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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of November 25, 2002
(the "Effective Date"), is made by and between Rexnord Corporation, a Delaware
corporation, (together with any successor thereto, the "Company") and Robert A.
Hitt (the "Executive").
RECITALS
A. It is the desire of the Company to assure itself of the services of the
Executive by engaging the Executive to perform services under the terms
hereof.
B. The Executive desires to provide services to the Company on the terms
herein provided.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
(a) "Agreement" shall have the meaning set forth in the preamble hereto.
(b) "Annual Base Salary" shall have the meaning set forth in SECTION 3(a).
(c) "Board" shall mean the Board of Directors of the Company.
(d) The Company shall have "Cause" to terminate the Executive's employment
hereunder upon:
(i) the Board's determination that the Executive failed to carry
out, or comply with, in any material respect any lawful and
reasonable directive of the Board consistent with the terms of
this Agreement, which is not remedied within 30 days after
receipt of written notice from the Company specifying such
failure;
(ii) the Executive's conviction, plea of no contest, plea of NOLO
CONTENDERE, or imposition of unadjudicated probation for any
felony;
(iii) the Executive's unlawful use (including being under the
influence) or possession of illegal drugs; or
(iv) the Executive's commission of an act of fraud, embezzlement,
misappropriation, willful misconduct, or breach of fiduciary
duty against the Company.
(e) "Company" shall have the meaning set forth in the preamble hereto.
(f) "Compensation Committee" means the Compensation Committee of the
Board.
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(g) "Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death; (ii) if the
Executive's employment is terminated pursuant to SECTIONS 4(a)(ii) -
(vi) either the date indicated in the Notice of Termination or the
date specified by the Company pursuant to SECTION 4(b), whichever is
earlier; (iii) if the Executive's employment is terminated pursuant to
SECTION 4(a)(vii) or SECTION 4(a)(viii), the expiration of the
then-applicable Term.
(h) "Disability" shall mean, at any time the Company or any of its
affiliates sponsors a long-term disability plan for the Company's
employees "disability" as defined in such long-term disability plan
for the purpose of determining a participant's eligibility for
benefits, provided, however, if the long-term disability plan contains
multiple definitions of disability, "Disability" shall refer that
definition of disability which, if the Executive qualified for such
disability benefits, would provide coverage for the longest period of
time. The determination of whether the Executive has a Disability
shall be made by the person or persons required to make disability
determinations under the long-term disability plan. At any time the
Company does not sponsor a long-term disability plan for its
employees, Disability shall mean the Executive's inability to perform,
with or without reasonable accommodation, the essential functions of
his position hereunder for a total of three months during any six
month period as a result of incapacity due to mental or physical
illness as determined by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal
representative, such agreement as to acceptability not to be
unreasonably withheld or delayed. Any refusal by the Executive to
submit to a medical examination for the purpose of determining
Disability shall be deemed to constitute conclusive evidence of the
Executive's Disability.
(i) "Effective Date" shall have the meaning set forth in the preamble
hereto.
(j) "Executive" shall have the meaning set forth in the preamble hereto.
(k) "Executive Bonus Plan" shall mean the bonus plan attached hereto as
EXHIBIT A as in effect during the term of this Agreement.
(l) (i) The Executive shall have "Good Reason" to resign his employment
upon the occurrence of any of the following:
(A) failure of the Company to continue the Executive in
the position of Chief Executive Officer and as a
member of the Board reporting to the Board with the
Executive's primary contact being the non-executive
chairman of the Board;
(B) a material diminution in the nature or scope of the
Executive's responsibilities, duties or authority;
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(C) failure of the Company to make any payment or
provide any benefit under this Agreement; or
(D) the Company's material breach of this Agreement.
(ii) The Executive may not resign his employment for Good Reason
unless:
(A) the Executive provided the Company with at least 30
days prior written notice of his intent to resign
for Good Reason; and
(B) the Company has not remedied the alleged
violation(s) within the 30-day period.
(m) "Inventions" shall have the meaning set forth in SECTION 8.
(n) "Notice of Termination" shall have the meaning set forth in SECTION
4(b).
(o) "Severance Period" shall have the meaning set forth in SECTION
5(c)(i).
(p) "Term" shall have the meaning set forth in SECTION 2(b).
