Exhibit 10.74
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 1 day of October 1997,
by and between Meadow Valley Corporation, a Nevada corporation (the "Employer"),
and Xxxx X. Xxxxx (the "Employee").
The Employer hereby employs the Employee on a full-time basis, and the
Employee hereby accepts such full-time employment on the terms condition
hereinafter set forth.
1. EMPLOYMENT. Employee is employed as the Chief Operating Officer for
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the Employer. Employee shall perform all duties as outlined herein and as may be
assigned by the Employer and shall devote full time, attention and loyalty to
the affairs of the Employer. The duties of the Employee shall specifically be:
A) Oversee all operating entities of the Employer. Reporting to Xxx
Xxxxx will be each Area Manager for the Nevada, Arizona, AKR and Utah
Areas, and the Presidents of Prestressed Products Incorporated and Ready
Mix, Inc., and the Manager for the Rock & Sand Operations.
B) Assist operating units in decision-making relative to work
bidding, margins bid, and preparation and submission of estimates.
C) Assist operating units to maximize profitability by active
participation in project planning, problem-solving, partnering, and
claims/litigation preparation.
D) Assist and oversee operating budgets, capital expenditure budgets
and approve project specific budgets for use in the Company's Budget Bonus
Incentive Program.
E) Oversee and delegate as necessary administration of the Company's
equipment and other resources. The COO is responsible for decision-making
regarding the types of equipment acquired in capital purchases and leases.
F) Assist in selection and evaluation of merger and/or acquisition
opportunities of the Company.
G) Assist in formulating and executing strategic plans.
H) Any other area specifically assigned by the Chief Executive
Officer or the Board of Directors.
2. TERM. Subject to the provisions of termination provided in
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paragraph 12, the initial term of this Agreement shall commence on October 1,
1997 and terminate on September 30, 2002. This Agreement may be extended by the
mutual written agreement of the Employee and the Employer.
3. COMPENSATION. Employee shall receive a base salary of One Hundred Ten
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Thousand Dollars ($110,000.00) per year, payable in accordance with the regular
payroll practices of Employer, and subject to applicable deductions of
withholding taxes and other customary employment taxes. The Chief Executive
Officer of Employer shall review Employee's salary at a minimum annually and may
adjust Employee's salary
of 1934 and amendments thereto or similar provisions of any federal,
state or local law; or
(d) On account of Indemnified Party's conduct which is finally determined
to have been knowingly fraudulent, deliberately dishonest or willfully
in violation of applicable law for which the corporation suffered
actual financial damages; or
(e) If a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
3. CONTINUATION OF INDEMNITY. All agreements and obligations of the
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Corporation contained herein shall continue during the period Indemnified Party
is an officer or director of the Corporation or a subsidiary and thereafter so
long as Indemnified Party shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, criminal or
investigate, by reason of the fact that Indemnified party was an officer or a
director of the Corporation or any subsidiary.
4. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by
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Indemnified Party of notice of any claim or any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, in which Indemnification Party has a right to Indemnification
hereunder, Indemnified Party will notify the Corporation of the commencement
thereof. With respect to any such action, suit or proceeding as to which
Indemnified Party notifies the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) Except as otherwise provided below, to the extent that it may wish,
the Corporation jointly with any other indemnifying party will be
entitled to assume the defense thereof, with counsel satisfactory to
Indemnified Party. After notice from the Corporation to Indemnified
Party of its election to assume the defense thereof, the Corporation
will not be liable to Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnified Party shall
have the right to employ counsel in such action, suit or proceeding,
but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at
the expense of Indemnified Party, unless (i) the employment of counsel
by Indemnified Party has been authorized by the Corporation, (ii)
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Corporation and Indemnified Party in
the conduct of the defense of such action, (iii) the Corporation shall
not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel shall
be at the expense of the Corporation, or (iv) unless the Indemnified
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Party reasonably and in good faith asserts defenses and theories of
defense not asserted by the Corporation. The Corporation shall not be
entitled to assume the defense of any action, suit or proceeding
brought by or on behalf of the Corporation or as to which Indemnified
Party shall have made the conclusion provided for in (ii) or (iv)
above.
