EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into on
this 2nd day of September, 1998, by and between American Finance Group, Inc.
("Employer") and Xxxx X. Xxxxxx ("Employee").
WHEREAS, the Board of Directors of Employer deems it in the best
interest of the shareholders of the Employer to maintain a continuity of
management, and to retain an experienced, successful and proven management team;
and
WHEREAS, Xxxx X. Xxxxxx is willing to serve as Senior Vice President,
Chief Financial Officer and Treasurer, subject to, but not limited by, the terms
of this Agreement.
W I T N E S S E T H
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That in consideration of the covenants, duties, terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. SERVICES. Employer hereby engages the exclusive services of
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Employee as Senior Vice President, Chief Financial Officer and Treasurer, with
his/her powers and duties in that capacity to be determined by Employer's Board
of Directors, and Employee hereby agrees to perform such services on the terms
and conditions herein contained and to abide by all rules and regulations for
the conduct of the Employee that are now or may hereafter be established by
Employer. In connection with this Agreement, Employee shall be based at the
principal executive offices of Employer or at such location as may be designated
from time to time by the Board of Directors of Employer, except for required
travel on Employer's business.
2. EMPLOYMENT TERM. The term of this Agreement shall commence on
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the date hereof (the "Commencement Date"), and shall continue until Employee's
employment with Employer is terminated pursuant to Section 10 of this Agreement.
3. COMPENSATION. Employer shall pay to Employee as full
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compensation for all services performed, the sum of One Hundred Fifty Thousand
Dollars ($150,000) per year (or such higher amount as may be agreed to by
Employer and Employee from time to time)(the original amount or the adjusted
amount, if applicable, being the "Base Salary") payable in equal semi-monthly
installments. Employee's compensation may be adjusted from time to time, but it
may not be reduced below the Base Salary without the Employee's prior written
consent. Employer may deduct and withhold from all payments to be made to
Employee hereunder the amounts required or permitted to be deducted or withheld
pursuant to any provisions of any present or future applicable
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law or regulation, together with the right and authority to pay any such
deductions or withholdings over to any party entitled to the same pursuant to
the provisions of any such law or regulation.
4. BONUS. Starting in the fiscal year ending December 31, 1999, the
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Employee shall be eligible to participate in any bonus or incentive compensation
plan for which Employee or other senior executives of Employer may reasonably
expect to participate (the "Incentive Compensation Plan"). To the extent not
otherwise determined pursuant to the Incentive Compensation Plan, the Board of
Directors shall have the sole discretion to determine the amount of such bonus,
or incentive compensation, if any. For the fiscal year ending December 31, 1998,
Employee shall be paid a bonus in the amount of Forty-Five Thousand Dollars
($45,000) at the same time the Company pays its other senior executives their
bonuses related to such time period. Employee shall not be entitled to any other
bonus or incentive compensation for the fiscal year ending December 31, 1998.
5. OTHER BENEFITS. Employer shall maintain in full force and
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effect, and Employee shall be entitled to participate in, all of Employer's
employee benefit plans and arrangements in effect on the date hereof in which
Employee or other senior executives of Employer may reasonably expect to
participate, or such other plans or arrangements that would provide Employee
with substantially equivalent benefits thereunder (including without limitation
each pension and retirement plan and arrangement, supplemental pension and
retirement plan and arrangement, stock option plan, life insurance plan and
arrangement, health and accident plan and arrangement, medical insurance plan
and arrangement, disability plan and arrangement, survivor income plan and
arrangement, relocation plan and vacation plan)(the "Employee Benefit Plans");
provided, however, that this Section 5 shall not apply to any of Employer's
Incentive Compensation Plan(s). Employer shall not make any changes in any
Employee Benefit Plan which would adversely affect Employee's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
employees or executives of the Employer and does not result in a proportionately
greater reduction in the rights of or benefits to the Employee as compared with
any other similarly situated executive of the Employer. Employee shall be
entitled to participate in and receive benefits under any Employee Benefit Plan
or arrangement made available by Employer in the future to its employees,
executives or key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements. Nothing paid to the Employee under any Employee Benefit Plan or
any plan or arrangement made available in the future shall be deemed to be in
lieu of the salary payable to the Employee pursuant to Section 3.1 hereof or
pursuant to an Incentive Compensation Plan as provided in Section 4 hereof. Any
payments or benefits payable to the Employee hereunder with respect to any
calendar year during which Employee is employed by Employer for less than the
entire such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar
year during which he is employed.
