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EMPLOYMENT AGREEMENT
This Agreement is made and entered into effective as of October 15, 1997 by
and between Credit Store, Inc., ("Employer") and Xxxxxxx Xxxxxxx ("Employee").
Employer hereby agrees to employ Employee, and Employee hereby accepts such
employment, on the terms and conditions hereinafter set forth.
1. Period of Employment. The period of Employee's employment under this
Agreement (the "Period of Employment") shall commence on the date hereof (the
"Effective Date") and shall expire on October 15, 2000 (the "Expiration Date"),
subject to any extension as may be agreed or any earlier termination of
Employee's employment as provided in Section 6 hereof. Upon the expiration of
the initial term of this Agreement, and each subsequent term or extension
thereof, this Agreement shall automatically be extended for an additional term
of one year, unless the Employer or the Employee shall have notified the other
party hereto of its election to terminate this Agreement not later than 90 days
prior to the scheduled Expiration Date. If Employee's employment is terminated
pursuant to Section 6 hereof, the Period of Employment shall expire as of the
Date of Termination (as hereinafter defined).
2. Duties. During the Period of Employment, Employee will faithfully
perform those duties and responsibilities assigned by the Board of Directors of
Employer (the "Board") and Employee will devote his full working time and use
his best efforts to advance the business and welfare of Employer in furtherance
of the policies established by the Board. It is understood that the office at
which Employee will be primarily located will be in Sioux Falls, South Dakota,
but that the Employee's duties and responsibilities may require travel away from
his office. During the Period of Employment,
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Employee shall not engage in any other employment activities for any direct or
indirect remuneration without the concurrence of the Board, except that Employee
may continue to devote reasonable time to the management of investments and to
participation in community and charitable affairs, so long as such activities do
not interfere with his duties under this Agreement. Employee shall have such
title as the Board shall determine from time to time; Employee's initial title
is set forth on Exhibit A hereto..
3. Compensation.
3.1 Base Salary. During the Period of Employment, Employer shall pay
Employee a Base Salary at the rate of $150,000 per annum payable at least as
frequently as bi-weekly and subject to payroll deductions as may be necessary or
customary in respect of Employer's salaried employees in general.
3.2 In addition to the foregoing Base Salary and as inducement to and
in consideration for Employee entering into this Employment Agreement, the
Employer is paying to the Employee simultaneously with the execution hereof the
sum of $50,000.
3.3 Options. As an inducement to Employee to enter into this Agreement
and in consideration of the performance of the services by Employee hereunder,
the Employer is granting to Employee options (the "Options") to purchase up to
75,000 shares of common stock of CSI, par value $.001 per share, (the "Common
Stock") at an exercise price of $6.00 per share. (i) Options to purchase 25,000
of such shares of Common Stock shall not vest until first anniversary of the
Effective Date; (ii) Options to purchase 25,000 shares of such Common Stock
shall not vest until the second anniversary of the Effective Date and (iii)
Options to purchase 25,000 of such shares of Common Stock shall not vest until
the third anniversary of the Effective Date. The
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Options shall expire on the earlier of (a) five years from the date hereof, (b)
termination of Employee's employment pursuant to Section 6.1( c)(ii) hereof, and
(c) Employee terminating his employment hereunder prior to any material breach
hereof by Employer. The Option shall be in substantially the form of Exhibit B
hereto.
4. Benefits. During the Period of Employment, Employee shall be entitled to
participate in all fringe benefit programs (the "Fringe Benefits") such as
medical and dental coverage, life insurance, pension and profit-sharing plans,
etc., that may be maintained by Employer that are available to its executive
officers generally. Any payments or benefits payable to Employee hereunder in
respect of any calendar year during which Employee is employed by Employer for
less than the entire year shall, unless otherwise provided in the applicable
plan or arrangement, be prorated in accordance with the number of days in such
calendar year during which he is so employed. Employee acknowledges that he
shall have no vested rights under or to participate in any such program except
as expressly provided under the terms hereof or thereof.
5. Expenses. Employer will pay or reimburse Employee for such reasonable
travel, entertainment or other expenses as he may incur on behalf of Employer
during the Period of Employment in connection with the performance of his duties
hereunder but only to the extent that such expenses were either specifically
authorized by Employer or incurred in accordance with policies established by
the Board and provided that Employee shall furnish Employer with such evidence
relating to such expenses as Employer may reasonably require to substantiate
such expenses for tax purposes.
