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Exhibit 10.4
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
effective as of the ___ day of June, 1997 (the "Effective Date"), by and between
Xxxxxx & Xxxxx Corporation, an Ohio corporation ("Employer"), and Xxxxxx X. Xxxx
("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employer desires to employ Executive as its President and
Chief Financial Officer, and Executive desires to be so employed by Employer,
upon the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Employer and Executive, intending
to be legally bound, agree as follows:
1. EMPLOYMENT. Employer hereby employs Executive as its President and
Chief Financial Officer upon the terms and conditions and for the compensation
herein provided. Executive hereby agrees to be so employed and to fulfill the
duties of President and Chief Financial Officer as such duties may be defined
from time to time by Employer's Board of Directors. Executive shall also serve
as a member of Employer's Board of Directors.
2. DUTIES AND POWERS. For so long as Executive is employed by Employer,
Executive agrees as follows: to devote his full and exclusive business time and
attention to the business of Employer and of any subsidiaries or affiliates of
Employer (excluding reasonable vacations and sick leave in accordance with
Employer's policies consistent with his position); to perform all duties in a
professional and prudent manner, to devote the best of his skill, energy,
experience and judgment to such duties; and to communicate to Employer
suggestions, ideas or information that may be helpful to Employer in its
businesses. Executive shall have all the powers associated with his position as
President and Chief Financial Officer, subject to all lawful policies and
guidelines as may be established by the Board of Directors of Employer.
Executive agrees to devote his full business time to the performance of services
hereunder and not to engage in any other activity or own any interest that would
conflict with the interests of Employer or would interfere with his
responsibilities to Employer and the performance of his duties hereunder;
provided, however, that: (i) passive investments of less than 5% of the
outstanding securities of any corporation that do not conflict with Executive's
performance of his duties to Employer hereunder shall be deemed not to violate
this provision; and (ii) Executive may engage in activities involving
charitable, educational, religious and similar types of organizations, speaking
engagements and similar type activities to the extent that such other activities
do not detract from the performance by Executive of his duties and obligations
hereunder.
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3. COMPENSATION AND BENEFITS. For all services rendered by Executive
pursuant to this Agreement, Employer shall compensate Executive as follows:
(a) BASE COMPENSATION. In consideration of the full and
faithful performance by Executive of his obligations hereunder, subject
to the terms and conditions set forth herein, Employer (or, at
Employer's option, any subsidiary or affiliate of Employer for which
Executive also provides services hereunder) shall pay to Executive a
salary of $250,000 per annum (such annual compensation as it may be
increased from time to time shall be referred to herein as the "Base
Compensation"). Executive's Base Compensation will be paid in
accordance with Employer's customary payroll practices (but not less
frequently than monthly) and will be prorated based upon the number of
days elapsed in any partial year. Base Compensation shall be reviewed
annually by the Human Resources Committee of Employer's Board of
Directors and may be increased at the sole discretion of such
Committee.
(b) BONUS. In addition to the Base Compensation payable to
Executive, Executive may be awarded an annual bonus based on the
attainment of certain goals to be set by Employer's Board of Directors.
Such annual bonus is targeted to be 50% of Executive's Base
Compensation but may be more or less than 50% of such Base Compensation
depending on whether the goals set by Employer's Board are exceeded or
not met.
(c) BENEFITS. Executive shall be entitled, as an employee of
Employer, to employee retirement and welfare benefits substantially
comparable to those enjoyed by Employee immediately prior to the
Effective Date and to any other employee benefits made available to
senior executive management of Employer.
(d) EXPENSES. Executive shall be entitled to reimbursement by
Employer for his ordinary and necessary business expenses incurred in
the performance of his duties under this Agreement if supported by
reasonable documentation as required by Employer in accordance with its
usual practices. Employer shall provide membership to Executive in a
local country club and such membership shall allow all members of
Employer's corporate management team to use the club's facilities at no
additional cost. Employer will be responsible for paying initiation
fees and monthly dues. Executive shall be entitled to reimbursement by
Employer for financial and tax planning advisory services at rates
customary to the local area, not to exceed $25,000 on an annual basis.
