the Company's regular,
bi-weekly payroll schedule.
(d) Termination For Cause. If the employment relationship hereunder is
terminated by Company for cause (as defined herein) or voluntarily by
Employee, Employee will not be entitled to any severance payment,
additional compensation or continuation of medical benefits.
(e) Survival. Each and every provision and covenant set forth in this
Agreement dealing with Confidentiality, Unfair Competition, and
Solicitation will survive the termination of Employee's employment and this
Agreement to the extent provided for in such provision or covenant.
9. Corporate Opportunities. All business opportunities offered to Employee
during the term of Employee's employment which relate in any way whatsoever to
the business of Company (or its affiliates) or are reasonably capable of
beneficial use by Company (or its affiliates) will be disclosed to Company by
Employee and will belong to Company. If Company rejects any such opportunity,
determines that the opportunity is not one that is competitive with Company (or
its affiliates), and determines that the opportunity does not interfere with the
performance of Employee's duties under this Agreement, then Company may, at its
discretion, provide Employee with written permission to pursue the opportunity.
This Section also applies to all opportunities offered to Employee during the
one-year period following the termination of Employee's employment, but only to
the extent that such opportunities arose during the term of Employee's
employment, arose in connection with the performance of Employee's duties under
this Agreement, and were related to the business of Company (or its affiliates)
or reasonably capable of beneficial use by Company (or its affiliates).
10. Confidentiality.
(a) Confidential Information. For the purposes of this Agreement, the term
"CONFIDENTIAL INFORMATION" means any information regarding Company's (or
its principals', customers' or affiliates') business that is (1)
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not generally known to the public and was acquired through the expenditure
of Company time, effort, and/or funds, including (but not limited to)
existing and contemplated business and financial methods, concepts,
practices, and know-how, plans, pricing, marketing and selling techniques
and information, customer, principal, and Employee lists and records,
customer and principal preferences and relationship information, principal
interviewing procedures, sales meeting strategies (i.e., ideas,
presentations, videotapes, printed materials, etc.), customer credit
ratings and credit histories, principals' marketing plans, concepts, and
shelving and product placement strategies, labor relations strategies,
market development information, procedures, and confidential or proprietary
information relating to Company's policies, strategies, administration, or
operation, and (2) acquired by Employee during the term of Employee's
employment with Company (or in connection with such employment), as well as
any additional information that may be classified as proprietary or
constitute a trade secret under applicable state or federal law. Employee
acknowledges and understands that, during the term of his employment with
Company, Employee will be given access to Confidential Information.
Employee further acknowledges and agrees that in the absence of Employee's
agreement to and compliance with each of the restrictive covenants
contained in this Agreement (and any predecessor agreements or
understandings between Company and Employee), Company would not give (or
have given) Employee access to Confidential Information. Employee
acknowledges and understands that Company is relying upon Employee's
promise to comply with each of the restrictive covenants contained in this
Agreement in making the decision to grant Employee access to the
Confidential Information.
(b) Covenant Not to Disclose or Use Confidential Information. Employee will
not, during the term of Employee's employment with Company or any time
thereafter, directly or indirectly, disclose any Confidential Information
to any person or entity that is not an employee, officer, director, agent,
attorney or affiliate of Company unless such disclosure is authorized in
advance and in writing by Company. Employee will not, during the term of
Employee's employment or any time thereafter, directly or indirectly, use
any Confidential Information in any manner that is not directly and
primarily in the best interests of Company unless expressly authorized to
do so by Company.
(c) Confidential Materials. For the purposes of this Agreement, the term
"CONFIDENTIAL MATERIALS" means any and all records, information, papers,
media, recordings, files, or computer files or diskettes (and all copies,
duplicates, or facsimiles of any of the foregoing) of Company or its
affiliates that relate in any way whatsoever to any Confidential
Information or to the general business operations and administration of
Company or its affiliates. When Employee's employment relationship with
Company is terminated, Employee will not take any Confidential Materials;
rather, Employee will leave all such Confidential Materials with Company.
If the Confidential Materials are not on Company's premises at the time of
termination, then Employee will return the materials, in good order, to
Company within twenty-four (24) hours after termination. Employee
acknowledges that all Confidential Materials are and continue to be
Company's property under all circumstances and for all purposes.
(d) Confidentiality of Agreement. Subject to the remaining terms of this
subsection (d), Employee will not disclose any of the terms or conditions
of this Agreement to any other person or entity; provided, however, that
Employee may reveal such terms and conditions to (1) Employee's personal
legal counsel and accountants, (2) any federal or state governmental body
or agency that requests information about this Agreement, (3) any court of
competent jurisdiction, or (4) any arbitrator or arbitral tribunal before
which any dispute or controversy involving this Agreement may be brought.
