Exhibit 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of this 29th
day of June, 2004 by and between Xxxxxxx X. Xxxxxxx (the "Employee") and Xxxxxxx
GRP, Inc., a Delaware corporation (the "Company") , and, for purposes of Section
7 and Section 14 only, Xxxxxxx Holdings, Inc., a Delaware corporation
("Holdings").
W I T N E S S E T H:
WHEREAS, as of the date hereof, the Company, Holdings and Employee have
entered into a certain Contribution and Asset Transfer Agreement (the
"Contribution Agreement"), by and among the Company, Holdings, Employee, the
Investors named therein, the Sellers named therein (the "Sellers") and the other
stockholders of certain of the Sellers as named therein, pursuant to which the
Company and Holdings have agreed to purchase substantially all of the assets and
to assume certain liabilities of the Sellers;
WHEREAS, the Company and Holdings are simultaneously entering into a
Non-Competition Agreement (the "Non-Competition Agreement");
WHEREAS, the Company is a subsidiary of Holdings;
WHEREAS, the Company desires to employ the Employee, and the Employee
desires to obtain employment with the Company; and
WHEREAS, Employee's decision to enter into this Agreement is a material
consideration in the decision of the Company, Holdings and such Investors to
enter into the Contribution Agreement and to consummate the transactions
contemplated thereby.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. EFFECTIVE DATE; EMPLOYMENT. Employee and the Company agree that this
Agreement is being entered into in contemplation of the consummation of the
transactions contemplated by the Contribution Agreement, and that, without
further action on the part of the parties hereto, this Agreement shall be
effective upon the closing of the transactions contemplated by the Contribution
Agreement (the "Effective Date"). Subject to the provisions of Section 6, the
Company agrees to employ Employee and Employee agrees to become an employee and
perform services for the Company, upon the terms and conditions hereinafter set
forth.
2. TERM OF EMPLOYMENT. Subject to the provisions of Section 6, the term
of Employee's employment pursuant to this Agreement shall commence on and as of
the
Effective Date and shall terminate on the third anniversary of the Effective
Date (such period, the "Term"). Notwithstanding the foregoing, but subject to
the provisions of Section 6, the Term shall automatically extend for an
additional year on each anniversary of the Effective Date unless either party
provides written notice to the other party within thirty (30) days of the date
on which the Term would expire that he or it chooses not to extend the Term.
3. DUTIES; EXTENT OF SERVICE. During Employee's employment under this
Agreement, Employee (a) shall serve as an employee of the Company with the title
and position of Chief Executive Officer, reporting to the Board of Directors of
the Company, (b) shall have such executive responsibilities as the Board of
Directors of the Company shall from time to time designate, PROVIDED THAT, in
all cases Employee shall be subject to the oversight and supervision of the
Board of Directors of the Company in the performance of his duties, (c) upon the
request of the Board of Directors of the Company, shall serve as an officer
and/or director of any of the Company's subsidiaries, and (d) shall render all
services reasonably incident to the foregoing. Employee hereby accepts such
employment, agrees to serve the Company in the capacities indicated, and agrees
to use Employee's reasonable best efforts in, and shall devote Employee's full
working time, attention, skill and energies to, the advancement of the interests
of the Company and its subsidiaries and the performance of Employee's duties and
responsibilities hereunder. The foregoing, however, shall not be construed as
preventing Employee from (i) engaging in religious, charitable or other
community or non-profit activities, or (ii) engaging in the business of
purchasing and selling, or investing in entities specially established for the
purpose of purchasing and selling, real estate and/or pools of performing,
sub-performing and non-performing mortgage, automobile and other types of loans
and financial instruments, and managing such investments, in each case in a
manner consistent in nature with Employee's past and current involvement in such
activities and that does not impair Employee's ability to fulfill Employee's
duties and responsibilities under this Agreement or the Non-Competition
Agreement (the activities described in clauses (i) and (ii), the "Permitted
Activities").
4. SALARY AND BONUS.
(a) During Employee's employment under this Agreement, the Company
shall pay Employee a salary at the annual rate of $350,000 per annum (the "Base
Salary"). Such Base Salary shall be subject to withholding under applicable law,
shall be pro rated for partial years and shall be payable in periodic
installments in accordance with the Company's usual payroll practice for
executive officers of the Company as in effect from time to time.
