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Exhibit
10.1
Execution
Version
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(this “ Agreement ”) is entered into as of this
2nd day of April, 2008, (the “ Signing Date ”),
by and between Perini Corporation , a Massachusetts
corporation (herein referred to as “ Employer
”), and Ronald N. Tutor , an individual (“
Executive ”).
WHEREAS, on the Signing Date,
Employer is entering into that certain Agreement and Plan of Merger
(the “ Merger Agreement ”) by and among the
Employer, Trifecta Acquisition LLC, a California limited liability
company and a wholly-owned subsidiary of Employer (“
Merger Sub ”), Tutor-Saliba Corporation, a California
corporation (the “ Company ”), Executive and
shareholders of the Company;
WHEREAS, Employer, Merger Sub
and the Company intend to effect a merger of the Company with and
into Merger Sub (the “ Merger ”), with Merger
Sub to be the surviving entity of the Merger and a wholly-owned
Subsidiary of Employer;
WHEREAS, as a condition to
entering into the Merger Agreement, the Employer and Executive
desire to enter into this Agreement (contingent on the closing of
the transactions contemplated hereby) to set out the terms and
conditions for the continued employment relationship of Executive
with the Employer.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the parties
hereto agree as follows:
Section 1. Effectiveness.
This Agreement shall become effective on, and not effective until,
the Closing Date (as defined in the Merger Agreement) (the “
Effective Date ”). This Agreement shall automatically
terminate upon termination of the Merger Agreement.
Section 2. Employment
Agreement . On the terms and conditions set forth in this
Agreement, the Employer agrees to continue to employ Executive and
Executive agrees to continue to be employed by the Employer for the
Employment Period set forth in Section 3 and in the
positions and with the duties set forth in Section 4 .
Terms used herein with initial capitalization not otherwise defined
are defined in Section 27 .
Section 3. Term . The
initial term of employment under this Agreement shall be for a
five-year period commencing on the Effective Date (the “
Initial Term ”). The term of employment shall be
automatically extended for an additional consecutive 12-month
period (the “ Extended Term ”) on the fifth
anniversary of the Effective Date and each subsequent anniversary,
unless and until the Employer or Executive provides written notice
to the other party in accordance with Section 14 hereof
not less than 90 days before such anniversary date that such party
is electing not to extend the term of employment under this
Agreement (“ Non-Renewal ”), in which case the
term of employment hereunder shall end as of the end of such
Initial Term or Extended Term, as the case may be, unless sooner
terminated as hereinafter set forth. Such Initial Term and all such
Extended Terms are collectively referred to herein as the “
Employment Period .”
Section 4. Position and
Duties . During the Employment Period, Executive shall serve as
the Chief Executive Officer of the Employer, as a member of the
Employer’s Board of Directors (the “ Board
”) and as Chairman of the Board. In such capacities,
Executive shall report exclusively to the Board and shall be the
most senior executive officer of the Employer and shall have the
duties, responsibilities and authorities customarily associated
with the positions of chairman of the board of directors and chief
executive officer of a company the size and nature of the Employer,
including, without limitation, oversight of the Employer’s
day-to-day operations. Executive shall use his good faith efforts
to assist the Employer in developing a long-term succession plan
and assisting in its implementation. Executive shall devote
Executive’s reasonable best efforts and full business time to
the performance of Executive’s duties hereunder and the
advancement of the business and affairs of the Employer; provided
that Executive shall be entitled (i) with the consent of the
Board (which shall not be unreasonably withheld), to serve as a
member of the board of directors of a reasonable number of other
companies, (ii) to serve on civic, charitable, educational,
religious, public interest or public service boards (including,
without limitation, the USC Board of Trustees), and (iii) to
manage Executive’s personal and family investments, in each
case, to the extent such activities, individually or in the
aggregate, do not materially interfere with the performance of
Executive’s duties and responsibilities hereunder.
Section 5. Place of
Performance . During the Employment Period, Executive shall be
based primarily at the offices of the Employer as of the Effective
Time near Los Angeles, California, or from the principal executive
offices of the Employer in Las Vegas, Nevada, at such time as the
primary office of Employer is established in Las Vegas, except for
reasonable travel on the Employer’s business consistent with
Executive’s positions.
Section 6. Compensation
and Benefits .
(a) Base Salary .
During the Employment Period, the Employer shall pay to Executive a
base salary (the “ Base Salary ”) at the rate of
no less than $1,500,000 per calendar year, less applicable
deductions, and prorated for any partial year. The Base Salary
shall be reviewed for increase by the Employer no less frequently
than annually and shall be increased in the discretion of the
Employer and any such adjusted Base Salary shall constitute the
“Base Salary” for purposes of this Agreement. The Base
Salary shall be paid in substantially equal installments in
accordance with the Employer’s regular payroll procedures.