Notwithstanding the foregoing, if while Employee is employed by Company
(and for a period of two (2) years thereafter, regardless of reason for
termination) Employee negotiates with any entity other than Company that is
engaged in the food brokerage business (or any business that could
reasonably be considered competitive with Company's business) regarding
potential employment or association with such entity (whether as employee,
officer, director, shareholder, partner, member, consultant, or agent),
then Employee will disclose to such entity the existence of this Agreement
and provide such entity with a copy hereof.
11. Unfair Competition.
(a) Employee agrees that (1) while Employee is employed by Company and for
a period of one (1) year after the termination of Employee's employment for
any reason, or (2) during the period when any amount is due or scheduled to
be paid to Employee by Company pursuant to this Agreement (which period
will not be reduced by any election or agreement by Company to pay any such
amounts in advance of their scheduled
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due date), whichever is longer, Employee will not, directly or indirectly,
in any capacity whatsoever, whether individually or on behalf of any person
or entity other than Company:
(i) represent (or solicit or negotiate for the representation of) any
principal in any particular geographic area or region within the
United States where Company (or any of its affiliates) represents such
principal;
(ii) sell (or solicit or negotiate for the sale of) any product in any
particular geographic area or region within the United States where
Company (or any of its affiliates) represents the manufacturer or
producer of such product;
(iii) attempt to or actually interfere with, hinder, or limit in any
way whatsoever any business relationship between the Company (or any
of its affiliates) and their respective customers, principals,
vendors, Employees, agents, salesmen, distributors, or contractors; or
(iv) accept or continue employment, association, or affiliation,
directly or indirectly, whether as an employee, agent, officer,
director, partner, shareholder, or member, with, for, or of any
person, entity, or other organization engaged in any of the activities
referred to in subsections (i) through (iii).
In order to facilitate Employee's compliance with the covenants set forth in
this Section, Company will, upon any written request made in good faith by
Employee, respond as to (1) whether Company (or any of its affiliates)
represents any particular principal in any particular geographic area or region
and (2) whether Company sells any particular product in any particular
geographic area or region where Company (or any of its affiliates) represents
the manufacturer or producer of such product.
(b) Scope and Duration; Severability. Company and Employee understand and
agree that the scope and duration of the covenants contained in this
Section are reasonable both in time and geographical area and are fair and
necessary to protect Company's good will, legitimate business interests,
trade secrets, and confidential information. Such covenants will survive
the termination of Employee's employment to the extent provided for in
subsection (a). The parties further agree that such covenants will be
regarded as divisible and will be operative as to time and geographical
area to the extent that they may be so operative and, if any part of such
covenants is declared invalid or unenforceable, the validity and
enforceability of the remainder will not be affected. Employee hereby
warrants to Company that Employee's compliance with all of the restrictive
covenants set forth in this Agreement will not, upon the termination of
Employee's employment with the Company for any reason whatsoever, cause
Employee to be unable to earn a living that is suitable and acceptable to
Employee and any persons who may be dependent upon Employee.
(c) Injunctive Relief. Employee understands and agrees that, due to the
highly competitive nature of the food brokerage industry, the breach of any
covenants set out in this Section will cause irreparable injury to Company
for which it will have no adequate remedy at law. Therefore, Company will
be entitled, in addition to such other remedies as it may have hereunder,
to a temporary restraining order and to preliminary and permanent
injunctive relief for any breach or threatened breach of this Section.
Nothing herein, however, will be construed as prohibiting Company from
pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages from Employee.
12. Solicitation. Unless expressly authorized to do so by Company, Employee will
not, during the term of Employee's employment and for a period of two (2) years
thereafter, directly or indirectly, ask, request, solicit, entice, or otherwise
induce any employee, agent, salesman, distributor, or contractor of Company or
any of its affiliates to leave their employment or association with Company or
its affiliates for any reason whatsoever.
13. Need for Covenants Regarding Confidentiality, Unfair Competition, and
Solicitation. Company and its affiliates spend considerable amounts of time,
money, and effort in developing and maintaining a productive relationship and
good will with its principals, customers and employees. Company and its
affiliates generally seek to retain their principals, customers and employees on
a continuing and long-standing basis. A business relationship with a principal
or customer often requires a long period to time, and substantial money and
effort, to develop. Employee agrees that the covenants dealing with
Confidentiality, Unfair Competition, and Solicitation (a) are reasonable and
necessary in all respects to protect the good will, trade secrets, confidential
information, and business interests of Company and its affiliates, (b) are not
oppressive to Employee, and (c) do not impose any
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greater restraint on Employee than is reasonably necessary to protect the good
will, trade secrets, confidential information, and legitimate business interests
of Company and its affiliates.