(c) The Corporation shall not be liable to indemnify Indemnified Party
under this Agreement for any amounts paid in settlement of any action
or claim effected without the Corporation's written consent. The
Corporation shall not settle any action or claim in any manner which
would impose any penalty or limitation on Indemnified Party without
Indemnified Party's written consent. Neither the Corporation or
Indemnified Party will unreasonably withhold their consent to any
proposed settlement.
5. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified Party
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will reimburse the Corporation for all reasonable expenses paid by the
Corporation in defending any civil or criminal action, suit or proceeding
against Indemnified Party in the event and only to the extent that Indemnified
Party is finally determined that Indemnified Party is not entitled to be
indemnified by the Corporation for such expenses under the Corporation's charter
or bylaws, this Agreement or under applicable law.
6. ENFORCEMENT.
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(a) The Corporation expressly confirms and agrees that it has entered into
this Agreement and assumed the obligations imposed on the Corporation
hereby in order to induce Indemnified Party to serve as an officer
and/or director of the Corporation or any subsidiary thereof, and
acknowledges that Indemnified Party is relying upon this Agreement as
part of the consideration for so acting.
(b) In the event Indemnified Party is requiring to bring any action to
enforce rights on to collect moneys due under this Agreement and is
successful in such action, the Corporation shall reimburse Indemnified
Party for all of Indemnified Party's reasonable attorneys' and other
fees and expenses in bringing and pursuing such action.
7. SEVERABILITY. Each of the provisions of this Agreement in a separate
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and distinct agreement and independent of the others, so that if any provision
hereof shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or enforceability
of the other provisions hereof.
8. GOVERNING LAW: BINDING EFFECT: AMENDMENT AND TERMINATION.
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(a) This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Arizona.
(b) This Agreement shall be binding upon Indemnified Party and upon the
Corporation, its successors and assigns, and shall inure to the
benefit of
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Indemnified Party, his heirs, personal representatives and assigns and
to the benefit of the Corporation, its successors and assigns.
(c) No amendment, modification, termination or change of this Agreement
shall be effective unless it is signed by both parties hereto.
9. ADDITIONAL RIGHTS. This Agreement is in addition to, and not in lieu
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of, any other right to indemnification under the Corporation's corporate
charter, bylaws, insurance contracts or otherwise at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year first above written.
MEADOW VALLEY CORPORATION AND
MEADOW VALLEY CONTRACTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President and Chief Executive
Officer
Indemnified Party:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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Agreement by Employer or (ii) failure of Employer to pay any amount owed
Employee hereunder at the time and in the amount due or (iii) failure of
Employer to follow applicable law, especially with respect to SEC filings
and compliance over the objection of Employee or contrary to the reasonable
advice of Employee or (iv) egregiously improper conduct with respect to
dealing with Employee or in a manner which brings discredit to Employee.
13. CONFIDENTIALITY. Employee agrees not to disclose any confidential,
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proprietary competitively sensitive information to persons who are not
employees, directors, lenders, bonding agents, insurance companies or advisors
of the Employer, except as required by law, without prior consent of the
Employer, provided however, any disclosure involving this paragraph shall not
result in a breach of this Agreement unless the disclosure has a materially
adverse effect on the Employer.
14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc. shall
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provide Employee with an Officer Indemnification Agreement in the form attached
hereto.
15. NOTICES. All notices, demands, and communications given under this
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Agreement ("Notice") shall be in writing and delivered personally or sent by
registered or certified mail, return receipt requested, in the United States
mail, postage prepaid, addressed as follows:
If to Employer:
Meadow Valley Corporation
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
If to Employee:
Xxxx X. Xxxxx
X.X. Xxx 00
Xxxxx, XX 00000
or at such other address as a party may from time to time designate by Notice
hereunder. Notice shall be effective upon delivery in person, or if mailed, at
midnight on the third business day after the date of mailing.
16. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise
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transfer this Agreement or any of its rights or obligations hereunder without
the prior written consent to such assignment or transfer by the other party
hereto; and all the provisions of this Agreement shall be binding upon the
respective employees, successors, heirs and assigns of the parties; provided,
however, the benefits payable to Employee hereunder in the event of disability
or death or incapacity are payable to Employee's spouse or personal
representative.
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17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement
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and the representations, warranties, covenants and other agreements (however
characterized or described) by both parties and contained herein or made
pursuant to the provisions hereof shall survive the execution and delivery of
this Agreement.
18. FURTHER INSTRUMENTS. The parties shall execute and deliver any and
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all such other instruments in reasonable mutually acceptable form and substance
and shall take any and all such other actions as may be reasonably necessary to
carry the intent of the Agreement into full force and effect.
19. SEVERABILITY. If any provision of this Agreement shall be held,
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declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, governmental authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory of
jurisdiction in which made.
20. WAIVER. All the rights and remedies of either party under this
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Agreement are cumulative and not exclusive of any other rights and remedies
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or occurrence.
21. GENERAL PROVISIONS. This Agreement shall be construed and enforced in
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accordance with, and governed by, the laws of the state of Arizona. Except as
otherwise expressly stated herein, time is of the essence in performing under
this Agreement. This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter of this Agreement as it relates to the parties'
duties and obligations from and after April 1, 1997, and this Agreement may not
be modified or amended or any term or provision hereof waived or discharged
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. The headings of this Agreement
are for convenience in reference only and shall not limit or otherwise affect
the meaning thereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
22. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the
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term of this Agreement, if (i) Employer is involved in a merger, consolidation
or other business combination in which Employer is not the surviving and
controlling entity; or (ii) all or substantially all the assets of Employer or
its
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principal subsidiary are sold; or (iii) in the event Employee is required to
relocate outside the Moapa, Nevada area in a manner not mutually acceptable to
Employee and Employer, then Employee shall have the following rights:
A) To terminate this Agreement with 30 days prior notice, in which
event Employer shall pay Employee as if there were a termination without
cause by the Employer; and
B) All options granted shall, to the extent not specifically
prohibited by the stock option plan then in effect, vest immediately and be
exercisable within one year of the occurring of one of the events set forth
in (i), (ii) or (iii) above.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
Meadow Valley Corporation
/s/ Xxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxx
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Employee President/CEO
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XXXXXX XXXXXX XXXXXXXXXXX XXX
XXXXXX XXXXXX CONTRACTORS, INC.
OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT
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THIS AGREEMENT ("Agreement") is entered into and effective this __ day of
_______, 19__, by and between Meadow Valley Corporation and Meadow Valley
Contractors, Inc., Nevada corporations ("Corporation"), and Xxxx X. Xxxxx
("Indemnified Party").
WHEREAS, the Board of Directors has determined that it is in the best
interest of the Corporation and its shareholders to agree to indemnify
Indemnified Party (who is a Director and/or Officer of the Corporation) from and
against certain liabilities for actions taken by him during the performance of
his tasks for the Corporation.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. INDEMNIFICATION. The Corporation hereby agrees to indemnify and hold
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harmless Indemnified Party to the maximum extent possible under all applicable
laws against any and all claims, demands, debts, duties, liabilities, judgments,
fines and amounts paid in settlement and expenses (including attorneys' fees and
expenses) actually and reasonably incurred by Indemnified Party in connection
with the investigation, defense, negotiation and settlement of any such claim or
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the Corporation) to which Indemnified Party is or becomes a party, or
is threatened to be made a party, by reason of the fact that Indemnified Party
is an officer or a director of the Corporation or any of its subsidiaries.