(b) For each one-year calendar period or portion thereof during
Employee's employment under this Agreement, Employee shall be eligible to
participate in any bonus or other performance plan established by the Board of
Directors from time to time for senior management of the Company.
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5. BENEFITS.
(a) During Employee's employment under this Agreement, Employee shall
be entitled to participate in any and all medical, pension, profit sharing,
dental and life insurance plans and disability income plans, retirement
arrangements and other employment benefits, including option plans, as in effect
from time to time for senior management of the Company generally. Such
participation shall be subject to (i) the terms of the applicable plan documents
(including, as applicable, provisions granting discretion to the Board of
Directors of the Company or any administrative or other committee provided for
therein or contemplated thereby), and (ii) generally applicable policies of the
Company. Employee shall be eligible to participate in all such plans and other
benefits as of the Effective Date.
(b) During Employee's employment under this Agreement, Employee shall
receive paid vacation annually in accordance with the Company's practices for
executive officers, as in effect from time to time; provided, however, that
Employee shall have a minimum of six (6) weeks of paid vacation.
(c) The Company shall promptly reimburse Employee for all reasonable
business expenses incurred by Employee during Employee's employment hereunder in
accordance with the Company's practices for senior executive officers of the
Company, as in effect from time to time.
(d) Compliance with the provisions of this Section 5 shall in no way
create or be deemed to create any obligation, express or implied, on the part of
the Company or any of its affiliates with respect to the continuation of any
particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the Effective Date or the creation and
maintenance of any particular benefit or other plan or arrangement at any time
after the Effective Date.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions
of Section 2, Employee's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 6.
(a) TERMINATION BY THE COMPANY FOR CAUSE. Employee's employment under
this Agreement may be terminated for cause without further liability on the part
of the Company or any affiliate thereof effective immediately upon a vote of the
Board of Directors of the Company and written notice to Employee. Only the
following shall constitute "cause" for such termination:
(i) any act, whether or not involving the Company or any of
its affiliates or their respective businesses, of fraud, gross
misconduct or harassment;
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(ii) any act of dishonesty or illegality, in any such case,
materially and adversely affecting the Company;
(iii) the conviction of Employee for (A) a felony, or (B) any
misdemeanor involving moral turpitude;
(iv) the commission, in the reasonable judgment of the Board of
Directors of the Company, of an act involving a violation of
procedures or policies of the Company which are material to the
Company;
(v) a material and sustained failure of Employee to perform
the duties and responsibilities assigned or delegated under this
Agreement, which such failure continues for thirty (30) days after
written notice has been given to the Employee by the Board of
Directors;
(vi) gross negligence or willful misconduct by Employee with
respect to the Company or any affiliate of the Company; or
(vii) a breach by Employee of any of Employee's material
obligations under this Agreement or a breach by Employee of any of
Employee's obligations under the Non-Competition Agreement.
(b) TERMINATION BY EMPLOYEE OTHER THAN FOR GOOD REASON. Employee's
employment under this Agreement may be terminated by Employee without further
liability on the part of Employee (other than with respect to those provisions
of this Agreement expressly surviving such termination) by written notice to the
Board of Directors at least sixty (60) days prior to such termination.
(c) TERMINATION BY EMPLOYEE FOR GOOD REASON. Subject to the payment
of Termination Benefits pursuant to Section 6(e) below, Employee's employment
under this Agreement also may be terminated by Employee for Good Reason (as
defined below) (which termination must be within one hundred twenty (120) days
of the occurrence of the event or events giving rise to such Good Reason) by
written notice to the Board of Directors setting forth such Good Reason and
giving the Company a reasonable period of time, not less than ten (10) business
days, to eliminate and cure such Good Reason. For purposes of this Agreement,
"Good Reason" shall mean the occurrence of any of the following events: (i) a
substantial adverse change in the nature or scope of the Employee's
responsibilities, authorities, powers, functions or duties under this Agreement;
(ii) a reduction in the Employee's annual Base Salary; or (iii) the relocation
of the offices at which the Employee is principally employed to New York City,
New York or to any other location which is more than fifty (50) miles from the
current location of such offices. It is expressly agreed and understood that if
Employee's employment is terminated by Employee for Good Reason as provided in
this Section 6(c), it shall not impair or otherwise affect Employee's Continuing
Obligations (as defined below).
