EXHIBIT 10.19
FOUNDER'S EMPLOYMENT AGREEMENT
This Founder's Employment Agreement (this "Agreement") is by and between
[______________________], a [_____________] corporation (the "Company") which,
on the Effective Date (as defined below), will be a wholly-owned subsidiary of
Home USA, Inc., a Delaware corporation ("Home USA"), and
[_______________________] ("Executive"), and is dated October [___], 1997, but
shall become effective only on the date of the consummation of the initial
public offering of the common stock of Home USA (the "Effective Date").
R E C I T A L S
A. As of the Effective Date, the Company and the other subsidiaries of
Home USA are or will be engaged primarily in the retail manufactured housing
business and in related services businesses.
B. Executive is employed by the Company in a confidential relationship
pursuant to which Executive has become and will continue to become familiar with
and aware of information as to the Company's and Home USA's customers, specific
manner of doing business (including the processes, techniques and trade secrets
utilized by the Company and Home USA), and future plans with respect thereto,
all of which have been and will be established and maintained at significant
expense to the Company and Home USA. This information includes trade secrets and
constitutes a valuable asset of the Company and of Home USA.
C. The parties hereto desire to agree to the various matters described
herein and to memorialize their agreements as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, it is hereby agreed as follows:
A G R E E M E N T
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive as [______________________] of
the Company. Executive shall have responsibilities, duties and authority
reasonably accorded to, expected of, and consistent with such position and will
report directly to the Board of Directors of the Company (the "Board") or its
designee. Executive hereby accepts this employment upon the terms and conditions
herein contained and agrees to devote substantially all of his business time,
attention and efforts to promote and further the business of the Company.
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(b) Executive shall faithfully adhere to, execute and fulfill all lawful
policies established from time to time by the Company.
2. COMPENSATION. For all services rendered by Executive, the Company shall
compensate Executive as follows:
(a) BASE SALARY. Commencing on the Effective Date or, at the option of the
Company, the first day of the month during which the Effective Date occurs or
the first day of the month immediately following the date on which the Effective
Date occurs, the base salary payable to Executive shall be $ [________________]
per year, payable on a regular basis in accordance with the Company's standard
payroll procedures but not less than monthly. On at least an annual basis, the
Board will review Executive's performance and may make increases, but not
decreases, to such base salary if, in its discretion, any such increase is
warranted.
(b) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION. Executive
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Coverage, subject to contributions required of executives of the
Company generally, for Executive and his dependent family members under health,
hospitalization, disability, dental, life and other insurance plans that the
Company may have in effect from time to time for the benefit of its executives.
(ii) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Executive in the performance of his services
pursuant to this Agreement. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's expense
reporting policy.
(iii) The Company shall provide Executive with such other executive
perquisites as may be deemed appropriate for Executive by the Board, and
Executive shall be entitled to participate in all other Company-wide employee
benefits as are available from time to time.
3. NON-COMPETITION AGREEMENT.
(a) Executive shall not, during the term of his employment hereunder, be
engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes in any material respect with
Executive's duties and responsibilities hereunder. The foregoing limitations
shall not be construed as prohibiting Executive from making passive personal
investments in such form or manner as will neither require his services in the
operation or affairs of
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the companies or enterprises in which such investments are made nor violate the
other terms of this paragraph 3. In addition, Executive shall not, during the
period of his employment by or with the Company, and for a period of two (2)
years immediately following the termination of his employment under this
Agreement, for any reason whatsoever, other than a termination by the Company
without cause or by Executive for Good Reason, directly or indirectly, for
himself or on behalf of or in conjunction with any other person, company,
partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner, joint
venturer, or in a managerial capacity, whether as an employee, independent
contractor, consultant or advisor, or as a sales representative, in any business
in direct competition with the Company or Home USA or any of their respective
subsidiaries, within 100 miles of where the Company or any of Home USA's other
subsidiaries conduct business, including any territory serviced by the Company
or Home USA or any of such subsidiaries (the "Territory");
(ii) call upon any person who is, at that time, within the Territory, an
employee of the Company or Home USA (including the respective subsidiaries
thereof) in a managerial capacity for the purpose or with the intent of enticing
such employee away from or out of the employ of the Company or Home USA
(including the respective subsidiaries thereof);
(iii) call upon any person or entity which is, at that time, or which has
been, within one (1) year prior to that time, a customer of the Company or Home
USA (including the respective subsidiaries thereof) within the Territory for the
purpose of soliciting or selling products or services in direct competition with
the Company or Home USA within the Territory;
(iv) call upon any prospective acquisition candidate, on Executive's own
behalf or on behalf of any competitor, which candidate was, to Executive's
knowledge, either called upon by the Company or Home USA (including the
respective subsidiaries thereof) or for which the Company or Home USA made an
acquisition analysis, for the purpose of acquiring such entity.
