Exhibit 10.8
------------
Employment Agreement between the Registrant and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ dated October
10, 2000.
EXHIBIT 10.8
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT dated the 10/th/ day of October, 2000, between ▇▇▇▇ INDUSTRIES, INC.,
------ -------
a Delaware corporation having its principal place of business in Jamestown, New
York (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Executive").
W I T N E S S E T H
WHEREAS, the Company considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of the Company and its stockholders; and
WHEREAS, the Executive is Senior Vice President of Product Development and
Research and Development and a member of the Board of Directors of the Company
and has developed an intimate and thorough knowledge of the Company's business
methods and operations; and
WHEREAS, the retention of the Executive's services, for and on behalf of the
Company, is materially important to the preservation and enhancement of the
value of the Company's business; and
WHEREAS, the Executive is willing to continue to serve in the employ of the
Company as Senior Vice President of Product Development and Research and
Development and as a member of the Board of Directors for the period and on the
other terms and conditions hereafter stated;
NOW THEREFORE, the Company and the Executive hereby agree as follows:
1. Employment. The Company agrees to employ the Executive, and the
----------
Executive agrees to remain in the employ of the Company for the period
and on the other terms and conditions set forth below.
2. Term of Agreement. The initial period of employment under this
-----------------
Agreement shall commence on October 10, 2000, and shall end on the third
anniversary of such date, unless sooner terminated in accordance with
the terms and conditions hereinafter set forth or unless the term is
extended by way of the automatic renewal provision contained in this
Section. On each annual anniversary date of the commencement of the
initial term hereof, the term of employment hereunder shall, unless the
Company provides the Executive with written notice to the contrary at
least sixty (60) days prior to such annual anniversary date, be renewed
for a term of three (3) years commencing on that annual anniversary
date. In the event the Company provides such written notice of
nonrenewal to the Executive at least sixty (60) days prior to an annual
anniversary date, then the term hereof shall not be extended, but the
then current three (3) year term in effect shall continue for the
remaining two (2) years of its term.
3. Position and Responsibilities. During the period of employment, the
-----------------------------
Executive agrees to serve the Company and the Company agrees to employ
the Executive as its Senior Vice President of Product Development and
Research and Development of the Company, with the duties and
responsibilities summarized in Attachment A attached hereto. In
addition, the Executive agrees to serve as a member of the Board of
Directors of the Company during the period of employment.
4. Compensation. For all services rendered by the Executive to or for the
------------
Company and its affiliates in all capacities during the period of
employment, and for the undertakings as to Confidential Information and
Competition set forth in Sections 7 and 8 below, the Executive shall be
entitled to the following:
(a) a base salary, payable in installments not less frequent than
monthly, at the annual rate of Two Hundred Fifteen Thousand
($215,000) Dollars during the initial year of employment
hereunder.
Salary for any subsequent year shall be based upon the merit
system employed for senior management of the Company, but shall
not be less than the salary paid for the immediate preceding
year; and
(b) participation in the Company's profit sharing or executive
incentive plan as in effect as of the date hereof at the level
set forth in Attachment B attached hereto. The level of
participation in such plan in subsequent years shall be based
upon the merit system employed for senior management of the
Company, but shall not be less than the level of participation
for the immediate preceding year; and
(c) participation in all Company health, welfare, pension and other
employee benefit and fringe benefit plans (including insurance
plans and vacation plans or policies) in which all other
officers of the Company participate during the period of
employment, subject in all events to any changes to the terms
and conditions of such plans as in effect from time to time; and
(d) participation in the other special allowance and bonus
arrangements more particularly described in Attachments B and C
attached hereto.