Executive’s Base Salary may not be decreased during the
Employment Period.
(b) Annual Bonus .
Executive shall be paid an annual cash performance bonus (an
“ Annual Bonus ”) in respect of each calendar
year that ends during the Employment Period, to the extent earned
based on performance against objective performance criteria. The
performance criteria for any particular calendar year shall be
established by the Compensation Committee of the Board (the “
Compensation Committee ”) no later than 90 days after
the commencement of such calendar year. Executive’s Annual
Bonus for a calendar year shall equal 175% of his Base Salary for
that year if target levels of performance for that year (as
established by the Compensation Committee when the performance
criteria for that year are established) are achieved, with greater
or lesser amounts (including zero) paid for performance above and
below target (such greater and lesser amounts to be determined by a
formula established by the Compensation Committee for that year
when it established the targets and performance criteria for that
year). Executive’s Annual Bonus for a calendar year
shall
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be determined by the Compensation
Committee after the end of the calendar year and shall be paid to
Executive when annual bonuses for that year are paid to other
senior executives of the Employer generally, but in no event later
than March 15 of the following calendar year. In carrying out
its functions under this Section 6(b) , the
Compensation Committee shall at all times act reasonably and in
good faith, and shall consult with Executive to the extent
appropriate.
(c) Equity
Compensation . Executive will be considered at a level
appropriate for his positions with the Employer for participation
in the Employer’s company-wide equity incentive plan to be
adopted after the Effective Date, including the potential grant of
restricted stock units of the Employer (the “ Restricted
Stock Units ”). Subject to the terms of this Agreement,
any Restricted Stock Units that are granted shall be governed by a
restricted stock unit agreement in substantially the form used by
the Employer for awards of restricted stock units to other senior
executives.
(d) Other Incentives .
Executive shall be eligible for other or additional long-term
incentives in the sole and absolute discretion of the Compensation
Committee and/or the Board. Such incentive awards (if any) shall be
at a level, and on terms and conditions, that are commensurate with
Executive’s positions and responsibilities at the Employer
and appropriate in light of corresponding awards to other senior
executives of the Employer (but without regard to any special or
one-time grants to other senior executives, including any sign-on
or special retention grants). Except as otherwise provided herein,
Executive shall not be entitled to participate in any other
compensation, bonus, retention or incentive program, except as may
be explicitly determined by the Board or the Compensation Committee
in its sole and absolute discretion.
(e) Perquisites .
During the Employment Period, Executive shall be entitled to 150
hours of flying time per calendar year of personal use of the
Business Boeing Jet 737-700 Reg. No. N315TS, S/N 30772 (“
BBJ ”) with any unused balance being carried forward
to subsequent calendar years in the Employment Period. Executive
shall also be provided with use of an automobile and driver, and
use of an apartment in Las Vegas, Nevada, in each case on terms and
conditions to be determined by the Board. During the Employment
Period, Executive shall, in addition to the foregoing, also be
entitled to (i) to participate in all fringe benefits and
perquisites made available generally to senior executives of the
Employer, such participation to be at levels, and on terms and
conditions, that are commensurate with his positions and
responsibilities at the Employer, and (ii) to receive such
additional fringe benefits and perquisites as the Employer may, in
its sole and absolute discretion, from time to time
provide.
(f) Vacation; Benefits
. Executive shall be entitled to 30 vacation days during each
calendar year in the Employment Period, such vacation to be
accrued, taken and carried over in accordance with the policies of
the Employer. During the Employment Period, Executive will be
entitled to participate in all pension, retirement, profit sharing,
savings, 401(k), income deferral, life insurance, disability
insurance, accidental death and dismemberment protection, travel
accident insurance, hospitalization, medical, dental, vision and
other employee benefit plans, programs and arrangements that may
from time to time be made available generally to other senior
executives of the Employer, all to the extent Executive is eligible
under the terms of such plans, programs and arrangements.
Executive’s participation in all such plans, programs and
arrangements shall be at a level, and on terms and conditions, that
are commensurate with his positions and responsibilities at the
Employer. In addition, the Employer shall, as promptly as
reasonably practicable after the Effective Date and with
Executive’s full cooperation, obtain on behalf of Executive
life insurance coverage under
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term or ordinary life insurance
polici(es) (at Executive’s choice) with an aggregate annual
premium cost not to exceed $175,000. Except for the immediately
preceding sentence, nothing in this Section 6 shall be
construed to require the Employer to establish or maintain any
particular employee benefit plan, program or
arrangement.