Notwithstanding the above, the foregoing covenant shall not be deemed to
prohibit Executive from acquiring as a passive investment not more than two
percent (2%) of the capital stock of a competing business the stock of which is
traded on a national securities exchange or on an over-the-counter or similar
market.
(b) Because of the difficulty of measuring economic losses to the Company
and Home USA as a result of a breach of the foregoing covenant, and because of
the immediate and irreparable damage that could be caused to the Company and
Home USA for which they would have no other adequate remedy, Executive agrees
that the foregoing covenant may be enforced by Home USA or
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the Company in the event of breach or threatened breach by Executive, by
injunctions, restraining orders and other appropriate equitable relief.
(c) It is agreed by the parties that the foregoing covenants in this
paragraph 3 impose a reasonable restraint on Executive in light of the
activities and business of the Company or Home USA, as the case may be
(including Home USA's other subsidiaries) on the Effective Date of this
Agreement and the current plans of Home USA (including Home USA's other
subsidiaries); but it is also the intent of the Company and Executive that such
covenants be construed and enforced in accordance with the changing activities,
business and locations of the Company and Home USA, as the case may be
(including Home USA's other subsidiaries) throughout the term of these
covenants, whether before or after the date of termination of the employment of
Executive. For example, if, during the term of this Agreement, the Company or
Home USA, as the case may be (including Home USA's other subsidiaries) engage in
new and different activities, enter a new business or establish new locations
for their current activities or businesses in addition to or other than the
activities or businesses enumerated under the Recitals above or the locations
currently established therefor, then Executive will be precluded from soliciting
the customers or employees of such new activities or businesses or from such new
locations and from directly competing with such new businesses within 100 miles
of all then-established operating location(s) through the term of these
covenants.
It is further agreed by the parties hereto that, in the event that
Executive shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with the Company or Comfort
(including Comfort's other subsidiaries), or similar activities or business in
locations the operation of which, under such circumstances, does not violate
clause (i) of this paragraph 3, and in any event such new business, activities
or location are not in violation of this paragraph 3 or of Executive's
obligations under this paragraph 3, if any, Executive shall not be chargeable
with a violation of this paragraph 3 if the Company or Comfort (including
Comfort's other subsidiaries) shall thereafter enter the same, similar or a
competitive (i) business, (ii) course of activities or (iii) location, as
applicable.
(d) The covenants in this paragraph 3 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth herein are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and this
Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company or
Home USA, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Home USA or the Company of such
covenants. It is specifically agreed that the period of two (2) years following
termination of
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employment stated at the beginning of this paragraph 3, during which the
agreements and covenants of Executive made in this paragraph 3 shall be
effective, shall be computed by excluding from such computation any time during
which Executive is in violation of any provision of this paragraph 3.