6. Termination of Employment.
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6.1 Circumstances of Termination. Notwithstanding the terms set forth in
Section 1 hereof, Employee's employment shall terminate under any of the
following circumstances:
(a) Death. In the event of Employee's death.
(b) Permanent Disability. If during the Period of Employment
Employee becomes physically or mentally incapacitated or disabled so that (i) he
is unable to perform for Employer substantially the same services as he
performed prior to incurring such incapacity or disability or to devote his full
working time or use his best efforts to advance the business and welfare of
Employer or otherwise to perform his duties under this Agreement and (ii) such
condition exists for an aggregate of six months in any 12 consecutive calendar
month period (Employer, at its option and expense, being entitled to retain a
physician reasonably acceptable to Employee to confirm the existence of such
incapacity or disability, and the determination of such physician being binding
upon Employer and Employee).
(c) Cause. At the option of Employer, because Employee:
(i) has been convicted of, or has pled guilty or nolo contendere
to, a felony, or
(ii) has embezzled or misappropriated Employer funds or
property, or
(iii) has continued use of alcohol or drugs to an extent that
interferes with the performance by Employee of his employment
responsibilities, or
(iv) has materially violated Section 8.1, Section 8.2,
Section 8.3 or Section 8.4 hereof, or
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(v) has willfully failed or refused to perform those duties
reasonably assigned or delegated to him by the Board of Directors,
which failure or refusal continues following (A) the Board of
Directors giving the Employee written notice setting forth the facts
or events constituting such failure or refusal and (B) a reasonable
opportunity to correct the deficiencies or other problems specified
in such notice to the reasonable satisfaction of the Board of
Directors.
(d) Not For Cause. At the option of Employer at any time for any
reason other than those referred to above or for no reason at all, whereupon the
Employer shall become obligated to make those payments set forth in Section
7.1(d) hereof. If Employer shall be in material breach of this Agreement and by
reason thereof Employee terminates his employment hereunder, such termination
shall be deemed a termination by Employer pursuant to this Section 6.1(d).
6.2 Notice of Termination. Any termination of Employee's employment by
Employer (other than termination pursuant to Section 6.1(a) hereof) or by
Employee shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 9.2. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice terminating Employee's employment by
Employer. If a Notice of Termination is given by Employer, such notice shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances that provide a
basis for termination of Employee's employment under the provision so indicated.
For purposes of this Agreement, the "Date of Termination" shall be the date on
which the Notice of Termination is delivered except that with respect to Section
6.1(a) the "Date of Termination" shall be the date of Employee's death.
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7. Payments Upon Termination of Employment.
7.1 Payments. In the event that Employee's employment is terminated
prior to the Expiration Date (including any extension thereof), the Period of
Employment shall expire as of the Date of Termination.
