SIGNATURE COPY
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Employment Agreement"), dated as of
March 17, 2008, between ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ Inc. (the "Company"), and
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. (the "Executive").
WHEREAS, the Company wishes to assure itself of the management
services of the Executive for the period provided in this Employment Agreement,
and the Executive desires to serve in the employ of the Company for such period,
upon the terms and conditions hereinafter provided.
IT IS THEREFORE AGREED AS FOLLOWS:
1. Employment, Duties and Acceptance.
1.1 EMPLOYMENT BY THE COMPANY. Effective March 17, 2008
(the "Effective Date"), the Company hereby employs the Executive, for itself and
its affiliates, for the Term (as herein defined), to render exclusive and
full-time services in the capacity of Executive Vice President, Chief Financial
Officer of the Company, subject to the direction of the Company's Chief
Executive Officer and the Board of Directors of TRC Holdings LLC, the indirect
parent of the Company (the "Board of Directors"), in accordance with applicable
law and the Company's corporate governance policies. The Executive may engage in
personal, charitable, professional and investment activities except to the
extent that the Board of Directors reasonably determines that any such activity
conflicts or significantly interferes with the performance of his
responsibilities to the Company under this Employment Agreement.
1.2 DUTIES/AUTHORITY. The Executive shall have
responsibilities commensurate with the office of Executive Vice President, Chief
Financial Officer, subject to the control and direction of the Chief Executive
Officer and Board of Directors in accordance with applicable law and the
Company's corporate governance policies. The Executive agrees to hold such
additional offices of the Company and its affiliates as may reasonably be
assigned to him by the Board of Directors or the Chief Executive Officer from
time to time.
1.3 ACCEPTANCE OF EMPLOYMENT BY THE EXECUTIVE. The
Executive accepts such employment and shall render the services described above.
Subject to election (i) by the Company's stockholders or appointment by the
Board of Directors, the Executive may also serve during all or any part of the
Term as a director of the Company, and (ii) by the Company, the Executive may
also serve during all or any part of the Term as an officer or director of any
other entity controlled by or under common control with the Company, in each
case without any compensation therefor other than that specified in this
Employment Agreement.
1.4 PLACE OF EMPLOYMENT. The Executive's principal place
of employment shall be Memphis, TN (the "Headquarters"), subject to such
reasonable travel as the rendering of the services hereunder may require, at the
direction of the Chief Executive Officer. The Company acknowledges that the
Executive's performance of his duties requires travel to various locations and
to that extent there is no mandatory minimum number of days he is expected to be
present at the Headquarters. Unless agreed to otherwise in writing by the
Executive, the Company shall not change the Executive's principal place of
employment further than fifty (50) miles from the Headquarters.
2. TERM OF EMPLOYMENT. Subject to earlier termination
pursuant to Section 4 of this Employment Agreement, the initial term of
Executive's employment under this Employment Agreement shall commence on the
Effective Date and shall end eighteen (18) months following the Effective Date
(the "Initial Term"); PROVIDED that the term shall automatically renew for
successive periods of one year (each such one year period, a "Subsequent Term")
until one of the parties gives written notice of non-renewal to the other party
at least 90 days before the end of the Initial Term or any Subsequent Term, as
applicable, unless sooner terminated as herein provided. For the purposes of
this Employment Agreement, (i) "Term" shall mean the Initial Term, or the
Subsequent Term, as appropriate, and (ii) if a party gives the other party a
notice of non-renewal pursuant hereto, this Employment Agreement shall be deemed
to expire at the end of the current Term and no termination shall be deemed to
have occurred for the purpose of Section 4.
3. Compensation.
3.1 SALARY. As compensation for all services to be
rendered pursuant to this Employment Agreement, the Company (directly or through
one or more subsidiaries) shall pay the Executive during the Term a salary of
$280,000 per annum (the "Base Salary"), payable not less frequently than
monthly, less such deductions as shall be required to be withheld by applicable
law and regulations. The Executive's Base Salary shall be reviewed at least
annually by the Board of Directors and may be increased from time to time, but
in no event shall the amount of the Executive's Base Salary be decreased from
its then existing level.
