EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of the 1st day of October 2004 (the "Effective Date"), by and between,
Cistera Networks Canada, a corporation formed under the laws of the Province of
Ontario (the "Company"), and Xxxxxxx Royal, a resident of Toronto, Canada
("Employee").
BACKGROUND:
WHEREAS, the Company is engaged in the business of designing,
developing, marketing, selling and distributing computer hardware and software
solutions for integrating voice, video and data over internal and external
computer based networks;
WHEREAS, the Company has, in its business, developed or acquired and
will continue to develop and acquire commercially valuable technical and
non-technical information, the safeguarding of which by holding the same secret
and confidential, is necessary and the Company must be protected from
divulgence by Employee, either directly or indirectly, of any such information;
and
WHEREAS, Employee acknowledges that the remuneration, receipt of
confidential information, and special and unique professional growth
opportunities available through employment with the Company constitute fair and
adequate consideration for entry into this Agreement, and he understands that
he need not accept or continue employment with the Company; that he has freely
chosen to enter into the terms of this Agreement, and that compliance with the
terms of this Agreement are conditions of his employment or continued
employment with the Company.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and
acknowledgments of the parties which are incorporated and made a part hereof,
and in further consideration of and as part of the terms and conditions of the
employment or continued employment of Employee, it is hereby agreed as follows:
1. Appointment and Term. The Company hereby employs Employee, and
Employee hereby accepts employment with the Company upon the terms and
conditions, and for the consideration set forth in this Agreement. The term of
this Agreement, and Employee's employment hereunder shall commence on the
Effective Date, and, unless sooner terminated pursuant to the terms of Section
8 of this Agreement, shall continue for an initial period of one (1) year (the
"Initial Period"). Subject to the provisions of Section 7, following the
completion of the Initial Period, Employee's employment under this Agreement
shall be "at will".
2. Duties and Responsibilities. Employee will serve as the Company's
President of Cistera Networks Canada, and as such will perform those duties
which are normal and customary in the industry for like positions and will be
responsible for other similar areas which relate thereto for the Company's
subsidiaries and affiliates. Employee will report directly to the Company's
Board of Directors or designee. Employee will perform full-time service on an
exclusive basis for the Company and its affiliates. Employee shall strictly
comply with all Company policies and procedures in place from time to time and
shall conduct himself in a manner befitting of an employee of the Company.
Employee's principal base of employment shall initially be in Ontario, Canada,
and may change from time to time. If asked to move by the Company, the Company
will pay all closing costs associated with the move including, but not limited
to, real estate fees and commissions but excluding pre-paid items. Employee
acknowledges that Company is required to actually utilize Employee's services
hereunder, but that Company's sole obligation shall be to pay Employee the
compensation and provide Employee the benefits set forth herein, subject to the
terms and conditions of this agreement. For all purposes, Employee shall be an
employee of only the Company, and only this Agreement shall control and govern
any and all relationships between Employee and the Company and its divisions,
subsidiaries and other affiliated entities.
3. Employment Compensation. The Company shall pay or provide to
Employee, during the period in which this Agreement is in effect, the following
compensation in consideration of Employee's performance of his obligations
hereunder other than the performance of his obligations under Section 5:
3.1 Salary. As compensation for Employee's services hereunder,
Company shall pay Employee, and Employee shall accept, an initial annual base
salary of One Hundred Twenty-five Thousand US Dollars ($130,000.00 US), less
all appropriate deductions and withholdings, payable in accordance with the
schedule Company may adopt or alter from time to time in its discretion, but in
any event not less frequently than monthly. Employee agrees to defer all of his
salary (the "Deferred Salary") until such time as the Company's Executive
Management Committee deems appropriate, in light of the financial condition of
the Company. The Company shall review the performance of Employee's duties
hereunder on at least an annual basis. In addition, the Executive Management
Committee of the Company may increase Employee's annual base salary at such
times as it, in its sole discretion, deems appropriate. Notwithstanding the
foregoing, but Company finances permitting, the Company shall endeavor to pay
Employee a monthly amount of Six Thousand U.S Dollars ($6,000.00 US), less all
appropriate deductions and withholdings, payable in accordance with the
schedule Company may adopt or alter from time to time in its discretion, but in
any event not less frequently than monthly.
3.2 Bonuses. In addition to annual base salary, the Company
may enter into supplemental agreements or memorandums in writing with Employee
for the award and payment to Employee of additional compensation or bonuses upon
such terms and conditions as Company shall deem to be in its business interest.