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6. OTHER INTERESTS. During the term of employment, Employee shall
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devote his full business time and attention solely to the business and interest
of Employer, and Employer shall be entitled to all the benefits arising from or
incident to Employee's services. During the employment term, Employee shall
not, without Employer's written consent, have any interest in any business which
conflicts either directly or indirectly with Employer's business, except that
Employee may hold an interest not exceeding five percent (5%) in any corporation
whose stock is publicly traded.
7. CONFIDENTIALITY. It is specifically understood and agreed that
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some of the Employer's business activities are secret in nature and constitute
trade secrets, including but not limited to Employer's practices, procedures,
trade secrets, product marketing, "know-how", methods of production and
manufacturing, ideas and results of research and development, specifications of
equipment and materials, profit margins, planning information, projections,
customer lists and supplier information, reports, analyses, agreements, as well
as financial data and reports (the "Proprietary Information"). All Employer's
Proprietary Information is and shall be the property of Employer, for its own
exclusive use and benefit, and Employee agrees that he/she will hold the same in
strictest confidence and will not at any time, either during or after his/her
employment by the Employer, disclose, use or permit the use of the same for
his/her own benefit or for the benefit of others unless authorized to do so by
the Employer's written consent or by a contract or agreement to which the
Employer is a party or by which it is bound.
8. SERVICES FURNISHED. During the term of Employee's employment with
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Employer, Employer shall furnish Employee with office space, secretarial
assistance and such other facilities and service as has been made available to
other of Employer's senior executives.
9. OTHER POSITIONS. Employee agrees to serve without additional
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compensation (other than compensation accruing to any other person serving in
such capacity), if elected or appointed a director of the Employer or any of its
subsidiaries, provided that Employee is indemnified for serving in any and all
such capacities on a basis no less favorable than is currently provided the
directors of the Employer.
10. TERMINATION.
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10.1 BY EMPLOYER FOR DEATH, DISABILITY OR CAUSE. Employee's employment
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hereunder may be terminated by Employer without any breach of this Agreement and
with no further obligations of Employer (except to pay Employee his/her full
Base Salary pro-rated through the date of such termination at the rate in effect
at the time of such termination) only under the following circumstances:
(A) DEATH. Employee's employment hereunder shall terminate upon
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his/her death.
(B) DISABILITY. If, as a result of Employee's incapacity due to
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any injury, sickness or mental illness, Employee shall have been absent or
substantially absent from his/her
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duties hereunder for the period of six (6) consecutive months, and within thirty
(30) days after written notice of termination is given (which may occur before
or after the end of such six month period) shall not have returned to the
performance of his/her duties hereunder on a full-time basis, Employer may
terminate Employee's employment hereunder. Employee's absence or substantial
absence from his/her duties will be treated as resulting from incapacity due to
injury, sickness or mental illness if Employee is totally disabled from his/her
own occupation. Total disability from Employee's own occupation will exist
where Employee (1) is unable to perform all the material duties of his own
occupation on a full-time or part-time basis because of an injury, sickness or
mental illness, (2) does not work at all in any occupation, and (3) is under a
Physician's Care. All capitalized terms used in this section shall have the
meanings as set forth in any Group Long Term Disability Policy in effect for the
Company's employees at the time of Employee's disability.
