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EXHIBIT 99.13
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of
________________, 1998, by and among De La Torre Insurance Adjusters, Inc., a
Florida corporation (the "Employer"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive") and
GAINSCO, INC., a Texas corporation ("GAINSCO").
RECITALS
Concurrently with the execution and delivery of this Agreement,
GAINSCO is purchasing all of the issued and outstanding shares of capital
stock of Employer owned by the Executive pursuant to a Stock Purchase Agreement
(the "Stock Purchase Agreement") dated ______________, 1998, among GAINSCO,
Executive and Employer. Employer and GAINSCO desire the Executive's continued
employment with the Employer, and the Executive wishes to accept such continued
employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the premises, mutual covenants and agreements set
forth and for other good and valuable consideration, the adequacy, sufficiency
and receipt of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I.
"Basic Compensation"--Salary and Benefits.
"Board of Directors"--the board of directors of the Employer.
"Confidential Information"--information that is used in the Employer's
business and
(a) is proprietary to, about or created by the Employer;
(b) gives the Employer some competitive advantage, the opportunity
of obtaining such advantage or the disclosure of which could be detrimental to
the interests of the Employer;
(c) is not typically disclosed to non-employees by the Employer,
or otherwise is treated as confidential by the Employer; or
(d) is designated as Confidential Information by the Employer or
from all the relevant circumstances should reasonably be assumed by the
Executive to be confidential to the Employer.
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Confidential Information shall not include (i) information already in
Executive's possession prior to the date of this Agreement and that was not
acquired or obtained from Employer or pursuant to a confidentiality agreement;
(ii) information that is obtained or was previously obtained by the Executive
from a third Person who, insofar as is known to the Executive after reasonable
inquiry, is not prohibited from transmitting the information to the Executive
by contractual, legal or fiduciary obligation to the Employer; or (iii)
information that is, or becomes, generally available to the public other than
as a result of a direct or indirect disclosure by the Executive.
"Effective Date"--the date stated in the first paragraph of the
Agreement.
"Employee Invention"--all discoveries, inventions, improvements,
designs, innovations and works of authorship (including all data and records
pertaining thereto) that relate to the business of Employer, whether or not
able to be patented, copyrighted or reduced to writing, that Employee may
discover, invent or originate during the term of his employment hereunder, and
for a period of six months thereafter, either alone or with others and whether
or not during working hours or by the use of the facilities of Employer.
"Fiscal Year"--the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"Person"--any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
ARTICLE II
EMPLOYMENT TERMS AND DUTIES
2.1 Employment. The Employer hereby employs the Executive, and
the Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 Term. Subject to the provisions of Article VI, the term of the
Executive's employment under this Agreement will be three (3) years, beginning
on the Effective Date and ending on the third anniversary of the Effective Date
(the "Initial Term"). Prior to the beginning of the third year of the Initial
Term, the Agreement will be extended for additional one-year periods on each
anniversary of the Effective Date unless either party delivers written notice
of election not to renew to the other party at least 45 days prior to the
applicable anniversary of the Effective Date (the Initial Term plus any and all
such extended periods are sometimes collectively referred to herein as the
"Term").
2.3 Duties. The Executive will have such duties as are assigned
or delegated to the Executive by the Board of Directors or Chief Executive
Officer of Employer, and will initially serve as Vice President of Employer.
The Executive will devote his entire business time,
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attention, skill, and energy exclusively to the business of Employer, will use
his best efforts to promote the success of Employer's business, and will
cooperate fully with the Board of Directors of Employer in the advancement of
the best interests of Employer. If the Executive is elected as a director of
the Employer, or as a director or officer of any of its affiliates, the
Executive will fulfill his duties as such director or officer without
additional compensation.
ARTICLE III
COMPENSATION
3.1 Basic Compensation.
(a) Salary. The Executive will be paid an annual salary of
$160,000, subject to adjustment as provided below (the "Salary"), which will be
payable in equal periodic installments according to the Employer's customary
payroll practices, but no less frequently than monthly. The Salary will be
reviewed by the Board of Directors not less frequently than annually.