In the event of the execution by Company of any such agreements or memorandums,
Employee's right to additional compensation or bonuses shall be determined in
accordance with the applicable provisions thereof, subject, however, to the
provisions of this sub-Section. In the absence of any such supplemental
agreements or memorandums, Company shall not be obligated to pay Employee any
additional compensation or bonus whatsoever, irrespective of the payment of
additional compensation or bonus in any past or succeeding year or the payment
or additional compensation or bonus to other executives in any year, but may do
so in its sole discretion.
3.3 Incentive Compensation. From time to time, Company may
offer phantom stock, stock appreciation rights, stock options or other equity
interests in Company and its affiliates and/or other forms of long-term
incentives upon such terms and conditions as Company shall determine to be in
its business interests.
3.4 Reimbursements. The Company recognizes that in the course
of performing Employee's duties hereunder, Employee will necessarily incur
expenses in connection with Employee's duties for such items as entertainment,
traveling, hotels, and similar items. Employee shall be entitled to have paid
or be reimbursed all reasonable expenses incurred by Employee in the
performance of Employee's duties hereunder, subject to such requirements,
procedures, and rules as may be established by Company for similarly situated
employees from time to time in its discretion, including, without limitation,
the requirement of submission of appropriate receipts for such expenses prior
to reimbursement.
3.5 Employee Benefits. Employee shall receive a living expense
allowance of Four Hundred US Dollars ($400.00 USD) per month, less all
appropriate deductions and withholdings, payable in advance. In addition,
Employee shall be entitled to participate in the employee benefit plans that
the Company makes available to employees in the same or similar positions from
time to time, if any. Employee's participation in such employee benefit plans
shall be in accordance with the terms and conditions thereof and the Company's
policies and practices in effect from time to time.
The foregoing compensation shall constitute the entire consideration to be paid
by the Company to Employee for all services that Employee performs for the
Company and its divisions, subsidiaries and other affiliated entities hereunder
other than Employee's performance of his obligations under Section 5.
4. Conflicts of Interest. Employee shall devote his time, attention,
energies and business efforts to his duties as an employee of the Company and to
the business of the Company. During the period in which this Agreement is in
effect, without the prior written consent of the Company, Employee (a) shall not
engage, directly or indirectly, in any other business activity, (b) shall not
act as a proprietor, partner, director, officer, employee, consultant, advisor,
agent, representative or any other capacity (except as a beneficial owner of
less than 5% of the outstanding voting securities of an entity whose voting
securities are traded publicly)" of any entity other than the Company and its
divisions, subsidiaries and other affiliated entities, regardless of whether
such activity is for gain, profit or other pecuniary advantage, and ( c) shall
not allow or cause the Company to participate in any transaction with Employee,
any of his relatives, or any entity in which Employee or any of his relatives
has an interest.
5. Competitive Activities.
5.1 Competition. As an independent covenant, Employee shall
not directly or indirectly engage, and shall not directly or indirectly become
involved with (except as a beneficial owner of less than 5% of the outstanding
voting securities of an entity whose voting securities are traded publicly)
any entity that directly or indirectly engages, in any business in which the
Company or any of its divisions, subsidiaries or other affiliated entities is
engaged. This covenant shall be effective during the Term and the Post
Termination Period (as defined below).
5.2 Business Opportunities. As an independent covenant,
Employee shall not directly or indirectly divert, take, solicit or accept or
attempt to divert or take, whether on his own or on behalf of any other party,
and shall not directly or indirectly become involved with (except as a
beneficial owner of less than 5% of the outstanding voting securities of an
entity whose voting securities are traded publicly) any entity that, whether
on its own behalf or on behalf of any other party, directly or indirectly
diverts, takes, solicits or accepts or attempts to divert or take, to the
exclusion of the Company or the effect of which would be to reduce the
Company's business with, any third party who, during Employee's employment
with the Company, was a customer of the Company or any of its divisions,
subsidiaries or other affiliated entities. This covenant shall be effective
during the Term and the Post Termination Period.
5.3 Employees. As an independent covenant, Employee shall
not directly or indirectly induce or influence or attempt to induce or
influence, whether on his own behalf or on behalf of any other party, and
shall not directly or indirectly become involved with (except as a beneficial
owner of less than 5% of the outstanding voting securities of an entity whose
voting securities are traded publicly) any entity that directly or indirectly
induces or influences or attempts to induce or influence, whether on its own
behalf or on behalf of any other party, any employee of the Company to
terminate his employment with the Company. This covenant shall be effective
during the Term and the Post Termination Period.