(C) CAUSE. Employer may terminate Employee's employment
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hereunder for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure by Employee to
perform his/her duties hereunder (other than any failure resulting from
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by Employer, which demand specifically
identifies the manner in which Employee has not substantially performed his/her
duties and provides a reasonable time period of not less than thirty (30) days
for Employee to substantially perform;
(ii) the willful and intentional act by the Employee that
is, in the reasonable determination of the Employer, materially injurious to the
Employer, monetarily or otherwise;
(iii) the breach by the Employee of any material provision
of this Agreement which has not been substantially cured within ten (10) days
after written notice of such breach is given by Employer to Employee; or
(iv) the conviction of the Employee of a crime involving
an act of moral turpitude, which is a felony or which results or is intended to
result, directly or indirectly, in gain or personal enrichment of the Employee,
relations of the Employee, or their affiliates at the expense of the Employer.
For purposes of this Section 10(C), no act, or failure to act, on
Employee's part shall be considered willful unless done, or omitted to be done,
by him/her not in good faith and without the reasonable belief that his/her
action(s) or omission(s) was in the best interests of the Employer.
10.2. BY EMPLOYER WITHOUT CAUSE. The Company may terminate Employee's
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employment hereunder for any reason other than the reasons set forth in
Paragraph 10.1 above so long as the Company offers to pay Employee Severance Pay
pursuant to Section 11 in exchange for Employee's release of any claims against
the Company ("Release"), such Release to be
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substantially in the form of the Separation Agreement and Release attached
hereto as Exhibit A, with all blank lines appropriately completed.
10.3. BY EMPLOYEE FOR GOOD REASON. Employee may terminate his
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employment hereunder for Good Reason upon thirty (30) days' written notice to
Employer. If Employee terminates his employment hereunder and such termination
is made for any of the reasons listed below, then such termination shall be
deemed to have been done for good reason ("Good Reason"). If Employee terminates
his employment for Good Reason then he shall be entitled to Severance Pay
pursuant to Section 11 in exchange for Employee's Release.
(A) Reasons constituting Good Reason shall be limited to:
(i) any breach by Employer of any material provision of
this Agreement which has not been substantially cured within ten (10) days after
written notice of such breach is given by Employee to Employer; or
(ii) any demonstrable, material and continued diminution of
the compensation, benefits, duties, responsibilities, authority or powers of
Employee as such relate to Employee's position as Vice President, Chief
Financial Officer, and Treasurer of the Company which has first occurred within
the thirty (30) days preceding Employee's written demand to Employer, which
demand specifically identifies the manner in which Employee's compensation,
benefits, duties, responsibilities, authority or powers have been diminished, a
statement that Employee finds, in good faith, that the acts or omissions to act
causing such diminution in duties, responsibilities, authority or powers to be a
material diminution and that, if Employer has not cured the diminution within
thirty (30) days by restoring any such diminution, he elects to terminate his
employment hereunder for Good Reason.
10.4 BY EMPLOYEE FOR ANY OTHER REASON. Employee may voluntarily
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terminate his/her employment with Employer for any reason other than Good
Reason, and upon such termination Employee shall not be entitled to Severance
Pay and there shall be no breach of this Agreement by Employer.
11. SEVERANCE PAY.
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11.1 "Severance Pay" shall be defined as twenty-four (24) months of
Employee's base salary at his/her current rate per month at the time of his/her
termination pursuant to Section 10.2 or 10.3 less customary payroll deductions.
Severance Pay will be paid to Employee on a semi-monthly basis, pursuant to the
Company's normal payroll schedule, with the first payment being made following
the "Effective Date" as defined in the Release. The term "Severance Pay" shall
also include Employee's xxxxx ued enrollment at the Company's expense for
twenty-four (24) months in the Company's group medical, dental and vision
insurance plans, disability insurance plan and life insurance plan (together,
the "Insurance Plans"), all at the same level as provided during the period
immediately preceding Employee's termination of employment, provided,
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however, "Severance Pay" shall not include enrollment in any Insurance Plan to
the extent the insurer or underwriter of such Insurance Plan will not cover
Employee under or include same level benefit coverage for Employee after
termination of Employee's employment at a comparable premium. Employee will
continue to be obligated to pay the same employee portion of any premium and any
deductible and/or co-payments associated with such Insurance Plan as other
employees of the Company. Employee's right to continued group benefits after any
period covered by the Company will be determined in accordance with federal and
state law.