(a) If Employer terminates Employee's employment for Cause or if
Employee voluntarily terminates his employment other than as a result of
Employer's material breach of the terms of this Agreement, Employer's obligation
to compensate Employee shall in all respects cease as of the Date of
Termination, except that Employer shall pay Employee the Base Salary accrued
under Section 3, any Fringe Benefits accrued under Section 4 and the
reimbursable expenses incurred under Section 5 of this Agreement up to such Date
of Termination (the "Accrued Obligations");
(b) If Employee's employment is terminated upon the death of
Employee, Employer's obligation to compensate Employee shall in all respects
cease as of the Date of Termination, except that within thirty (30) days after
the Date of Termination Employer shall (i) pay Employee's estate or legal
representative the Accrued Obligations and (ii) continue to maintain during the
six month period following the Date of Termination for the benefit of the
Employee's dependents, basic health and dental insurance and related medical
expenses coverage on terms no less favorable to the Employee than Employer
provides to its executive officers generally, as such benefits may be modified
from time to time during such period;
(c) If Employee's employment is terminated upon the Permanent
Disability of Employee, Employer's obligation to compensate Employee shall in
all respects cease as of the Date of Termination, except that within thirty (30)
days after the Date of Termination Employer shall (i) pay Employee Accrued
Obligations and a lump sum payment equal to 25% of the Employee's annual Base
Salary payable under Section 3
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hereof at the rate in effect immediately prior to such termination less the
amount of any disability payments payable to Employee during the six-month
period following the Date of Termination pursuant to any Employer-paid or state
sponsored insurance policy or employer self-insured program, (ii) continue to
maintain during the six-month period following the Date of Termination for the
benefit of Employee and his dependents, basic health, disability and dental
insurance and related medical expenses coverage on terms no less favorable to
the Employee than Employer provides to its executive officers generally, as such
benefits may be modified from time to time during such period provided that the
Employee shall continue to be obligated to make any contributions or payments in
connection with such benefits to the same extent as other executive officers
generally; and
(d) If Employee's employment is terminated by Employer pursuant to
Section 6.1(d), Employer's obligation to compensate Employee shall in all
respects cease, except that within thirty (30) days after the Date of
Termination Employer shall pay to Employee the Accrued Obligations and during
the period ending on the Expiration Date (the "Severance Period"), Employer
shall (i) pay to Employee on a monthly basis the sum of one-twelfth (1/12th) of
the annual Base Salary of Employee in effect at the Date of Termination and
shall pay to Employee if and when due the amount of any bonuses accruing under
Section 3.2 hereof (the "Continuation Payments") (ii) continue to maintain,
during the Severance Period for the benefit of the Employee and his dependents,
basic health, dental and life insurance and related medical expenses coverage
(including disability and hospitalization coverage) (the "Continuation
Benefits") on terms no less favorable to the Employee than the Employer provides
to its executive officers generally, as such benefits may be modified from time
to time during the Severance Period. During the Severance Period, Employee shall
be required to make any contributions required to maintain such Continuation
Benefits, which may be withheld from the Continuation
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Payments; provided that such contributions are also required to be made by the
Employer's executive officers generally. If at any time during the Severance
Period Employee shall obtain employment with a third party (the "Substitute
Employer") in which Employee is entitled to receive basic health benefits in
connection with such employment on terms provided by the Substitute Employer to
its similarly situated employees generally, the Employer shall no longer be
required to provide Continuation Benefits to the Employee, regardless of whether
such benefits differ in any respect from the Continuation Benefits. The Employer
shall be excused from its obligations to make payments under this Section 7.1(d)
if the Employee breaches its obligations hereunder (including its obligations
under Article 8 hereof).
7.2 Release and Satisfaction. With respect to Employee, his heirs,
successors and assigns, payment by Employer of the amounts provided under this
Section 7 shall release, relinquish and forever discharge Employer and any
director, officer, employee, shareholder or agent of Employer from any and all
claims, damages, losses, costs, expenses, liabilities or obligations, whether
known or unknown (other than any such claims, damages, losses, costs, expenses,
liabilities or obligations (a) covered by any indemnification arrangement of
Employer with respect to Employee or (b) arising under any written employee
benefit plan or arrangement (whether or not tax-qualified) covering Employee,
which Employee has incurred or suffered or may incur or suffer as a result of
the termination of such employment.
7.3 Effect on This Agreement. Any termination of Employee's employment
and any expiration of the Period of Employment under this Agreement shall not
affect the continuing operation and effect of Sections 7.2, 8.1, 8.2, 8.3, 8.4
and 8.5 hereof, which shall continue in full force and effect with respect to
Employer and Employee, and its and his heirs, successors and assigns. Nothing in
Section 7.1 hereof shall be deemed to
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operate or shall operate as a release, settlement or discharge of any action or
omission by Employee enumerated in Section 6.1(c) hereof as a possible basis for
termination of Employee's employment for Cause.
7.4 No Mitigation. Subject to the provisions of Sections 8.1, 8.2, 8.3,
8.4 and 8.5 hereof, Employee shall be free to accept such employment and engage
in such business as Employee may desire following the termination of his
employment hereunder, and any compensation received by Employee therefrom shall
not reduce any payments required to be made by Employer hereunder.
8. Non-disclosure of Proprietary Information, Surrender of Records;
Inventions and Patents; Non-Compete.