Employee understands and agrees that the purpose of the foregoing covenants is
to protect the legitimate business interests of the Company and is not to
restrict Employee's mobility or to prevent him from utilizing his general
technical skills. By way of clarification, the covenants and obligations of
Employee set forth in this Section 5 shall be binding upon Employee during the
Post Termination Period regardless of the reason for termination; provided that
such covenants and obligations shall immediately be terminated if Employee is
entitled under Section 7 of this Agreement to receive a Termination Payment and
the Company fails to pay the Termination Payment in accordance with Section 7.
6. Employee-Developed Intellectual Property.
6.1 Assignment of Inventions. Unless otherwise agreed to in writing by
both parties, Employee agrees to disclose promptly, completely and in writing to
the Company and hereby assigns and agrees to assign and bind Employee's heirs,
executors, or administrators to assign to the Company or its designee, its
assigns, successors or legal representatives, any and all inventions,
discoveries, processes, diagrams, methods and apparatus, and all related
analyses, computer programs and software, data, designs, financial figures,
formulae, ideas, improvements, know-how, specifications and other information
and materials and any improvements thereon and all intellectual property related
thereto, whatsoever, that are conceived, created or developed by Employee,
whether as a sole or joint originator, whether within or out of normal working
hours, and whether on the premises of the Company or elsewhere, in connection
with his employment with the Company, or using or influenced by the Company's
time, data, facilities and/or materials, provided the subject matter is within
the field of interest of the Company ("Inventions"). Employee's obligations
under this paragraph apply without regard to whether an idea for an Invention or
a solution to a problem occurs to Employee on the job, at home, or elsewhere.
Employee further agrees that all such Inventions are the Company's exclusive
property, whether or not patent applications are filed thereon. It is expressly
understood that this Section does not apply to any of Employee's patents or
patent applications filed or based on inventions made prior to Employee's
employment with the Company or to matters (other than matters within a field of
interest of the Company) which are exclusively of personal interest.
6.2 Property Rights. Employee shall assist the Company at
any time during or after Employee's employment is terminated, at the Company's
expense in the preparation, execution, and delivery of any disclosures, patent
applications or papers within the scope and intent of this Agreement required
to obtain patents in this or in other countries and in connection with such
other proceedings as may be necessary to enforce the Company's rights in the
Inventions against others or to vest title thereto in the Company t its
assigns, successors or legal representatives. If such assistance takes place
after Employee's employment is terminated, Employee shall be paid by the
Company at a reasonable rate for any time that Employee actually spends in such
work at the Company's request.
6.3 Copyrights. Employee agrees that the Company shall be the
copyright proprietor in all copyrightable works of every kind and description
created or developed by Employee solely or jointly with others during
Employee's employment with the Company which works are created pursuant to the
performance of Employee's duties as those duties may be assigned or reassigned
from time to time. Employee further agrees, if so requested and at no further
expense to the Company, to execute in writing any acknowledgments or
assignments of copyright ownership of works within this Agreement as may be
necessary for the preservation of the worldwide proprietorship in the Company
of such copyrights.
6.4 Indemnification. The Company agrees to indemnify and hold
Employee harmless from any costs (including, but not limited to, court costs
and reasonable attorneys' fees) and damages against Employee for any action
based on a claim of patent infringement or copyright as a result of the
Company's commercial exploitation of the Inventions, provided that (a) Employee
has not acted in bad faith in connection with the assignment of such Invention
to the Company , (b) Employee notifies the Company in writing of any potential
claim, ( c) Employee permits the Company to defend, compromise or settle the
claim, and (d) Employee gives the Company all available information, reasonable
assistance, and authority to enable the Company to do so.
7. Termination.
7.1 Termination by the Parties. Notwithstanding Section 2,
this Agreement and the employment relationship created hereby shall terminate
upon the occurrence of any of the following events (each, a "Termination
Event"):
(a) The death of Employee;
(b) The Disability (as hereinafter defined) of
Employee; (c) Written notice to Employee from
Employer of termination for Just Cause
(as hereinafter defined);
(d) Written notice to Employee from Employer of
termination after the Initial
Period for any reason other than Just Cause;
(e) Written notice to Employer from Employee of
termination for Just Reason
(as hereinafter defined);
(f) Written notice to Employer from Employee of
termination for any reason
other than Just Reason.