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(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. Subject to the payment
of Termination Benefits pursuant to Section 6(e), Employee's employment under
this Agreement may be terminated without cause by the Company by a vote of the
Board of Directors of the Company upon at least sixty (60) days prior written
notice to Employee. It is expressly agreed and understood that if Employee's
employment is terminated by the Company without cause as provided in this
Section 6(d), it shall not impair or otherwise affect Employee's Continuing
Obligations.
(e) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically
provided in this Agreement or otherwise required by law, all compensation and
benefits payable to Employee under this Agreement shall terminate on the date of
termination of Employee's employment under this Agreement. Notwithstanding the
foregoing, in the event of termination of Employee's employment with the Company
pursuant to Section 6(c) or Section 6(d) above, the Company shall provide to
Employee the following termination benefits ("Termination Benefits"):
(i) continuation of salary at a rate equal to one-hundred (100%) of
Employee's Base Salary as in effect on the date of termination for a period
of one year from the date of termination (payment shall be subject to
withholding under applicable law and shall be made in periodic installments
in accordance with the Company's usual payroll practice for executive
officers of the Company as in effect from time to time); and
(ii) continuation of group health plan benefits during the first
twelve (12) months in which Employees is receiving payments pursuant to
subsection (i) above, to the extent authorized by and consistent with 29
U.S.C. Section 1161 ET SEQ. (commonly known as "COBRA"), with the cost of
the regular premium for such benefits shared in the same relative
proportion by the Company and Employee as in effect on the date of
termination.
The Company shall have the right to terminate all of the Termination Benefits
set forth in Section 6(e)(i) and Section 6(e)(ii) in the event that Employee
fails to comply with Employee's Continuing Obligations under this Agreement. The
Company's liability for Base Salary continuation pursuant to Section 6(e)(i)
shall be reduced by the amount of any severance pay paid to Employee pursuant to
any severance pay plan of the Company. Notwithstanding the foregoing, nothing in
this Section 6(e) shall be construed to affect Employee's right to receive COBRA
continuation entirely at Employee's own cost to the extent that Employee may
continue to be entitled to COBRA continuation after Employee's right to cost
sharing under Section 6(e)(ii) ceases. The Company and Employee agree that the
Termination Benefits paid by the Company to Employee under this Section 6(e)
shall be in full satisfaction, compromise and release of any claims arising
exclusively out of any termination of Employee's employment pursuant to Section
6(c) or Section 6(d), and that the payment of the Termination Benefits shall be
contingent upon Employee's delivery of a general release effectuating such full
satisfaction,
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compromise and release, in favor of the Company, Holdings and their affiliates
of any and all claims arising exclusively out of any such termination (other
than those arising under this Agreement, the Contribution Agreement and the
other agreements delivered pursuant to the Contribution Agreement), which
general release shall be effective upon termination of employment and shall be
in a form reasonably satisfactory to the Company, it being understood that no
Termination Benefits shall be provided unless and until Employee executes and
delivers such release.
(f) DISABILITY. If Employee shall be disabled so as to be unable to
perform the essential functions of Employee's then existing position or
positions under this Agreement with or without reasonable accommodation, which
disability has lasted or is reasonably expected to last for more than
one-hundred twenty (120) days, the Board of Directors may remove Employee from
any responsibilities and/or reassign Employee to another position with the
Company for the remainder of the Term or during the period of such disability.