(b) Benefits. The Executive will, during the Term, be permitted
to participate in such pension, life insurance, hospitalization, major medical,
disability and other employee benefit plans of the Employer that may be in
effect from time to time, to the extent the Executive is eligible under the
terms of those plans (collectively, the "Benefits").
3.2 Stock Options. The Executive shall be entitled to participate
in any stock option plan, employee stock ownership plan or similar plan of
GAINSCO, subject to the approval of the Chief Executive Officer of GAINSCO and
to the extent the Executive is eligible under the terms of such plan.
ARTICLE IV
FACILITIES AND EXPENSES
The Employer will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel as the Employer deems
necessary or appropriate for the performance of the Executive's duties under
this Agreement. The Employer will pay a reasonable automobile allowance to
Executive and will pay on behalf of the Executive (or reimburse the Executive
for) reasonable expenses incurred by the Executive at the request of, or on
behalf of, the Employer in the performance of the Executive's duties pursuant
to this Agreement, and in accordance with the Employer's employment policies,
including reasonable expenses incurred by the Executive in attending
conventions, seminars, and other business meetings, in appropriate business
entertainment activities, and for promotional expenses. The Executive must file
expense reports with respect to such expenses in accordance with the Employer's
policies.
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ARTICLE V
VACATIONS AND HOLIDAYS
The Executive will be entitled to three (3) weeks' paid vacation each
Fiscal Year in accordance with the vacation policies of the Employer in effect
for its executive officers from time to time. Vacation must be taken by the
Executive at such time or times as approved by the Chairman of the Board or
Chief Executive Officer of Employer. The Executive will also be entitled to the
paid holidays set forth in the Employer's policies.
ARTICLE VI
TERMINATION
6.1 (a) Disability. Employer may terminate this Agreement
for Disability. "Disability" shall exist if because of ill health, physical or
mental disability, or any other reason beyond his control, and notwithstanding
reasonable accommodations made by Employer, the Executive shall have been
unable, unwilling or shall have failed to perform his duties under this
Agreement, as determined in good faith by the Chairman of the Board of GAINSCO,
for a period of 180 consecutive days, or if, in any 12-month period, the
Executive shall have been unable or unwilling or shall have failed to perform
his duties for a period of 270 days, irrespective of whether or not such days
are consecutive.
(b) Cause. Employer may terminate the Executive's employment for
Cause. Termination for "Cause" shall mean termination because of the
Executive's (i) gross incompetence, (ii) willful gross misconduct that causes
material economic harm to Employer or GAINSCO or that brings substantial
discredit to Employer's or GAINSCO's reputation, (iii) failure to follow
directions of the Board of Directors that are consistent with his duties under
this Agreement, (iv) final, nonappealable conviction of a felony involving
moral turpitude, or (v) material breach of any provision of this Agreement.
Items (i), (iii) and (v) of this subsection shall not constitute Cause unless
Employer notifies the Executive thereof in writing, specifying in reasonable
detail the basis therefor and stating that it is grounds for Cause, and unless
the Executive fails to cure such matter within 60 days after such notice is
sent or given under this Agreement. The Executive shall be permitted to
respond and to defend himself before the Board of Directors or any appropriate
committee thereof within a reasonable time after written notification of any
proposed termination for Cause under item (i), (ii), (iii) or (v) of this
subsection.
(c) Without Cause. During the Term, Employer may terminate the
Executive's employment Without Cause, subject to the provisions of subsection
6.2(d). Termination "Without Cause" shall mean termination of the Executive's
employment by Employer other than termination for Cause or for Disability.
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(d) Employer Breach. The Executive may terminate his employment
hereunder for Employer Breach. For purposes of this Agreement "Employer
Breach" shall mean any material breach of this Agreement by Employer, including
without limitation any material reduction in Executive's Salary; provided,
however, that a material breach of this Agreement by Employer shall not
constitute Employer Breach unless the Executive notifies Employer in writing of
the breach, specifying in reasonable detail the nature of the breach and
stating that such breach is grounds for Employer Breach, and unless Employer
fails to cure such breach within 60 days after such notice is sent or given
under this Agreement.
(e) Without Good Reason. During the Term, the Executive may
terminate his employment Without Good Reason. Termination "Without Good
Reason" shall mean termination of the Executive's employment by the Executive
other than termination for Employer Breach.