11.2 Employee shall not be entitled to Severance Pay and there shall
be no breach of this Agreement by Employer if, after Employee's employment has
been terminated pursuant to Section 10.2 or 10.3, Employee shall not have
delivered to Employer an executed Release, or if such Release has been delivered
by Employee, Employee shall have revoked such Release, within 28 days of
receiving the form of Release from Employer.
11.3. Employee shall not be required to mitigate the amount of any
Severance Pay provided for in this Agreement by seeking other employment or
otherwise. Employee acknowledges that the Severance Pay provided in this
Agreement is in excess of the amount that the Employee would have customarily
received as a terminated employee under Company policy and that these additional
benefits are expressly given as consideration for the execution and delivery of
this Agreement and the Release attached hereto as Exhibit A.
12. STOCK OPTIONS.
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12.1 Upon the consummation of the initial public offering ("IPO") of
the Company's common stock, Employee shall be granted a non-qualified stock
options or incentive stock options, as determined by the Company and granted to
other executive officers, to purchase 2.0% of the Company's common shares
outstanding at the time of the initial public offering at a per share price
equal to the offering price, which option shall be subject to all terms and
conditions pertaining to stock options contained in the Company's 1998
Management Stock Option Plan. Future awards of stock options, if any, will be
granted at the sole discretion of the Company's Board of Directors.
12.2 In the event Employee's employment with Employer is terminated
pursuant to Section 10.2 or 10.3 and Employee executes and delivers to Employer
a Release, any and all options to purchase stock (common or otherwise) in the
Employer granted pursuant to any plan or otherwise, or any equivalent or similar
rights which appreciate or tend to appreciate as the value of the Employer's
stock appreciates ("Options"), shall become immediately accelerated and fully
vested and any restrictions on such options or equivalent or similar rights
shall, to the extent permissible under applicable securities laws, fully lapse.
Employer shall endeavor to cause any restrictions on such options or equivalent
or similar rights not lapsed by operation of this Section 12 to so lapse. In
the event Employee's employment with Employer is terminated other than pursuant
to Section 10.2 or 10.3, or in the event of a termination under Section 10.2 or
10.3, Employee fails to deliver to Employer, or revokes, a Release, such
termination shall have no effect on any Options
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previously granted to Employee, which Options shall be governed exclusively by
the terms of such Options.
13. COVENANT NOT TO COMPETE. Employee, in consideration of the
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compensation and other benefits to be received by him/her pursuant to this
Agreement, expressly agrees that he/she will not, within a radius of fifty (50)
miles from any place of business of the Employer, engage directly, as employee,
principal, agent, partner, director or independent contractor, consultant or
otherwise, in any business which is competitive to that of the Employer for two
(2) years after he/she ceases to be employed by the Employer so long as Employee
is receiving Severance Pay hereunder.
14. NON-SOLICITATION. For two (2) years following termination of
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this Agreement, and so long as Employee is receiving Severance Pay hereunder,
Employee shall not directly or indirectly solicit any of Employer's customers
existing as of the date of termination. If Employee violates this Section 14,
Section 13 or Section 7, and continues to do so after Employer has notified
Employee of such violation, Employer shall have the right to seek equitable
restraint of Employee from such activities in contravention of the provisions of
this Agreement, including seeking and obtaining a temporary restraining order
and/or injunction against Employee.
15. ARBITRATION. Except for the equitable relief provided for in
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Section 14, if a dispute arises between Employer and Employee concerning or
arising out of termination of this Agreement or Employee's employment with or
termination from Employer, the disputed matter shall be submitted to
arbitration. Any disputed matter shall be settled by arbitration in the City of
Boston, Massachusetts, in accordance with the labor arbitration rules of the
American Arbitration Association ("AAA Rules"). Any judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The arbitrators shall have the authority to grant any equitable and
legal remedies that would be available in any judicial proceeding instituted to
resolve the disputed matter. The arbitrators shall apply the law of the State
of Massachusetts in making any determination hereunder. Notwithstanding
anything to the contrary which may now or hereafter be contained in the AAA
Rules, the parties agree any such arbitration shall be conducted before a panel
of three arbitrators who shall be compensated for their services at a rate to be
determined by the American Arbitration Association in the event the parties are
not able to agree upon their rate of compensation. Each party shall have the
right to appoint one arbitrator (to be appointed within twenty days of the
notice of a dispute to be resolved by arbitration hereunder) and the two
arbitrators so chosen shall mutually agree upon the selection of the third
impartial arbitrator. The majority decision of the arbitrators will be final
and conclusive upon the parties hereto.