(e) LIABILITY FOR TAXES. Employer shall have no liability for
any tax liability of Executive attributable to any payment made under
this Agreement except for customary employer's liability for federal
and state employee taxes (e.g., social security, Medicare, etc.) and
except as may be provided in the Severance Agreement (as defined in
Section 10(i) below). Employer may withhold from any such payment such
amounts as may be required by applicable provisions of the Internal
Revenue Code, other tax laws, and the rules and regulations of the
Internal Revenue Service and other tax agencies, as in effect at the
time of any such payment.
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4. TERMINATION OF EMPLOYMENT.
(a) TERMINATION AT WILL. The parties acknowledge and agree that
Executive's employment hereunder is an employment at will. Notwithstanding any
other provision contained in this Agreement, either Executive or Employer may
terminate Executive's employment hereunder at any time with or without Cause (as
defined in subsection 4(b)(i)) or with or without Good Reason (as defined in
subsection 4(b)(ii)) at its or his election upon prior written notice (a
"Termination Notice") to the other. A Termination Notice shall be effective upon
delivery to the other party and the termination shall be effective as of the
date set forth in such Termination Notice (hereinafter, the "Termination Date").
(b) DEFINITIONS OF "CAUSE" AND "GOOD REASON". For purposes of this
Agreement, the terms "Cause" and "Good Reason" shall have the following
meanings:
(i) "Cause" means (A) Executive's continued willful failure to
perform his duties with Employer (other than any such failure resulting
from disability), (B) Executive's engaging in willful, reckless or
grossly negligent misconduct which is materially injurious to Employer,
monetarily or otherwise, or (C) Executive's indictment pertaining to a
felony or crime involving moral turpitude.
(ii) "Good Reason" means (A) a substantial and adverse change
in Executive's status or position as a key employee of Employer, or a
substantial reduction in the duties and responsibilities previously
exercised by Executive, or any failure to reappoint or reelect
Executive to, such position, except in connection with the termination
of Executive's employment for Cause or disability, or as a result of
Executive's death; (B) a reduction (other than for Cause) by Employer
in Executive's Base Compensation; (C) a relocation of Executive's
principal place of work to any location that is more than 25 miles from
Canton, Ohio; (D) a sale or other exchange or transfer (whether by
merger, reorganization or otherwise) of substantially all of the shares
or assets of Employer; or (E) a material breach of the provisions of
this Agreement by Employer.
(c) PURCHASE RIGHTS. All shares of stock of Employer that are held by
Executive, whether now held or hereafter acquired by Executive pursuant to the
exercise of stock options held by Executive or otherwise (collectively, the
"Executive Stock") and all options or other securities evidencing rights to
acquire stock of Employer (collectively, "Executive Options" and, together with
the Executive Stock, the "Executive Securities"), will be, in the event of the
termination of Executive's employment hereunder, subject to the following
purchase rights:
(i) If, prior to the second anniversary of the Effective Date,
Executive terminates his employment hereunder without Good Reason, or
Employer terminates Executive's employment hereunder with Cause,
Employer will have the option to purchase (1) all, but not less than
all, of the Executive Stock at a price equal to the LESSER of (A)
actual cost paid by Executive for the Executive Stock (less any
dividends or distributions received with respect to the Executive
Stock) plus interest on such amount at a rate equal to the Prime Rate
(as defined herein) on an annual basis or (B) Fair Value (as determined
below), and (2) all, but not less than all, of the Executive Options at
a price equal to the
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product of (x) $0.01 and (y) the number of shares for which the
Executive Options are exercisable.
(ii) If, after the second anniversary of the Effective Date,
Executive terminates his employment hereunder without Good Reason, or
Employer terminates Executive's employment hereunder with Cause,
Employer will have the option to purchase (1) all, but not less than
all, of the Executive Stock at a price equal to the aggregate Fair
Value of the Executive Stock, and (2) all, but not less than all, of
the Executive Options at a price equal to the difference between (A)
the Fair Value of the shares for which the Executive Options are
exercisable and (B) the option price that would have been payable by
Executive upon exercise of the Executive Options.