8.1 Proprietary Information. Employee shall not during the Period of
Employment or at any time thereafter (irrespective of the circumstances under
which Employee's employment by Employer terminates), directly or indirectly use
for his own purpose or for the benefit of any person or entity other than
Employer, nor otherwise disclose, any proprietary information, as defined below,
to any individual or entity, unless such disclosure has been authorized in
writing by the Board or is otherwise required by law. For purposes of this
Agreement, the term "proprietary information" shall include, but is not limited
to: (a) the name or address of any customer, vendor or affiliate or Employer or
any information concerning the transactions or relations of any customer, vendor
or affiliate or Employer with Employer or any of its shareholders; (b) any
information concerning any product, technology or procedure employed by Employer
but not generally known to its customers, vendors or competitors, or under
development by or being tested by Employer but not at the time offered generally
to customers or vendors; (c) any information relating to Employers computer
software, computer systems, pricing or marketing methods, margins,
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capital structure, operating results, borrowing arrangements or business plans;
(d) any information which is generally regarded as confidential or proprietary
in any line of business engaged in by Employer; (e) any information contained in
any of Employer's written or oral policies and procedures or employee manuals;
(f) any information belonging to customers, vendors or affiliates of Employer
which Employer has agreed to hold in confidence; (g) any inventions, innovations
or improvements covered by Section 8.3 below; (h) any other information which
the Board has reasonably determined by resolution and communicated to Employee
to be confidential or proprietary; and (i) all written, graphic and other
material relating to any of the foregoing. Information that is not novel or
copyrighted or patented may nonetheless be proprietary information. Proprietary
information, however, shall not include (i) any information that is or becomes
generally known to the industries in which Employer competes through sources
independent of Employer or through authorized publication to persons other than
Employer's employees by Employer or (ii) other non-sensitive information that
may be disclosed by Employee in the ordinary course of business, the disclosure
of which is not reasonably likely to adversely affect Employer's business
operations, their relationships with customers, vendors or employees or the
results of their operations.
8.2 Confidentiality and Surrender of Records. Employee shall not during
the Period of Employment or at any time thereafter (irrespective of the
circumstances under which Employee's employment by Employer terminates), except
as required by law, directly or indirectly give any "confidential records" (as
hereinafter defined) to, or permit any inspection or copying of confidential
records by, any individual or entity other than in the course of such
individual's or entity's employment or retention by Employer, nor shall he
retain, and will deliver promptly to Employer, any of the same following
termination of his employment. For purposes hereof, "confidential records" means
all correspondence,
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memoranda, files, manuals, books, lists, financial, operating or marketing
records, magnetic tape, or electronic or other media or equipment of any kind
which may be in Employee's possession or under his control or accessible to him
which contain any proprietary information as defined in Section 8.1. above. All
confidential records shall be and remain the sole property of Employer during
the Period of Employment and thereafter.
8.3 Inventions and Patents: All inventions, innovations or improvements
in Employer's method of conducting its business (including policies, procedures,
products, improvements, software, ideas and discoveries, whether paten- table or
copyrightable or not) conceived or made by Employee, either alone or jointly
with others, during the Period of Employment belong to Employer. Employee will
promptly disclose in writing such inventions, innovations or improvements to the
Board and perform all actions reasonably requested by the Board to establish and
confirm such ownership by Employer, including, but not limited to, cooperating
with and assisting Employer in obtaining patents for Employer in the United
States and in foreign countries. Any patent application filed by Employee within
a year after termination of his employment hereunder shall be presumed to relate
to an invention which was made during the Period of Employment unless Employee
can provide evidence to the contrary.