5. Termination of Employment During the Period of Employment.
---------------------------------------------------------
(a) Termination by the Company without Good Cause. The Company may
----------------------------------------------
terminate the Executive's employment without Good Cause (as
defined in Section 5(f), hereof) only upon sixty (60) days prior
written notice to the Executive. If the Executive's employment
with the Company is so terminated by the Company and such
termination is not a Constructive Termination (as defined in
Section 5(f), hereof), the Company, subject to full compliance
by the Executive with the provisions of Sections 7 and 8 below,
relating to "Confidential Information" and "Competition;
Detrimental Conduct," shall pay the Executive, as severance pay,
an amount equal to the compensation and benefits that would be
payable to the Executive under Sections 4(a), 4(b), and 4(d)
above during the next succeeding eighteen (18) month period if
such termination of employment had not occurred, at the time(s),
in the installment(s) and on the other terms and conditions that
would apply to the payment of such compensation, provided,
however, that for purposes of determining the amount of profit
sharing payable to Executive under this Section 5(a), such
profit sharing award shall be determined based upon the four
full fiscal quarters of the Company immediately preceding the
date of the afore-described notice to the Executive of
Executive's termination hereunder, as described below.
The aggregate amount of such profit sharing payable every three
(3) months under this Section 5(a) shall equal the (i) the
average (the "Average") of the Company's return on sales
percentage (calculated before tax or any profit-sharing award)
for the above four fiscal quarters (determined by adding the
Company's return on sales percentage for each of the above four
fiscal quarters and dividing said sum by four), and (ii)
multiplied by the Executive's multiple, as set forth in
Attachment B, used in calculating the Executive's profit sharing
award during the last full fiscal quarter of the Company prior
to the date of the above-described notice of termination, (iii)
multiplied by the Executive's annual gross base salary as of the
date such notice is given hereunder, (iv) with the resulting
product multiplied by 1.5. By way of illustration and not
limitation, in the event on July 15, the Company gives the
Executive the afore-described sixty day notice of termination,
the profit sharing award the Executive would be entitled to
hereunder would be the Average of the return on sales percentage
for the Company for the four full fiscal quarters ending
immediately prior to July 15. Accordingly, if the return on
sales percentage for quarter one was 7%, quarter two, 11%,
quarter 3, 15% and quarter four, 7%, the Average would be
determined by adding the return on sales percentage for each of
such fiscal quarters (which would result in the sum of 40%),
divided by 4, with a resulting Average percentage of 10%. If the
2
Executive's multiple in the last full fiscal quarter of the
Company immediately preceding the date of notice of termination
was 7, for example, the Average percentage would be multiplied
by 7, resulting in a product of 70%, multiplied by the
Executive's annual gross base salary as of the date of such
notice. If such gross base annual salary, for example, was
$100,000, the profit sharing would equal $70,000, multiplied by
1.5 (the equivalent of eighteen months in years) or $105,000,
which would be paid in six equal installments over the 18 month
period, as part of the severance compensation hereunder. In said
example, the Executive would, therefore, be entitled hereunder
to an aggregate severance compensation payable over said
eighteen month period equal to his annual gross base salary
during said eighteen month period, or $100,000 multiplied by 1.5
or $150,000, plus the above-determined profit sharing award of
$105,000, for a total of $255,000, plus the other benefits and
entitlements the Executive is to receive hereunder.
For the purposes of this Agreement, a termination of employment
by the Executive that occurs after the Executive is assigned
(without his written consent) duties, responsibilities or
reporting relationships not contemplated by Section 3 and not
consistent with his position as a senior officer, or after his
duties or responsibilities contemplated by Section 3 above are
limited in any respect materially detrimental to him, which
situation is not remedied within thirty (30) days after the
Company receives written notice from the Executive of the
situation, shall be deemed a termination by the Company without
Good Cause under this Section 5(a).
(b) Termination by the Company for Good Cause or by the Executive.