2. EMPLOYMENT.
(a) The Company shall employ the Executive and the Executive shall enter
the employ of the Company, for the period set forth in SECTION 2(b),
in the position set forth in SECTION 2(c), and upon the other terms
and conditions herein provided.
(b) The initial term of employment under this Agreement (the "Initial
Term") shall be for the period beginning on the Effective Date of this
Agreement and ending on the third anniversary thereof, unless earlier
terminated as provided in SECTION 4. The employment term hereunder
shall automatically be extended for successive one-year periods
("Extension Terms" and, collectively with the Initial Term, the
"Term") unless either party gives notice of non-extension to the other
no later than 90 days prior to the expiration of the then-applicable
Term. For purposes of this Agreement, a notice of non-extension given
by the Company shall be treated as a termination of the Executive's
employment without Cause.
(c) POSITION AND DUTIES. During the term of this Agreement, the Executive
shall serve as the Chief Executive Office and as a member of the Board
of Rexnord Corporation with such customary responsibilities, duties
and authority as may from time to time be assigned to the Executive by
the Board. The Executive shall report to the Board with the
Executive's primary contact being the non-executive chairman of the
Board. The Executive shall devote substantially all his working time
and efforts to the business and affairs of the Company. The Executive
agrees to observe and comply with the Company's rules and policies as
adopted by the Company from time to time. During the Term, it shall
not be a violation of this Agreement for the Executive to (i) serve on
industry trade, civic or charitable
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boards or committees; (ii) deliver lectures or fulfill speaking
engagements; or (iii) manage personal investments, as long as such
activities do not interfere with the performance of the Executive's
duties and responsibilities as an employee of the Company. During his
employment and during the Severance Period, the Executive agrees not
to disparage in any material respect the Company, any of its products
or practices, or any of its directors, officers, agents,
representatives, stockholders or affiliates, either orally or in
writing. The Company agrees that during the Executive's employment and
during the Severance Period, none of the members of the Board of the
Company or the Officers of the Company will disparage the Executive in
any material respect, either directly or in writing to third parties.
3. COMPENSATION AND RELATED MATTERS.
(a) ANNUAL BASE SALARY. During the Term, the Executive shall receive a
base salary at a rate of $500,000 per annum, which shall be paid in
accordance with the customary payroll practices of the Company,
subject to increase as determined by the Compensation Committee (the
"Annual Base Salary"). The Executive's Annual Base Salary shall be
reviewed by the Compensation Committee annually, beginning for the
fiscal year that commences on April 1, 2004.
(b) ANNUAL BONUS. Effective as of the 2004 fiscal year and continuing
during the term of this Agreement, the Executive shall be eligible to
receive a bonus as set forth in the Executive Bonus Plan if the
Executive satisfies the performance targets and other criteria set
forth in the Executive Bonus Plan.
(c) EQUITY/MEMBERSHIP ARRANGEMENT. During the Term, the Executive shall be
entitled to participate in the Stock Option Plan of RBS Global, Inc.
and on the Effective Date shall be granted options as of the Effective
Date to purchase 78,152 shares of RBS Global, Inc. common at an
exercise price of $100 per share. The grant of stock options shall be
governed by the terms of the stock option plan and stock option
agreement (attached hereto as EXHIBIT B and EXHIBIT C, respectively).
(d) BENEFITS. The Executive shall be entitled to participate in employee
benefit plans, programs and arrangements of the Company now (or, to
the extent determined by the Board, hereafter) in effect which are
applicable to the senior officers of the Company as set forth in
EXHIBIT D attached hereto.
(e) VACATION. During the Term, the Executive shall be entitled to vacation
each calendar year in accordance with the Company's policy. Any
vacation shall be taken at the reasonable and mutual convenience of
the Company and the Executive.
(f) EXPENSES. The Company shall reimburse the Executive for all reasonable
travel and other business expenses incurred by him in the performance
of his duties to the Company in accordance with the Company's expense
reimbursement policy.
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(g) KEY PERSON INSURANCE. At any time during the Term, the Company shall
have the right to insure the life of the Executive for the Company's
sole benefit. The Company shall have the right to determine the amount
of insurance and the type of policy. The Executive shall cooperate
with the Company in obtaining such insurance by submitting to physical
examinations, by supplying all information reasonably required by any
insurance carrier, and by executing all necessary documents reasonably
required by any insurance carrier. The Executive shall incur no
financial obligation by executing any required document, and shall
have no interest in any such policy.