7.2 Effect of Termination. In the event of the occurrence of a
termination under Sections 7.1(a), (b), (c) or (f), Employee shall be entitled
to only the compensation earned by Employee as of, and payable for the period
prior to, the date of such Termination Event. In the event of the occurrence of
a valid termination under Section 7 .1 (d) or (e) above, or a termination by
the Company for any reason within twelve months of a Change in Control (as
defined below), Employee shall be entitled to receive an aggregate payment
equal to two times Employee's annualized base salary at the time of such
termination (the "Termination Payment"). The Termination Payment will be due
and payable in equal installments during the eighteen-month period beginning on
the day immediately following the date of the Termination Event (the "Post
Termination Period"). Installments of the Termination Payment shall be due and
payable to Employee on each of the Company's regularly scheduled pay dates
during the Post Termination Period (as in effect at the time of such
Termination Event), and the amount of the installment shall be calculated based
upon the frequency of such scheduled pay dates. The first installment of the
Termination Payment shall be due and payable to Employee on the: first such pay
date immediately following the date of the Termination Event. Any bonuses,
incentive compensation and reimbursement accrued to Employee as of the date of
termination of this Agreement shall be immediately paid to Employee regardless
of the reason for such termination. To the extent permitted under the Company's
then existing health plans, if Employee is entitled to a Termination Payment,
then Employee's health benefits at the time of such termination shall be
continued during the Post Termination Period, as if Employee were still
employed by the Company during such period.
7.3 Termination Definitions. For purposes of this Section 7
the following terms have the following meanings:
(a) "Disability" of Employee shall mean Employee's
inability, because of
mental or physical illness or incapacity, to perform Employee's duties under
this Agreement for a continuous period of90 consecutive days or for any 120 days
out of a 360-day period. In the event of any disagreement between Employer and
Employee regarding the existence or non-existence of any such disability, upon
written request from either party to the other, Employer and Employee or
Employee's legal guardian or duly authorized attorney-in-fact (IF Employee is
not legally competent) shall each designate one Texas licensed physician and the
two physicians so designated shall designate a third. AU three physicians so
appointed shall personally examine Employee, and the decision of a majority of
such panel of physicians shall determine whether such disability exists.
Employee hereby authorizes the disclosure and release to Employer of such
determination and all supporting medical records, and both parties hereby agree
to be bound by such determination.
(b) "Just Cause" shall mean: (i) the commission by
Employee of any act
involving moral turpitude or the commission by Employee of any act or the
suffering by Employee of any occurrence or state of facts, which renders
Employee incapable of performing Employee's duties under this Agreement (other
than Disability), or adversely affects or could reasonably be expected to
adversely affect the business reputation of Employer and its affiliates; (ll)
Employee being convicted of a felony; (ill) any breach by Employee of any of
the material terms of, or the failure to perform any material covenant
contained in, this Agreement and following written notice thereof from Employer
to Employee (describing in reasonable detail the alleged breach and stating
that it is a notice under this Section 7), Employee does not cure such breach
or failure within fifteen (15) days thereafter; provided, however, that
Employee will not be entitled to cure any breach or failure under this
sub-clause (ill) more than one time in any consecutive six month period; or
(iv) the violation by Employee of reasonable and appropriate instructions or
policies established by the Company's Board of Directors which have been
communicated to Employee with respect to the operation of the businesses and
affairs of Employer or Employee's failure to carry out the reasonable
instructions of the Company's Board of Directors and following written notice
thereof from the Company to Employee (describing in reasonable detail the
alleged violation and stating that it is a notice pursuant to this Section 7),
Employee does not cure any such violation or failure within fifteen (15) days
thereafter; provided, however, that Employee will not be entitled to cure any
violation or failure under this sub-clause (iv) more than one time in any
consecutive six month period.
(c) "Just Reason" shall mean: (i) any breach by
Employer of any of the
material terms of, or the failure to perform any material covenant contained in,
this Agreement and following written notice thereof from Employee to Employer
(describing in reasonable detail the alleged breach and stating that it is a
notice under this Section 7), Employer does not cure such breach or failure
within fifteen (15) days thereafter; provided, however, that Employer will not
be entitled to cure any such breach or failure more than one time in any
consecutive six month period; or (ii) a material reduction in Employee's duties
and responsibilities without Employee's consent.