(f) Explanation of Termination of Employment. Any party
terminating this Agreement shall give prompt written notice ("Notice of
Termination") to the other party hereto advising such other party of the
termination of this Agreement. Within thirty (30) days after notification that
the Agreement has been terminated, the terminating party shall deliver to the
other party hereto a written explanation, which shall state in reasonable
detail the basis for such termination and shall indicate whether termination is
being made for Cause, Without Cause or for Disability (if Employer has
terminated the Agreement) or for Employer Breach or Without Good Reason (if the
Executive has terminated the Agreement).
(g) Date of Termination. "Date of Termination" shall mean the
date on which Notice of Termination is sent or given under this Agreement.
6.2 Compensation During Disability or Upon Termination.
(a) During Disability. During any period that the Executive fails
to perform his duties hereunder because of ill health, physical or mental
disability, or any other reason beyond his control, he shall continue to
receive his full Basic Compensation until the Date of Termination.
(b) Termination for Disability. If Employer shall terminate the
Executive's employment for Disability, Employer's obligation to pay Basic
Compensation shall terminate, except that Employer shall pay the Executive (i)
accrued but unpaid Basic Compensation through the Date of Termination, and (ii)
the benefits set forth in Section 6.2(e).
(c) Termination for Cause or Without Good Reason. If Employer
shall terminate the Executive's employment for Cause or if the Executive shall
terminate his employment Without Good Reason, then Employer's obligation to pay
Basic Compensation shall terminate, except that Employer shall pay the
Executive his accrued but unpaid Basic Compensation through the Date of
Termination.
(d) Termination Without Cause or for Employer Breach. If
Employer shall terminate the Executive's employment Without Cause or if the
Executive shall terminate his employment
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for Employer Breach, then Employer shall pay to the Executive, as severance pay
in a lump sum on the 15th day following the Date of Termination, the following
amounts:
(i) his then-unpaid Salary through the Date of
Termination at the rate in effect as of the Date of Termination; and
(ii) in lieu of any further Salary for periods subsequent
to the Date of Termination, an amount equal to the balance of
Executive's Base Salary through the remainder of the Term.
If the Executive terminates his employment for Employer Breach based upon a
material reduction by Employer of the Executive's Salary, then for purposes of
this subsection 6.2(d), the Executive's Salary as of the Date of Termination
shall be deemed to be the Executive's Salary immediately prior to the reduction
that the Executive claims as grounds for Employer Breach.
(e) Employee Benefits. Unless Employer terminates the
Executive's employment for Cause or the Executive terminates his employment
Without Good Reason, Employer shall maintain in full force and effect (to the
extent consistent with past practice), for the continued benefit of the
Executive and, if applicable, his wife and children, the Benefits that
Executive was entitled to receive immediately prior to the Date of Termination
(subject to the general terms and conditions of the plans and programs under
which he receives such benefits) for twelve months or the balance of the Term,
whichever is shorter, provided that his continued participation or, if
applicable, the participation of his wife and children, is possible under the
general terms and conditions of such plans and programs.
(f) No Mitigation. The Executive shall not be required to
mitigate the amount of any payment provided for in this Section 6.2 by seeking
other employment or otherwise.
6.3 Death of Executive. If the Executive dies prior to the
expiration of this Agreement, the Executive's employment and other obligations
under this Agreement shall automatically terminate and all compensation, to
which the Executive is or would have been entitled hereunder (including without
limitation under Section 3.1), shall terminate as of the end of the month in
which the Executive's death occurs; provided, however, that for the balance of
the Term, the Executive's wife and children shall be entitled to receive the
Benefits that they were entitled to receive immediately prior to the death of
the Executive (subject to the general terms and conditions of the plans and
programs under which they receive such benefits) for twelve months or the
balance of the Term, whichever is shorter, provided that their continued
participation is possible under the general terms and conditions of such plans
and programs.