4. TERMINATION.
The Executive's employment hereunder may be terminated by the Company or
the Executive, as applicable, without any breach of this Agreement only under
the following circumstances:
(a) CIRCUMSTANCES.
(i) DEATH. The Executive's employment hereunder shall terminate
upon his death.
(ii) DISABILITY. If the Executive has incurred a Disability, the
Company may give the Executive written notice of its intention
to terminate the Executive's employment. In that event, the
Executive's employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive, provided that within the 30 days after such receipt,
the Executive shall not have returned to full-time performance
of his duties.
(iii) TERMINATION FOR CAUSE. The Company may terminate the
Executive's employment for Cause.
(iv) TERMINATION WITHOUT CAUSE. The Company may terminate the
Executive's employment without Cause.
(v) RESIGNATION FOR GOOD REASON. The Executive may resign his
employment for Good Reason.
(vi) RESIGNATION WITHOUT GOOD REASON. The Executive may resign his
employment without Good Reason.
(vii) NON-EXTENSION OF TERM BY THE COMPANY. The Company may give
notice of non-extension to the Executive pursuant to SECTION
2(b).
(viii) NON-EXTENSION OF TERM BY THE EXECUTIVE. The Executive may give
notice of non-extension to the Company pursuant to SECTION
2(b).
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(b) NOTICE OF TERMINATION. Any termination of the Executive's employment
by the Company or by the Executive under this SECTION 4 (other than
termination pursuant to paragraph (a)(i)) shall be communicated by a
written notice to the other party hereto indicating the specific
termination provision in this Agreement relied upon, setting forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the
provision so indicated, and specifying a Date of Termination which, if
submitted by the Executive, shall be at least 30 days following the
date of such notice (a "Notice of Termination") provided, however,
that the Company may, in its sole discretion, accelerate the Date of
Termination to any date following the Company's receipt of the Notice
of Termination. A Notice of Termination submitted by the Company may
provide for a Date of Termination on the date the Executive receives
the Notice of Termination, or any date thereafter elected by the
Company in its sole discretion. The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause or Good Reason
shall not waive any right of the Executive or the Company hereunder or
preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights
hereunder.
(c) COMPANY OBLIGATIONS UPON TERMINATION. Upon termination of the
Executive's employment, the Executive (or the Executive's estate)
shall be entitled to receive the sum of the Executive's Annual Base
Salary through the Date of Termination not theretofore paid, any
expenses owed to the Executive under SECTION 3(f), any accrued
vacation pay owed to the Executive pursuant to SECTION 3(e), and any
amount arising from the Executive's participation in, or benefits
under any employee benefit plans, programs or arrangements under
SECTION 3(d), which amounts shall be payable in accordance with the
terms and conditions of such employee benefit plans, programs or
arrangements.
5. SEVERANCE PAYMENTS.
(a) TERMINATION UPON DEATH. If the Executive's employment shall terminate
as a result of the Executive's death pursuant to SECTION 4(a)(i), the
Company shall pay to the Executive's estate a prorated amount of the
Executive's Annual Bonus based on the Company's year-to-date
performance through the Date of Termination in relation to the
performance targets and other criteria set forth in the Executive
Bonus Plan (such amount to be determined in good faith by the
Compensation Committee).
(b) TERMINATION UPON DISABILITY. If the Executive's employment shall
terminate as a result of the Executive's Disability pursuant to
SECTION 4(a)(ii), the Company shall pay to the Executive:
(i) in accordance with the Company's regular payroll practice
following the Date of Termination, an amount equal to the
Annual Base Salary that the Executive would have been entitled
to receive if the Executive had
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continued his employment for a period of six months following
the Date of Termination; and
(ii) a prorated amount of the Executive's Annual Bonus based on the
Company's year-end performance in relation to the performance
targets and other criteria set forth in the Executive Bonus
Plan, which such amount will be paid at the end of the bonus
period when the year-end performance of the Company has been
determined and bonuses are paid to other executives (such
amount to be determined in good faith by the Compensation
Committee).