8.4 Covenant Not to Compete; No Solicitation.
(a) Employee acknowledges and recognizes the highly competitive
nature of Employer's business and, in consideration of the payment by Employer
to Employee of amounts that my hereafter be paid to Employee pursuant to
Sections 7.1 and 8.4(d) hereof, Employee agrees that, provided he receives the
applicable payments provided for in Section 7.1 and 8.4(d) hereof, during the
period (the "Covered Time") beginning on the Date of Termination and ending (i)
if Employee's employment is terminated for any reason other than pursuant to
Section 6.1(d) hereof, on the second
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anniversary of the Date of Termination or (ii) if Employee's employment is
terminated pursuant to Section 6.1(d) hereof and subject to Section 8.4(d)
hereof, on the earlier of (A) the first anniversary of the Date of Termination
or (B) the Expiration Date, Employee will not compete with the business of
Employer, which means that Employee will not engage, directly or indirectly, in
the "Covered Business" (as hereinafter defined) in any state of the United
States of America in which the Employer is conducting business or proposes to
conduct business as of the Date of Termination and any states contiguous
therewith (these areas are hereinafter collectively referred to as the "Covered
Area"). For the purpose of this Agreement, (i) "Covered Business" shall mean the
businesses in which Employer or any "affiliate" of Employer was engaged at any
time during the one year period preceding the Date of Termination; and (ii) the
phrase "engage, directly or indirectly" shall mean engaging directly or having
an interest, directly or indirectly, as owner, partner, shareholder, employee,
independent contractor, capital investor, lender, renderer of consultation
services or advice or otherwise (other than as the holder of less than 2% of the
outstanding stock of a publicly-traded corporation), either alone or in
association with others, in the operation of any aspect of any type of business
or enterprise engaged in any aspect of the Covered Business. Employee shall be
deemed engaged in business in the Covered Area if his place of business is
located in the Covered Area or if he solicits customers located anywhere in, or
provides products anywhere in, the Covered Area. For all purposes of this
Agreement, the term "affiliate(s)" shall be defined as the term "affiliate" is
defined in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934.
(b) Employee agrees that during the term of this Agreement
(including any extension thereof) and during the Covered Time he shall not (i)
directly or indirectly solicit or attempt to solicit any of the employees,
agents or representatives of Employer or of affiliates of Employer to leave any
of such entities; (ii) directly or indirectly
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solicit or attempt to solicit any of the employees, agents, consultants or
representatives of Employer or of affiliates of Employer to become employees,
agents, representatives or consultants or any other person or entity; or (iii)
directly or indirectly solicit or attempt to solicit any customer, vendor or
lender of Employer or of affiliates of Employer with respect to any product or
service being furnished by Employer.
(c) Employee understands that the provisions of Section 8.4 (a) may
limit his ability to earn a livelihood in a business which is substantially
similar to the business of Employer but nevertheless agrees and hereby
acknowledges that the consideration provided under this Agreement, including any
amounts or benefits provided under Section 7 hereof, is sufficient to justify
the restrictions contained in such provisions and in consideration thereof and
in light of Employee's education, skills and abilities, Employee agrees that he
will not assert that, and it should not be considered that, such provisions
prevent him from earning a living or otherwise are void or unenforceable or
should be voided or held unenforceable. Employee acknowledges and agrees that
his duties with Employer are of an executive nature and that he is a member of
Employer's management group.
(d) If Employee's employment is terminated pursuant to Section
6.1(d) hereof, Employer may extend the Covered Time to extend up to and through
the second anniversary of the Date of Termination, but no later than the first
anniversary of the Expiration Date by delivering written notice to Employee
(specifying the duration of the extended Covered Time), within ten (10) days of
such Date of Termination, that Employer has elected to continue to pay to
Employee the Continuation Payments (except that during any period of Covered
Time that extends beyond the Expiration Date, the Continuation Payments shall be
increased by an additional 50% thereof) and provide the Continuation Benefits
(on terms no less favorable to Employee than Employer provides to its executive
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officers generally, as such benefits may be modified from time to time) for each
month of such extended Covered Time. During the extended Covered Time, Employee
shall be required to make any contributions required to maintain such
Continuation Benefits, which may be withheld from the Continuation Payments;
provided that such contributions are also required to be made by the Employer's
executive officers generally. If at any time during the extended Covered Time
Employee shall obtain employment with a Substitute Employer in which Employee is
entitled to receive basic health benefits in connection with such employment on
terms provided by the Substitute Employer to its similarly situated employees
generally, Employer shall no longer be required to provide Continuation Benefits
to the Employee, regardless of whether such benefits differ in respect from the
Continuation Benefits. Employer shall be excused from its obligations to make
payments under this Section 8.4(d) if Employee breaches its obligations
hereunder.