16. MISCELLANEOUS.
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16.1 Written notices required by this Agreement shall be sent to
Employer or Employee by certified mail, with a return receipt requested, to
Employer's registered address and to
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Employee's last shown address on Employer's records, respectively. Such notice
shall be deemed to be delivered two days after mailing.
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16.2 This Agreement contains the full and complete understanding of
the parties with respect to the subject matter covered hereunder, and supersedes
all prior representations, promises, agreements, and warranties, whether oral or
written. This Agreement does not affect the validity or enforceability of the
terms of any separate letter of confidentiality, standard employment letter or
Company policy handbook executed by Employee except to the extent that a
provision of any such document directly contradicts a provision herein, in which
instance the terms of this Agreement shall apply.
16.3 This Agreement shall be governed by and interpreted according
to the laws of the State of Massachusetts.
16.4 With respect to Employer, this Agreement shall inure to the
benefit of and be binding upon any successors or assigns of Employer. With
respect to Employee, this Agreement shall not be assignable, but shall inure to
the benefit of and be binding upon the heirs, executors, administrators, and
successors of Employee.
16.5 The captions of the various sections of this Agreement are
inserted only for convenience and shall not be considered in construing this
Agreement.
16.6 This Agreement can be modified, amended or any of its terms
waived only by a writing signed by both parties.
16.7 If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the remaining provisions of the Agreement shall
remain in full force and effect and the invalid, illegal or unenforceable
provision shall be limited or eliminated only to the extent necessary to remove
such invalidity, illegality or unenforceability in accordance with the
applicable law at that time.
16.8 Without limiting the provisions of Section 14, if either party
institutes arbitration proceedings pursuant to Section 14 or an action to
enforce the terms of this Agreement, the prevailing party in such proceeding or
action shall be entitled to recover reasonable attorneys' fees, costs and
expenses.
16.9 No remedy made available to Employer by any of the provisions of
this Agreement is intended to be exclusive of any other remedy. Each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder as well as those remedies existing at law, in equity, by statute or
otherwise.
16.10 The provisions of Section 7, 13 and 14 shall expressly survive
termination of this Agreement.
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16.11 Each of Employee and Employer represents that he or it is fully
authorized to execute and deliver this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed under seal on the
day and year specified above.
EMPLOYER: EMPLOYEE:
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
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Xxxxxx X. Xxxxx Xxxx X. Xxxxxx
Its: President
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ATTEST: /s/ Xxxxxxx Xxxxxxxx ATTEST: /s/ Xxxx Xxxxxxx, Xx.
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EXHIBIT A
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the "Separation Agreement"),
dated as of _______________, ____, is entered into by and between American
Finance Group, Inc. ("Employer"), and Xxxx X. Xxxxxx ("Employee"), an
individual, who hereby state as follows:
WHEREAS, Employee has been employed by Employer since September __,
1998, and has most recently held the position of Senior Vice President, Chief
Financial Officer and Treasurer;
WHEREAS, Employee and Employer are parties to that certain Employment
Agreement (the "Employment Agreement") dated as of September __, 1998;
WHEREAS, Employee's employment with Employer has been terminated
effective __________________ (the "Termination Date"); and
WHEREAS, Employer and Employee each desire to resolve any and all
claims Employee may have arising out of the Employment Agreement and/or
Employee's employment with or termination from Employer.