(c) TERMINATION WITHOUT CAUSE OR RESIGNATION FOR GOOD REASON. If the
Executive's employment shall terminate without Cause pursuant to
SECTION 4(a)(iv) or for Good Reason pursuant to SECTION 4(a)(v), the
Company shall:
(i) pay to the Executive, in accordance with the Company's regular
payroll practice following the Date of Termination, an amount
equal to the Annual Base Salary that the Executive would have
been entitled to receive if the Executive had continued his
employment hereunder for a period of 18 months following the
Date of Termination (the "Severance Period"); and
(ii) subject to SECTION 5(e), continue to provide, during the
Severance Period, coverage for the Executive and any dependents
under all Company group health benefit plans (including health,
dental and vision coverage) in which the Executive and any
dependents were entitled to participate immediately prior to
the Date of Termination, to the extent permitted thereunder;
PROVIDED THAT, in the event of a non-extension of Term by the Company,
the time periods set forth in SECTIONS 5(c)(i) and 5(c)(ii) shall
begin to run on the Date of Termination.
(d) SURVIVAL. The expiration or termination of the Term shall not impair
the rights or obligations of any party hereto, which shall have
accrued prior to such expiration or termination.
(e) MITIGATION OF DAMAGES. In the event of any termination of the
Executive's employment by the Company other than for retirement, the
Executive shall be required to seek other employment to mitigate
damages, and any employee benefits received by the Executive from
other full-time employment or self-employment shall be offset against
any obligation of the Company to provide benefits to the Executive
pursuant to this Section 5.
6. COMPETITION.
(a) The Executive shall not, at (x) any time during the Term of this
Agreement, if this Agreement terminates pursuant to SECTION 4(a)(i) or
SECTION 4(a)(ii); (y) any time
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during the Term of this Agreement or during the Severance Period plus
six months, whichever is longer, if this Agreement terminates pursuant
to SECTION 4(a)(iv) or SECTION 4(a)(v); or (z) any time during the
Term of this Agreement or during the Term of this Agreement plus 24
months, whichever is longer, if this Agreement terminates pursuant to
SECTION 4(a)(iii) or SECTION 4(a)(vi); directly or indirectly engage
in, have any equity interest in, or manage or operate any person,
firm, corporation, partnership or business (whether as director,
officer, employee, agent, representative, partner, security holder,
consultant or otherwise) that engages in any business which competes
with any business of the Company or any entity owned by the Company
anywhere in the world PROVIDED, HOWEVER, that the Executive shall be
permitted to acquire a passive stock or equity interest in such a
business provided the stock or other equity interest acquired is not
more than five percent (5%) of the outstanding interest in such
business.
(b) During the Term of this Agreement if this Agreement terminates
pursuant to SECTION 4(a)(i) or SECTION 4(a)(ii); or during the Term of
this Agreement or during the Term of this Agreement plus 24 months,
whichever is longer, if this Agreement terminates pursuant to SECTION
4(a)(iii) through SECTION 4(a)(viii); the Executive will not, and will
not permit any of his affiliates to, directly or indirectly, recruit
or otherwise solicit or induce any employee, customer, subscriber or
supplier of the Company to terminate its employment or arrangement
with the Company, otherwise change its relationship with the Company,
or establish any relationship with the Executive or any of his
affiliates for any business purpose deemed competitive with the
business of the Company.
(c) In the event the terms of this SECTION 6 shall be determined by any
court of competent jurisdiction to be unenforceable by reason of its
extending for too great a period of time or over too great a
geographical area or by reason of its being too extensive in any other
respect, it will be interpreted to extend only over the maximum period
of time for which it may be enforceable, over the maximum geographical
area as to which it may be enforceable, or to the maximum extent in
all other respects as to which it may be enforceable, all as
determined by such court in such action.
