EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of January 31, 2005 between
CHAAS Holdings, LLC, a Delaware limited liability company (the "Company") and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the parties wish to establish the terms of Executive's future
employment with the Company; and
WHEREAS, for purposes of this Agreement, the term "Company" shall
include direct and indirect subsidiaries of the Company and the Company may
direct that one or more of such subsidiaries fulfill the Company's obligations
under this Agreement, including, but not limited to, any applicable obligations
under Section 3 or 4 hereof.
Accordingly, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY THE COMPANY. The Company shall employ the
Executive effective as of February 2, 2005 (the "Effective Date") to render
exclusive, subject to the last sentence of this Section 1.1, and full-time
services to the Company. The Executive will serve in the capacity of President
and Chief Executive Officer of the Company and shall report to the Board of
Managers of the Company, either directly or indirectly through its Chairman. The
Executive will perform such lawful duties related to the business of the Company
as are imposed on the holder of that office by the By-laws and operating
agreement of the Company and such other lawful duties related to the business of
the Company as are customarily performed by one holding such positions in the
same or similar businesses or enterprises as those of the Company. The Executive
will perform such other lawful duties related to the business of the Company as
may be assigned to him from time to time by the Board of Managers of the
Company, either directly or indirectly through its Chairman. The Executive will
devote all his full working-time and attention to the performance of such duties
and to the promotion of the business and interests of the Company. This
provision, however, will not prevent the Executive from investing his funds or
assets in any form or manner, or from acting as an advisor to or a member of,
the board of directors of any companies, businesses, or charitable
organizations, so long as such actions do not violate the provisions of Section
5 of this Agreement or interfere with the Executive's performance of his duties
hereunder.
1.2 ACCEPTANCE OF EMPLOYMENT BY THE EXECUTIVE. The Executive accepts
such employment and shall render the services described above.
2. DURATION OF EMPLOYMENT.
Subject to Section 4 of this Agreement, this Agreement and the
employment relationship hereunder will continue in effect for one (1) year from
the Effective Date (the "Initial Term"), and the terms of this Agreement shall
continue beyond the Initial Term in the following manner: the Initial Term shall
be automatically extended by one (1) day to always be not less than one (1) year
(the "Extended Term"); provided, however, that this
extension shall cease upon the earlier of (i) the date of termination of
employment or (ii) notice of termination of employment in the case of any
termination under Section 4 hereof. The Initial Term and the Extended Term are
sometimes referred to in this Agreement as the "Term." In the event of the
Executive's termination of employment during the Term, the Company's obligation
to continue to pay all base salary, as adjusted, bonus and other benefits then
accrued shall terminate except as may be provided for in Section 4 of this
Agreement.
3. COMPENSATION BY THE COMPANY.
3.1 BASE SALARY. As compensation for all services rendered pursuant
to this Agreement, the Company will pay to the Executive an annual base salary
of Four Hundred Fifty Thousand Dollars ($450,000), subject to an upward
adjustment by the Board of Managers of the Company, in its sole discretion, and
payable in accordance with the payroll practices of the Company ("Base Salary").
3.2. BONUSES. The Executive shall be eligible to receive from the
Company an annual cash bonus. The target bonus shall be up to sixty percent
(60%) of Base Salary, subject, in any event, to the achievement by the Company
of performance goals established by the Board of Managers of the Company, in its
sole discretion. This bonus shall be determined by the Compensation Committee of
the Board of Managers of the Company.
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 or disability insurance plan (the "Disability
Policy"), health program, pension plan or similar benefit plan of the Company,
which may be available to other executives of the Company generally, on the same
terms as such other executives.
3.4 CAR ALLOWANCE. The Executive shall be entitled to a monthly car
allowance equal to Nine Hundred Dollars ($900).
3.5 CLUB MEMBERSHIP. The Company shall pay or reimburse the dues for
a country club membership, during the Term, up to a maximum of $610 per month.