4. TERM; TERMINATION; RIGHTS ON TERMINATION.
(a) The term of this Agreement shall begin on the Effective Date and
continue for five (5) years (the "Term"), unless terminated sooner as herein
provided, and shall continue thereafter on a year-to-year basis on the same
terms and conditions contained herein in effect as of the time of renewal. This
Agreement and Executive's employment may be terminated in any one of the
followings ways:
(i) DEATH. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(ii) DISABILITY. If, as a result of incapacity due to physical or
mental illness or injury, Executive shall have been absent from his
full-time duties hereunder for four (4) consecutive months, then thirty
(30) days after receiving written notice (which notice may occur before or
after the end of such four (4) month period, but which shall not be
effective earlier than the last day of such four (4) month period), the
Company may terminate Executive's employment hereunder provided Executive
is unable to resume his full-time duties with or without reasonable
accommodation at the conclusion of such notice period. Also, Executive may
terminate his employment hereunder if his health should become impaired to
an extent that makes the continued performance of his duties hereunder
hazardous to his physical or mental health or his life, provided that
Executive shall have furnished the Company with a written statement from a
qualified doctor to such effect and provided, further, that, at the
Company's request made within thirty (30) days of the date of such written
statement, Executive shall submit to an examination by a doctor selected
by the Company who is reasonably acceptable to Executive or Executive's
doctor and such doctor shall have concurred in the conclusion of
Executive's doctor. In the event this Agreement is terminated as a result
of Executive's disability, Executive shall receive from the Company, in a
lump-sum payment due within thirty (30) days of the effective date of
termination, the base salary at the rate then in effect for whatever time
period is remaining under the Initial Term (as defined below) or for one
(1) year, whichever amount is greater; provided, however, that any such
payments shall be reduced by the amount of any disability insurance
payments payable to the Executive as a result of such disability to the
extent such disability insurance is provided by the Company and Home USA.
(iii) FOR CAUSE. The Company may terminate the Agreement ten (10)
days after written notice to Executive for cause, which shall be: (1)
Executive's willful or material breach of this Agreement; (2) Executive's
gross negligence in the performance or intentional
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nonperformance (continuing for ten (10) days after receipt of written
notice of need to cure) of any of Executive's material duties and
responsibilities hereunder; (3) Executive's willful dishonesty, fraud or
misconduct with respect to the business or affairs of the Company or Home
USA; (4) Executive's conviction of a felony crime; or (5) Executive's
confirmed positive illegal drug test result (any one of which is
hereinafter called "Cause"). In the event of a termination for Cause,
Executive shall have no right to any severance compensation.
(iv) WITHOUT CAUSE OR FOR GOOD REASON. The Company may terminate
Executive's employment hereunder without Cause at any time, and Executive
may terminate his employment hereunder for Good Reason (as defined below)
at any time, in either case effective thirty (30) days after written
notice. If Executive is terminated by the Company without Cause or if
Executive terminates Executive's employment hereunder for Good Reason
during the first three (3) years of the Term (the "Initial Term"),
Executive shall receive from the Company, in a lump-sum payment due on the
effective date of termination, the base salary at the rate then in effect
for whatever time period is remaining under the Initial Term of this
Agreement or for one (1) year, whichever amount is greater. If Executive
is terminated by the Company without Cause or should Executive terminate
for Good Reason during the final two (2) year period of the Term,
Executive shall receive from the Company, in a lump-sum payment due on the
effective date of termination, one year's salary at the base salary rate
then in effect. Further, any termination without Cause by the Company
shall operate to shorten the period set forth in paragraph 3(a) and during
which the terms of paragraph 3 apply to one (1) year from the date of
termination of employment. If Executive resigns or otherwise terminates
his employment hereunder without Good Reason, the provisions of paragraph
3 hereof shall apply, except that Executive shall receive no severance
compensation. If Executive is terminated without Cause or terminates his
employment hereunder for Good Reason, (1) the Company shall make the
insurance premium payments contemplated by COBRA for a period of 12 months
after such termination, and (2) the Executive shall be entitled to receive
a pro rated portion of any annual bonus to which the Executive would have
been entitled for the year during which the termination occurred had the
Executive not been terminated.