Notwithstanding any such removal or reassignment, Employee shall continue to
receive Employee's full Base Salary (less any disability pay or sick pay
benefits to which Employee may be entitled under the Company's policies) and
benefits under Section 5 of this Agreement (except to the extent that Employee
may be ineligible for one or more such benefits under applicable plan terms) for
a period of up to six (6) months, and Employee's employment may be terminated by
the Company at any time thereafter. In the event of such termination, the
Company shall have no further obligations except to make Employee's accrued Base
Salary and benefit payments contemplated by this Section 6(f) through the date
of such termination. If any question shall arise as to whether during any period
Employee is disabled so as to be unable to perform the essential functions of
Employee's then existing position or positions with or without reasonable
accommodation, Employee may, and at the request of the Company shall, submit to
the Company a certification in reasonable detail by a physician (local to the
Company's principal offices) selected by the Company to whom Employee or
Employee's guardian has no reasonable objection as to whether Employee is so
disabled or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be conclusive of the
issue. Employee shall cooperate with any reasonable request of the physician in
connection with such certification. If such question shall arise and Employee
shall fail to submit such certification, the Company's determination of such
issue shall be binding on Employee. Nothing in this Section 6(e) shall be
construed to waive Employee's rights, if any, under existing law including,
without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. Section
2601 ET SEQ. and the Americans with Disabilities Act, 42 U.S.C. Section 12101 ET
SEQ.
(g) DEATH. Employee's employment and all obligations of the Company
hereunder shall terminate in the event of the death of the Employee other than
any obligation to pay earned but unpaid Base Salary.
(h) CONTINUING OBLIGATIONS. Notwithstanding termination of this
Agreement as provided in this Section 6 or any other termination of Employee's
employment with the Company, Employee's obligations under Section 7 hereof and
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under the Non-Competition Agreement (collectively, the "Continuing Obligations")
shall survive any termination of Employee's employment with the Company at any
time and for any reason.
7. CONFIDENTIALITY; PROPRIETARY RIGHTS.
(a) In the course of performing services on behalf of Seller and the
Company and its affiliates, Employee has had and from time to time will have
access to Confidential Information (as defined below). Employee agrees (i) to
hold the Confidential Information in strict confidence, (ii) not to disclose the
Confidential Information to any person (other than in the regular business of
the Company or its affiliates), and (iii) not to use, directly or indirectly,
any of the Confidential Information for any purpose other than on behalf of the
Company and its affiliates or in connection with the Permitted Activities. All
documents, records, data, apparatus, equipment and other physical property,
whether or not pertaining to Confidential Information, that are furnished to
Employee by the Company, Holdings or any subsidiary thereof or are produced by
Employee in connection with Employee's employment will be and remain the sole
property of the Company, Holdings or such subsidiary, as applicable. Upon the
termination of Employee's employment with the Company and its subsidiaries for
any reason and as and when otherwise requested by the Company, all Confidential
Information (including, without limitation, all data, memoranda, customer lists,
notes, programs and other papers and items, and reproductions thereof relating
to the foregoing matters) in Employee's possession or control, shall be
immediately returned to the Company. The term "Confidential Information" shall
mean all information pertaining to the Company, Holdings or any subsidiary
thereof which is not publicly available or the disclosure of which could result
in a competitive or other disadvantage to the Company, Holdings or any
subsidiary thereof. Confidential Information includes information, whether or
not patentable or copyrightable, in written, oral, electronic or other tangible
or intangible forms, stored in any medium, including, by way of example and
without limitation, trade secrets, ideas, concepts, designs, configurations,
specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts processes, techniques, formulas, software, improvements, inventions,
data, know-how, discoveries, copyrightable materials, marketing plans and
strategies, sales and financial reports and forecasts, cost and performance
data, debt arrangements, equity structure, purchasing and sales data, price
lists, customer lists, studies, reports, records, books, contracts, instruments,
surveys, computer disks, diskettes, tapes, computer programs, corporate
information, including, by way of example and without limitation, policies,
resolutions, negotiations or litigation, operational information, personnel
information and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities) which have been
discussed or considered by the management of the Company, Holdings or any
subsidiary thereof (and of which Employee has knowledge). Confidential
Information includes information developed by Employee in the course of
Employee's employment by Seller or the Company and its subsidiaries, as well as
other information to which Employee may have access in connection with
Employee's employment. Confidential Information also includes the confidential
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information of others with which the Company, Holdings or any subsidiary thereof
has a business relationship. Notwithstanding the foregoing, Confidential
Information does not include information in the public domain, unless due to
breach of Employee's duties under this Section 7(a).