7. NONDISCLOSURE OF PROPRIETARY INFORMATION.
(a) Except as required in the faithful performance of the Executive's
duties hereunder or pursuant to SECTION 7(c), the Executive shall, in
perpetuity, maintain in confidence and shall not directly, indirectly
or otherwise, use, disseminate, disclose or publish, or use for his
benefit or the benefit of any person, firm, corporation or other
entity any confidential or proprietary information or trade secrets of
or relating to the Company, including, without limitation, information
with respect to the Company's operations, processes, products,
inventions, business practices, finances, principals, vendors,
suppliers, customers, potential customers, marketing methods, costs,
prices, contractual relationships, regulatory status, compensation
paid to employees or other terms of employment, or deliver to any
person, firm, corporation or other entity any document, record,
notebook,
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computer program or similar repository of or containing any such
confidential or proprietary information or trade secrets. The parties
hereby stipulate and agree that as between them the foregoing matters
are important, material and confidential proprietary information and
trade secrets and affect the successful conduct of the businesses of
the Company (and any successor or assignee of the Company).
(b) Upon termination of the Executive's employment with the Company for
any reason, the Executive will promptly deliver to the Company all
correspondence, drawings, manuals, letters, notes, notebooks, reports,
programs, plans, proposals, financial documents, or any other
documents concerning the Company's customers, business plans,
marketing strategies, products or processes.
(c) The Executive may respond to a lawful and valid subpoena or other
legal process but shall give the Company the earliest possible notice
thereof, shall, as much in advance of the return date as possible,
make available to the Company and its counsel the documents and other
information sought and shall assist such counsel in resisting or
otherwise responding to such process.
8. INVENTIONS.
All rights to discoveries, inventions, improvements and innovations
(including all data and records pertaining thereto) related to the Company's
business, whether or not patentable, copyrightable, registrable as a trademark,
or reduced to writing, that the Executive may discover, invent or originate
during the Term, and for a period of 12 months thereafter, either alone or with
others and whether or not during working hours or by the use of the facilities
of the Company ("Inventions"), shall be the exclusive property of the Company.
The Executive shall promptly disclose all Inventions to the Company, shall
execute at the request of the Company any assignments or other documents the
Company may deem necessary to protect or perfect its rights therein, and shall
assist the Company, at the Company's expense, in obtaining, defending and
enforcing the Company's rights therein. The Executive hereby appoints the
Company as his attorney-in-fact to execute on his behalf any assignments or
other documents deemed necessary by the Company to protect or perfect its rights
to any Inventions.
9. INJUNCTIVE RELIEF.
It is recognized and acknowledged by the Executive that a breach of the
covenants contained in SECTIONS 6, 7 and 8 will cause irreparable damage to
Company and its goodwill, the exact amount of which will be difficult or
impossible to ascertain, and that the remedies at law for any such breach will
be inadequate. Accordingly, the Executive agrees that in the event of a breach
of any of the covenants contained in SECTIONS 6, 7 and 8, in addition to any
other remedy which may be available at law or in equity, the Company will be
entitled to specific performance and injunctive relief.
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10. ASSIGNMENT AND SUCCESSORS.
The Company may assign its rights and obligations under this Agreement to
any entity, including any successor to all or substantially all the assets of
the Company, by merger or otherwise, and may assign or encumber this Agreement
and its rights hereunder as security for indebtedness of the Company and its
affiliates. The Executive may not assign his rights or obligations under this
Agreement to any individual or entity. This Agreement shall be binding upon and
inure to the benefit of the Company, the Executive and their respective
successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
11. GOVERNING LAW.
This Agreement shall be governed, construed, interpreted and enforced in
accordance with the substantive laws of the state of Delaware, without reference
to the principles of conflicts of law of Delaware or any other jurisdiction, and
where applicable, the laws of the United States.
12. VALIDITY.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
13. NOTICES.
Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
(a) If to the Company:
Rexnord Corporation
________________
________________
________________
Fax:
Attn:
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with a copy to:
TC Group, L.L.C.
1001 Pennsylvania Avenue, N.W.
Suite 220 South
Washington, D.C. 20004
Fax:
Attn:
and a copy to:
Latham & Watkins
555 Eleventh Street, N.W.
10th Floor
Fax: (202) 637-2201
Attn: Daniel T. Lennon
(b) If to the Executive:
Robert A. Hitt
________________
________________
or at any other address as any party shall have specified by notice in
writing to the other party.
14. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, but all of which together will constitute one and
the same Agreement.