2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to this Agreement
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shall be made by the Corporation:
(a) For the amount of such losses for which the Indemnified Party is
indemnified pursuant to any insurance purchased and maintained by the
Corporation; or
(b) In respect to remuneration paid to Indemnified Party if it shall be
determined by a final judgment or other final adjudication that such
remuneration was in violation of law; or
(c) On account of any suit in which judgment is rendered against
Indemnified Party for an accounting of profits made (i) for an
improper personal profit without full and fair disclosure to the
Corporation of all material conflicts of interest and not approved
thereof by a majority of the disinterested members of the Board of
Directors of the Corporation; or (ii) from the purchase or sale by
Indemnified Party of securities of the Corporation pursuant to the
provisions of Section 16(b) of the Securities Exchange Act
upward to recognize improvement, achievement or expansion of Employee's
responsibilities subject to approval of the Board Compensation Committee.
Employee shall participate as a member of senior management in cash
incentive plans as currently existing or as amended or adopted in the future by
the Compensation Committee of Employer's Board of Directors. Cash bonus plans
are subject to annual review and/or change as recommended by the Compensation
Committee and approved by the Board of Directors.
4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible to participate
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in the Meadow Valley Corporation 1994 Stock Option Plan. Future grants of stock
options shall be subject to the discretion of Meadow Valley Corporation's board
of directors.
5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to the
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Employee's dependents, a comprehensive major medical, health, and dental
insurance program comparable to the programs normally provided by other
employers in the same industry and marketplace, and the Employer shall pay the
cost of the Employee's portion of the premium. Should, at any time, the Employee
opt to maintain a personal major medical and health insurance policy for
himself and for his dependents and not participate in the Employer's group plan,
then Employer shall reimburse Employee the lesser of the amount Employee pays
for said personal policy, as evidenced by adequate documentation, or what
Employer would otherwise be paying were Employee participating in the Employer's
group plan. Should the Employee opt to maintain his own coverage, neither he nor
his dependents shall be precluded from later participating in the Employer's
group plan so long as they otherwise qualify for enrollment.
At Employer's cost, Employer will maintain a life insurance policy covering
Employee, with at least $250,000 of death benefits being payable, in a manner
that is free of income tax, to Employee's estate or other beneficiaries
designated by Employee.
Employer agrees to provide Employee with an automobile for business-related
use. In addition to the cost of the vehicle itself, Employer shall pay, directly
or by reimbursement to Employee, for all maintenance, fuel, repairs, insurance,
operating and other costs incidental thereto.
Employer shall pay for, or reimburse Employee for, dues for his membership
in industry related associations perceived as beneficial to Employer and as
approved by the Chief Executive Officer.
So long as it is within the guidelines of the respective plan, Employee
shall be given the opportunity to participate in Employer's 401(k) and any other
plans made available to other members of executive management.
Employee shall be entitled to receive all other employee benefits for
senior management personnel upon the terms and conditions then in effect.
6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employer requires
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the Employee to relocate, the Employer shall pay for all moving costs of
reasonable and normal household effects, including up to six months storage of
such household effects while Employee obtains a permanent residence in the
relocation area.
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Employee shall obtain a minimum of two moving and storage quotes from reputable
movers and Employer shall pay the most competitive rate.
Employer shall provide Employee a subsistence allowance of Two Thousand
Dollars ($2,000.00) per month for the lesser of nine months from the date of
reassignment in a new location or until such time as the relocation of Employee
and his/her spouse to the relocation area is complete. In addition, costs for
one round-trip airline ticket per week between the Employee's previous location
and the relocation area will be reimbursed by Employer to Employee during the
same nine-month period, or less if relocation is completed earlier. Such tickets
may be used either by Employee or by his/her spouse.
7. HOLIDAYS AND VACATION.
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A) Employee shall be paid for the following seven (7) holidays: New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
the day after Thanksgiving, and Christmas Day and all other holidays for
Employees of the Company as approved by the Chief Executive Officer or
Board of Directors.