(b) Employee hereby confirms that Employee is not bound by the terms
of any agreement that restricts in any way Employee's use or disclosure of
information relevant to the Company Business (as such term is defined in the
Non-Competition Agreement) or Employee's engagement in any business. Employee
represents to the Company that Employee's execution of this Agreement,
Employee's employment with the Company and the performance of Employee's
proposed duties for the Company will not violate any obligations Employee may
have to any other party. In Employee's work for the Company, Employee will not
disclose or make use of any information in violation of any agreements with or
rights of any such other party, and Employee will not bring to the premises of
the Company any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other party.
(c) During and after Employee's employment, Employee shall reasonably
cooperate with the Company and Holdings in the defense, procurement, maintenance
and enforcement of (i) any claims or actions (other than those brought by
Employee) now in existence or which may be brought in the future against or on
behalf of the Company, Holdings or any subsidiary thereof that relate to events
or occurrences that transpired while Employee was employed by Sellers or the
Company, and (ii) Intellectual Property Rights (as defined below) in
Company-Related Developments (as defined below). Employee's full cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to
act as a witness at mutually convenient times. During and after Employee's
employment, Employee also shall reasonably cooperate in connection with any
investigation or review of any federal, state or local regulatory authority as
any such investigation or review relates to events or occurrences that
transpired while Employee was employed by Sellers or the Company (to the extent
such cooperation does not conflict with or impair Employee's legal rights in
connection with any such matter). Employee will sign all papers, including,
without limitation, copyright applications, patent applications, declarations,
oaths, assignments of priority rights, and powers of attorney, which the Company
may reasonably deem necessary or desirable in order to protect its rights and
interests in any Company-Related Development. If the Company is unable, after
reasonable effort, to secure Employee's signature on any such papers, Employee
hereby irrevocably designates and appoints each officer of the Company as
Employee's agent and attorney-in-fact to execute and file any such papers on
Employee's behalf as the Company may deem reasonably necessary or desirable in
order to properly assign to the Company all rights and interests of Employee in
any Company-Related Development. The Company shall reimburse Employee for any
reasonable out-of-pocket expenses incurred in connection with Employee's
performance of obligations pursuant to this Section 7(c).
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(d) Employee recognizes that the Company, Holdings and their
affiliates possess a proprietary interest in all of the information described in
Section 7(a) and have the exclusive right and privilege to use, protect by
copyright, patent or trademark, or otherwise exploit the processes, ideas and
concepts described therein to the exclusion of Employee, except as otherwise
agreed between the Company and Employee in writing and subject to Employee's
ability to participate in the Permitted Activities. Employee expressly agrees
that all work performed by Employee is on a "work for hire" basis, and Employee
hereby does assign and transfer, and will assign and transfer, to the Company
and its successors and assigns all of Employee's right, title and interest in
all works of authorship, speeches, products, developments, inventions,
discoveries, improvements, and creative works (whether or not able to be
protected by copyright, patent or trademark) created during Employee's
employment with Sellers or the Company that (i) relate to the business of the
Company, Holdings or any subsidiary thereof or any client of the Company,
Holdings or any subsidiary thereof or any of the products or services being
researched, developed, manufactured or sold by the Company, Holdings or any
subsidiary thereof or which may be used with such products or services, (ii)
result from tasks assigned to Employee by the Company, Holdings or any
subsidiary thereof; or (iii) result in any material manner from the use of
premises or personal property (whether tangible or intangible) owned, leased or
contracted for by the Company, Holdings or any subsidiary thereof (collectively,
"Company-Related Developments"), and all related patents, patent applications,
trademarks and trademark applications, copyrights and copyright applications,
and other intellectual property rights in all countries and territories
worldwide and under any international conventions ("Intellectual Property
Rights"). Employee further agrees that any and all Company-Related Developments
shall be promptly disclosed to the Company.
(e) Employee agrees, while he is employed by the Company, to offer or
otherwise make known or available to it or Holdings, as directed by the Board of
Directors of the Company or Holdings and without additional compensation or
consideration, any business prospects, contracts or other business opportunities
that Employee may discover, find, develop or otherwise have available to
Employee that relate to the Company Business (as such term is defined in the
Non-Competition Agreement) and further agrees that any such prospects, contacts
or other business opportunities shall be the property of the Company or
Holdings, as applicable; provided, however, that Employee shall not be subject
to the foregoing obligations, and the foregoing shall not be applicable, with
respect to any business prospects, contracts or business opportunities that
Employee may discover, find, develop or otherwise have available to Employee and
that constitute a Permitted Activity or that otherwise relate directly to
Employee's involvement in the Permitted Activities.