15. ENTIRE AGREEMENT.
The terms of this Agreement and the other agreements and instruments
contemplated hereby or referred to herein (collectively the "Related
Agreements") are intended by the parties to be the final expression of their
agreement with respect to the employment of the Executive by the Company and may
not be contradicted by evidence of any prior or contemporaneous agreement. The
parties further intend that this Agreement and the Related Agreements shall
constitute the complete and exclusive statement of their terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding to vary the terms of this Agreement and the Related
Agreements.
16. SOLE EMPLOYMENT AGREEMENT.
The Executive acknowledges and agrees that he has taken all actions
required under the terms of any prior employment agreement with Rexnord
Corporation, Invensys, plc or any of
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their subsidiaries, predecessors or affiliates in order to terminate that
employment and that, to the best of his knowledge, the provisions contained in
that employment agreement do not bind the Company.
17. AMENDMENTS; WAIVERS.
This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and a duly authorized officer of
Company. By an instrument in writing similarly executed, the Executive or a duly
authorized officer of the Company may waive compliance by the other party or
parties with any provision of this Agreement that such other party was or is
obligated to comply with or perform, provided, however, that such waiver shall
not operate as a waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right, remedy, or
power hereunder preclude any other or further exercise of any other right,
remedy, or power provided herein or by law or in equity.
18. NO INCONSISTENT ACTIONS.
The parties hereto shall not voluntarily undertake or fail to undertake any
action or course of action inconsistent with the provisions or essential intent
of this Agreement. Furthermore, it is the intent of the parties hereto to act in
a fair and reasonable manner with respect to the interpretation and application
of the provisions of this Agreement.
19. CONSTRUCTION.
This Agreement shall be deemed drafted equally by both the parties. Its
language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party
shall not apply. The headings in this Agreement are only for convenience and are
not intended to affect construction or interpretation. Any references to
paragraphs, subparagraphs, sections or subsections are to those parts of this
Agreement, unless the context clearly indicates to the contrary. Also, unless
the context clearly indicates to the contrary, (a) the plural includes the
singular and the singular includes the plural; (b) "and" and "or" are each used
both conjunctively and disjunctively; (c) "any," "all," "each," or "every" means
"any and all," and "each and every"; (d) "includes" and "including" are each
"without limitation"; (e) "herein," "hereof," "hereunder" and other similar
compounds of the word "here" refer to the entire Agreement and not to any
particular paragraph, subparagraph, section or subsection; and (f) all pronouns
and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the entities or persons referred
to may require.
20. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before an
arbitrator in Wisconsin in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitration award in
any court having jurisdiction, provided, however, that the Company shall be
entitled to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of the provisions of
SECTIONS 6, 7 or 8 of the Agreement and the Executive hereby consents that such
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restraining order or injunction may be granted without requiring the Company to
post a bond. Only individuals who are (i) lawyers engaged fulltime in the
practice of law; and (ii) on the AAA register of arbitrators shall be selected
as an arbitrator. Within 20 days of the conclusion of the arbitration hearing,
the arbitrator shall prepare written findings of fact and conclusions of law. It
is mutually agreed that the written decision of the arbitrator shall be valid,
binding, final and non-appealable, provided however, that the parties hereto
agree that the arbitrator shall not be empowered to award punitive damages
against any party to such arbitration. The arbitrator's fees and expenses will
be borne equally by each party. In the event that an action is brought to
enforce the provisions of this Agreement pursuant to this SECTION 20, each party
shall pay its own attorney's fees and expenses regardless of whether in the
opinion of the court or arbitrator deciding such action there is a prevailing
party.
21. ENFORCEMENT.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
22. WITHHOLDING.
The Company shall be entitled to withhold from any amounts payable under
this Agreement any federal, state, local or foreign withholding or other taxes
or charges which the Company is required to withhold. The Company shall be
entitled to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
23. EMPLOYEE ACKNOWLEDGEMENT.
The Executive acknowledges that he has read and understands this Agreement,
is fully aware of its legal effect, has not acted in reliance upon any
representations or promises made by the Company other than those contained in
writing herein, and has entered into this Agreement freely based on his own
judgment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
COMPANY
By: /s/ Praveen Jeyarajah
--------------------------------
Name:
Title:
EXECUTIVE
By:
--------------------------
Name: Robert A. Hitt
Address: 135 South 84th Street, Suite 111
Milwaukee, WI 53214
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