ARTICLE VII
NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
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7.1 Acknowledgments by the Executive. The Executive acknowledges
that (a) during the Term and as a part of his employment, the Executive will be
afforded access to Confidential Information; (b) public disclosure of such
Confidential Information could have an adverse effect on the Employer and its
business; (c) because the Executive possesses substantial technical expertise
and skill with respect to the Employer's business, the Employer desires to
obtain exclusive ownership of each Employee Invention, and the Employer will be
at a substantial competitive disadvantage if it fails to acquire exclusive
ownership of each Employee Invention; (d) GAINSCO has required that the
Executive make the covenants in this Article VII as a condition to GAINSCO's
purchase of the shares of capital stock of Employer owned by Executive,
pursuant to the Stock Purchase Agreement; and (e) the provisions of this
Article VII are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information and to provide the Employer with
exclusive ownership of all Employee Inventions.
7.2 Agreements of the Executive. In consideration of the
compensation and benefits to be paid or provided to the Executive by the
Employer under this Agreement, the Executive covenants as follows:
(a) Confidentiality.
(i) During and following the Term, the Executive will
hold in confidence the Confidential Information and will not disclose
it to any Person except with the specific prior written consent of the
Employer or except as otherwise expressly permitted by the terms of
this Agreement.
(ii) Any trade secrets of the Employer will be entitled to
all of the protections and benefits under applicable law. If any
information that the Employer deems to be a trade secret is found by a
court of competent jurisdiction not to be a trade secret for purposes
of this Agreement, such information will, nevertheless, be considered
Confidential Information for purposes of this Agreement. The Executive
hereby waives any requirement that the Employer submit proof of the
economic value of any trade secret or post a bond or other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other
than as a result of a direct or indirect disclosure by the Executive.
(iv) The Executive will not remove from the Employer's
premises (except to the extent such removal is for purposes of the
performance of the Executive's duties at home or while traveling, or
except as otherwise specifically authorized by the Employer) any
document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in any other
form (collectively, the "Proprietary Items"). The Executive recognizes
that, as between the Employer and the Executive, all of the
Proprietary Items, whether or not developed by the Executive, are the
exclusive property of the Employer. Upon termination of this Agreement
by either party, or upon
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the request of the Employer during the Term, the Executive will return to the
Employer all of the Proprietary Items in the Executive's possession or subject
to the Executive's control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the Proprietary
Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Executive covenants that he will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by
the Employer, at the Employer's request and without additional
compensation, all of the Executive's right to the Employee Invention
for the United States and all foreign jurisdictions;
(iii) execute and deliver to the Employer such
applications, assignments, and other documents as the Employer may
request in order to apply for and obtain patents or other
registrations with respect to any Employee Invention in the United
States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
(v) give testimony and render any other assistance in
support of the Employer's rights to any Employee Invention.
7.3 Disputes or Controversies. The Executive recognizes that
should a dispute or controversy arising from or relating to this Agreement be
submitted for adjudication to any court, arbitration panel, or other third
party, the preservation of the secrecy of Confidential Information may be
jeopardized. All pleadings, documents, testimony, and records relating to any
such adjudication will be maintained in secrecy and will be available for
inspection by the Employer, the Executive, and their respective attorneys and
experts, who will agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited by them in writing.
ARTICLE VIII
NON-COMPETITION AND NON-INTERFERENCE
8.1 Acknowledgments by the Executive. The Executive acknowledges
that: (a) the services to be performed by him under this Agreement are of a
special, unique, unusual, extraordinary, and intellectual character; (b) the
Employer's business is currently national in scope and its services and
products are marketed throughout the United States; (c) the Employer competes
with other businesses that are or could be located in any part of the United
States; (d) GAINSCO has required that the Executive make the covenants set
forth in this Article VIII as a condition to GAINSCO's purchase of the shares
of capital stock of Employer owned by
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Executive, pursuant to the Stock Purchase Agreement; and (e) the provisions of
this Article VIII are reasonable and necessary to protect the Employer's
business.