3.6 EXPENSE REIMBURSEMENT. During the Term, the Executive shall be
entitled to receive prompt reimbursement of all reasonable out-of-pocket
expenses properly incurred by him in connection with his duties under this
Agreement, including reasonable expenses of entertainment and travel, provided
that such expenses are documented and reported in accordance with the policies
and procedures of the Company or the Board of Managers, as applicable, at the
time the expenses are incurred.
3.7 VESTING UNITS. Within thirty days after the Effective Date, the
Executive shall purchase one percent (1%) of the Company's common units
("Restricted Time-Based Units"), at a price equal to $0.01 per common units. The
Restricted Time-Based Units shall lapse (shall vest) in equal annual
installments over a three (3) year period from the Effective Date; provided the
Executive is employed with the Company on each applicable vesting date. The
Executive shall purchase another one percent (1%) of the Company's common units
("Restricted Performance-Based Units"), at a price equal to $0.01 per common
unit. The
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Restricted Performance-Based Units shall lapse (shall vest) in equal annual
installments over a three (3) year period from the Effective Date; provided that
performance-based targets established by the Company's compensation committee
for each of 2005, 2006 and 2007 calendar years are achieved, and the Executive
is employed with the Company on each applicable vesting date. Restricted
Time-Based Units and Restricted Performance Based Units, together, are referred
to as "Restricted Units." The purchase of the Restricted Units shall be made
subject to the terms and conditions of a vesting unit repurchase agreement
(which shall incorporate the performance-based targets established by the
Company's compensation committee and the right but not the obligation of the
Company or its designee to repurchase the Restricted Units upon the termination
of the Executive's employment with the Company for any reason), the Company's
Operating Agreement and a customary subscription agreement between the Company
and the Executive.
3.8 PURCHASE OF EQUITY. Within thirty days of the Effective Date,
the Executive shall purchase additional equity in the Company in the form of
strips (each strip shall consist of approximately 10.5 preferred units and one
(1) common unit) ("Strips"), for an aggregate purchase price of Two Hundred
Thousand Dollars ($200,000). The purchase price for each Strip shall be $100.00
per preferred unit and $0.01 per common unit comprising each Strip. The purchase
of the Strips shall be made subject to a customary subscription agreement, unit
repurchase agreement (which shall incorporate the right but not the obligation
of the Company or its designee to repurchase the Strips upon the termination of
the Executive's employment with the Company for any reason), and the Company's
Operating Agreement.
3.9 VACATION. The Executive shall be entitled to twenty (20) days of
vacation per year.
4. TERMINATION.
4.1 TERMINATION UPON DEATH. If the Executive dies during the Term,
the Executive's legal representatives shall be entitled to receive the
Executive's Base Salary and accrued bonus for the period ending on the last day
of the month in which the death of the Executive occurs.
4.2 TERMINATION UPON DISABILITY. If during the Term the Executive's
employment with the Company is terminated as a result of a "Disability" (as
defined in the Disability Policy), the Executive (or his legal representatives)
shall be entitled to receive the benefits set forth in the applicable Disability
Policy.
4.3 TERMINATION FOR CAUSE. The Executive's employment hereunder may
be terminated by the Board of Managers of the Company for "Cause" (as herein
defined) at any time. "Cause" shall mean with respect to the Executive, (a) the
Executive's continued failure to substantially perform the Executive's duties,
(b) willful failure to follow the lawful directions of the Board of Managers of
the Company, either directly or indirectly through its Chairman, (c) material,
willful acts of dishonesty, theft or fraud resulting or intending to result in
personal gain or enrichment at the expense of the Company, (d) commission of a
felony, (e) a violation of any written policy of the Company including, but not
limited to, the Company's employment manuals, rules and regulations which
materially and adversely affects the Company or could reasonably be
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expected to materially and adversely affect the Company, or (f) the Executive
engaging in any act that is intended, or may reasonably be expected to
materially harm the reputation, business or operations of the Company or any
member of its Board of Managers or (g) any other material breach of this
Agreement or any other agreement with the Company that the Executive signs in
his personal capacity, including, but not limited to, any non-competition and
confidentiality agreement. Prior to a termination for "Cause, the Executive
shall be entitled to written notice from the Company and thirty (30) days to
cure the deficiency leading to the Cause determination, if such deficiency is
curable. Notwithstanding the foregoing and without limiting the foregoing in any
way, for the avoidance of doubt, the Executive shall receive written notice and
thirty (30) days to cure a deficiency under Section 4.3(a) or (b) hereof.