3.2 INCENTIVE BONUS. The Executive shall be eligible to
receive an annual bonus (the "Incentive Bonus") under a plan established by the
Company from time to time in the amount determined by the Board of Directors
based upon achievement of performance measures derived from the annual business
plan approved by the Board of Directors and payable on the date such bonuses are
paid to other executives of the Company. The Executive's target bonus shall be
45% of Base Salary (the "Target Bonus"). Except as otherwise provided in Section
4, the Incentive Bonus shall be pro-rated to reflect the percentage of the
fiscal year the Executive has performed services for the Company pursuant to
this Employment Agreement.
3.3 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The
Executive shall be permitted during the Term, if and to the extent eligible, to
participate in any group life, hospitalization, accidental death and
dismemberment or disability insurance plan, health (Executive Health and Life
Benefit Plan) program, pension plan or similar benefit plan or perquisite
program of the Company, which may be available generally to other senior
executives and managers of the Company and its subsidiaries on the same terms as
such other persons in accordance with the terms of such plans and programs. The
Board of Directors may determine to offer the Executive participation in other
compensation or benefit plans, in its discretion.
3.4 EXPENSES. Subject to such written policies,
applicable to senior executives generally, as may from time to time be
established by the Board of Directors, the
2
Company shall pay or reimburse the Executive for all reasonable expenses
(including travel expenses) actually incurred or paid by the Executive during
the Term in the performance of the Executive's services under this Employment
Agreement upon presentation of expense statements or vouchers or such other
supporting information as it may require.
3.5 VACATION. The Executive shall be entitled to such
amount of vacation which is available generally to other senior executives and
managers of the Company and its subsidiaries. The Executive shall be permitted
to carry-over a maximum number of accrued but unused vacation days equal to the
greater of (x) three (3) times the number of annual vacation days for which the
Executive is eligible and (y) the maximum number of days permitted pursuant to
the vacation policies of the Company.
3.6 INSURANCE. During the Term, the Company shall
maintain director's and officer's liability indemnification and insurance
coverage for the Executive.
3.7 RELOCATION OF PRINCIPAL PLACE OF EMPLOYMENT. The
Company will provide the Executive with executive level relocation benefits,
which shall include existing home sale and new home purchase assistance,
temporary living assistance, transport of the Executive's household goods, and
prospective home searching in the Memphis area in accordance with the relocation
policy of the Company.
3.8 AUTOMOBILE ALLOWANCE. The Executive shall be
permitted to use a vehicle provided by the Company and/or receive an automobile
allowance from the Company in accordance with the policies of the Company.
4. Termination.
4.1 TERMINATION UPON DEATH. If the Executive dies during
the Term, this Employment Agreement shall terminate and the Company shall pay to
the Executive (i) all Base Salary and benefits from the Company and its employee
benefit plans earned and accrued as of the date of termination and (ii) a pro
rata amount of his annual Incentive Bonus in accordance with the terms of the
Plan, determined at the end of the fiscal year in which the Executive's death
occurred, and pro rated through the date of termination.
4.2 TERMINATION UPON DISABILITY. If during the Term the
Executive becomes physically or mentally disabled, whether totally or partially,
so that Executive is unable to perform the essential functions of his
employment, with or without reasonable accommodations (as determined, in good
faith, by the Board of Directors) for (i) a period of three (3) consecutive
months, or (ii) for shorter periods aggregating three (3) months during any six
(6) month period, the Company may at any time after the last day of the three
(3) consecutive months of disability or the day on which the shorter periods of
disability equal an aggregate of three (3) months, by written notice to the
Executive, terminate the Term of the Executive's employment hereunder. Nothing
in this Section 4.2 shall be deemed to extend the Term. In the event of
termination of this Employment Agreement by reason of disability, subject to the
execution, without revocation, of a valid release agreement reasonably
acceptable to the Company, the Company shall pay to the Executive (i) the
Executive's Base Salary on the date of termination for the lesser of four (4)
months or the remainder of the Term, payable in accordance
3
with the provisions of Section 3.1 hereof, (ii) all Base Salary and benefits
from the Company and its employee benefit plans earned and accrued as of the
date of termination and (iii) a pro rata amount of his annual Incentive Bonus in
accordance with the terms of the Plan, determined at the end of the fiscal year
in which the disability occurred, and pro rated through the date of termination.
4.3 TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. The
Company may at any time by written notice to the Executive terminate the Term of
the Executive's employment hereunder for Cause and the Executive may at any time
upon thirty days advance written notice to the Company terminate the Term of the
Executive's employment hereunder without Good Reason and, in either such case,
the Executive shall have no right to receive any compensation or benefit
hereunder on and after the effective date of such notice other than Base Salary
and benefits accrued but not paid as of the date of termination.