(d) "Change in Control" shall mean the occurrence of
one or more of the
following events:
(i) Any person within the meaning of Section
13(d) and 14(d) of the
Securities Exchange Act or 1934, as amended (the "Exchange Act"), other than the
Company (including its subsidiaries, directors or executive officers) has become
the beneficial owner, within the meaning of Rule 13d-3 under the Exchange Act,
of 50 percent or more of the combined voting power of the Company's then
outstanding Common Stock or equivalent in voting power of any class or classes
of the Company's outstanding securities ordinarily entitled to vote in elections
of directors ("voting securities"), unless such person owned beneficial interest
in at least 35 percent or more of the outstanding voting securities of the
Company as of the Effective Date;
(ii) Shares representing 50 percent or more
of the combined voting
power of the Company's voting securities are purchased pursuant to a tender
offer or exchange offer (other than an offer by the Company or its subsidiaries
or affiliates);
(iii) As a result of, or in connection with,
any tender offer or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of Directors of
the Company or of any successor to the Company;
(iv) Following the Effective Date, the
Company is merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 50 percent of the outstanding voting securities of the
surviving or resulting corporation shall then be owned in the aggregate by the
former shareholders of the Company, other than (i) any party to such merger or
consolidation, or (ii) any affiliates of any such party, unless in each such
case, the party to the merger or consolidation, or its affiliates owned a
beneficial interest in at least 35 percent of the outstanding voting securities
of the Company as of the Effective Date; or
(v) The Company transfers more than 50
percent of its assets, or the
last of a series of transfers results in the transfer of more than 50 percent
of the assets of the Company, to another entity that is not wholly-owned by the
Company. For purposes of this subsection (e), the determination of what
constitutes 50 percent of the assets of the Company shall be made by the Board
of Directors of the Company, as constituted immediately prior to the events
that would constitute a change of control if 50 percent of the Company's assets
were transferred in connection with such events, in its sole discretion.
8. General Confidentiality.
8.1 Confidential Information. All Company information with
which Employee deals and all non-public information concerning the Company's
operations, business methods, business strategies and plans, including Company
Intellectual Property shall constitute confidential information of the Company
("Confidential Information"). Employee shall hold all Confidential Information
in the strictest confidence and shall protect all Confidential Information with
the same degree of care that he exercises with respect to its own proprietary
information. Without the prior written consent of the Company, the Employee
shall neither use, disclose, divulge or otherwise disseminate any Confidential
Information to any person or entity; provided, however, that Employee may
disclose, distribute, publish or use any Confidential Information in situations
in which and to the extent that the disclosure, distribution, publication or
use thereof either (a) is necessary for the performance of his obligations
hereunder or (b) is required to be disclosed in connection with a bona fide
legal proceeding (including, but not limited to a proceeding to enforce the
provisions of this
Agreement) or governmental investigation, provided that Employee shall limit the
disclosure, distribution, publication and use of such Confidential Information
to the maximum extent practicable under the circumstances. .
8.2 Limitations on Confidential Information. Notwithstanding
Section 8.1 hereof, Employee shall have no obligations with respect to any
Confidential Information which (a) is or becomes within the public domain
through no act of the Employee in breach of this Agreement, (b) is lawfully
received from another source subsequent to the date of this Agreement without
any restriction on use or disclosure, ( c) is deemed in writing by the Company
no longer to be Confidential Information, or (d) is required to be disclosed by
order of any court of competent jurisdiction or other governmental authority
(provided in such latter case, however, that the Employee shall timely inform
the Company of all such legal or governmental proceedings so that the Company
may attempt by appropriate legal means to limit such disclosure, and the
Employee shall further use its best reasonable efforts to limit the disclosure
and maintain confidentiality to the maximum extent possible).
9. Miscellaneous Provisions.
9.1 Insurance. The Company, in its sole discretion, may apply
for and obtain insurance on the life of Employee in such forms and amounts as
the Company may determine from time to time. Any such insurance policy shall be
owned by the Company for its own benefit, and Employee shall not have any
interest therein or right to the proceeds thereof. Upon request by the Company,
Employee shall submit to such medical examinations, supply such information,
and execute and deliver such documents and instruments as any insurance company
to which the Company has applied for such insurance may require.