Upon termination for Cause hereunder, the Executive shall be
entitled to receive the Executive's Base Salary through the date of termination.
4.4 VOLUNTARY TERMINATION WITHOUT EMPLOYEE GOOD REASON. The
Executive may upon at least sixty (60) but not more than ninety (90) days prior
written notice to the Company terminate employment hereunder without Employee
Good Reason, as defined in Section 4.6. Upon a voluntary termination without
Employee Good Reason, the Executive shall be entitled to receive the Executive's
Base Salary through the date of termination; provided, however, that if the
Company shall waive part or all of such sixty (60) but not more than ninety (90)
day notice period, the Executive shall only receive Base Salary to the date of
termination specified in such waiver.
4.5 TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE.
(a) The Company may terminate the Executive's employment at any
time other than for Cause. If, prior to the expiration of this Agreement, the
Company terminates the Executive's employment for any reason other than Cause,
then in lieu of additional salary payments to the Executive for periods
subsequent to the date of such termination, the Company shall pay to the
Executive (i) his Base Salary for the remaining duration of the Term and (ii)
the Company shall reimburse the Executive for the applicable premiums under the
Consolidated Omnibus Budget Reconciliation Act, as amended ("COBRA") to receive
insurance coverage from the Company commencing on the date of termination
through the date which is the earliest to occur of (1) expiration of the
applicable Term, (2) the day on which the Executive shall be included in any
insurance program provided by any other employer or (3) the expiration of the
applicable COBRA period.
(b) Nothing contained in this Section 4.5 shall prevent the
Executive from receiving any and all benefits payable under any severance
benefit plan or program maintained by the Company to which the Executive is
entitled.
4.6 VOLUNTARY TERMINATION WITH EMPLOYEE GOOD REASON. (a) The
Executive may upon at least sixty (60) days prior written notice to the Company
terminate employment hereunder with Employee Good Reason (as herein defined).
Upon a termination with Employee Good Reason, in lieu of additional salary
payments to the Executive for periods subsequent to the date of such
termination, the Company shall pay to the Executive (i) his Base Salary for a
period of twelve (12) months after such termination and (ii) the Company shall
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reimburse the Executive for the applicable premiums under COBRA to receive
insurance coverage from the Company commencing on the date of termination
through the date which is the earliest to occur of (1) expiration of the
applicable Term, (2) the day on which the Executive shall be included in any
insurance program provided by any other employer or (3) the expiration of the
applicable COBRA period; provided, however, that if the Company shall waive part
or all of such sixty (60) day notice period, the items listed in (i), (ii) and
(iii) shall run from the date of termination contained in such waiver.
(b) The term "Employee Good Reason" shall mean, without the
consent of the Executive (i) a reduction in Base Salary or any agreed upon
benefit under this Agreement; provided that the Company may at any time or from
time to time amend, modify, suspend or terminate any bonus, incentive
compensation or other benefit plan or program (in each case, other than Base
Salary) provided to the Executive for any reason and without the Executive's
consent if such modification, suspension or termination is consistent with
modifications, suspensions or terminations for other senior executive employees
of the Company, (ii) a material reduction in the Executive's responsibilities or
duties (other than a change in the number or identity of persons reporting to
the Executive) or the title of the Executive as President and Chief Executive
Officer of CHAAS Holdings, LLC or (iii) the requirement by the Board of Managers
of the Company that the Executive relocate his residence from the Sterling
Heights, Michigan area; PROVIDED, that, the Company shall have thirty (30) days
after receipt of notice from the Executive pursuant to this Section 4.6 to cure
the deficiency resulting in the termination with Employee Good Reason.