14. Post-Termination Consulting. For a period of one (1) year after the
termination of Employee's employment for any reason other than cause, death, or
permanent disability, or during the period when any amount is due or scheduled
to be paid to Employee by Company pursuant to this Agreement (which period will
not be reduced by any election or agreement by Company to pay any such amounts
in advance of their scheduled due date), whichever is longer, Employee will,
from time to time, if requested by Company, provide consultation and advice to
Company regarding Company matters with which Employee was familiar during the
term of Employee's employment. Employee's obligation to provide advice and
consulting will be limited to two (2) hours per month (unless otherwise agreed),
and such advice and consulting will be rendered at times that are mutually
agreeable to Company and Employee.
15. Consideration. Employee acknowledges and agrees that promises made by
Company in this Agreement, such as (a) the establishment of a term of employment
(rather than employment at will), (b) the commitment to provide severance
compensation in the event of the termination of Employee's employment for
reasons other than cause (subject to certain requirements on the part of
Employee), and (c) Company's agreement not to reduce the Salary during the first
year following the effective date of this Agreement, constitute separate forms
of consideration for Employee's agreement to and compliance with the covenants
in this Agreement regarding Confidentiality, Unfair Competition, Solicitation,
and Post-Termination Consulting (the "CONTINUING COVENANTS"). Employee further
acknowledges and agrees that Company's commitment to (1) provide Employee with
access to Confidential Information, Confidential Materials, and trade secrets,
(2) permit Employee to use Company's good will with Company's customers and
principals, and (3) provide Employee with unique skill development and training
are each separate forms of consideration supporting the Continuing Covenants.
16. Assignment. This Agreement is personal to Employee and may not be assigned
by Employee without the prior written consent of Company. Any attempted
assignment by Employee will be void. This Agreement may be assigned by Company
to any parent, subsidiary, successor, or affiliate entity. The rights and
obligations under this Agreement will inure to the benefit of and will be
binding upon the heirs, legatees, administrators, and personal representatives
of Employee and upon the successors and assignees of Company.
17. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, without regard to any conflict
of laws rule or principle which might refer the governance or construction of
this Agreement to the laws of another jurisdiction. Subject to the provisions
set forth in this Agreement for the severability and reformation of any invalid
or unenforceable provisions, this Agreement will at all times and in all events
be construed as a whole, according to its fair meaning, and not strictly for or
against any party.
18. Illegal or Invalid Provisions. The parties intend for all provisions of this
Agreement to be enforced and enforceable to the fullest extent permitted by law.
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws in effect during the term hereof,
however, that provision will be fully severable. This Agreement will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised 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 from this Agreement. Furthermore, in
lieu of each such illegal, invalid, or unenforceable provision, there will be
added automatically, as a part of this Agreement, a provision as similar in
terms to such illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
19. Counterparts. This Agreement may be executed in counterparts, with the same
effect as if both parties had signed the same document. All such counterparts
will be deemed an original, will be construed together and will constitute one
and the same instrument.
20. Notice. Any notice to be given by either party to the other must be in
writing and will be deemed to have been given on the date it is delivered
personally or by confirmed facsimile transmission or on the fifth day after it
is sent by registered or certified mail, return receipt requested. Notice to
Employee will be sufficient if made or addressed to Employee's personal
residence address as set forth on the signature page of this Agreement and
updated from time to time in the records of Company, and to Company at the
address set forth in the introductory paragraph of this Agreement and updated
from time to time. Each party may change the address for notice to such party by
giving notice of the change in accordance with the provisions of this paragraph.
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21. Further Actions. Whether or not specifically required under the terms of
this Agreement, each party will execute and deliver such documents and take such
further actions as may be necessary in order for such party to perform all of
his or its obligations specified herein or reasonably implied from the terms
hereof.
21. Waiver. No waiver by any party, expressed or implied, of a default or breach
of any term, covenant, or condition of this Agreement will be deemed to be a
waiver of any other or a subsequent default or breach. Failure of a party to
declare any default or delay by any party in taking action with respect to a
default will not constitute a waiver of such default.
23. Offset. Subject to any limitations imposed by applicable federal, state, or
local law, whenever a party to this Agreement is to pay any sum to the other
party, any amount owed to the paying party by the receiving party may be offset
against the amount payable to the receiving party.
24. Third Party Beneficiaries. The terms and conditions of this Agreement,
express or implied, exist only for the benefit of the parties to this Agreement,
the heirs, legatees, administrators, and personal representatives of Employee,
and the successors and assignees of Company, and no other person or entity will
be deemed to be a third party beneficiary hereof.