(f) Employee acknowledges that the provisions of this Section 7 and
the Non-Competition Agreement are integral parts of Employee's employment
arrangements with the Company.
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8. PARTIES IN INTEREST; CERTAIN REMEDIES. It is specifically
understood and agreed that this Agreement is intended to confer a benefit,
directly or indirectly, on the Company, Holdings and their direct and indirect
subsidiaries, and that any breach of the provisions of this Agreement by
Employee will result in irreparable injury to the Company, Holdings and their
direct and indirect subsidiaries, that the remedy at law alone will be an
inadequate remedy for such breach and that, in addition to any other remedy it
may have, the Company, Holdings and their direct and indirect subsidiaries shall
be entitled to enforce the specific performance of this Agreement by Employee
through both temporary and permanent injunctive relief without the necessity of
posting a bond or proving actual damages, but without limitation of their right
to damages and any and all other remedies available to them, it being understood
that injunctive relief is in addition to, and not in lieu of, such other
remedies.
9. DISPUTE RESOLUTION.
(a) Without limitation of Section 8, all disputes, claims, or
controversies arising out of or relating to this Agreement or any other
agreement executed and delivered pursuant to this Agreement or the negotiation,
validity or performance hereof and thereof or the transactions contemplated
hereby and thereby, or the rights and obligations of the parties hereunder or
thereunder, that are not resolved by mutual agreement shall be resolved solely
and exclusively by binding arbitration to be conducted before JAMS/Endispute,
Inc. or its successor. The arbitration shall be held in Hartford, Connecticut
before a single arbitrator and shall be conducted in accordance with the rules
and regulations promulgated by JAMS/Endispute, Inc. unless specifically modified
herein.
(b) The parties covenant and agree that the arbitration shall
commence within 120 days of the date on which a written demand for arbitration
is filed by any party hereto (the "Filing Date"). In connection with the
arbitration proceeding, the arbitrator shall have the power to order the
production of documents by each party and any third-party witnesses. In
addition, each party may take up to three depositions as of right, and the
arbitrator may in his or her discretion allow additional depositions upon good
cause shown by the moving party. However, the arbitrator shall not have the
power to order the answering of interrogatories or the response to requests for
admission. In connection with any arbitration, each party shall provide to the
other, no later than seven (7) business days before the date of the arbitration,
the identity of all persons that may testify at the arbitration and a copy of
all documents that may be introduced at the arbitration or considered or used by
a party's witness or expert. The arbitrator's decision and award shall be made
and delivered within 180 days of the Filing Date. The arbitrator's decision
shall set forth a reasoned basis for any award of damages or finding of
liability. The arbitrator shall not have power to award damages in excess of
actual compensatory damages and shall not multiply actual damages or award
punitive damages or any other damages that are specifically excluded under this
Agreement, and each party hereby irrevocably waives any claim to such damages.
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(c) The parties covenant and agree that they will participate in the
arbitration in good faith and that they will, except as provided below, (i) bear
their own attorneys' fees, costs and expenses in connection with the
arbitration, and (ii) share equally in the fees and expenses charged by
JAMS/Endispute, Inc. The arbitrator may in his or her discretion assess costs
and expenses (including the reasonable legal fees and expenses of the prevailing
party) against any party to a proceeding. Any party unsuccessfully refusing to
comply with an order of the arbitrators shall be liable for costs and expenses,
including attorneys' fees, incurred by the other party in enforcing the award.
This Section 9(c) applies equally to requests for temporary, preliminary or
permanent injunctive relief, except that in the case of temporary or preliminary
injunctive relief any party may proceed in court without prior arbitration for
the purpose of avoiding immediate and irreparable harm or to enforce the
provisions of Section 7 or the Non-Competition Agreement.