Section 7. Expenses .
Executive is expected and is authorized to incur reasonable
expenses in the performance of his duties hereunder. The Employer
shall reimburse Executive for all such expenses reasonably and
actually incurred in accordance with policies which may be adopted
from time to time by the Employer promptly upon periodic
presentation by Executive of an itemized account, including
reasonable substantiation, of such expenses. Unless the
Employer’s financial condition materially declines from that
existing at the Effective Date, the Employer shall maintain for
Executive’s business use an aircraft similar to the aircraft
historically used by the Company prior to the Effective
Date.
Section 8.
Confidentiality, Non-Disclosure and Non-Competition
Agreement . The Employer and Executive acknowledge and agree
that during Executive’s employment with the Employer,
Executive will have access to and may assist in developing
Confidential Information and will occupy a position of trust and
confidence with respect to the Employer’s affairs and
business and the affairs and business of its Affiliates. Executive
agrees that the following obligations are necessary to preserve the
confidential and proprietary nature of Confidential Information and
to protect the Employer and its Affiliates against harmful
solicitation of employees and customers, harmful competition and
other actions by Executive that would result in serious adverse
consequences for the Employer and any of its Affiliates:
(a) Non-Disclosure .
During and after Executive’s employment with the Employer,
Executive will not knowingly use, disclose or transfer any
Confidential Information other than as authorized in writing by the
Employer or within the scope of Executive’s duties with the
Employer as determined reasonably and in good faith by Executive.
Anything herein to the contrary notwithstanding, the provisions of
this Section 8(a) shall not apply (i) when
disclosure is required by law or by any court, arbitrator, mediator
or administrative or legislative body (including any committee
thereof) with actual or apparent jurisdiction to order Executive to
disclose or make accessible any information; (ii) to the
extent necessary in connection with any other litigation,
arbitration or mediation involving this Agreement, including, but
not limited to, the enforcement of this Agreement; (iii) as to
information that becomes generally known to the public or within
the relevant trade or industry other than due to Executive’s
violation of this Section 8(a) ; or (iv) as to
information that is or becomes available to Executive on a
non-confidential basis from a source that is entitled to disclose
it to Executive.
(b) Materials .
Executive will not remove any Confidential Information or any other
property of the Employer or any of its Affiliates from the
Employer’s premises or make copies of such materials except
for normal and customary use in the Employer’s business as
determined reasonably and in good faith by Executive. The Employer
acknowledges that Executive, in the ordinary course of his duties,
routinely uses and stores Confidential Information at home and
other locations. Executive will return to the Employer all
Confidential Information and copies thereof and all other property
of the Employer or any of its Affiliates at any time upon the
request of the Employer and in any event promptly after termination
of Executive’s employment. Executive agrees to identify and
return to the Employer any copies of
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any Confidential Information within
Executive’s control after Executive ceases to be employed by
the Employer. Anything to the contrary notwithstanding, nothing in
this Section 8 shall prevent Executive from retaining a
home computer, papers and other materials of a personal nature,
including diaries, calendars and Rolodexes, information relating to
his compensation or relating to reimbursement of expenses,
information that he reasonably believes may be needed for tax
purposes, and copies of plans, programs and agreements relating to
his employment.
(c) Developments .
Executive shall, promptly upon reasonable request, disclose to the
Employer all inventions (whether patentable or not), trade secrets,
trademark concepts, and advertising and marketing concepts
(collectively, hereinafter referred to as “
Developments ”), that he makes, alone or with others,
during his employment with Employer or any of its Affiliates
relating to any of their businesses. Employer will exclusively own
all Developments. Executive hereby assigns to the Employer all
rights that he has or acquires in any Developments, and he will
execute any documents and take any actions as reasonably requested
by the Employer necessary to effect that assignment. Executive need
not incur any cost related to that assignment or the creation of
any related intellectual property rights. The parties agree that
Developments are Confidential Information. Both during the
Employment Period and thereafter, Executive shall fully cooperate
with the Employer’s reasonable requests in the protection and
enforcement of any intellectual property rights that relate to
services performed by Executive for the Employer or any of its
Affiliates, whether under the terms of this Agreement or otherwise.
This shall include, upon reasonable request by the Employer,
executing, acknowledging, and delivering to Employer all documents
or papers that may be necessary to enable Employer to publish or
protect such intellectual property rights. The Employer shall bear
all costs in connection with Executive’s compliance with the
terms of this provision.
(d) Cooperation .