25. Entire Agreement. This Agreement contains the complete and exclusive
agreement of Company and Employee concerning Employee's employment, and all
discussions, agreements, and statements are merged into this Agreement. This
Agreement may not be changed orally, but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
26. Remedies. Each party to this Agreement is entitled to enforce its rights
under this Agreement specifically, to recover damages by reason of any breach of
any provision of this Agreement, and to exercise all other rights existing in
its favor. The parties agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may, in his or its sole discretion, apply to any court of competent
jurisdiction for injunctive relief in order to enforce or prevent any violation
of the terms of this Agreement.
27. Attorneys' Fees. If either party breaches this Agreement, or if it becomes
necessary for one party to institute legal proceedings against the other party
and the non-breaching party employs an attorney to enforce this Agreement,
obtain injunctive relief, or collect damages against the breaching party, the
breaching party will pay to the non-breaching party all reasonable attorney's
fees, court costs, expert witness fees, and other expenses that the
non-breaching party so incurs.
28. Binding Arbitration. Company and Employee agree that except as prohibited by
applicable law, any dispute or controversy arising between the parties to this
Agreement, or any person or entity in privity therewith, out of the transactions
effected and relationships created pursuant to this Agreement or any other
agreement created in connection herewith, including any dispute or controversy
involving the formation, terms, or construction of this Agreement, regardless of
kind or character, will be resolved through binding arbitration. With respect to
the arbitration of any dispute or controversy, each party understands that:
(a) arbitration is final and binding on the parties;
(b) each party is waiving its right to seek certain remedies in court,
including the right to a jury trial;
(c) discovery in arbitration is different and more limited than discovery
in litigation;
(d) an arbitrator's award need not include factual findings or legal
reasoning, and any party's right to appeal or to seek modification of a
ruling by the arbitrator is strictly limited.
Each party to this Agreement will submit any dispute or controversy to
arbitration before the American Arbitration Association ("AAA") within five (5)
days after receiving a written request to do so from the other party. If any
party fails to submit a dispute or controversy to arbitration as requested, then
the requesting party may commence the arbitration proceeding. The Federal
Arbitration Act will govern the proceeding and all issues raised by this
agreement to arbitrate. Each party to this Agreement will be bound by the
determination of any arbitrator or arbitration panel empaneled by the AAA to
adjudicate the dispute. Judgment on any arbitration award may be entered in any
court of competent jurisdiction.
XXXX XXXX EMPLOYMENT AGREEMENT Page 8 of 9
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Any party to this Agreement may bring an action, including a summary or
expedited proceeding, to compel arbitration of any such dispute or controversy
in a court of competent jurisdiction and, further, may seek provisional or
ancillary remedies, including temporary or injunctive relief in connection with
such dispute or controversy in a court of competent jurisdiction, provided that
the dispute or controversy is ultimately resolved through binding arbitration
conducted in accordance with the terms and conditions of this Section. If any
party institutes legal proceedings in an effort to resist arbitration and is
unsuccessful in doing so, the prevailing party is entitled to recover, from the
losing party, its legal fees, expert witness costs, and other expenses incurred
in connection with the defense of such proceedings.
29. Venue. This Agreement is performable, in whole or in part, in Dallas County,
Texas. The parties agree that although there may be other venues that are proper
under applicable law, Dallas County, Texas is a proper venue for the resolution
of any dispute relating to or arising out of this Agreement.
30. Mutual Understanding. Each party has read this entire Agreement, fully
understands the contents hereof, has had the opportunity to obtain independent
advice as to its legal effect, and is under no duress or obligation of any kind
to execute it. This Agreement reflects the mutual understanding of the parties
with respect to all subject matter addressed herein and will be construed
accordingly.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Company:
MARKETING SPECIALISTS SALES COMPANY
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
I agree to the terms and conditions set forth in this Agreement, agree to comply
with the restrictive covenants set forth in this Agreement, and verify that each
factual statement made in this Agreement is true and correct.
EMPLOYEE'S ADDRESS: EMPLOYEE:
0000 XxXxxx Xxxxx
-----------------------------
Xxxxx, XX 00000
-----------------------------
----------------------------- /s/ XXXXXXX X. XXXX
-----------------------------------
Xxxxxxx X. Xxxx
Upon execution of this Agreement,
Bromar agrees that the Bromar
Contract shall automatically
terminate and shall no longer be
valid and binding on Bromar or
Employee.
BROMAR, INC.
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
XXXX XXXX EMPLOYMENT AGREEMENT Page 9 of 9