4.7 REMOVAL FROM ANY BOARDS AND POSITIONS. If the Executive's
employment is terminated for any reason under this Agreement, he shall be deemed
to resign (i) if a member, from the Board of Managers of the Company or board of
managers or board of directors of any subsidiary of the Company or any other
board to which he has been appointed or nominated by or on behalf of the Company
and (ii) from any position with the Company or any subsidiary of the Company,
including, but not limited to, as an officer of the Company or any of its
subsidiaries.
5. RESTRICTIONS AND OBLIGATIONS OF THE EXECUTIVE.
5.1 CONFIDENTIALITY. (a) During the course of the Executive's
employment by the Company, the Executive will have access to certain trade
secrets and confidential information relating to the Company which is not
readily available from sources outside the Company. The confidential and
proprietary information and, in any material respect, trade secrets of the
Company are among its most valuable assets, including but not limited to, its
customer and vendor lists, database, engineering, computer programs, frameworks,
models, its marketing programs, its sales, financial, marketing, training and
technical information, and any other information, whether communicated orally,
electronically, in writing or in other tangible forms concerning how the Company
creates, develops, acquires or maintains its products and marketing plans,
targets its potential customers and operates its retail and other businesses.
The Company invested, and continues to invest, considerable amounts of time and
money in its process, technology, know-how, obtaining and developing the
goodwill of its customers, its other external relationships, its data systems
and data bases, and all the information described above (hereinafter
collectively referred to as "Confidential Information"), and any
misappropriation or
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unauthorized disclosure of Confidential Information in any form would
irreparably harm the Company. The Executive acknowledges that such Confidential
Information constitutes valuable, highly confidential, special and unique
property of the Company. The Executive shall hold in a fiduciary capacity for
the benefit of the Company all Confidential Information relating to the Company
and its business, which shall have been obtained by the Executive during the
Executive's employment by the Company or predecessor of the Company and which
shall not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). Except as
required by law or an order of a court or governmental agency with jurisdiction,
the Executive shall not, during the period the Executive is employed by the
Company or at any time thereafter, disclose any Confidential Information,
directly or indirectly, to any person or entity for any reason or purpose
whatsoever, nor shall the Executive use it in any way, except in the course of
the Executive's employment with, and for the benefit of, the Company or to
enforce any rights or defend any claims hereunder or under any other agreement
to which the Executive is a party, provided that such disclosure is relevant to
the enforcement of such rights or defense of such claims and is only disclosed
in the formal proceedings related thereto. The Executive shall take all
reasonable steps to safeguard the Confidential Information and to protect it
against disclosure, misuse, espionage, loss and theft. The Executive understands
and agrees that the Executive shall acquire no rights to any such Confidential
Information. The Company and the Executive acknowledge that information shall
not be "Confidential Information" to the extent such information is or becomes
publicly available, without restriction and without breach of this Agreement by
the Executive.
(b) All files, records, documents, drawings, specifications,
data, computer programs, evaluation mechanisms and analytics and similar items
relating thereto or to the Business (for the purposes of this Agreement,
"Business" shall be as defined in Section 5.3 hereof), as well as all customer
lists, specific customer information, compilations of product research and
marketing techniques of the Company, whether prepared by the Executive or
otherwise coming into the Executive's possession, shall remain the exclusive
property of the Company, and the Executive shall not remove any such items from
the premises of the Company, except in furtherance of the Executive's duties
under any employment agreement.
(c) It is understood that while employed by the Company the
Executive will promptly disclose to it, and assign to it the Executive's
interest in any invention, improvement or discovery made or conceived by the
Executive, either alone or jointly with others, which arises out of the
Executive's employment. At the Company's request and expense, the Executive will
assist the Company during the period of the Executive's employment by the
Company and thereafter in connection with any controversy or legal proceeding
relating to such invention, improvement or discovery and in obtaining domestic
and foreign patent or other protection covering the same.