During the Employment Period and thereafter Executive will, upon
reasonable request and subject to such reasonable condition as
Executive may reasonably establish: (a) cooperate with the
Employer in connection with any matter that arose during
Executive’s employment and that relates to the business or
operations of the Employer or any of its Affiliates, or of which
Executive may have any knowledge or involvement; and
(b) consult with and provide information to the Employer and
its representatives concerning such matters. Such cooperation shall
be rendered at reasonable times and places and in a manner that
does not unreasonably interfere with any other employment in which
Executive may then be engaged. Nothing in this Agreement shall be
construed or interpreted as requiring Executive to provide any
testimony or affidavit that is not truthful.
(e) No Solicitation or
Hiring of Employees . During the Non-Compete Period, Executive
shall not solicit, entice, persuade or induce any individual who is
employed by the Employer or any of its Affiliates (or who was so
employed within 180 days prior to Executive’s action) to
terminate or refrain from continuing such employment or to become
employed by or enter into contractual relations with any other
individual or entity other than the Employer or any of its
Affiliates, and Executive shall not hire, directly or indirectly,
as an employee, consultant or otherwise, any such person. Anything
to the contrary notwithstanding, the Employer agrees that
(i) Executive’s responding to an unsolicited request
from any former employee of the Employer for advice on employment
matters; and (ii) Executive’s responding to an
unsolicited request for an employment reference regarding any
former employee of the Employer from such former employee, or from
a third party, by providing a reference setting forth his personal
views about such former employee, shall not be deemed a violation
of this Section 8(e) .
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(f) Non-Competition
.
(i) During the Non-Compete
Period, Executive shall not, directly or indirectly,
(A) solicit or encourage any client or customer of the
Employer or any of its Affiliates, or any person or entity who was
such a client or customer within 180 days prior to
Executive’s action to terminate, reduce or alter in a manner
adverse to the Employer or any of its Affiliates, any existing
business arrangements with the Employer or any of its Affiliates or
to transfer existing business from the Employer or any of its
Affiliates to any other person or entity, (B) provide services
in any capacity to any entity if (i) the entity competes with
the Employer or any of its Affiliates by engaging in any business
engaged in by the Employer or any of its Affiliates in any country
in which the Employer or its Affiliates engages in such business,
or (ii) the services to be provided by Executive are
competitive with the Employer and substantially similar to those
previously provided by Executive to the Employer or any of its
Affiliates; or (C) own an interest in any entity described in
subsection (B)(i) immediately above; provided, however, that
Executive may own, as a passive investor, securities of any such
entity that has outstanding publicly traded securities so long as
his direct holdings in any such entity shall not in the aggregate
constitute more than 5% of the voting power of such entity.
Executive agrees that, before providing services, whether as an
employee or consultant, to any entity during the Non-Compete
Period, he will provide a copy of this Agreement to such entity,
and such entity shall acknowledge to the Employer in writing that
it has read this Agreement. Executive acknowledges that this
covenant has a unique, very substantial and immeasurable value to
the Employer, that Executive has sufficient assets and skills to
provide a livelihood for Executive while such covenant remains in
force and that, as a result of the foregoing, in the event that
Executive breaches such covenant, monetary damages would be an
insufficient remedy for the Employer and equitable enforcement of
the covenant would be proper.
(ii) If the restrictions
contained in Section 8(f)(i) shall be determined by any
court of competent jurisdiction to be unenforceable by reason of
their extending for too great a period of time or over too great a
geographical area or by reason of their being too extensive in any
other respect, Section 8(f)(i) shall be modified to be
effective for the maximum period of time for which it may be
enforceable and over the maximum geographical area as to which it
may be enforceable and to the maximum extent in all other respects
as to which it may be enforceable.
(g) Publicity . During
the Employment Period, Executive hereby grants to the Employer the
right to use, in a reasonable and appropriate manner,
Executive’s name and likeness, without additional
consideration, on, in and in connection with technical, marketing
or disclosure materials, or any combination thereof, published by
or for the Employer or any of its Affiliates.
(h) Conflicting
Obligations and Rights . Executive agrees to inform the
Employer of any apparent conflicts between Executive’s work
for the Employer and any obligations Executive may have to preserve
the confidentiality of another’s proprietary information or
related materials before using the same on the Employer’s
behalf. The Employer shall receive such disclosures in confidence
and consistent with the objectives of avoiding any conflict of
obligations and rights or the appearance of any conflict of
interest.
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(i) Enforcement .
Executive acknowledges that in the event of any breach of this
Section 8 , the business interests of the Employer and
its Affiliates will be irreparably injured, the full extent of the
damages to the Employer and its Affiliates will be impossible to
ascertain, monetary damages will not be an adequate remedy for the
Employer and its Affiliates, and the Employer will be entitled to
enforce this Agreement by a temporary, preliminary and/or permanent
injunction or other equitable relief, without the necessity of
posting bond or security, which Executive expressly waives.