8.2 Covenants of the Executive. In consideration of the
acknowledgments by the Executive, and in consideration of the compensation and
benefits to be paid or provided to the Executive by the Employer, the Executive
covenants that he will not, directly or indirectly:
(a) during the Term, except in the course of his employment
hereunder, directly or indirectly, engage or invest in, own, manage, operate,
finance, control, or participate in the ownership, management, operation,
financing, or control of, be employed by, associated with, or in any manner
connected with, lend the Executive's name or any similar name to, lend
Executive's credit to or render services or advice to, any business whose
products, services or activities compete in whole or in part with the products,
services or activities of the Employer, GAINSCO or any affiliate thereof
anywhere in the world; provided, however, that the Executive may purchase or
otherwise acquire up to (but not more than) five percent (5%) of any class of
securities of any enterprise involved in the Business (but without otherwise
participating in the activities of such enterprise), other than GAINSCO, if
such securities are listed on any national or regional securities exchange or
have been registered under Section 12(g) of the Securities Exchange Act of
1934; and further provided that Executive may purchase securities of GAINSCO in
those purchase windows authorized for GAINSCO's officers by the chief executive
officer of GAINSCO;
(b) during the Post-Agreement Period (as defined below), directly
or indirectly, engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be employed by, associated with, or in any manner connected with, lend the
Executive's name or any similar name to, lend Executive's credit to or render
services or advice to, any business whose products, services or activities are
involved in, directly or indirectly or in whole or in part, the Business (as
defined below) in the geographical areas in which Employer, GAINSCO or any
affiliate thereof is involved in the Business as of the date of termination of
Executive's employment hereunder and during the Post-Employment Period;
provided, however, that the Executive may purchase or otherwise acquire,
directly or indirectly, up to (but not more than) five percent of any class of
securities of any enterprise involved in the Business (but without otherwise
participating in the activities of such enterprise), if such securities are
listed on any national or regional securities exchange or have been registered
under Section 12(g) of the Securities Exchange Act of 1934;
(c) whether for the Executive's own account or for the account of
any other Person, at any time during the Term and the Post-Agreement Period,
solicit business of the same or similar type being carried on by the Employer,
from any Person known by the Executive to be a customer of the Employer,
whether or not the Executive had personal contact with such Person during and
by reason of the Executive's employment with the Employer;
(d) whether for the Executive's own account or the account of any
other Person (i) at any time during the Term and the Post-Agreement Period,
solicit, employ, or otherwise engage as an employee, independent contractor, or
otherwise, any Person who is or was an employee of
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the Employer at any time during the Term or in any manner induce or attempt to
induce any employee of the Employer to terminate his employment with the
Employer; or (ii) at any time during the Term and the Post-Agreement Period,
interfere with the Employer's relationship with any Person, including any
Person who at any time during the Term was an employee, agent, insurer, or
customer of the Employer; or
(e) at any time during or after the Term, disparage the Employer
or any of its shareholders, directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Agreement Period" means the
period beginning on the date of termination of the Executive's employment with
the Employer, plus the remainder of the Term, if any, not fulfilled by
Executive due to the termination of this Agreement by Employer for Cause or by
Executive Without Good Reason, plus three years; provided, however, that, in
the event that Executive's employment is terminated Without Cause or for
Employer Breach, the Post-Agreement Period shall terminate on the first
anniversary of the Date of Termination.
Notwithstanding anything to the contrary in this Agreement or the Stock
Purchase Agreement, in the event of a Change of Control Trigger (as defined in
the Stock Purchase Agreement), the "plus three years" tail of the
Post-Agreement Period shall be reduced in proportion to the Earnout
Consideration (as defined in the Stock Purchase Agreement) not received by the
Seller (as defined in the Stock Purchase Agreement). The three-year period
will be defined as 36 months which will then be multiplied by a fraction, the
numerator of which is the total of all payments received by Seller under
Section 2.3 of the Stock Purchase Agreement, and the denominator of which is
the Earnout Consideration, and rounded to the next whole month. By way of
example, but not of limitation, if a Change of Control Trigger occurs during
the first Earnout Period (as defined in the Stock Purchase Agreement), and as a
result thereof, Seller received $2,000,000 out of a total possible Earnout
Consideration of $10,000,000 to be received by Seller, the 36-month period of
the Post-Agreement Period shall be reduced so that it equals two-tenths of 36
months rounded to the next whole month, or 8 months; and provided further that
in no event shall the tail period be reduced to fewer than six months.