(d) Without limitation of Section 8, each of the parties hereto
irrevocably and unconditionally consents to the exclusive jurisdiction of
JAMS/Endispute, Inc. to resolve all disputes, claims or controversies arising
out of or relating to this Agreement or any other agreement executed and
delivered pursuant to this Agreement or the negotiation, validity or performance
hereof and thereof, or the transactions contemplated hereby and thereby, or the
rights and obligations of the parties hereunder or thereunder, and further
consents to the sole and exclusive jurisdiction of the courts of the State of
Connecticut for the purposes of enforcing the arbitration provisions of Section
9 of this Agreement. Each party further irrevocably waives any objection to
proceeding before JAMS/Endispute, Inc. based upon lack of personal jurisdiction
or to the laying of venue and further irrevocably and unconditionally waives and
agrees not to make a claim in any court that arbitration before JAMS/Endispute,
Inc. has been brought in an inconvenient forum. Each of the parties hereto
hereby consents to service of process by registered mail at the address to which
notices are to be given. Each of the parties hereto agrees that its or his
submission to jurisdiction and its or his consent to service of process by mail
is made for the express benefit of the other parties hereto.
10. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed by certified or registered mail (return receipt
requested) as follows:
To the Company and Holdings: x/x XX Xxxxxxxxxx, Xxx.
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
To Employee: Xxxxxxx X. Xxxxxxx
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Facsimile No.: (000) 000-0000
or to such other address of which any party may notify the other parties as
provided above. Notices shall be effective as of the date of such delivery or
mailing.
11. SCOPE OF AGREEMENT. The parties acknowledge that the time, scope,
geographic area and other provisions of Section 7 and the Non-Competition
Agreement have been specifically negotiated by sophisticated parties and agree
that all such provisions are reasonable under the circumstances of the
transactions contemplated hereby, and are given as an integral and essential
part of the transactions contemplated hereby. Employee has independently
consulted with counsel and has been advised in all respects concerning the
reasonableness and propriety of the covenants contained herein, with specific
regard to the business to be conducted by Company, Holdings and their
subsidiaries and affiliates, and represents that the Agreement is intended to
be, and shall be, fully enforceable and effective in accordance with its terms.
12. SEVERABILITY. In the event that any covenant contained in this
Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too extensive in any
other respect, it shall be interpreted to extend only over the maximum period of
time for which it may be enforceable and/or over the maximum geographical area
as to which it may be enforceable and/or to the maximum extent in all other
respects as to which it may be enforceable, all as determined by such court in
such action. The existence of any claim or cause of action which Employee may
have against the Company, Holdings or any of their subsidiaries or affiliates
shall not constitute a defense or bar to the enforcement of any of the
provisions of this Agreement.
13. MISCELLANEOUS. This Agreement shall be governed by and construed under
the laws of the State of Connecticut, without consideration of its choice of law
provisions, and shall not be amended, modified or discharged in whole or in part
except by an agreement in writing signed by both of the parties hereto. The
failure of either of the parties to require the performance of a term or
obligation or to exercise any right under this Agreement or the waiver of any
breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement shall inure to the
benefit of, and be binding upon and assignable to, successors of the Company or
Holdings by way of merger, consolidation or sale and may not be assigned by
Employee. This Agreement supersedes and terminates all prior understandings and
agreements between the parties (or their predecessors) relating to the subject
matter hereof. For purposes of this Agreement, the term "person" means an
individual, corporation, partnership, association, trust or any unincorporated
organization; a "subsidiary" means any corporation more than 50 percent of whose
outstanding voting securities, or any partnership, joint venture or other entity
more than 50 percent of whose total equity interest, is directly or indirectly
owned by such person; and an "affiliate" of a person shall
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mean, with respect to a person or entity, any person or entity which directly or
indirectly controls, is controlled by, or is under common control with such
person or entity.
14. HOLDINGS GUARANTY. Notwithstanding anything herein to the contrary,
and in no way limiting any other provisions of this Agreement, Holdings, subject
to the terms, conditions and restrictions contained in any credit agreement or
related document applicable to Holdings, hereby guarantees the full and timely
performance of the obligations of the Company under Sections 4, 5 and 6(e)
hereof, when and as each such obligation shall be required to be performed in
accordance with the terms of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
under seal as of the date first set forth above.
COMPANY:
XXXXXXX GRP, INC.
By:/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
Solely for purposes of Sections 7 and 14
hereof:
HOLDINGS:
XXXXXXX HOLDINGS, INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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