4.4 TERMINATION WITH GOOD REASON OR WITHOUT CAUSE. During
the Term, the Executive may terminate his employment with the Company at any
time with Good Reason upon thirty days advance written notice to the Company,
and the Company may at any time terminate the Executive's employment without
Cause. Subject to Section 4.6, the Executive shall, subject to the execution,
without revocation, of a valid release agreement reasonably acceptable to the
Company, have the right to continue to receive his Base Salary (the "Termination
Payments") and to continue to be a participant in the Company's Executive Health
and Life Benefit Plan (the "Termination Benefits"), as in effect on the date of
such notice, payable in accordance with the provisions of Sections 3.1 and 3.3
hereof, for the remainder of the Term; PROVIDED, that in the event that the
Executive's participation in any benefit plans, programs, practices or policies
referred to in Section 3.3 is barred by the terms of such plans, programs,
practices or policies due to the termination of the Executive's employment with
the Company, then the Company shall provide him with benefits substantially
similar to those which he would be entitled to as a participant in such benefit
plans, programs, practices or policies; PROVIDED FURTHER, that (subject to
Section 4.6 and the execution without revocation of a release reasonably
acceptable to the Company) the Executive shall receive such Base Salary and
group health benefits for a minimum of twelve months from the effective date of
such notice. In the event the Executive's employment terminates pursuant to this
Section 4.4, he shall be entitled to receive a pro rata amount of his annual
Incentive Bonus in accordance with the terms of the Plan, determined at the end
of the fiscal year in which the Executive's employment terminated, and pro rated
through the date of termination; PROVIDED FURTHER, that if the Executive's
employment is terminated pursuant to this Section 4.4 after a Change in Control
has occurred, in the event that any payment or distribution by the Company to or
for the benefit of the Executive (whether pursuant to the terms of this
Employment Agreement or otherwise) (a "Payment") would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), or any interest or penalties are incurred by the Executive due to
the miscalculation by an independent auditor with respect to such excise tax or
untimely payment of the Gross-Up Payment (as defined below) by the Company with
respect to such excise tax (such excise tax, together with any interest or
penalties thereon incurred by the Executive due to miscalculation by the
independent auditor or untimely payment of the Gross-Up Payment (as defined
below) by the Company, are hereinafter referred to as the "Excise Tax"), then
the Company will pay to the Executive an additional payment (the "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes,
including, without limitation, any
4
income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments. The determination of amounts required to be paid pursuant to the
preceding proviso shall be made by an independent auditor selected and paid by
the Company. Such independent auditor shall be a nationally recognized United
States public accounting firm, which may be the independent accounting firm used
by the Company to audit its financial statements unless such accounting firm is
serving as the accountant or auditor for the individual, entity or group
effecting the Change in Control.
4.5 DEFINITIONS. For purposes hereof:
(a) The term "Cause" shall mean: as determined in good faith
by the Board of Directors (or its designee), (i) the Executive's material breach
of any of the Executive's obligations under this Employment Agreement; (ii) the
Executive's continued and deliberate neglect of, willful misconduct in
connection with the performance of, or refusal to perform the Executive's
duties, which, in the case of neglect or failure to perform, has not been cured
within thirty (30) days after the Executive has been provided notice of the
same; (iii) the Executive's engagement in any conduct which injures the
integrity, character, business or reputation of the Company or any of its
subsidiaries or affiliates or which impugns the Executive's own integrity,
character or reputation so as to cause the Executive to be unfit to act on
behalf of the Company; or (iv) the Board of Director's good faith determination
that the Executive has committed an act or acts constituting a felony, or other
act involving dishonesty, disloyalty or fraud against the Company or any of its
subsidiaries or affiliates.