NOW, THEREFORE, EMPLOYER AND EMPLOYEE DO HEREBY AGREE AS FOLLOWS:
1. In consideration of the provisions hereinabove and hereinafter set
forth, Employee and each of his/her heirs, executors, affiliates, successors,
administrators, assigns, agents, attorneys, and any other persons acting on
his/her behalf (collectively "Releasors"), do hereby irrevocably and
unconditionally release and forever discharge Employer, its predecessors,
successors, representatives, assignees, subsidiaries, affiliates, parents,
partners, officers, directors, stockholders, agents, employees, insurers,
attorneys, and all persons acting by, through, under or in concert with any of
them (collectively, "Releasees"), of and from any and all manner of liabilities,
claims, demands, actions, causes of action, damages, obligations, all theories
of fault or wrongdoing (whether statutory, common law, tort or otherwise),
debts, expenses, costs, and attorneys' fees, of every kind, known or unknown
(hereinafter referred to as a "Claim" or the "Claims"), arising out of, or in
anyway related to, Employee's employment with or termination from Employer.
These Claims include, but are not limited to, any Claims arising out of, based
upon, or relating to Employee's hire, working conditions, employment,
separation, termination or remuneration (including salary, bonus, incentive or
other compensation, vacation, sick leave or medical insurance benefits); the
Employment Agreement; any Claims under Title VII of the Civil Rights Act of
1964, as amended, the Age Discrimination in Employment Act, as amended, the
Equal Pay Act, as amended, the Fair Labor Standards Act, as amended, the
Employee Retirement Income Security Act, as amended, the Massachusetts Labor
Code, or any other local, state or federal statutory or common law governing the
employment of individuals, the working conditions of individuals or the payment
of wages and benefits; and any Claims for sexual harassment, constructive
discharge, misrepresentation, negligent supervision, negligent hiring, invasion
of privacy, unsafe working conditions, race, sex, color, national origin, libel,
slander, defamation, negligence, intentional or negligent infliction of
emotional distress, or any Claims that related to or are in any manner connected
with any aspect of Employer's business.
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2. Employee acknowledges and agrees that he/she is aware of the facts
and intend that the execution of this Separation Agreement shall be effective as
full and final accord and satisfaction and settlement of and as a bar to each
and every Claim or Claims arising out of the above which Employee or the
Releasors has, may have in the future or has had against the Employer or the
Releasees, whether such Claims are known or unknown, foreseen or unforeseen.
3. In consideration for the release set forth in Section 1 and the
other terms and conditions of this Agreement, Employee will be paid twenty-four
(24) months of Employees base salary at his/her current rate per month at the
time of his/her termination ($_________), less customary payroll deductions, as
severence pay, as well as certain other post employment insurance benefits
specified and defined as "Severance Pay" in Section 11.2 of the Employment
Agreement. Such severance pay will be paid in semi-monthly installments for a
total of forty-eight (48) installments, starting on the first regularly
scheduled pay day following the Effective Date of this Separation Agreement, as
defined in Paragraph 13 below. Employee acknowledges that the severence pay and
other post employment insurance benefits are conferred on Employee as
consideration for the execution and delivery of the Employment Agreement and
this Separation Agreement.
4. In executing this Separation Agreement, the parties hereby
acknowledge and agree that Employee is retaining all rights and interests which
have vested through the Termination Date in Employer's stock option plan(s), its
401(k) Plan and any other plan in which Employee holds a vested interest except
as expressly identified as being released under this Agreement, and it is
expressly agreed that Employee is not releasing or waiving his vested interest
in said plans.
5. Employee agrees to immediately return to Employer any Proprietary
Information as defined in Section 7 of the Employment Agreement and any other
Employer documents in any form, and Employee remains obligated to maintain the
confidentiality of such Proprietary Information at all timesas set forth in
Section 7 of the Employment Agreement.
6. Nothing in this Separation Agreement shall be construed as an
admission by either party of any unlawful or actionable conduct by either party
and the parties hereto make no admission of liability of any kind whatsoever.
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7. The provisions of this Separation Agreement shall be deemed to
obligate, extend to and inure to the benefit of, with respect to Employer, its
agents, servants, employees, officers, directors, parents, subsidiaries and
affiliates, successors and assigns, and, with respect to Employee, his
representatives, executors, heirs, administrators, successors and assigns.