8.5 Litigation Assistance. Employee agrees that after the Date of
Termination he shall, at the request of Employer, render all reasonable
assistance and perform all lawful acts that Employer considers necessary or
advisable in connection with any litigation involving Employer or any director,
officer, employee, shareholder, agent, representative, consultant, customer or
vendor of Employer. In the event that Employer requests Employee's assistance
under this Section 8.5, Employer shall pay to Employee for each day such
assistance is rendered an amount equal to the annual Base Salary of Employee in
effect at the Date of Termination divided by 250 and shall promptly pay or
reimburse Employee for such reasonable travel expenses as he may incur in
connection with rendering assistance hereunder.
8.6 Definition of Employer. For purposes of this Section 8, the term
Employer shall include Employer and any and all of its subsidiaries, ventures or
affiliates, whether currently existing or hereafter formed, which are engaged in
the Covered
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Business or a portion thereof, as well as any person to whom this Agreement is
assigned as permitted by Section 9.8 hereof
8.7 Enforcement.
(a) The parties hereto agree and acknowledge that the covenants and
agreements contained herein are reasonably necessary in duration and to protect
the reasonable competitive business interests of Employer, including, without
limitation, the value of the proprietary information and goodwill of Employer.
(b) Employee agrees that the covenants and undertakings contained in
Article 8 of this Agreement relate to matters which are of a special, unique and
extraordinary character and that Employer cannot be reasonably or adequately
compensated in damages in an action at law in the event Employee breaches any of
these covenants or undertakings. Therefore, Employee agrees that Employer shall
be entitled, as a matter of course, without the need to prove irreparable
injury, to an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any violation or threatened
violation of any of such terms by Employee and such other persons as the court
shall order. Employee agrees to pay costs and legal fees incurred by Employer
provided Employer is successful in obtaining such an injunction.
(c) Rights and remedies provided for in this Section are cumulative
and shall be in addition to rights and remedies otherwise available to the
parties under any other agreement or applicable law.
(d) In the event that any provision of this Agreement shall to any
extent be held invalid, unreasonable or unenforceable in any circumstance, the
parties hereto agree that the remainder of this Agreement and the application of
such provision of this Agreement to other circumstances shall be valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement, or any part thereof, is held to be
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unenforceable because of the scope or duration of or the area covered by such
provision, the parties hereto agree that the court or arbitrator making such
determination shall reduce the scope, duration and/or area of such provision
(and shall substitute appropriate provisions for any such unenforceable
provisions) in order to make such provision enforceable to the fullest extent
permitted by law, and/or shall delete specific words and phrases, and such
modified provision shall then be enforceable and shall be enforced. The parties
hereto recognize that if, in any judicial proceeding, a court shall refuse to
enforce any of the separate covenants contained in this Agreement, then that
unenforceable covenant contained in this Agreement shall be deemed eliminated
from these provisions to the extent necessary to permit the remaining separate
covenants to be enforced. In the event that any court or arbitrator determines
that the time period or the area, or both, are unreasonable and that any of the
covenants is to that extent unenforceable, the parties hereto agree that such
covenants will remain in full force and effect, first, for the greatest time
period, and second, in the greatest geographical area that would not render them
unenforceable.
9. Miscellaneous.
9.1 Key Man Insurance. Employee recognizes and acknowledges that
Employer or its affiliates may seek and purchase one or more policies providing
key man life insurance with respect to Employee, the proceeds of which would be
payable to Employer or such affiliate. Employee hereby consents to Employer or
its affiliates seeking and purchasing such insurance and will provide such
information, undergo such medical examinations (at Employer's expense), execute
such documents, and otherwise take any and all actions necessary or desirable in
order for Employer or its affiliates to seek, purchase and maintain in full
force and effect such policy or policies.
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9.2 Notice. Any notice required or permitted to be given hereunder shall
be deemed sufficiently given if sent by registered or certified mail, postage
prepaid, addressed to the addressee at his or its address last provided the
sender in writing by the addressee for purposes of receiving notices hereunder
or, unless or until such address shall be so furnished, to the address indicated
opposite his or its signature to this Agreement. For purposes of this Agreement,
notice sent in conformity with this Section 9.2 shall be deemed to have been
received on the third business day following the date on which such notices are
so sent.