(b) DEFINITION OF "GOOD REASON". Executive shall have "Good Reason" to
terminate this Agreement and his employment hereunder if, without Executive's
consent, Executive is demoted to a position of materially less stature or
importance within the Company than the position described in Section 1 hereof.
(c) CHANGE IN CONTROL OF HOME USA. In the event of a "Change in Control of
Home USA" (as defined below) during the Initial Term, paragraph 11 below shall
apply.
(d) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason provided above, Executive shall be entitled to receive all compensation
earned and all benefits and
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reimbursements due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Executive only to the extent and in the manner expressly provided herein. All
other rights and obligations of the Company and Executive under this Agreement
shall cease as of the effective date of termination, except that the Company's
obligations under paragraph 8 herein and Executive's obligations under
paragraphs 3, 5, 6, 7 and 9 herein shall survive such termination in accordance
with their terms.
(e) BREACH BY COMPANY. If termination of Executive's employment arises out
of the Company's failure to pay Executive on a timely basis the amounts to which
Executive is entitled under this Agreement or as a result of any other breach of
this Agreement by the Company, as determined by a court of competent
jurisdiction or pursuant to the provisions of paragraph 15 below, the Company
shall pay all amounts and damages to which Executive may be entitled as a result
of such breach, including interest thereon and all reasonable legal fees and
expenses and other costs incurred by Executive to enforce his rights hereunder.
Further, none of the provisions of paragraph 3 shall apply in the event this
Agreement is terminated as a result of a breach by the Company.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents, business
plans, financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company, Home USA
or their representatives, vendors or customers which pertain to the business of
the Company or Home USA shall be and remain the property of the Company or Home
USA, as the case may be, and be subject at all times to their discretion and
control. Likewise, all correspondence, reports, records, charts, advertising
materials and other similar data pertaining to the business, activities or
future plans of the Company or Home USA which is collected by Executive shall be
delivered promptly to the Company without request by it upon termination of
Executive's employment.
6. INVENTIONS. Executive shall disclose promptly to the Company any and
all significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by
Executive, solely or jointly with another, during the period of employment or
within one (1) year thereafter, and which are directly related to the business
or activities of the Company and which Executive conceives as a result of his
employment by the Company. Executive hereby assigns and agrees to assign all his
interests therein to the Company or its nominee. Whenever requested to do so by
the Company, Executive shall execute any and all applications, assignments or
other instruments that the Company shall deem necessary to apply for and obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Company's interest therein.
7. TRADE SECRETS. Executive agrees that Executive will not, during or
after the Term of this Agreement with the Company, disclose the terms of the
Company's or Home USA's relationships or agreements with their respective
vendors or customers or any other significant or
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material trade secret of the Company or Home USA, whether in existence or
proposed, to any person, firm, partnership, corporation or business for any
reason or purpose whatsoever.
8. INDEMNIFICATION. In the event Executive is made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by the Company
or Home USA against Executive), by reason of the fact that Executive is or was
performing services under this Agreement, then the Company shall indemnify
Executive against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, as actually and reasonably incurred by Executive in
connection therewith to the maximum extent permitted by applicable law. The
advancement of expenses shall be mandatory to the extent permitted by applicable
law. In the event that both Executive and the Company are made a party to the
same third-party action, complaint, suit or proceeding, the Company agrees to
engage counsel, and Executive agrees to use the same counsel, provided that if
counsel selected by the Company shall have a conflict of interest that prevents
such counsel from representing Executive, Executive may engage separate counsel
and the Company shall pay all reasonable attorneys' fees of such separate
counsel. The Company shall not be required to pay the fees of more than one law
firm except as described in the preceding sentence, and shall not be required to
pay the fees of more than two law firms under any circumstances. Executive
cannot be held liable to the Company or Home USA for errors or omissions made in
good faith or where Executive has not exhibited gross, willful, and wanton
negligence in connection with such conduct, error or omission.