(iii) If Executive dies, becomes disabled or terminates his
employment hereunder with Good Reason, or Employer terminates
Executive's employment hereunder without Cause, (1) Employer will have
the option to purchase all, but not less than all, of the Executive
Stock, and Executive or his personal representative will have the
option to cause Employer to purchase all, but not less than all, of the
Executive Stock, at a price equal to the GREATER of (A) actual cost
paid by Executive for the Executive Stock (less any dividends or
distributions received with respect to the Executive Stock) plus
interest on such amount at a rate equal to the Prime Rate on an annual
basis or (B) Fair Value, and (2) Employer will have the option to
purchase all, but not less than all, of the Executive Options, and
Executive or his personal representative will have the option to cause
Employer to purchase all, but not less than all, of the Executive
Options, at a price equal to the difference between (x) the Fair Value
of the number of shares for which the Executive Options are
exercisable, and (y) the option price that would have been payable by
Executive upon exercise of the Executive Options.
(iv) The call options provided Employer in (i), (ii) and (iii)
above (the "Employer Options") may be exercised by Employer delivering
to Executive, within 180 days of the Termination Date, a written notice
(an "Employer Notice of Exercise"), setting forth the number of shares
of Executive Stock and/or number of Executive Options to be purchased
by Employer. The option provided Executive in (iii) above (the
"Executive Put") may be exercised by Executive delivering to the
Secretary of Employer, within 180 days of the Termination Date, a
written notice (an "Executive Notice of Exercise"), setting forth the
number of shares of Executive Stock and/or number of Executive Options
to be purchased by Employer.
(v) In the event that Fair Value has been determined within
the twelve-month period preceding the date of the Employer Notice of
Exercise or Executive Notice of Exercise, as applicable, the Employer
Notice of Exercise shall contain, and in the event that Executive has
delivered an Executive Notice of Exercise, Employer shall deliver a
separate notice to Executive within ten (10) days of receipt thereof
containing, such prior determination of Fair Value.
(vi) In the event that Fair Value has not been determined
within the twelve-month period referenced above, the Employer Notice of
Exercise shall contain, and in the event that Executive has delivered
an Executive Notice of Exercise, Employer shall deliver a
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separate notice to Executive within ten (10) days of receipt thereof
containing, Employer's determination of the applicable Fair Value,
including information used by Employer in determining such Fair Value.
In the event that Executive objects to Employer's determination as set
forth in its notice to Executive, Executive must notify Employer in
writing within ten (10) days of receipt of the notice from Employer as
to its determination of Fair Value. In such event, Employer and
Executive shall then negotiate as to the determination of Fair Value
for a period of thirty (30) days. Neither Employer nor Executive shall
be required in this negotiation to agree to the determination of the
other. If Executive and Employer fail to agree as to a determination of
Fair Value, then Executive and Employer shall endeavor to designate a
mutually acceptable appraiser to determine such value. If Executive and
Employer have not agreed on an appraiser within fifteen (15) days, then
Executive and Employer shall each appoint an appraiser within ten (10)
days thereafter. The two appraisers shall within ten (10) days
thereafter appoint a third appraiser. The third appraiser shall
determine the Fair Value of the Executive Stock to be purchased within
thirty (30) days after such appraiser's appointment. The value
determined, whether by agreement between Executive and Employer or by
appraisal, shall be determinative for purposes of the Employer Options
and the Executive Put. Employer shall bear the cost of all appraisers
other than the appraiser appointed by Executive to assist in appointing
a third appraiser, the cost of which shall be paid by Executive. Each
of Executive and Employer shall be given reasonable advance notice of
the time and place of any appraisal proceedings and shall have the
right to be present, heard, and represented by counsel.
(vii) As used herein, "Fair Value" shall mean the fair value
of shares of Common Stock of Employer, valuing Employer as an ongoing
entity (including a consideration of the value of Employer if it were
to be sold intact to a third party), and determined after taking into
account Employer's indebtedness and other securities senior to the
shares of Common Stock (assuming the exercise of any conversion,
warrant or option rights where the exercise price is advantageous to
the holders). No minority, blockage or illiquidity discount will be
taken into account. As used herein, "Prime Rate" shall mean the prime
rate or base rate of The Chase Manhattan Bank, N.A., or its successor,
as published or announced by such bank from time to time. The then
applicable Prime Rate will be adjusted annually to the rate in effect
on the first business day of each calendar year and such Prime Rate, as
adjusted, will remain in effect throughout such calendar year.