(b) The term "Good Reason" shall mean: (i) the assignment to
the Executive of duties and responsibilities not commensurate with his status as
the Executive Vice President, Chief Financial Officer of the Company, (ii) the
failure of the Company to provide Base Salary, bonus opportunity and benefits to
the Executive as required herein or (iii) the failure of the Company to adhere
in any substantial manner to any of its other covenants herein, PROVIDED that
any of the foregoing continues for a period of 20 days after written notice
thereof, specifying the nature thereof and requesting that it be cured, is given
by the Executive to the Company; PROVIDED, that if a Change in Control has
occurred the term "Good Reason" shall also mean (iv) any other action by the
Company which results in a diminishment in the Executive's position, authority,
duties or responsibilities to any substantial degree, (v) any material adverse
change in the Executive's benefits or perquisites, or (vi) the Company's
requiring the Executive to be based at any office or location more than 50 miles
from that which the Executive is based immediately prior to the Change in
Control. Executive's election to terminate his employment for Good Reason shall
in no way limit or restrict his remedies at law or equity for a breach of this
Employment Agreement.
(c) The term "Change in Control" shall mean: (i) the sale of
all or substantially all of the business and/or assets of the Company to a
person or entity that is not a subsidiary or other affiliate of the Company or
▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("CHI"), (ii) the merger or consolidation or other
reorganization of the Company with or into one or more entities that are not
subsidiaries or other affiliates of the Company or CHI, which results in less
than 50% of the outstanding equity interests of the surviving or resulting
entity immediately after the reorganization being owned, directly or indirectly,
by the holders (or affiliates of the holders) of
5
equity interests of the Company, immediately before such reorganization and
(iii) approval by the stockholders of the Company of the dissolution or
liquidation of the Company.
4.6 MITIGATION OF DAMAGES.
(a) Subject to the Executive's obligations set forth in
Section 5 of this Agreement, that survive the termination of the Executive's
employment, the Executive shall be obligated to use his reasonable best efforts
to mitigate the Executive's entitlement to Termination Payments and Termination
Benefits under this Employment Agreement by pursuing "Replacement Employment"
after termination of his employment hereunder. For the purposes hereof,
"Replacement Employment" shall mean a similar or better position with a company
at a location no more than 50 miles from the Headquarters provided that the base
salary, or base salary and target bonus, for such position is equal to or
greater than the Executive's Base Salary under this Employment Agreement (as
increased pursuant to Section 3.1) at the time of his termination of employment
with the Company.
(b) If Executive receives (or accrues) compensation for his
services while he is entitled to receive the Termination Payments and the
Termination Benefits, the Termination Payments shall be reduced by the amount of
the compensation so received (or accrued), and the payment of the Termination
Benefits shall cease to the extent the Executive becomes eligible to receive
similar benefits from a new employer or third party. Executive shall immediately
notify the Company in writing of any employment obtained by the Executive during
the period that the Executive is entitled to receive Termination Payments or
Termination Benefits, which notice shall contain the amount of income the
Executive will receive and the time of receipt. The Executive shall also give
immediate notice to the Company of any changes in such employment or income.
5. Covenants.
5.1 NON-SOLICITATION OR HIRE. During the Term and for a
period of two years following the termination of the Executive's employment for
any reason, the Executive shall not directly or indirectly (a) solicit or
attempt to solicit or induce, directly or indirectly, any party who is a
customer or client of the Company or its subsidiaries, or who was a customer or
client of the Company or its subsidiaries at any time during the twelve (12)
month period immediately prior to the date the Executive's employment
terminates, for the purpose of marketing, selling or providing to any such party
any services or products offered by or available from the Company or any of its
subsidiaries; (b) interfere with or attempt to interfere with any business
relationships (whether formed during, or after the Term) of the Company or any
of its subsidiaries with their suppliers; (c) solicit, or attempt to solicit or
induce, directly or indirectly, any employee of the Company or its subsidiaries
or any person, who was an employee of the Company or its subsidiaries during the
twelve (12) month period immediately prior to the date the Executive's
employment hereunder terminates, to terminate such employee's employment
relationship with the Company or its subsidiaries in order to enter into a
similar relationship with the Executive, or any other person or entity; or (d)
hire any employee of the Company or its subsidiaries or any person, who was an
employee of the Company or any of its subsidiaries during the twelve (12) month
period immediately prior to the date the Executive's employment hereunder
terminates.