-------------------------------------------------------------
The Company may terminate the Executive's employment with the
Company with Good Cause, or the Executive may elect to terminate
his employment with the Company for any reason, upon thirty (30)
days prior written notice to the other party hereto. If
Executive's employment by the Company is so terminated by the
Company with Good Cause or is terminated by the Executive, and
such termination is not a Constructive Termination, the
Executive shall not be entitled to receive any compensation or
benefits under Sections 4(a), 4(b), or 4(d) accruing after the
date of such termination or any payment under Section 5(a), or
otherwise, and Executive shall continue to be bound by Sections
7 and 8.
(c) Constructive Termination. If, during the period of employment,
------------------------
the Executive's employment by the Company is subject to a
Constructive Termination, or in the event that portion of the
Company's business with respect to which primarily the
Executive's duties relate, is sold, liquidated, or otherwise
ceased to be operated, then the Company shall pay the Executive,
as a severance payment, an amount equal to the compensation and
benefits that would have been payable to the Executive under
Sections 4(a), 4(b), and 4(d), hereof during the next succeeding
thirty-six (36) month period if such termination of employment
had not occurred, such sum to be paid in a lump sum on or before
the tenth day following the date of termination, provided,
however, that for the purposes of this Section 5(c), such profit
sharing award shall be determined based upon the four full
fiscal quarters of the Company immediately preceding the date of
the termination, as described below. Notwithstanding the
foregoing, in the event the Executive's employment with the
Company is terminated within three months prior to an event
which otherwise would have give rise to a termination with
respect to which the provisions of this Section 5(c) would have
been applicable, then the provisions of this Section 5(c) shall
control.
The aggregate amount of such profit sharing payable under this
Section 5(a) shall equal the (i) the Average of the Company's
return on sales percentage (calculated before tax or any
profit-sharing award) for the above four fiscal quarters
(determined by adding the Company's return on sales percentage
for each of the above four fiscal quarters and dividing said sum
by four), and (ii) multiplied by the Executive's multiple, as
set forth in Attachment B hereto, used in calculating the
Executive's profit sharing award during the last full fiscal
quarter of the Company prior to the date
3
of the above-described termination, (iii) multiplied by the
Executive's annual gross base salary as of the date of
termination, (iv) with the resulting product multiplied by 3. By
way of illustration and not limitation, in the event on July 15,
the Executive `s employment is terminated, the profit sharing
award the Executive would be entitled to hereunder would be the
Average of the return on sales percentage for the Company for
the four full fiscal quarters ending immediately prior to July
15. Accordingly, if the return on sales percentage for quarter
one was 7%, quarter two, 11%, quarter 3, 15% and quarter four,
7%, the Average would be determined by adding the return on
sales percentage for each of such fiscal quarters (which would
result in the sum of 40%), divided by 4, with a resulting
Average percentage of 10%. If the Executive's multiple in the
last full fiscal quarter of the Company immediately preceding
the date of termination was 7, for example, the Average
percentage would be multiplied by 7, resulting in a product of
70%, multiplied by the Executive's annual gross base salary as
of the date of such termination. If such gross base annual
salary, for example, was $100,000, the profit sharing would
equal $70,000, multiplied by 3 or $210,000, which would be paid
in the lump sum payment described above. In said example, the
Executive would, therefore, be entitled hereunder to an
aggregate severance compensation payable in a lump sum equal to
his annual gross base salary during said three year period, or
$100,000 multiplied by 3 or $300,000, plus the above-determined
profit sharing award of $210,000, for a total of $510,000, plus
the other benefits and entitlements the Executive is to receive
hereunder.
If the lump sum payment under this Section 5(c), either alone or
together with other payments which the Executive has the right
to receive from the Company, would constitute a parachute
payment (as defined in Section 280G of the Internal Revenue Code
of 1986, as amended, (the "Code"), such lump sum severance
payment shall be reduced to the largest amount as will result in
no portion of the lump sum severance payment under this Section
5(c) being subject to the excise tax imposed by Section 4999 of
the Code. The determination of any reduction in the lump sum
severance payment under this Section 5(c) pursuant to the
foregoing provision shall be made by independent counsel to the
Company in consultation with the independent certified public
accountants of the Company.