(viii) The closing of any transaction pursuant to this Section
4 shall take place at the principal office of Employer, (A) in the
event that Fair Value has been previously determined in the
twelve-month period set forth in subsection (v), within thirty (30)
days after delivery of the Employer Notice of Exercise or the Executive
Notice of Exercise, as applicable, or (B), in the event that Fair Value
is determined pursuant to subsection (vi), within thirty (30) days
after the final determination of Fair Value pursuant to such subsection
(vi). At the closing of any transaction pursuant to this Section 4, the
parties shall take all action necessary to convey the shares of
Executive Stock and/or the Executive Options to be purchased at such
time, free of all liens and encumbrances, all as reasonably determined
by Employer.
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(d) NON-TRANSFERABILITY OF STOCK AFTER TERMINATION OF EMPLOYMENT.
Except as set forth in this Section 4, notwithstanding anything herein to the
contrary, Executive may not make or suffer any transfer or propose to make any
transfer of the Executive Stock during the 180-day period immediately following
the Termination Date.
5. RIGHT OF FIRST REFUSAL.
(a) TRANSFER RESTRICTIONS. Executive hereby acknowledges that a
limitation on ownership of the Executive Stock is necessary in light of the
closely-held nature of Employer, and therefore Executive agrees that he will not
make or suffer any transfer of all or part of the Executive Stock, except in
accordance with this Agreement, and that he will sell or transfer any or all the
Executive Stock only in compliance with this Agreement, and that any transfer
not made in accordance with this Agreement will be void ab initio and of no
force and effect. Notwithstanding anything contained in this Agreement to the
contrary, any transfer of the Executive Stock hereunder will be subject to
receipt of any necessary approvals required under any agreement of Employer, and
the time frames established hereunder for the transfer of and payment for such
Executive Stock will be extended as necessary to obtain any such approvals;
provided, however, that the parties shall diligently pursue and reasonably
cooperate in obtaining any such required approvals.
(b) GRANT OF RIGHT OF FIRST REFUSAL. Each time Executive proposes to
make or suffers any transfer of all or any portion of the Executive Stock (other
than in accordance with Section 4 hereof and other than a Permitted Transfer (as
defined below)), Executive, or in the event of his death or incapacity, his
legal representative, shall promptly so inform Employer by notice in writing
(the "Company Notice") stating (i) the number of shares of Executive Stock
proposed to be transferred (the "Subject Shares"), (ii) the name and address of
the proposed transferee, and (iii) the other terms and conditions of such
proposed transfer, including any consideration proposed to be received for the
Subject Shares. Any such proposed transfer shall be a bona fide transaction with
an independent third party. The date of the mailing of the Company Notice is
hereinafter referred to as the "Company Notice Date." By giving the Company
Notice to Employer, Executive will be deemed to have granted to Employer an
option, as provided below, to purchase all the Subject Shares for the same
consideration as is set forth in the Company Notice and on the same terms as are
set forth in the Company Notice.
(c) CLOSING. Employer shall, within thirty (30) days after the Company
Notice Date, determine whether it desires to purchase the Subject Shares and so
advise Executive in writing, and it shall, within ninety (90) days after the
Company Notice Date, complete the purchase of such Subject Shares at the price
and upon the terms and conditions set forth in Section 5(b) above. The closing
of the purchase and sale of the Subject Shares will take place at Employer's
principal office or at such other place as the parties may agree. At the
closing, the parties shall take all action necessary to convey the Subject
Shares to be transferred in accordance with this Section, free of all liens and
encumbrances, all as reasonably determined by Employer.
(d) PERMISSIBLE DISPOSITIONS. If Employer does not elect to purchase
all the Subject Shares within the period provided, and such transfer is
otherwise permissible under Section 5(a), then all such Subject Shares may be
disposed of by Executive to the prospective transferee named in the Company
Notice, at the price and on the terms and conditions set forth in the
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Company Notice, at any time within one hundred and eighty (180) days after
delivery of the Company Notice pursuant to Section 5(b), free and clear of all
restrictions except as provided in Section 5(a). Employer, as a condition to the
effectiveness of such transfer, may request that the prospective transferee
agree that the Subject Shares so purchased will be held subject to the right of
first refusal contained in this Section 5, and may require such prospective
transferee to execute a document evidencing that such shares are subject to this
right of first refusal.