(d) As requested by the Company and at the Company's expense,
from time to time and upon the termination of the Executive's employment with
the Company for any reason, the Executive will promptly deliver to the Company
all copies and embodiments, in whatever form, of all Confidential Information in
the Executive's possession or within his control (including, but not limited to,
memoranda, records, notes, plans, photographs, manuals, notebooks,
documentation, program listings, flow charts, magnetic media, disks, diskettes,
tapes and all other materials containing any Confidential Information)
irrespective of the location or
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form of such material. If requested by the Company, the Executive will provide
the Company with written confirmation that all such materials have been
delivered to the Company as provided herein.
5.2 NON-SOLICITATION OR HIRE. During the Term and (i) for a three
(3) year period following a termination of the Executive's employment by the
Company for Cause or a voluntary termination by the Executive without Employee
Good Reason or (ii) for eighteen (18) months following the termination of the
Executive's employment by the Executive with Employee Good Reason or by the
Company without Cause, the Executive shall not, (a) solicit, directly or
indirectly, any party who is a customer of the Company or its subsidiaries, or
who was a customer of the Company or its subsidiaries at any time during the
twelve (12) month period immediately prior to the relevant date, for the purpose
of marketing, selling or providing to any such party any services or products
offered by or available from the Company or its subsidiaries and relating to the
Business (provided that if the Executive intends to solicit any such party for
any other purpose, he shall notify the Company of such intention) or (b) employ
or solicit, directly or indirectly, for employment any person who is an employee
of the Company or any of its subsidiaries at the time of termination or who was
an employee of the Company or any of its subsidiaries at any time during the six
(6) month period immediately prior to any such solicitation or employment.
5.3 NON-COMPETITION. During the Term and (i) for a three (3) year
period following a termination of the Executive's employment by the Company for
Cause or a voluntary termination by the Executive without Employee Good Reason
or (ii) for eighteen (18) months following the termination of the Executive's
employment by the Executive with Employee Good Reason or by the Company without
Cause, the Executive shall not directly or indirectly, 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 or an affiliate or successor 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 directly or
indirectly, engages or proposes to engage in (A) designing, engineering,
manufacturing, selling or distributing (x) towing systems and roof rack systems
and related accessories or (y) any other product which the Company designs,
engineers, manufactures, sells or distributes on or prior to the termination of
the Executive's employment (the "Business") or (B) in providing services that
are similar to, may be used as substitutes for or are in competition with the
Business, anywhere in the world in which the Company or any of its subsidiaries
engages or proposes to engage in such Business. Notwithstanding the foregoing,
nothing in this Agreement shall prevent the Executive from owning for passive
investment purposes not intended to circumvent this Agreement, less than five
percent (5%) of the publicly traded equity securities of any competing
enterprise (so long as the Executive has no power to manage, operate, advise,
consult with or control the competing enterprise and no power, alone or in
conjunction with other affiliated parties, to select a director, manager,
general partner, or similar governing official of the competing enterprise other
than in connection with the normal and customary voting powers afforded the
Executive in connection with any permissible equity ownership).
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5.4 REPUTATION. The Executive agrees not to engage in any act that
is intended, or may reasonably be expected to materially harm the reputation,
business, prospects or operations of the Company, any member of its Board of
Managers, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P., in either
case, unless as required by law or an order of a court or governmental agency
with jurisdiction
5.5 PROPERTY. The Executive acknowledges that all originals and
copies of materials, records and documents generated by him or coming into his
possession during his employment by the Company are the sole property of the
Company ("Company Property"). During the Term, and at all times thereafter, the
Executive shall not remove, or cause to be removed, from the premises of the
Company, copies of any record, file, memorandum, document, computer related
information or equipment, or any other item relating to the business of the
Company, or any affiliate, except in furtherance of his duties under the
Agreement. When the Executive terminates his employment with the Company, or
upon request of the Company at any time, the Executive shall promptly deliver to
the Company all copies of Company Property in his possession or control.