(d) Continuation of Insurance upon Termination.
------------------------------------------
(i) Upon the termination of the employment of the Executive
pursuant to Sections 5(a), or 5(c), hereof, the Executive
shall be entitled to continuation of coverage under the
group health, life, and disability plans then in effect
covering the Executive, or such similar plans as the
Company may provide for its executives from time to time
thereafter, but in no event shall such coverages be less
favorable than the group health, life, and disability
coverages provided by the Company as of the date hereof.
The Company shall be responsible for paying all of the
costs of such coverages that it would have paid if the
Executive was still in the employ of the Company. Such
coverages shall continue until the earlier of the
following dates: (i) the date that the Executive is
eligible for similar employer-sponsored group coverage
from a subsequent employer, or (ii) the date the
Executive attains age 65. The group health coverage shall
cover the Executive and his spouse and dependents. The
life insurance policy covering the life of the Executive
shall name as beneficiary the person or persons
designated from time to time by the Executive.
(ii) Upon the termination of employment of the Executive
pursuant to Section 5(b), hereof, the Executive shall be
entitled only to continuation of coverage under the group
health plans then in effect covering the Executive and
only to the extent required by the provisions of (S)
4980B of the Internal Revenue Code, as amended, and
(S)(S) 601-608 of the Employee Retirement Income
Security Act of 1974, as amended. As permitted under
4
such statutes, the Executive shall be responsible for
paying the full cost of such continuation coverage.
(e) Disability of Executive. In the event of the Executive's
-----------------------
disability (as hereinafter defined) during his employment under
this Agreement, the employment of the Executive and this
Agreement may be terminated by the Company nine (9) months after
the commencement of such disability; provided, however, that
upon any such termination, the Executive shall be entitled to
payment of the Severance payments provided under Section 5(a)
hereof, reduced by any benefits he may receive under any short
term disability and long term disability plans sponsored by the
Company covering its senior management employees at the time
that the Executive's disability commences. During the period of
the Executive's disability, the Executive shall continue to
receive the compensation provided for in this Agreement, reduced
by any benefits he may receive under any short term disability
and long term disability plans sponsored by the Company covering
its senior management employees at the time that the Executive's
disability commences. If before the end of nine months from the
first day of disability, the Executive's disability shall have
ceased, and he shall have resumed the full-time performance of
his duties under this Agreement, the Executive shall continue to
receive the compensation provided for in this Agreement.
Provided, however, that unless the Executive shall
satisfactorily perform his duties on a full-time basis under
this Agreement for a continuous period of at least sixty (60)
calendar days following a period of disability before the
Executive again becomes disabled, he shall not be entitled to
begin a new nine month period for such subsequent disability,
and the subsequent period of disability shall be added to the
first in determining whether the Executive has been disabled for
nine (9) months in connection with this Section. During the
period of his disability, the Executive shall be entitled to
benefits in accordance with and subject to the terms and
provisions of the Company's short-term disability income plan
and its long-term disability plan for its senior management
employees, as in effect at the time of the commencement of
disability. For purposes of this Agreement, "disability" shall
have the same meaning as given that term under the Company's
long term disability plan for its senior management employees,
as in effect from time to time.
(f) Definitions Applicable to this Section. For the purposes of this
---------------------------------------
Agreement:
(i) "Good Cause" shall mean the Executive willfully or
intentionally neglects to substantially perform his
duties with the Company, or the Executive materially
breaches any provision of this Agreement, including
Section 7 below, relating to confidential information;
provided, however, that such willful or intentional
neglect of duties or the material breach hereof continues
uncured by the Executive for more than sixty (60) days
after written notice of such neglect or material breach
from the Company to the Executive. For purposes of this
Agreement, no act, or failure to act, on the Executive's
part shall be considered "willful" or "intentional"
unless done, or omitted to be done, by him in bad faith
and without reasonable belief that his action or omission
to act was in the best interest of the Company. The
Company shall also have "Good Cause" to terminate the
Executive if the Executive commits an act or acts of
dishonesty resulting or intended to result directly or
indirectly in gain or personal enrichment at the expense
of the Company, its affiliates, or its stockholders.