6
5.2 NON-COMPETITION. While the Executive is employed and
for a period following the termination of the Executive's employment equal to
the Non-Competition Restricted Period (as defined below), the Executive shall
not, whether individually as a director, manager, member, stockholder, partner,
owner, employee, consultant or agent of any business, or in any other capacity,
other than on behalf of the Company, organize, establish, own, operate, manage,
control, engage in, participate in, invest in, permit his name to be used by,
act as a consultant or advisor to, render services for (alone or in association
with any person, firm, corporation or business organization), or otherwise
assist any person or entity that engages in or owns, invests in, operates,
manages or controls any venture or enterprise which engages or proposes to
engage in any business conducted by the Company or its subsidiaries (x) on the
date of the Executive's termination of employment (including, without
limitation, any business which the Company or its subsidiaries has specific
plans to conduct in the future and as to which the Executive is aware) or (y)
within twelve (12) months prior to the Executive's termination of employment
with the Company, in each case, in the geographic locations where the Company or
its subsidiaries engage or propose to engage in such business (the "Competitive
Business"). Notwithstanding the foregoing, the Executive may, directly or
indirectly own, solely as an investment, securities of any firm, partnership,
joint venture, association, corporation or other business organization, entity
or enterprise engaged in the business of the Company which are publicly traded
on a national or regional stock exchange or on the over-the-counter market if
the Executive is not a controlling person of, or a member of a group which
controls, such entity and does not directly or indirectly own 5% or more of any
class of securities of such entity. Should any provision of this Section 5.2
conflict with the provisions of any other written agreement between the Company
and the Executive, this Section 5.2 shall govern.
For the purposes of this Employment Agreement, the term
Non-Competition Restricted Period shall mean (x) the period the Executive is
entitled to receive payments or benefits pursuant to Section 4.4 hereof, if the
Executive's employment terminates without Cause or if the Executive terminates
his employment for Good Reason and (y) a period of one year if the executive's
employment hereunder terminates for any other reason..
5.3 CONFIDENTIALITY. Executive agrees that:
(a) Except to the extent (i) authorized by the express prior
consent of the Board of Directors, (ii) required by law or any legal process or
(iii) desirable in performing the Executive's duties under this Employment
Agreement, the Executive will not, directly or indirectly, at any time during
the Term, or at any time subsequent to the termination of the Executive's
employment hereunder, disseminate, disclose or divulge, to any person, firm,
corporation, association or other business entity, Confidential Information of
the Company. In the event of a breach or threatened breach by the Executive of
this Section 5.3, the Company shall be entitled to injunctive relief as well as
other applicable remedies at law or in equity available to the Company against
the Executive or others. For purposes hereof, "Confidential Information of the
Company" shall mean any and all information about the Company or any affiliates
of the Company, or relating to the Company's or its affiliates' trade secrets,
recipes, operating plans, financial performance, intentions with respect to
expansions (including with respect to real estate), in each case disclosed to
the Executive or known by the Executive as a consequence of or through the
Executive's relationship with the Company, if such information is not publicly
available (other than through a breach by the Executive of this Section 5.3).
7
(b) All computer software, business cards, telephone lists,
client lists, prospective client lists, price lists, contract forms, catalogs,
books, records, files, recipes, operating plans, and know-how acquired while the
Executive is employed by or otherwise affiliated with the Company are
acknowledged to be the property of the Company and shall not be duplicated,
removed from the Company's possession or premises or made use of other than in
pursuit of the business of the Company or as may otherwise be required by law or
any legal process, or as is necessary in connection with any adversarial
proceeding against the Company and, upon termination of the Term for any reason,
the Executive shall deliver to the Company, without further demands, all copies
thereof which are then in the Executive's possession or under his control.
5.4 REMEDIES; SPECIFIC PERFORMANCE. The parties
acknowledge and agree that the Executive's breach or threatened or attempted
breach of any of the covenants or restrictions set forth in this Section 5 will
result in irreparable and continuing damage to the Company and its subsidiaries
for which there may be no adequate remedy at law and that the Company shall be
entitled to equitable relief, including but not limited to, specific performance
and injunctive relief as remedies for any such breach or threatened or attempted
breach. The Executive also agrees that such remedies shall be in addition to any
and all remedies, including damages, available to the Company against the
Executive for such breaches or threatened or attempted breaches. The
non-prevailing party shall pay the reasonable legal costs of the prevailing
party in any such action pursuant to this Section 5.4. In addition, without
limiting the Company's and its subsidiaries' remedies for any breach by the
Executive of any covenants or restrictions set forth in this Section 5, in the
event of such breach, (i) the Executive shall not be entitled to any payments
set forth in Section 4 hereof, except as required by law, and (ii) the Company
will have no obligation to pay any of the amounts that remain payable by the
Company under Section 4.