8. Employee agrees that he/she shall keep and hold the contents, terms
and provisions of this Agreement in the strictest confidence and that he/she
shall not discuss, disclose, disseminate, produce, publish, comment upon,
reference or reveal the existence of this Agreement or any of the contents,
terms and provisions of this Agreement to any person or any entity without first
securing the prior written consent of the Company, except (1) to Employee's
personal representatives or as required in a judicial proceeding to enforce the
terms of this Agreement, or (2) as otherwise required by law (in which latter
instance, the Employee, upon becoming aware of any such legal duty, shall
promptly give notice thereof to the Company and shall, to the greatest extent
possible, cooperate with the request of the Company to keep this Agreement
confidential). This paragraph does not apply to the reporting, completing and
filing of state and federal income tax returns or any and all subsequent
proceedings relating thereto, or the filing of any information or documents
required to be filed with the Securities and Exchange Commission. The Employee
agrees that any breach of this paragraph will cause irreparable harm and loss to
the Company and that the Company shall be entitled to have and secure against
the Employee injunctive relief against any future or further violations of this
paragraph.
9. This Separation Agreement contains the entire understanding among
the parties and supersedes and replaces all prior negotiations, proposed
agreements and agreements (except for Section 7, 13 and 14 of the Employment
Agreement, which Sections are expressly continuing in effect and shall survive),
written and oral, and may not be modified or amended in any respect whatsoever,
except by a writing signed by all parties hereto.
10. This Separation Agreement shall be governed and construed in
accordance with the laws of the State of Massachusetts. Venue of any action to
enforce the terms of this Separation Agreement shall lie in Boston,
Massachusetts. Except as set forth in Paragraph8, or Section 14 of the
Employment Agreement, any dispute, claim or controversy arising out of or
related to this Separation Agreement shall be resolved by arbitration under the
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Employment Dispute Resolution Arbitration Rules and auspices of the American
Arbitration Association, Boston, Massachusetts (the "Association"). Any such
arbitration shall be conducted by an arbitrator selected by mutual agreement of
the parties, and such arbitration decision shall be final. The party prevailing
in the arbitration shall be awarded its share of the fees and expenses of the
arbitration (including, but not limited to, arbitrator's fees), in addition to
attorneys' fees. Employee specifically consents to such arbitration and hereby
represents such consent is willfully and voluntarily given without influence by
coercion or threatening statements from Employer.
11. Each signatory hereto represents that he, she or it is fully
authorized to execute this Separation Agreement.
12. The Parties agree that if any provision of this Separation
Agreement is held by a court of competent jurisdiction or arbitrator to be
invalid, void or unenforceable, the remaining provisions shall continue in full
force and effect.
13. The following is required by the Older Workers Benefit Protection
Act of 1990:
Employee has up to 21 days from the date of this Separation Agreement
to accept the terms of this Separation Agreement, although Employee may accept
it at any time within those 21 days.
Employee is advised to consult an attorney about this Separation
Agreement.
Once Employee accepts this Separation Agreement, by signing and dating
this Separation Agreement, Employee will have an additional seven days in which
to revoke his acceptance. To revoke, Employee must send to Employer's President
a written statement of revocation by facsimile and registered mail, return
receipt requested. If Employee does not revoke, the eighth day after the date of
his acceptance will be the "Effective Date" of the Separation Agreement.
14. Employer and Employee do hereby acknowledge and agree that they
have each been represented by independent counsel of their own choice throughout
all negotiations which preceded the execution of this Separation Agreement and
that they fully understand and voluntarily accept this Separation Agreement and
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have executed this Separation Agreement after seeking the advice of said
independent counsel. Each party shall bear, and be solely responsible for, their
own respective costs and expenses related to the preparation and subject matter
of this Separation Agreement.
IN WITNESS WHEREOF, the parties have executed this document under seal
as of the date set forth below.
EMPLOYEE AMERICAN FINANCE GROUP, INC.
Xxxx X. Xxxxxx
Dated: Title:
A-5