(ii) a "Constructive Termination" shall mean a termination of
this Agreement by the Executive under any of the
following circumstances:
(1) The Company is in material breach of any of its
obligations under this Agreement, and the situation
is not remedied within thirty (30) days after the
Company receives written notice from the Executive
of the situation, or
5
(2) The Executive determines in good faith that,
as a result of Change in the Control of the
Company (as defined below) there is a
substantial adverse alteration in the nature or
status of the Executive's duties or
responsibilities from those in effect
immediately prior to the change in control of
the Company, and the situation is not remedied
within thirty (30) days after the Company
receives written notice from the Executive of
such determination, or
(3) Any termination of the Employee's employment
with the Company under Sections 5(a), or 5(b)
hereof, except a termination pursuant to
Section 5(b) hereof by the Company with Good
Cause, shall be deemed a Constructive
Termination if it occurs within thirty-six (36)
months following the date of a Change in
Control.
(iii) "Change in Control of the Company" shall mean an
event which shall be deemed to have occurred if:
(1) any "person" as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act
of ▇▇▇▇, (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇") (other than ▇▇▇▇
▇. ▇▇▇▇, the Company, any trustee or other
fiduciary holding securities under any employee
benefit plan of the Company, or any Company
owned, directly or indirectly, by the
stockholders of the Company in substantially
the same proportions as their ownership of
stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or
indirectly, of securities of the Company
representing thirty percent (30%) or more of
the combined voting power of the Company's then
outstanding securities;
(2) during any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board, and any new director
(other than a director designated by a person
who has entered into an agreement with the
Company to effect a transaction described in
clause (i), (iii), or (iv) herein) whose
election by the Board or nomination for
election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3)
of the directors then still in office who
either were directors at the beginning of the
period or whose election or nomination for
election was previously so approved, cease for
any reason to constitute at least a majority
thereof;
(3) the stockholders of the Company approve a
merger or consolidation of the Company with any
other corporation, other than a merger or
----------
consolidation which would result in the voting
securities of the Company outstanding
immediately prior thereto continuing to
represent (either by remaining outstanding or
by being converted into voting securities of
the surviving entity) more than eighty percent
(80%) of the combined voting power of the
voting securities of the Company or such
surviving entity outstanding immediately after
such merger or consolidation; provided,
however, that a merger or consolidation
effected to implement a recapitalization of the
Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more
than twenty-five percent (25%) of the combined
voting power of the Company's then outstanding
securities shall not constitute a change of
control of the Company; or
(4) the stockholders (or if stockholder approval
is not required, then the Company's Board of
Directors) of the Company approve a plan of
complete liquidation of
6
the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the
Company's assets; or
(5) ▇▇▇▇ ▇▇▇▇ ceases to own capital stock of the Company
having fifty one percent (51%) of the total voting
control of the Company.
6. Obligation to Mitigate Damages. The Executive shall not be required to
------------------------------
mitigate the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment
hereunder be reduced by any compensation earned by the Executive as the
result of employment by another employer after termination of the
Executive.
7. Confidential Information. Except as required in the course of his
------------------------
employment, the Executive agrees not to disclose to others or permit such
disclosure, or make use of or permit the use of for his own benefit or the
benefit of others, any confidential information, without the prior written
consent of the Company. Confidential information as used in this Agreement
includes any information, whether of a financial, technical or marketing
nature, that pertains to the present or prospective business of the Company
or any affiliate of the Company, or of any present or prospective customer,
consultant or supplier of the Company or of any other party with which the
Company does business and may be contractually or otherwise obligated to
maintain such information secret, and becomes known to Executive or is
generated by the Executive in the course of his employment with the
Company, including, but not limited to, manufacturing equipment, processes
and materials, data, know-how, experience, names, buying habits, or
practices of any customers, marketing methods and related data, the names
of any vendors or suppliers, costs of materials, prices, manufacturing and
sales costs or lists or other written records. Confidential information,
however, shall not include information that is, or through no fault of the
Executive becomes, generally and overtly known in the industry in which the
Company competes. The Executive also agrees that upon leaving the Company's
employ he will not take with him, without the prior written consent of the
Company, and he will surrender to the Company, any record, list, drawing,
blueprint, specification or other document or property of the Company or
any subsidiary thereof, together with any copy or reproduction thereof,
mechanical or otherwise, which is of a confidential nature relating to the
Company or any affiliate of the Company, or, without limitation, relating
to its or their methods of distribution, suppliers, customers, client
relationships, marketing strategies or any description of any formulae or
secret processes, or which was obtained by him or entrusted to him during
the course of his employment with the Company or which otherwise contains
confidential information.
8. Competition, Detrimental Conduct.
--------------------------------
(a) The Executive covenants and agrees that during the twelve (12) months
following the termination of his employment with the Company for any
reason whatsoever, he will not engage in "Competition" with the
Company. For purposes of this Section 8, "Competition" shall mean:
(i) Directly or indirectly, either as a principal, agent employer,
partner, director, stockholder or otherwise, engaging in, or
being interested in, any business in competition with the
business of the Company or any affiliate of the Company,
including, without limitation, taking a management, advisory,
sales, or ownership position with, or control of, a business
engaged in the design, manufacturing, marketing, distribution
or sale of products in any geographical area in which the
Company or any affiliate of the Company is at the time
engaging in the design, manufacturing, marketing,
distribution, or sale of such products; provided, however,
that in no event shall ownership of less than five percent
(5%) of the outstanding capital stock entitled to vote for the
election of directors of a corporation with a class of equity
securities held of record by more than five hundred
7
(500) persons, standing alone, be deemed Competition with the
Company within the meaning of this Section 8(a).
(ii) Soliciting any person who is a supplier or customer of the
businesses conducted by the Company, or any business in which
the Executive has been engaged on behalf of the Company, or
any affiliate of the Company, at any time during the period of
employment on behalf of a business described in clause (i) of
this Section 8(a).
(iii) Inducing or attempting to persuade any employee of the Company
or any of its affiliates to terminate his employment in order
to enter into employment with a business described in clause
(i) of this Section 8(a). The Executive recognizes and agrees
that the restrictions on his activities contained in this
Section 8 are required for the reasonable protection of the
Company and its investments.
(b) The Executive recognizes and agrees that, by reason of his
knowledge, experience, skill and ability, his services are
extraordinary and unique, that the breach or attempted breach of the
restrictive covenants set forth in Section 7 or Section 8(a) above
will result in immediate and irreparable injury to the Company for
which the Company will not have an adequate remedy at law, and that
the Company shall be entitled to a decree of specific performance of
those covenants and to a temporary and permanent injunction
enjoining the breach thereof, and to seek any and all other remedies
to which the Company may be entitled, including, without limitation,
monetary damages, without posting bond or furnishing security of any
kind.
(c) The Executive agrees that the Company shall not be obligated to make
any further payments provided for in Section 5(a), or otherwise
above if the Executive shall, during the period in which such
payments are being made, engage in Competition with the Company as
defined in Section 8(a) above, breach his obligations under Section
7, or otherwise act or conduct himself to the detriment of the
Company or any affiliates. The provisions of this Section 8(c) and
Section 8(b) are in addition to and not by way of limitation of any
other rights or remedies available to the Company.
9. Severability.
------------
(a) In the event that any provision of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole
or in part, the remaining provisions of this Agreement not so
invalid or unenforceable shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by
law.