9. NO PRIOR AGREEMENTS. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Executive hereby indemnifies the Company against any and all liability,
expenses and other costs and amounts incurred by the Company, including, but not
limited to, attorneys' fees and expenses of investigation, as a result of any
claim by any third party that such third party may now have or may hereafter
come to have against the Company based upon or arising out of any
non-competition agreement, invention or secrecy agreement between Executive and
such third party which was in existence as of the date of this Agreement.
10. ASSIGNMENT; BINDING EFFECT. Executive understands that the Company has
selected Executive for employment by it on the basis of Executive's personal
qualifications, experience and skills. Executive agrees, therefore, that
Executive cannot assign all or any portion of Executive's performance under this
Agreement. Subject to the preceding two (2) sentences and the express provisions
of paragraph 12 below, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
legal representatives, successors and assigns.
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11. CHANGE IN CONTROL.
(a) Executive understands and acknowledges that Home USA and/or the
Company may be merged or consolidated with or into another entity and that such
entity shall automatically succeed to the rights and obligations of Home USA
and/or the Company hereunder or that the Company may undergo another type of
Change in Control. In the event such a merger or consolidation or other Change
in Control is initiated prior to the end of the Initial Term, then the
provisions of this paragraph 11 shall be applicable.
(b) In the event of a pending Change in Control wherein Home USA and/or
the Company and Executive have not received written notice at least five (5)
business days prior to the anticipated closing date of the transaction giving
rise to the Change in Control from the successor to all or a substantial portion
of Home USA's and/or the Company's business and/or assets that such successor is
willing as of the closing to assume and agree to perform Home USA's and/or the
Company's obligations under this Agreement in the same manner and to the same
extent that Home USA and/or the Company is hereby required to perform, then such
Change in Control shall be deemed to be a termination of this Agreement by Home
USA and/or the Company without Cause during the Initial Term and the applicable
portions of paragraph 4(a)(iv) will apply; however, under such circumstances,
the amount of the lump-sum severance payment due to Executive shall be triple
the amount calculated under the terms of paragraph 4(a)(iv) and the
non-competition provisions of paragraph 3 shall not apply whatsoever.
(c) In any Change in Control situation, Executive may, at his sole
discretion, elect to terminate this Agreement by providing written notice to the
Company at least five (5) business days prior to the anticipated closing of the
transaction giving rise to the Change in Control. In such case, the applicable
provisions of paragraph 4(a)(iv) will apply as though the Company had terminated
the Agreement without Cause during the Initial Term; however, under such
circumstances, the amount of the lump-sum severance payment due to Executive
shall be double the amount calculated under the terms of paragraph 4(a)(iv) and
the non-competition provisions of paragraph 3 shall all apply for a period of
two (2) years from the effective date of termination.
(d) For purposes of applying paragraph 4 under the circumstances described
in (b) and (c) above, the effective date of termination will be the closing date
of the transaction giving rise to the Change in Control and all compensation,
reimbursements and lump-sum payments due Executive must be paid in full by the
Company at or prior to such closing. Further, Executive will be given sufficient
time and opportunity to elect whether to exercise all or any of Executive's
vested options to purchase Home USA common stock, such that Executive may
convert the options to shares of Home USA common stock at or prior to the
closing of the transaction giving rise to the Change in Control, if Executive so
desires.