(e) PERMITTED TRANSFERS. As used herein, "Permitted Transfer" shall
mean a transfer of any or all of the Executive Stock pursuant to (i) a transfer
of the community property interest, if any, of Executive's spouse in any shares
of Executive Stock to Executive upon the death of such spouse or in connection
with the divorce of Executive; (ii) a transfer of shares of Executive Stock by
Executive to Executive's spouse, children, grandchildren or a trust established
for the primary benefit of Executive's spouse, children or grandchildren if,
following the transfer, Executive retains sole control over the voting of such
shares of Executive Stock and the initiation or participation in any shareholder
litigation and other decisions with respect to such shares; or (iii) a transfer
of shares of Executive Stock approved by the holders of at least a majority of
the outstanding shares of the Common Stock of Employer.
6. NONDISCLOSURE.
(a) CONFIDENTIAL INFORMATION. Executive hereby acknowledges that in
connection with his employment by Employer he will be exposed to and may obtain
certain information (including, without limitation, procedures, memoranda,
notes, records and customer and supplier lists whether such information has been
or is made, developed or compiled by Executive or otherwise has been or is made
available to him) regarding the business and operations of Employer and its
subsidiaries or affiliates. Executive further acknowledges that such information
and procedures are unique, valuable, considered trade secrets and deemed
proprietary by Employer. For purposes of this Agreement, such information and
procedures shall be referred to as "Confidential Information," except that the
following shall not be considered Confidential Information: (i) information
disclosed on a non-confidential basis to third parties by Employer (but not by
Executive in violation of this Agreement), (ii) information released from
confidential treatment by written consent of Employer, and (iii) information
lawfully available to the general public.
(b) USE OF CONFIDENTIAL INFORMATION. Executive agrees that all
Confidential Information is and will remain the property of Employer. Executive
further agrees, except as otherwise required by law, while employed by Employer
hereunder and thereafter, to hold in the strictest confidence all Confidential
Information, and not to, directly or indirectly, duplicate, sell, use, lease,
commercialize, disclose or otherwise divulge to any person or entity any portion
of the Confidential Information or use any Confidential Information for his own
benefit or profit or allow any person, entity or third party, other than
Employer and authorized executives of the same, to use or otherwise gain access
to any Confidential Information.
(c) TRADE SECRET. It is the intention of the parties that to the extent
any Confidential Information may constitute a "trade secret" as defined by Ohio
common law, then, in addition to the remedies set forth in this Agreement,
Employer may elect to bring an action against
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Executive in the case of any actual or threatened misappropriation of any such
trade secret by Executive.
(d) NO REMEDY AT LAW. Regardless of whether any of the Confidential
Information shall constitute a trade secret as defined by Ohio common law,
Executive expressly recognizes and agrees that the restrictions contained in
this Section 6 represent a reasonable and necessary protection of the legitimate
interests of Employer, that his failure to observe and comply with his covenants
and agreements herein will cause irreparable harm to Employer, that it is and
will continue to be difficult to ascertain the harm and damages to Employer that
such a failure by Executive could cause, and that a remedy at law for such
failure by Executive will be inadequate.
7. NON-INTERFERENCE, NON-SOLICITATION AND NON-COMPETITION COVENANTS.
(a) ACKNOWLEDGEMENT OF ACCESS. Pursuant to this Agreement, Executive
has agreed to become President and Chief Financial Officer of Employer and to
comply with the non-disclosure provisions contained in Section 6 hereof.
Executive recognizes and acknowledges that he will be given access to certain of
Employer's Confidential Information (as defined in Section 6(a)), and have
access to and authority to develop relationships with customers of Employer
because of his position and status as Employer's President and Chief Financial
Officer, which he would not otherwise attain. In consideration of the foregoing,
Executive agrees to comply with the terms of this Section 7.