5.6 WORK PRODUCT. The Executive agrees that all inventions,
discoveries, systems, interfaces, protocols, concepts, formats, creations,
developments, designs, programs, products, processes, investment strategies,
materials, computer programs or software, data bases, improvements, or other
properties related to the business of the Company or any of its affiliates,
conceived, made or developed during the term of his employment with the Company,
whether conceived by the Executive alone or working with others, and whether
patentable or not (the "Work Product"), shall be owned by and belong exclusively
to the Company. The Executive hereby assigns to the Company his entire rights to
the Work Product and agrees to execute any documents and take any action
reasonably requested by the Company (at the Company's sole cost and expense) to
protect the rights of the Company in any Work Product. The Executive
acknowledges that any copyrightable subject matter created by the Executive
within the scope of his employment, whether containing or involving Confidential
Information or not, is deemed a work-made-for-hire under Chapter 17 of the
United States Code, entitled "Copyrights," as amended, and the Company shall be
deemed the sole author and owner thereof for any purposes whatsoever. In the
event of any unauthorized publication of any Confidential Information, the
Company shall automatically own the copyright in such publication. Further, the
Company shall automatically hold all patents and/or trademarks, if any, with
respect to any Work Product.
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,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid, and shall be deemed given when so
delivered personally, telegraphed, telexed, or sent by facsimile transmission
or, if mailed, four (4) days after the date of mailing, as follows:
(a) If the Company, to:
CHAAS Holdings, LLC
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Board of Managers
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If the Executive, to his home address set forth in the
records of the Company.
6.2 ENTIRE AGREEMENT. This 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.
6.3 REPRESENTATIONS AND WARRANTIES BY EXECUTIVE. The Executive
represents and warrants that he is not a party to or subject to any restrictive
covenants, legal restrictions or other agreements in favor of any entity or
person which would in any way preclude, inhibit, impair or limit the Executive's
ability to perform his obligations under this Agreement, including, but not
limited to, non-competition agreements, non-solicitation agreements or
confidentiality agreements. The Executive has provided to the Company prior to
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the Effective Date true, correct and complete copies of all such agreements that
impose any continuing obligation on the Executive.
6.4 WAIVER AND AMENDMENTS. This 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 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.
6.5 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such state, without regard to conflicts of
laws principles.
6.6 ASSIGNABILITY. This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive. The Company may
assign this Agreement and its rights, together with its obligations, to any
other entity which will substantially carry on the business of the Company.
6.7 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
6.8 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of terms
contained herein.
6.9 REMEDIES; SPECIFIC PERFORMANCE. The parties hereto hereby
acknowledge that the provisions of Section 5 are reasonable and necessary for
the protection of the Company. In addition, the Executive further acknowledges
that the Company will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Company may be entitled, the Company will be
entitled to seek and obtain injunctive relief (without the requirement of any
bond) from a court of competent jurisdiction for the purposes of restraining the
Executive from any actual or threatened breach of such covenants. In addition,
without limiting the Company's remedies for any breach of any restriction on the
Executive set forth in Section 5, in the event of such breach, the Company will
have no obligation to pay any of the amounts that remain payable by the Company
under Section 4.
6.10 SEVERABILITY. If any term, provision, covenant or restriction
of this 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 Agreement
shall remain in full force and effect and shall in no way be affected or
impaired or invalidated. The Executive acknowledges that the restrictive
covenants contained in Section 5 are a condition
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of this Agreement and are reasonable and valid in geographical and temporal
scope and in all other respects.
6.11 JUDICIAL MODIFICATION. If any court or arbitrator determines
that any of the covenants in Section 5, or any part of any of them, is invalid
or unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court or arbitrator determines that any of such
covenants, or any part thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, such court or arbitrator shall
reduce such scope to the minimum extent necessary to make such covenants valid
and enforceable.
6.12 TAX WITHHOLDING. The Company or other payor is authorized to
withhold, from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary in the
opinion of the Board of Managers of the Company to satisfy all obligations for
the payment of such withholding taxes.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the day and year first above
mentioned.
EXECUTIVE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CHAAS HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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