9.3 Modification and No Waiver of Breach. No waiver or modification of
this Agreement shall be binding unless it is in writing signed by the parties
hereto. No waiver or modification of this Agreement shall be binding unless it
is in writing signed by the parties hereto. No waiver by a party of a breach
hereof by the other party shall be deemed to constitute a waiver of a future
breach, whether of a similar or dissimilar nature, except to the extent
specifically provided in any written waiver under this Section 9.3.
9.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND ALL
QUESTIONS RELATING TO THE VALIDITY AND PERFORMANCE HEREOF AND REMEDIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
9.5 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 agreement.
9.6 Captions. The captions used herein are for ease of reference only
and shall not define or limit the provisions hereof.
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9.7 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto relating to the matters encompassed hereby and
supersedes any oral or written agreements, including, without limitation. letter
of even date herewith between Employee and Employer.
9.8 Assignment. The rights of Employer under this Agreement may, without
the consent of Employee, be assigned by Employer to any person, firm,
corporation, or other business entity which at any time, whether by purchase,
merger or otherwise, directly or indirectly, acquires all or material portions
of the stock, assets or any line of business of Employer, provided such assignee
assumes all of the obligations of Employer under this Agreement.
9.9 Non-Transferability of Interest. None of the rights of Employee to
receive any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by the
laws of descent and distribution upon the death of Employee. Any attempted
assignment, transfer, conveyance, or other disposition (other than as aforesaid)
of any interest in the rights of Employee to receive any form of compensation to
be made by Employer pursuant to this Agreement shall be void.
9.10 Arbitration. The parties shall endeavor to settle all disputes by
amicable negotiations. Except as otherwise provided herein, any claim, dispute,
disagreement or controversy that arises between the parties relating to this
Agreement that is not amicably settled shall be resolved by arbitration, as
follows:
(a) Any such arbitration shall be heard in The City of New York, New
York, before a panel consisting of one (1) to three (3) arbitrators, each of
whom shall be impartial. Upon the written Request of Arbitration of either party
hereto to commence arbitration hereunder, the parties shall attempt to mutually
agree as to the
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number and identity of the arbitrator(s), within thirty (30) days of the date of
such Request. Except as the parties may otherwise agree, all arbitrators (if not
selected by the parties hereto within thirty (30) days of a written Request for
Arbitration) shall be appointed pursuant to the commercial arbitration rules of
the American Arbitration Association. In determining the number and appropriate
background of the arbitrators, the appointing authority shall give due
consideration to the issues to be resolved, but his or her decision as to the
number of arbitrators and their identity shall be final.
(b) An arbitration may be commenced by any party to this Agreement
by the service of a written Request for Arbitration upon the other affected
parties. Such Request for Arbitration shall summarize the controversy or claim
to be arbitrated.
(c) All attorneys' fees and costs of the arbitration shall in the
first instance be borne by the respective party incurring such costs and fees,
but the arbitrators shall have the discretion to award costs and/or attorneys'
fees as they deem appropriate under the circumstances. The parties hereby
expressly waive punitive damages, and under no circumstances shall an award
contain any amount that in any way reflects punitive damages.
(d) Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
(e) It is intended that controversies or claims submitted to
arbitration under this Section 9.10 shall remain confidential, and to that end
it is agreed by the parties that neither the facts disclosed in the arbitration,
the issues arbitrated, nor the views or opinions of any persons concerning them,
shall be disclosed to third persons at any time, except to the extent necessary
to enforce an award or judgment or as required by law or in response to legal
process or in connection with such arbitration.
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(f) Any arbitration under this Section 9.10 shall be conducted
pursuant to the commercial arbitration rules of the American Arbitration
Association.
9.11 Jurisdiction: Venue. Subject to Section 9.10 hereof, the parties
hereto irrevocably and unconditionally submit to the exclusive jurisdiction of
any State or Federal court sifting in New York, New York over any suit, action
or proceeding arising out of or relating to this Agreement. The parties hereto
irrevocably and unconditionally waive any objection to the laying of venue of
any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. A final judgment in any suit, action or proceeding
brought in any such court shall be conclusive and binding upon the parties and
may be enforced in any other courts to whose jurisdiction a party is or may be
subject, by suit upon such judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
[Illegible] - Employer
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By: /s/ Xxxxxxx Xxxxxxx
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- Employee
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