For purposes of this Section 8.2, the term "Business" means the business of
writing, underwriting, selling, claims adjusting, premium financing or acting
as an agent with respect to nonstandard private passenger automotive insurance.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against the
Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such covenant.
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The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten days after accepting any other
employment, of the identity of the Executive's employer. GAINSCO or the
Employer may notify such employer that the Executive is bound by this Agreement
and, at the Employer's election, furnish such employer with a copy of this
Agreement or relevant portions thereof.
ARTICLE IX
GENERAL PROVISIONS
9.1 Injunctive Relief and Additional Remedy. The Executive
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement (including any provision of
Articles VII and VIII) would be irreparable and that an award of monetary
damages to the Employer for such a breach would be an inadequate remedy.
Consequently, the Employer will have the right, in addition to any other rights
it may have, to obtain injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any provision of this Agreement,
and the Employer will not be obligated to post bond or other security in
seeking such relief.
9.2 Covenants of Articles VII and VIII Are Essential and
Independent Covenants. The covenants by the Executive in Articles VII and VIII
are essential elements of this Agreement, and without the Executive's agreement
to comply with such covenants, GAINSCO would not have purchased the capital
stock of Employer owned by Executive under the Stock Purchase Agreement and the
Employer would not have entered into this Agreement or employed or continued
the employment of the Executive. The Employer and the Executive have
independently consulted their respective counsel and have been advised in all
respects concerning the reasonableness and propriety of such covenants, with
specific regard to the nature of the business conducted by the Employer.
The Executive's covenants in Articles VII and VIII are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise, or against GAINSCO, will not excuse the
Executive's breach of any covenant in Articles VII or VIII.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Articles VII and
VIII.
9.3 Representations and Warranties by the Executive. The
Executive represents and warrants to the Employer that the execution and
delivery by the Executive of this Agreement do not, and the performance by the
Executive of the Executive's obligations hereunder will not, with or without
the giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute
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a default under, any agreement to which the Executive is a party or by which
the Executive is or may be bound.
9.4 Obligations Contingent on Performance. The obligations of the
Employer hereunder, including its obligation to pay the compensation provided
for herein, are contingent upon the Executive's performance of the Executive's
obligations hereunder.
9.5 Waiver. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any
delay by either party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege, and no
single or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this
Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party;
(b) no waiver that may be given by a party will be applicable except in the
specific instance for which it is given; and (c) no notice to or demand on one
party will be deemed to be a waiver of any obligation of such party or of the
right of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement.
9.6 Binding Effect; Delegation of Duties Prohibited. This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this Agreement,
being personal, may not be delegated.
9.7 Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses and facsimile numbers set forth below (or to such other addresses and
facsimile numbers as a party may designate by notice to the other parties):
If to Employer:
De La Torre Insurance Adjusters, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attention: President
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Executive:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. Stamen
Packman, Neuwahl & ▇▇▇▇▇▇▇▇▇
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GAINSCO:
GAINSCO, INC.
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Attention: Chief Executive Officer
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with a copy to:
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▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
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9.8 Entire Agreement; Amendments. This Agreement, the Stock
Purchase Agreement, and the documents executed in connection with the Stock
Purchase Agreement, contain the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
9.9 Governing Law. This Agreement will be governed by the laws of
the State of Florida without regard to conflicts of laws principles.
9.10 Jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement shall be
brought against either of the parties in
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the courts of the State of Florida, County of Miami-Dade, or, if it has or can
acquire jurisdiction, in the United States District Court for the Southern
District of Florida, and each of the parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any
action or proceeding referred to in the preceding sentence may be served on
either party anywhere in the world.
9.11 Section and Article Headings, Construction. The headings of
Sections and Articles in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" and "Article" or "Articles" refer to the corresponding Section or
Sections and Article or Articles of this Agreement unless otherwise specified.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
9.12 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or
unenforceable.
9.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
9.14 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE A JURY
TRIAL IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EXECUTIVE:
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GAINSCO, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
DE LA TORRE INSURANCE ADJUSTERS, INC.
By:
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Name: ▇▇▇▇▇▇ De la ▇▇▇▇▇
Title: President
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