B) Employee is entitled to four weeks vacation during the first year
of employment and for each year thereafter. Unused vacation in any given
year shall accrue to following years up to a maximum of eight weeks in any
one year.
8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such
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reasonable time as is necessary or is deemed reasonably necessary by the
Employer to carry out all required duties and will devote full time to the
Employer during normal business hours. The Employee shall at all times
faithfully, with diligence and to the Employee's best good faith ability,
experience and talents, perform all the duties that may be required pursuant to
the express terms hereof to the reasonable satisfaction of the Employer, in
accordance with customary professional standards.
9. WORKING FACILITIES. The Employee shall be furnished with all
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facilities and services suitable to Employee's position and adequate for the
performance of Employee's duties.
10. EXPENSES. The Employee is authorized to incur reasonable expenses for
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promoting business of the Employer, including expenses for entertainment, travel
and similar items. The Employer shall reimburse the Employee for all such
expenses on the presentation by the Employee of itemized and adequately
documented accounts of such expenditures.
11. DISABILITY. If unable to perform duties under the terms of this
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Agreement by reason of illness or incapacity for a period of four weeks,
Employee shall, commencing at the end of such four week period, be entitled to
receive Employee's compensation hereunder for a period of up to and including a
maximum of one year or until he is no longer disabled, whichever occurs first.
After one year of disability at full salary, the Employee, or his designated
beneficiary, shall be provided with a disability insurance policy, if available,
at no cost to Employee. The disability income policy would provide
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for monthly income benefits at the rate of sixty percent (60%) of the Employee's
base salary at the time the disability occurred. The Company will attempt to
procure a disability income policy that would provide monthly benefits until the
Employee reaches 65 years of age or is no longer disabled whichever occurs
first. If such a policy is unavailable, the Company will attempt to provide the
best policy available. If no policy is available, no other disability income
benefits will be provided.
12. TERMINATION. This Employment Agreement may be terminated under the
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following circumstances.
A) WITHOUT CAUSE. Employer may terminate this Agreement at any time
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upon thirty (30) days written notice to Employee, but Employer shall be
obligated to pay to Employee compensation in a lump sum for the balance of
the term of this Agreement within 30 days of termination, unless Employee
agrees to other payment terms.
B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may
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terminate this Agreement at any time upon thirty (30) days written notice
to Employer and Employer shall be obligated, in that event, to pay Employee
compensation up to the date of the termination only. All accrued but unpaid
compensation and Employee benefits shall be paid in cash within 30 days of
termination, unless Employee agrees to other payment terms.
C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may
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terminate this Agreement for reasonable cause upon the unanimous vote of
the Board of Directors and by thirty (30) days written notice to the
Employee and Employer shall be obligated, in that event, to pay Employee
compensation up to the date of termination only. For purposes hereof,
"cause" shall be defined as meaning (i) such conduct by the Employee which
constitutes material breach of this Agreement which is not cured within
ninety (90) days of written notice to the Employee of said alleged breach
or (ii) a material failure to competently perform Employee's duties as
stated in paragraph 1 in accordance with applicable professional standards
as stated in paragraphs 1 and 8 hereof provided that Employer has
previously given Employee written notice and a reasonable opportunity to
remedy such failure and such failure has a materially adverse effect on the
business or financial condition of Employer or (iii) material breach of
Employee's fiduciary duty and such breach has a material adverse effect on
the business or financial condition of Employer to (iv) egregiously
improper or illegal conduct of the Employee which, based upon a unanimous
good faith determination of the Board of Directors of the Employer, has a
material adverse affect on Employer.
D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may terminate
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this Agreement for cause. In such event, Employer shall be obligated to pay
Employee compensation in lump sum for the balance of the term of this Agreement
within 30 days of termination or as Employee shall agree, plus damages suffered
and expenses incurred by reason thereof. For this purpose "cause" shall mean (i)
a material breach of this
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