6. Other Provisions.
6.1 NOTICES. Any notice or other communication required
or which may be given hereunder shall be in writing and shall be delivered
personally, telecopied, or sent by certified, registered, or express mail,
postage prepaid, to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice, and shall be
deemed given when so delivered personally, telecopied or if mailed, two days
after the date of mailing, as follows:
(i) if to the Company, to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone:
Fax:
With copies to:
8
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Executive, to the Executive's home address
reflected in the Company's records.
Notwithstanding the foregoing, the Company may designate an
alternate address to receive notices under this Agreement by providing notice to
the Executive in accordance with this Section 6.1.
6.2 INDEMNIFICATION. The Company shall indemnify the
Executive and hold him harmless, to the maximum extent permitted by applicable
law, from and against all loss, damage, liability, costs, charges and expenses,
including reasonable attorney's fees and costs, incurred or sustained by him in
connection with any action, suit or proceeding to which the Executive may be
made a party by reason of his being, from and after the date hereof, an officer
or director of the Company or of any subsidiary or affiliate of the Company.
6.3 ENTIRE AGREEMENT. This Employment Agreement contains
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements, written or oral, with respect
thereto.
6.4 WAIVERS AND AMENDMENTS. This Employment Agreement may
be amended, modified, superseded, canceled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder. Notwithstanding anything herein to the contrary, the Company may
amend this Employment Agreement at any time, retroactively or otherwise, without
the Executive's consent, if necessary or desirable to comply with Section 409A
of the Code, and regulations and other guidance of general applicability that
are issued thereunder.
9
6.5 GOVERNING LAW. This Employment Agreement shall be
governed by and construed and enforced in accordance with and subject to, the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state.
6.6 ARBITRATION. Except for disputes arising out of an
alleged violation of the covenants set forth in Section 5 of this Employment
Agreement, any dispute or controversy arising under or in connection with this
Employment Agreement shall be resolved by binding arbitration, which shall be
held in New York, New York in accordance with the following procedure:
(a) The Executive shall appoint an employment arbitrator from
the pool of arbitrators registered as employment arbitrators with the American
Arbitration Association ("Employment Arbitrator") and the Company shall appoint
an Employment Arbitrator and the Executive's appointed Employment Arbitrator and
the Company's appointed Employment Arbitrator shall mutually agree upon a single
Employment Arbitrator.
(b) The arbitration hearing shall be held within 15 days (or
as soon thereafter as possible) after the picking of the arbitrator. No
continuance of said hearing shall be allowed without the mutual consent of the
Executive and the Company. Absence from or nonparticipation at the hearing by
either party shall not prevent the issuance of an award. Hearing procedures
which will expedite the hearing may be ordered at the arbitrator's discretion,
and the arbitrator may close the hearing in his or her sole discretion when he
or she decides he or she has heard sufficient evidence to satisfy issuance of an
award.
(c) The arbitrator's award shall be rendered as expeditiously
as possible. The award of the arbitrator shall be final and binding upon the
parties. The award may be enforced in any appropriate court as soon as possible
after its rendition. If an action is brought to confirm the award, both the
Company and the Executive agree that no appeal shall be taken by either party
from any decision rendered in such action.
(d) The prevailing party in any arbitration between the
Company and the Executive with respect to this Employment Agreement shall be
entitled to an award of the fee of the arbitrator borne by such party and all
necessary expenses of the hearing borne by such party (including all attorneys'
fees and disbursements incurred by such party in pursuing such claim), including
stenographic reporter, if employed.
(e) The Company shall reimburse the Executive for the
Executive's reasonable out of pocket costs and expenses incurred in connection
with traveling to New York, New York to conduct such arbitration proceeding,
upon presentation of such supporting documentation as the Company may require.
6.7 ASSIGNMENT. This Employment Agreement, and the
Executive's rights and obligations hereunder, may not be assigned by the
Executive or the Company except with the other party's prior written consent.
6.8 COUNTERPARTS. This Employment Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument.
10
6.9 HEADINGS. The headings in this Employment Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Employment Agreement.
6.10 SEVERABILITY. If any term, provision, covenant or
restriction of this Employment Agreement, or any part thereof, is held by a
court of competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Employment Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
10
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement the date first above written.
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ INC.
By:
-----------------------------------
Name:
Title:
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