(e) A "Change in Control" shall be deemed to have occurred if:
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(i) any person, other than Home USA or an employee benefit plan of
Home USA, acquires directly or indirectly the beneficial ownership (as
defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended) of any voting security of the Company and immediately after such
acquisition such Person is, directly or indirectly, the Beneficial Owner
of voting securities representing 50% or more of the total voting power of
all of the then-outstanding voting securities of the Company;
(ii) the following individuals no longer constitute a majority of
the members of the Board of Directors of Home USA: (A) the individuals
who, as of the closing date of Home USA's initial public offering,
constitute the Board of Directors of Home USA (the "Original Directors");
(B) the individuals who thereafter are elected to the Board of Directors
of Home USA and whose election, or nomination for election, to the Board
of Directors of Home USA was approved by a vote of at least two-thirds
(2/3) of the Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following their
election); and (C) the individuals who are elected to the Board of
Directors of Home USA and whose election, or nomination for election, to
the Board of Directors of Home USA was approved by a vote of at least
two-thirds (2/3) of the Original Directors and Additional Original
Directors then still in office (such directors also becoming "Additional
Original Directors" immediately following their election);
(iii) the stockholders of Home USA shall approve a merger,
consolidation, recapitalization, or reorganization of Home USA, a reverse
stock split of outstanding voting securities, or consummation of any such
transaction if stockholder approval is not obtained, other than any such
transaction which would result in at least 75% of the total voting power
represented by the voting securities of the surviving entity outstanding
immediately after such transaction being Beneficially Owned by at least
75% of the holders of outstanding voting securities of Home USA
immediately prior to the transaction, with the voting power of each such
continuing holder relative to other such continuing holders not
substantially altered in the transaction; or
(iv) the stockholders of Home USA shall approve a plan of complete
liquidation of Home USA or an agreement for the sale or disposition by
Home USA of 50% or more of the total assets of Home USA.
(f) Executive shall be reimbursed by the Company or its successor for any
excise taxes that Executive incurs under Section 4999 of the Internal Revenue
Code of 1986, as a result of any Change in Control. Such amount will be due and
payable by the Company or its successor within ten (10) days after Executive
delivers a written request for reimbursement accompanied by a copy of
Executive's tax return(s) showing the excise tax actually incurred by Executive.
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12. COMPLETE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto relating to the subject matter hereof and supersedes any
other employment agreements or understandings, written or oral, between the
Company and Executive. This Agreement is not a promise of future employment.
Executive has no oral representations, understandings or agreements with the
Company or any of its officers, directors or representatives covering the same
subject matter as this Agreement. This written Agreement is the final, complete
and exclusive statement and expression of the agreement between the Company and
Executive and of all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous oral or
written agreements. This written Agreement may not be later modified except by a
further writing signed by a duly authorized officer of the Company and
Executive, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term.
13. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company:
________________________________
________________________________
________________________________
________________________________
with a copy to: [ ]
Home USA, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000 Xxxx
Xxxxxxx, Xxxxx 00000
Telephone: 713/000-0000
Fax: 713/000-0000
To Executive:
________________________________
________________________________
Notice shall be deemed given and effective on the earlier of three (3) days
after the deposit in the U.S. mail of a writing addressed as above and sent
first class mail, certified, return receipt requested, or when actually received
by means of hand delivery, delivery by Federal Express or other courier service,
or by facsimile transmission. Either party may change the address for notice by
notifying the other party of such change in accordance with this paragraph 13.
14. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable
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and possible, effect shall be given to the intent manifested by the portion held
invalid or inoperative. The paragraph headings herein are for reference purposes
only and are not intended in any way to describe, interpret, define or limit the
extent or intent of the Agreement or of any part hereof.
15. ARBITRATION. With the exception of the provisions hereof providing for
enforcement by means of equitable remedies, any unresolved dispute or
controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three (3) arbitrators in
Houston, Texas, in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association ("AAA") then in
effect, provided that Executive shall comply with the Company's grievance
procedures in an effort to resolve such dispute or controversy before resorting
to arbitration, and provided further that the parties may agree to use
arbitrators other than those provided by the AAA. The arbitrators shall not have
the authority to add to, detract from, or modify any provision hereof nor to
award punitive damages to any injured party. A decision by a majority of the
arbitration panel shall be final and binding. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. The direct expenses of any
arbitration proceeding shall be borne by the Company; however, each party shall
be responsible for payment of each's counsel fees related expenses. The
arbitrator shall, however, have the right and discretion to award counsel fees
and expenses to either party as part of the arbitrator's final judgment.
16. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Texas.
17. COUNTERPARTS. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written, but effective as of the Effective Date.
[ ]
By: __________________________________
[ ]
President
EXECUTIVE
______________________________________
[Name]
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