(b) RESTRICTED PERIOD. The restraints imposed by this Section 7 shall
apply during any period that Executive continues to receive payment of Base
Compensation hereunder, and for a period of two years thereafter (the
"Restricted Period"); provided, however, that, notwithstanding anything
contained herein to the contrary, the restraints imposed by this Section 7 shall
not apply following the termination of Executive's employment with Employer (i)
by Employer without Cause or (ii) by Executive for Good Reason. In the event
that any Court having jurisdiction should find that the Restricted Period is so
long and/or the scope (distance) (as set forth below) is so broad as to
constitute an undue hardship on Executive, then, in such event only, the
Restricted Period and area limitations shall be valid for the maximum time and
area for which they could be legally made and enforced.
(c) COVENANT. During the Restricted Period, Executive shall not, as an
executive (other than as an executive of Employer or an affiliate thereof),
employee, employer, stockholder, officer, director, partner, consultant,
advisor, proprietor, lender, provider of capital or other ownership, operational
or management capacity, directly or indirectly, (i) solicit or hire any employee
of Employer or otherwise interfere with or disrupt the employment relationship
between Employer and any employee, (ii) solicit or do business with (a)
Employer's customers with whom Employer did business while Executive was
employed under this Agreement or (b) individuals or entities who Executive met
as a result of his position with Employer while Executive was employed under
this Agreement, that results in competition with Employer in any county, parish
or other comparable jurisdiction within a state, province or nation located in
North America in which any of such customers have operations (other than
customers whose business relationship with Employer has terminated for at least
90 days) or in which Employer has conducted business while Executive was
employed under this Agreement (collectively, the
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"Restricted Area"), or (iii) be associated with any entity engaged in the
business of oil and/or gas exploration, development, production, distribution
and/or marketing in the Restricted Area that results in competition with
Employer (but excluding association due to ownership of less than 5% of the
outstanding securities of any such entity).
(d) REASONABLENESS. Executive expressly recognizes and agrees that the
restraints imposed by this Section 7 are (i) reasonable as to time, geographic
limitation and scope of activity to be restrained; (ii) reasonably necessary to
the enjoyment by Employer of the value of its assets and to protect its
legitimate interests; and (iii) not oppressive. Executive further expressly
recognizes and agrees that the restraints imposed by this Section 7 represent a
reasonable and necessary restriction for the protection of the legitimate
interests of Employer, that the failure by the Executive to observe and comply
with the covenants and agreements in this Section 7 will cause irreparable harm
to Employer, that it is and will continue to be difficult to ascertain the harm
and damages to Employer that such a failure by the Executive would cause, that
the consideration received by the Executive for entering into these covenants
and agreements is fair, that the covenants and agreements and their enforcement
will not deprive Executive of his ability to earn a reasonable living in the oil
and gas industry or otherwise, and that Executive has acquired knowledge and
skills in his field that will allow him to obtain employment without violating
these covenants and agreements. Executive further expressly acknowledges that he
has been encouraged to and has consulted independent counsel, and has reviewed
and considered this Agreement with that counsel before executing this Agreement.
8. MEMORANDA, NOTES, RECORDS, ETC. All memoranda, notes, records,
customer lists or other documents made or compiled by Executive or otherwise
made available to him concerning the business of Employer or its subsidiaries or
affiliates shall be Employer's property and shall be delivered to Employer upon
the expiration or termination of Executive's employment hereunder or at any
other time upon request by Employer, and Executive shall retain no copies of
those documents. Executive shall never at any time have or claim any right,
title or interest in any material or matter of any sort prepared for or used in
connection with the business or promotion of Employer.
9. ENFORCEMENT. The parties hereto recognize that the covenants of
Executive hereunder are special, unique and of extraordinary character.
Accordingly, it is the intention of the parties that, in addition to any other
rights and remedies which Employer may have in the event of any breach of this
Agreement, Employer shall be entitled, and hereby is expressly and irrevocably
authorized by Executive, INTER ALIA, to demand and obtain specific performance,
including without limitation temporary and permanent injunctive relief, and all
other appropriate equitable relief against Executive in order to enforce against
Executive, or in order to prevent any breach or any threatened breach by
Executive of, the covenants and agreements contained herein. In case of any
breach of this Agreement, nothing herein contained shall be construed to prevent
Employer from seeking such other remedy in the courts as it may elect or invoke.
10. MISCELLANEOUS.
(a) NON-DELEGATION OF DUTIES. Executive may not delegate the
performance of any of his obligations or duties hereunder, or assign any rights
hereunder, without the prior written consent of Employer. Any such purported
delegation or assignment in the absence of such
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written consent shall be null and void with no force or effect. Notwithstanding
the foregoing, nothing herein shall prevent Executive from delegating
ministerial tasks to assistants of the type that are normally assigned by
executives to assistants.
(b) BINDING EFFECT. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and permitted assigns and any receiver, trustee in bankruptcy or
representative of the creditors of each such person.
(c) SURVIVAL OF COVENANTS. Notwithstanding anything contained in this
Agreement, in the event Executive's employment is terminated for any reason
whatsoever, the covenants and agreements of Executive contained in Sections 4,
5, 6, 7 (to the extent set forth therein), 8, 9 and 10(c) and the covenants of
Employer contained in Section 4 hereof shall survive any such termination and
shall not lapse except as provided herein.
(d) SEVERABILITY/MODIFICATION. If any term or provision of this
Agreement is held or deemed to be invalid or unenforceable, in whole or in part,
by a court of competent jurisdiction, such term or provision shall be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement.
(e) GOVERNING LAW. This Agreement is entered into in Ohio, and the
construction, validity and interpretation of this Agreement shall be governed by
the laws of the State of Ohio without regard to the laws of conflicts of laws
thereof.
(f) EFFECTIVENESS; ENTIRE AGREEMENT; AMENDMENT. This Agreement contains
the entire understanding and agreement between the parties relating to the
subject matter hereof. Neither this Agreement nor any provision hereof may be
waived, modified, amended, changed, discharged or terminated, except by an
agreement in writing signed by the party against whom enforcement of any waiver,
modification, change, amendment, discharge or termination is sought.
(g) NOTICES. Any notice required or permitted to be given under the
provisions of this Agreement shall be in writing and shall be deemed to have
been duly given on the date of delivery if delivered personally to the party to
whom notice is to be given (or to the appropriate address below), or on the
third day after mailing if mailed to the party to whom notice is to be given by
certified or registered mail, return receipt requested, postage prepaid, or by
courier, addressed as follows, or to such other person at such other address as
any party may request in writing to the other party to this Agreement:
TO EXECUTIVE: Xxxxxx X. Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
TO EMPLOYER: Xxxxxx & Blake Corporation
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
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with a copy to:
Xxxxx, Xxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Any party may change its address for purposes of this paragraph by giving the
other parties written notice of the new address in the manner set forth above.
(h) HEADINGS. The section headings herein are for convenience only and
shall not be used in interpreting or construing this Agreement.
(i) SEVERANCE AGREEMENT. Executive and Employer hereby acknowledge and
agree that the Severance Agreement by and between them (the "Severance
Agreement") remains in effect as of the Effective Date and that it will continue
in effect following the Effective Date in accordance with its terms. In the
event that Executive is employed by Employer at the expiration of the Severance
Agreement, Executive and Employer shall enter into a new severance agreement
containing substantially the same terms and conditions as the Severance
Agreement (including, without limitation, provisions regarding non-competition
and similar matters) and providing for a severance benefit in an amount equal to
the sum of (1) three times the total compensation of Executive from Employer or
its Affiliates as reported on Form W-2 by Employer and (2) all compensation of
Executive deferred by Employer or its Affiliates for the calendar year
immediately preceding the termination of Executive's employment, such severance
benefit to be payable solely in the event of the termination of Executive's
employment with Employer and its Affiliates under the circumstances described in
the Severance Agreement as giving rise to payment of benefits under Section 4 of
the Severance Agreement.
(g) INDEMNIFICATION. Employer shall indemnify Executive as an officer
and director of Employer to the same extent as the Employer's indemnification of
its officers and directors as of the Effective Date.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement to be effective as of the Effective Date.
EXECUTIVE:
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XXXXXX X. XXXX
EMPLOYER:
XXXXXX & BLAKE CORPORATION,
an Ohio corporation
By:
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Name:
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Title:
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