9.2 Notices. All notices and other communications given by any
party hereto in connection herewith (a) must be in writing and (b) may be
served only by (i) depositing the same in the United States mail, properly
addressed as provided herein, postage prepaid, registered or certified mail,
and with return receipt requested, or (ii) delivering the same in person. Any
notice or other communication deposited in the mail in the manner provided
herein shall be effective upon the earlier to occur of receipt by the addressee
or the expiration of3 days after the date on which it is so deposited, and any
notice or other communication delivered in person shall be effective when it is
received by the addressee. For the purpose hereof, the addresses of the parties
hereto shall be as follows:
Company:
CNH Holding Company
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 75252Fax: 000-000-0000
Attention: President
Employee:
Any party hereto may change its address for the purposes hereof by giving
written notice of such change of address to the other parties as specified
herein.
9.3 Superseding Agreement. This Agreement supersedes all prior
negotiations, understandings and agreements among the parties hereto relating to
the subject matters hereof.
9.4 Amendments. No alterations, modifications, amendments or
changes in this Agreement shall be effective or binding on any party hereto,
unless the same shall be in writing and executed by all of the parties hereto.
9.5 Enforceability. This Agreement and all agreements and
covenants made by the parties hereto under this Agreement shall inure to the
benefit of, and be enforceable by and against, their respective heirs,
successors, legal representatives and permitted assignees.
9.6 Assignments. The Company may not assign, convey, transfer
or otherwise dispose of all or any portion of its interest in this Agreement or
its rights or obligations hereunder without the prior written consent of
Employee. The rights and obligations of Employee hereunder are personal;
therefore, Employee shall not assign, convey, transfer or otherwise dispose of,
voluntarily or involuntarily, all or any portion of his interest in this
Agreement or his rights or obligations hereunder. Any such assignment,
conveyance, transfer or other disposition made or attempted by the Company or
Employee in breach or violation of this Section 9.6 shall be null and void and
of no effect.
9.7 Governing Law. This Agreement shall be governed by,
construed under, and enforced in accordance with the laws of Texas.
9.8 Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid
or unenforceable, then such provision shall be modified automatically to the
extent necessary to make such provision fully enforceable. If such court does
not modify any such provision as contemplated herein, but instead declares it
to be wholly illegal, invalid or unenforceable, then such provision as severed
from this Agreement, and such declaration shall in no way affect the legality,
validity and enforceability of the other provisions of this Agreement to which
such declaration does not relate. In this event, this Agreement shall be
construed as if it did not contain the particular provision held to be illegal,
invalid or unenforceable, the rights and obligations of the parties hereto
shall be construed and enforced accordingly, and this Agreement otherwise shall
remain in full force and effect.
9.9 Captions. The captions contained herein are for the
purpose of reference only and shall not affect in any way the meaning,
interpretation or scope of this Agreement.
9.10 Waivers. Any waiver by any party hereto of any breach or
violation of any provision of this Agreement by any other party shall not
operate or be construed as a waiver by such party of any subsequent breach or
violation thereof.
9.11 Remedies. Employee understands and hereby agrees that
any breach or violation or threatened breach or violation by Employee of any of
his obligations under Sections 5,6 and 8 will result in immediate and
irreparable harm to the Company, and no adequate remedy at law is available to
the Company for any such breach or violation or threatened breach or violation;
therefore, upon any breach or violation or threatened breach or violation by
Employee of any of his obligations under Sections 5, 6 and 8, the Company shall
be entitled to injunctive relief in any court of competent jurisdiction,
provided that nothing contained herein shall be construed to prohibit the
Company from pursuing any other remedy at law or in equity available to the
Company therefore. The remedies of each party hereto under this Agreement shall
be cumulative of each other and of the remedies at law or in equity available
to the parties. Each party's full or partial exercise of any such remedy shall
not preclude any subsequent exercise by such party of the same or any other
remedy.
9.12 Multiple Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original for all
purposes, and all of which together shall constitute one and the same
instrument.
9.13 Dispute Resolution. Except as provided in Section 9.11
of this Agreement, any and all disputes, controversies, or claims arising out
of or relating to your employment or cessation of employment with Company shall
be settled exclusively by final and binding arbitration in Dallas, Texas before
an arbitrator selected -in accordance with the Employment Dispute Resolution
Rules of the American Arbitration Association ("AAA "). Such disputes include,
but are not limited to, claims arising under this Agreement as well as other
employment-related legal claims such as discrimination or tort Any arbitration
shall be conducted in accordance with the Employment Dispute Resolution Rules
of the AM.
This Agreement is executed by the parties hereto on the Effective
Date.
CNH HOLDING COMPANY EMPLOYEE
By: By:
