Exhibit 10.10
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of this 25th
day of April, 2005 by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive") and CMH
Holdings, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to obtain employment with the Company; and
WHEREAS, in connection with the execution and delivery of this Agreement,
the parties hereto are simultaneously entering into an Employee Agreement in the
form attached as EXHIBIT A hereto (the "Employee Agreement").
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. EFFECTIVE DATE; TERM OF EMPLOYMENT. Subject to the provisions of
Section 5, the Company agrees to employ Executive and Executive agrees to become
an employee and perform services for the Company, upon the terms and conditions
hereinafter set forth. Executive's employment pursuant to this Agreement shall
commence as soon as possible after Executive terminates his current employment
(the "Effective Date") and shall continue in effect thereafter indefinitely
unless terminated by either party in accordance with Section 5.
2. DUTIES; EXTENT OF SERVICE. During Executive's employment under this
Agreement, Executive (a) shall serve as an employee of the Company with the
title and position of Chairman of the Board of Directors and Chief Executive
Officer, reporting to the Board of Directors of the Company, (b) shall have
general supervision and control of the Company's business and shall have such
other powers and shall perform such other duties as the Board of Directors may
from time to time designate, PROVIDED THAT, in all cases Executive shall be
subject to the oversight and supervision of the Board of Directors of the
Company in the performance of his duties, (c) upon the request of the Board of
Directors of the Company, shall serve as an officer and/or director of any of
the Company's subsidiaries, and (d) shall render all services reasonably
incident to the foregoing. Executive hereby accepts such employment, agrees to
serve the Company in the capacities indicated, and agrees to use Executive's
reasonable best efforts in, and shall devote Executive's full working time,
attention, skill and energies to, the advancement of the interests of the
Company and its subsidiaries and the performance of Executive's duties and
responsibilities hereunder. The foregoing, however, shall not be construed as
preventing Executive from engaging in religious, charitable or other community
or non-profit activities, or from serving on the boards of directors of Impac
Mortgage Holdings, Inc. (or the audit committee thereof) or Primus Guaranty,
Ltd. (or the compensation committee thereof), in each case in a manner
consistent in nature with Executive's past and current involvement in such
activities and that does not impair Executive's ability to fulfill Executive's
duties and responsibilities under this Agreement or the Employee Agreement. The
Executive confirms that he is not subject to any agreement or obligations that
would conflict with his employment by the Company hereunder as of the Effective
Date.
3. SALARY AND BONUS.
(a) During Executive's employment under this Agreement, the Company
shall pay Executive a base salary (the "Base Salary"), which initially shall be
paid at a rate of $500,000 per annum. Such Base Salary shall be reviewed
annually by the Board of Directors or Compensation Committee, and shall be
increased (but not decreased) annually each April 1 by a percentage equal to the
greater of (i) the official United States Consumer Price Index for the
immediately preceding calendar year, or (ii) such other percentage as may be
determined by the Board of Directors or Compensation Committee. Such Base Salary
shall be subject to withholding under applicable law, shall be pro rated for
partial years and shall be payable in periodic installments in accordance with
the Company's usual payroll practice for executive officers of the Company as in
effect from time to time.
(b) For each complete fiscal year of employment, Executive shall be
eligible to receive a bonus based upon the Company's achievement of financial
targets and Executive's achievement of individual goals, such targets and goals
to be established by the Board of Directors or the compensation committee of the
Board of Directors (each, a "Bonus"). For the fiscal year ending December 31,
2005, Executive shall be eligible to receive a Bonus, which shall be targeted at
$500,000 and with potential of up to $750,000, which Bonus shall be prorated
based on the actual Effective Date of this Agreement. Each Bonus shall be
subject to applicable withholding and shall be paid to Executive at such time as
the Company pays bonuses to its employees generally, provided Executive must be
employed by the Company on December 31 of a given year in order to receive a
Bonus for such year (or portion thereof) except as provided in Section 5.
4. BENEFITS.
(a) During Executive's employment under this Agreement, Executive
shall be eligible to participate in any and all medical, pension, profit
sharing, dental and life insurance plans and disability income plans, retirement
arrangements and other employment benefits, including equity grant plans, as may
be in effect from time to time for executive officers of the Company generally.
Such participation shall be subject to (i) the terms of the applicable plan
documents (including, as applicable, provisions granting discretion to the Board
of Directors of the Company or any administrative or other committee provided
for therein or contemplated thereby), and (ii) generally applicable policies of
the Company. Executive shall be eligible to participate in all such plans and
other benefits as of the Effective Date
(b) In accordance with its applicable plan documents and law, the
Company will grant options and sell restricted equity to Executive as one
component of his total compensation package. All policies applicable to such
equity shall be determined by the Company's Board of Directors or its
Compensation Committee. In furtherance of the foregoing:
(i) The Company shall sell to Executive, as of the Effective
Date, shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock") subject to repurchase rights ("Time-Based Restricted
Stock") and/or an option to purchase shares of Common Stock ("Time-Based
Option" and, together with Time-Based
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Restricted Stock, the "Initial Awards"), which Initial Awards shall
represent 3.0% of the outstanding shares of capital stock of the Company
determined on a fully diluted basis as of the Effective Date, or 1,562,500
shares, and shall vest as provided in the Restricted Stock Agreement and
the Incentive Stock Option Agreement referred to below. The relative
proportion of restricted stock and option shall be as selected by the
Executive prior to the Effective Date.
(ii) The Company shall sell to Executive, as of the Effective
Date, shares of Common Stock, subject to repurchase rights
("Performance-Based Restricted Stock") and/or an option to purchase shares
of Common Stock ("Performance-Based Option" and, together with
Performance-Based Restricted Stock, the "Performance Awards"), which
Performance Awards shall represent 1.0% of the outstanding shares of
capital stock of the Company determined on a fully diluted basis as of the
Effective Date, or 520,833 shares, and shall vest as provided in the
Restricted Stock Agreement and the Incentive Stock Option Agreement
referred to below. The relative proportion of restricted stock and option
shall be as selected by the Executive prior to the Effective Date.
(iii) The option exercise price and the purchase price for the
restricted stock shall be the fair market value of the Common Stock on the
Effective Date as determined by an independent appraiser hired by the
Company.
The Initial Awards and the Performance Awards shall be subject to the terms and
provisions of the Company's 2005 Stock Option and Grant Plan (the "Plan"), a
copy of which has previously been delivered to Executive, as well as to the
additional terms and provisions, including vesting and acceleration terms, set
forth in that certain Restricted Stock Agreement attached hereto as EXHIBIT B
and that certain Incentive Stock Option Agreement attached hereto as EXHIBIT C,
which Executive will be required to sign as a condition to such grants.
(c) During Executive's employment under this Agreement, Executive
shall receive paid vacation annually in accordance with the Company's practices
for executive officers, as in effect from time to time; provided, however, that
Executive shall have a minimum of four (4) weeks of paid vacation.
(d) The Company shall promptly reimburse Executive for all reasonable
business expenses incurred by Executive during Executive's employment hereunder
in accordance with the Company's practices for executive officers of the
Company, as in effect from time to time.
(e) Compliance with the provisions of this Section 4 shall in no way
create or be deemed to create any obligation, express or implied, on the part of
the Company or any of its affiliates with respect to the continuation of any
particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the Effective Date or the creation and
maintenance of any particular benefit or other plan or arrangement at any time
after the Effective Date.
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5. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions
of Section 1, Executive's employment under this Agreement shall terminate under
the following circumstances set forth in this Section 5.
(a) TERMINATION BY THE COMPANY FOR CAUSE. Executive's employment
under this Agreement may be terminated for cause without further liability on
the part of the Company or any affiliate thereof effective immediately upon a
vote of the Board of Directors of the Company and written notice to Executive.
Only the following shall constitute "cause" for such termination:
(i) Any act, whether or not involving the Company or any of
its affiliates or their respective businesses, of fraud or gross misconduct
or harassment;
(ii) Any act of dishonesty or illegality, in any such case,
materially and adversely affecting the Company;
(iii) The indictment of Executive for any crime;
(iv) The commission, in the reasonable judgment of the Board of
Directors of the Company, of an act involving a violation of procedures or
policies of the Company which are material to the Company;
(v) A material and sustained failure of Executive to perform
the duties and responsibilities assigned or delegated under this Agreement,
which such failure continues for thirty (30) days after written notice has
been given to the Executive by the Board of Directors;
(vi) Gross negligence or willful misconduct by Executive with
respect to the Company or any affiliate of the Company; or
(vii) A breach by Executive of any of Executive's obligations
under the Employee Agreement.
(b) TERMINATION BY EXECUTIVE OTHER THAN FOR GOOD REASON. Executive's
employment under this Agreement may be terminated by Executive without further
liability on the part of Executive (other than with respect to those provisions
of this Agreement expressly surviving such termination) by written notice to the
Board of Directors at least ninety (90) days prior to such termination.
(c) TERMINATION BY EXECUTIVE FOR GOOD REASON. Subject to the payment
of Termination Benefits pursuant to Section 5(e) below, Executive's employment
under this Agreement also may be terminated by Executive for Good Reason (as
defined below) (which termination must be within one hundred twenty (120) days
of the occurrence of the event or events giving rise to such Good Reason) by
written notice to the Board of Directors setting forth such Good Reason and (in
the case of clauses (i) and (ii) of the definition of Good Reason, below) giving
the Company a reasonable period of time, not less than ten (10) business days,
to eliminate and cure such Good Reason. For purposes of this Agreement, "Good
Reason" shall
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mean the occurrence of any of the following events: (i) a substantial adverse
change in the nature or scope of Executive's responsibilities, authorities,
powers, functions or duties under this Agreement; (ii) a reduction in
Executive's annual Base Salary (other than in connection with an
across-the-board reduction affecting all, or substantially all, of the Company's
executive officers); and (iii) 365 days following a Sale Event (as defined in
EXHIBIT D hereto). It is expressly agreed and understood that if Executive's
employment is terminated by Executive for Good Reason as provided in this
Section 5(c), it shall not impair or otherwise affect Executive's Continuing
Obligations (as defined below).
(d) TERMINATION BY THE COMPANY WITHOUT CAUSE. Subject to the payment
of Termination Benefits pursuant to Section 5(e), Executive's employment under
this Agreement may be terminated without cause by the Company by a vote of the
Board of Directors of the Company upon not less than 90 days prior written
notice to Executive. It is expressly agreed and understood that if Executive's
employment is terminated by the Company without cause as provided in this
Section 5(d), it shall not impair or otherwise affect Executive's Continuing
Obligations.
(e) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically
provided in this Agreement or otherwise required by law, all compensation and
benefits payable to Executive under this Agreement shall terminate on the date
of termination of Executive's employment under this Agreement. Notwithstanding
the foregoing, in the event of termination of Executive's employment with the
Company pursuant to Section 5(c) or Section 5(d) above, the Company shall
provide to Executive the following termination benefits, subject to receipt of
the general release described below ("Termination Benefits"):
(i) Payment of a lump sum amount, subject to withholding under
applicable law, equal to (A) in the event the Company's initial public
offering of Common Stock pursuant to an effective registration statement
under the Securities Act of 1933 (the "IPO") or a Sale Event has not
occurred, the sum of Executive's Base Salary and target bonus as in effect
on the date of termination, or (B) in the event the IPO or a Sale Event has
occurred, two hundred percent (200%) of the sum of Executive's Base Salary
and target bonus as in effect on the date of termination;
(ii) Payment of a pro rated portion of Executive's target bonus
for the year in which termination occurs; and
(iii) Continuation of group health and dental plan benefits with
the cost of the regular premium for such benefits shared in the same
relative proportion by the Company and Executive as in effect on the date
of termination, for one year after the date of termination in the event an
IPO or Sale Event has not occurred prior to the date of such termination,
or for two (2) years after the date of termination in the event an IPO or
Sale Event has occurred prior to the date of termination.
The Company shall have the right to terminate the Termination Benefits set forth
in Section 5(e)(ii) and demand a refund of the cash severance paid under Section
5(e)(i) in the event that Executive fails to comply with Executive's Continuing
Obligations (as defined in Section 5(i)).
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The Company's liability under Section 5(e)(i) shall be reduced by the amount of
any severance pay paid to Executive pursuant to any severance pay plan of the
Company. Notwithstanding the foregoing, nothing in this Section 5(e) shall be
construed to affect Executive's right to receive COBRA continuation entirely at
Executive's own cost to the extent that Executive may continue to be entitled to
COBRA continuation after Executive's right to cost sharing under Section
5(e)(ii) ceases. The Company and Executive agree that the Termination Benefits
paid by the Company to Executive under this Section 5(e) shall be in full
satisfaction, compromise and release of any claims arising out of any
termination of Executive's employment pursuant to Section 5(c) or Section 5(d),
and that the payment of the Termination Benefits shall be contingent upon
Executive's delivery of a general release effectuating such full satisfaction,
compromise and release, in favor of the Company and its affiliates of any and
all claims upon any such termination, which general release shall be effective
upon termination of employment and shall be in a form reasonably satisfactory to
the Company, it being understood that no Termination Benefits shall be provided
unless and until Executive executes and delivers such release.
(f) DISABILITY. If Executive shall be disabled so as to be unable to
perform the essential functions of Executive's then existing position or
positions under this Agreement with or without reasonable accommodation, which
disability has lasted or is reasonably expected to last for more than
one-hundred twenty (120) days, the Board of Directors may remove Executive from
any responsibilities and/or reassign Executive to another position with the
Company for the remainder of the Term or during the period of such disability.
Notwithstanding any such removal or reassignment, Executive shall continue to
receive Executive's full Base Salary (less any disability pay or sick pay
benefits to which Executive may be entitled under the Company's policies) and
benefits under Section 4 of this Agreement (except to the extent that Executive
may be ineligible for one or more such benefits under applicable plan terms) for
a period of up to one year, and Executive's employment may be terminated by the
Company at any time thereafter. In the event of such termination, the Company
shall have no further obligations except to make Executive's accrued Base Salary
and benefit payments contemplated by this Section 5(f) through the date of such
termination plus a pro rated portion of Executive's target bonus for the year in
which termination occurs. If any question shall arise as to whether during any
period Executive is disabled so as to be unable to perform the essential
functions of Executive's then existing position or positions with or without
reasonable accommodation, Executive may, and at the request of the Company
shall, submit to the Company a certification in reasonable detail by a physician
(local to the Company's principal offices) selected by the Company to whom
Executive or Executive's guardian has no reasonable objection as to whether
Executive is so disabled or how long such disability is expected to continue,
and such certification shall for the purposes of this Agreement be conclusive of
the issue. Executive shall cooperate with any reasonable request of the
physician in connection with such certification. If such question shall arise
and Executive shall fail to submit such certification, the Company's
determination of such issue shall be binding on Executive. Nothing in this
Section 5(f) shall be construed to waive Executive's rights, if any, under
existing law including, without limitation, the Family and Medical Leave Act of
1993, 29 U.S.C. Section 2601 ET SEQ. and the Americans with Disabilities Act, 42
U.S.C. Section 12101 ET SEQ.
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(g) DEATH. Executive's employment and all obligations of the Company
hereunder shall terminate in the event of the death of the Executive other than
any obligation to pay earned but unpaid Base Salary plus a pro rated portion of
Executive's target bonus for the year in which termination occurs.
(h) EQUITY RIGHTS. Executive's rights with respect to the Initial
Awards and the Performance Option will be as set forth in the applicable
agreements relating thereto.
(i) CONTINUING OBLIGATIONS. Notwithstanding termination of this
Agreement as provided in this Section 5 or any other termination of Executive's
employment with the Company, Executive's obligations under the Employee
Agreement (collectively, the "Continuing Obligations"), which are integral parts
of Executive's employment arrangements hereunder, shall survive, in accordance
with their terms, any termination of Executive's employment with the Company at
any time and for any reason.
6. SECTION 280G GROSS UP PAYMENT.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any compensation, payment or distribution
by the Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Severance Payments"), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
or any interest or penalties are incurred by Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then Executive shall
be entitled to receive an additional payment (a "Gross-Up Payment") such that
the net amount retained by Executive, after deduction of any Excise Tax on the
Severance Payments, any Federal, state, and local income tax, employment tax and
Excise Tax upon the payment provided by this subsection, and any interest and/or
penalties assessed with respect to such Excise Tax, shall be equal to the
Severance Payments.
(b) Subject to the provisions of Section 6(c), all determinations
required to be made under this Section 6(b), including whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment, shall be made by a
nationally recognized accounting firm selected by the Company (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the Company
and Executive within fifteen (15) business days of the date of termination of
Executive's employment under this agreement, if applicable, or at such earlier
time as is reasonably requested by the Company or Executive. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation
applicable to individuals for the calendar year in which the Gross-Up Payment is
to be made, and state and local income taxes at the highest marginal rates of
individual taxation in the state and locality of Executive's residence on the
date of termination of Executive's employment under this agreement, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. The initial Gross-Up Payment, if any, as
determined pursuant to this Section 6(b), shall be paid to Executive within five
(5) days of the receipt of the Accounting Firm's determination. If the
Accounting Firm determines that no Excise Tax is payable by Executive, the
Company shall
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furnish Executive with an opinion of counsel that failure to report the Excise
Tax on Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and Executive. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made (an "Underpayment"). In the event that the Company exhausts its remedies
pursuant to Section 6(c) and Executive thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred, consistent with the calculations required to be
made hereunder, and any such Underpayment, and any interest and penalties
imposed on the Underpayment and required to be paid by Executive in connection
with the proceedings described in Section 6(c), shall be promptly paid by the
Company to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after Executive knows of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. Executive shall not pay such
claim prior to the expiration of the 30-day period following the date on which
he gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the Company
notifies Executive in writing prior to the expiration of such period that it
desires to contest such claim, provided that the Company has set aside adequate
reserves to cover the Underpayment and any interest and penalties thereon that
may accrue, Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect
to such claim by an attorney selected by the Company,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the Company shall bear and
pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and
hold Executive harmless, on an after-tax basis, for any Excise Tax or
income tax, including interest and penalties with respect thereto, imposed
as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 6(c), the
Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the
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taxing authority in respect of such claim and may, at its sole option,
either direct Executive to pay the tax claimed and ▇▇▇ for a refund or
contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the
Company directs Executive to pay such claim and ▇▇▇ for a refund, the
Company shall advance the amount of such payment to Executive on an
interest-free basis and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of Executive with respect to which
such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and Executive shall be entitled to settle or contest, as
the case may be, any other issues raised by the Internal Revenue Service or
any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 6(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive shall (subject to the Company's
complying with the requirements of Section 6(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 6(c), a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
7. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed by certified or registered mail (return receipt
requested) as follows:
To the Company: CMH Holdings, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Executive: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o CMH Holdings, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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or to such other address of which any party may notify the other parties as
provided above. Notices shall be effective as of the date of such delivery or
mailing.
8. SCOPE OF AGREEMENT. The parties acknowledge that the time, scope,
geographic area and other provisions of this Agreement and the Employee
Agreement have been specifically negotiated by sophisticated parties and agree
that all such provisions are reasonable under the circumstances of the
transactions contemplated hereby, and are given as an integral and essential
part of the transactions contemplated hereby. Executive has independently
consulted with counsel and has been advised in all respects concerning the
reasonableness and propriety of the covenants contained herein, with specific
regard to the business to be conducted by Company and its subsidiaries and
affiliates, and represents that such agreements are intended to be, and shall
be, fully enforceable and effective in accordance with its terms.
9. SEVERABILITY. In the event that any covenant contained in this
Agreement shall be determined by any court of competent jurisdiction to be
unenforceable, it shall be interpreted so as to be enforceable to the maximum
extent possible, all as determined by such court in such action. The existence
of any claim or cause of action which Executive may have against the Company or
any of its subsidiaries or affiliates shall not constitute a defense or bar to
the enforcement of any of the provisions of this Agreement.
10. MISCELLANEOUS. This Agreement shall be governed by and construed under
the laws of the State of Connecticut, without consideration of its choice of law
provisions, and shall not be amended, modified or discharged in whole or in part
except by an agreement in writing signed by both of the parties hereto. The
parties hereby submit to the exclusive jurisdiction of the Federal and State
courts in the State of Connecticut for resolution of any dispute arising under
this Agreement, except in the event they may mutually agree to arbitration in
connection with any such dispute.
The failure of either of the parties to require the performance of a term
or obligation or to exercise any right under this Agreement or the waiver of any
breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. This Agreement shall inure to the
benefit of, and be binding upon and assignable to, successors of the Company by
way of merger, consolidation or sale and may not be assigned by Executive. This
Agreement supersedes and terminates all prior understandings and agreements
between the parties (or their predecessors) relating to the subject matter
hereof. For purposes of this Agreement, the term "person" means an individual,
corporation, partnership, association, trust or any unincorporated organization;
a "subsidiary" means any corporation more than 50 percent of whose outstanding
voting securities, or any partnership, joint venture or other entity more than
50 percent of whose total equity interest, is directly or indirectly owned by
such person; and an "affiliate" of a person shall mean, with respect to a person
or entity, any person or entity which directly or indirectly controls, is
controlled by, or is under common control with such person or entity.
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11. LEGAL EXPENSES. The Company hereby agrees to reimburse Executive for
expenses incurred in connection with the negotiation of this Agreement and
related agreements in an amount not to exceed $15,000. The Company also agrees
to reimburse Executive for expenses incurred in any successful assertion of his
rights under this Agreement or the agreements relating to the Initial Awards or
the Performance Awards.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
under seal as of the date first set forth above.
CMH HOLDINGS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
EXECUTIVE:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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