(b) Any provision of this Agreement which may be invalid or
unenforceable in any jurisdiction shall be limited by construction
thereof, to the end that such provision shall be valid and
enforceable in such jurisdiction; and
(c) Any provision of this Agreement which may for any reason be invalid
or unenforceable in any jurisdiction shall remain in effect and be
enforceable in any jurisdiction in which such provision shall be
valid and enforceable.
10. General Provisions.
------------------
(a) No right of the Executive to or in any payments under this Agreement
shall be subject to anticipation, alienation, sale, assignment,
encumbrance, pledge, charge or hypothecation or to execution,
attachment, levy or similar process, or assignment by operation of
law.
8
(b) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without
giving effect to the principles of conflicts of laws thereof.
(c) This Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and the Executive, his
heirs, legatees, distributees and legal representatives;
provided, however, the Executive may not assign his rights or
delegate his duties under this Agreement without the consent of
the Company and any purported assignment or delegation shall be
void.
(d) All claims, disputes and other matters in question between the
Company and the Executive arising out of or relating to this
Agreement, including the breach or enforcement thereof, shall be
decided by arbitration held in Jamestown, New York, in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, unless the parties otherwise mutually agree;
provided, however, that this arbitration provision shall not
prevent the Company from obtaining a temporary restraining order
or preliminary injunction from a court of competent jurisdiction
pending final resolution by arbitration of a claim, dispute or
other matter arising hereunder. The foregoing Agreement to
arbitrate shall be specifically enforceable under the prevailing
arbitration rules. Any award rendered by the arbitrator(s) shall
be final, and judgment may be entered thereon in any court having
jurisdiction thereof. All fees and changes of the American
Arbitration Association, and the legal fees and other costs and
expenses of the parties, shall be borne as the arbitrators shall
determine in their award. Notice of demand for arbitration shall
be filed in writing with the other party to this Agreement and
with the American Arbitration Association. The demand for
arbitration shall be made within a reasonable time after the
claim, dispute or other matters in question have arisen but in no
event after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matters in
question would be barred by the applicable statute of
limitations.
(e) Any notice or other communication to the Company pursuant to
any provision of this Agreement shall be given in writing and
will be deemed to have been delivered
(i) when delivered in person to the Corporate Secretary of the
Company, or
(ii) one week after it is deposited in the United States
certified or registered mail, postage prepaid, addressed to
the Corporate Secretary of the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address of
which the Company may from time to time give the Executive
written notice in accordance with Section 10(f) below.
(f) Any notice or other communication to the Executive pursuant to
any provision of this Agreement shall be in writing and will be
deemed to have been delivered
(i) when delivered to the Executive in person, or
(ii) one week after it is deposited in the United States
certified or registered mail, postage prepaid, addressed to
the Executive at the address set forth on the first page
hereof, and/or at such other address of which the Executive
may from time to time give the Company written notice in
accordance with Section 10(e) above.
(g) No provision of this Agreement may be amended, modified or waived
unless such amendment, modification or waiver shall be agreed to
in writing, signed by the Executive and an authorized officer of
the Company.
9
(h) An affiliate of the Company is any person that directly or
indirectly controls, is controlled by, or is under common
control with, the Company. An affiliate shall not, however,
include any business enterprise owned or controlled by ▇▇.
▇▇▇▇ ▇. ▇▇▇▇ other than the Company and its direct and
indirect subsidiaries unless such business enterprise is
engaged in a business of a type conducted by the Company or
its subsidiaries.
(i) This instrument contains the entire agreement of the parties
relating to the subject matter of this Agreement and
supersedes and replaces all prior agreements and
understandings with respect to such subject matter, and the
parties have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not
set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
▇▇▇▇ INDUSTRIES, INC.
(Seal)
By: /s/
--------------------------
Attest: Title:
------------------------
/s/
------------------------------
Witness
By: /s/ (Seal)
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
------------------------
/s/
------------------------------
Witness
10