Executive understands that the Employer may waive some of the
requirements expressed in this Agreement, but that such a waiver to
be effective must be made in writing and should not in any way be
deemed a waiver of the Employer’s right to enforce any other
requirements or provisions of this Agreement. Executive agrees that
each of Executive’s obligations specified in this Agreement
is a separate and independent covenant and that the
unenforceability of any of them shall not preclude the enforcement
of any other covenants in this Agreement. Executive further agrees
that any breach of this Agreement by the Employer prior to the Date
of Termination shall not release Executive from compliance with his
obligations under this Section 8 , so along as the
Employer fully complies with Section 10 ,
Section 11 , Section 12 , and
Section 13 .
Section 9. Termination of
Employment .
(a) Permitted
Terminations . Executive’s employment hereunder may be
terminated during the Employment Period under the following
circumstances:
(i) Death . The
Employment Period and Executive’s employment hereunder shall
terminate upon Executive’s death;
(ii) By the Employer .
The Employer may terminate the Employment Period and
Executive’s employment:
(A) Disability . If
Executive has been substantially unable to perform
Executive’s material duties hereunder by reason of illness,
physical or mental disability or other similar incapacity, which
inability shall continue for 180 consecutive days or 270 days in
any 24-month period (a “ Disability ”)
(provided, that until such termination, Executive shall continue to
receive his compensation and benefits hereunder, reduced by any
benefits payable to him under any disability insurance policy or
plan applicable to him or her); or
(B) Cause . For Cause
or without Cause;
(iii) By Executive .
Executive may terminate the Employment Period and his employment
for any reason (including Good Reason) or for no reason.
(b) Termination . Any
termination of Executive’s employment by the Employer or
Executive (other than because of Executive’s death) shall be
communicated by written Notice of Termination to the other party
hereto in accordance with Section 14 hereof. For
purposes of this Agreement, a “ Notice of Termination
” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon, if any, and
shall set forth in reasonable
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detail the facts and circumstances
claimed to provide a basis for termination of Executive’s
employment under the provision so indicated. Termination of
Executive’s employment shall take effect on the Date of
Termination. Executive agrees, in the event of any dispute under
Section 9(a)(ii)(A) as to whether a Disability exists,
and if requested by the Employer, to submit to a physical
examination by a licensed physician selected by mutual consent of
the Employer and Executive (which shall not unreasonably be
withheld), the cost of such examination to be paid by the Employer.
The written medical opinion of such physician shall be conclusive
and binding upon each of the parties hereto as to whether a
Disability exists and the date when such Disability arose. This
Section shall be interpreted and applied so as to comply with the
provisions of the Americans with Disabilities Act and any
applicable state or local laws.
Section 10. Compensation
Upon Termination .
(a) Death . If
Executive’s employment is terminated during the Employment
Period as a result of Executive’s death, this Agreement and
the Employment Period shall terminate without further notice or any
action required by the Employer or Executive’s legal
representatives. Upon Executive’s death during the Employment
Period, the Employer shall pay or provide the following:
(i) Executive’s Base Salary due through the Date of
Termination, (ii) all Accrued Benefits, if any, to which
Executive is entitled as of the Date of Termination at the time
such payments are due, and (iii) all outstanding equity awards
held by Executive immediately prior to his termination shall
immediately vest (with outstanding options remaining exercisable
for the length of their remaining term). Except as set forth
herein, the Employer shall have no further obligation to Executive
under this Agreement.
(b) Disability . If
the Employer terminates Executive’s employment during the
Employment Period because of Executive’s Disability, the
Employer shall pay or provide the following:
(i) Executive’s Base Salary due through the Date of
Termination, (ii) all Accrued Benefits, if any, to which
Executive is entitled as of the Date of Termination at the time
such payments are due, and (iii) all outstanding equity awards
held by Executive immediately prior to his termination shall
immediately vest (with outstanding options remaining exercisable
for the length of their remaining term). Except as set forth
herein, the Employer shall have no further obligations to Executive
under this Agreement.
(c) Termination by the
Employer for Cause or by Executive without Good Reason . If,
during the Employment Period, the Employer terminates
Executive’s employment for Cause pursuant to
Section 9(a)(ii)(B) or Executive terminates his
employment without Good Reason, the Employer shall pay to Executive
Executive’s Base Salary due through the Date of Termination
and all Accrued Benefits, if any, to which Executive is entitled as
of the Date of Termination, at the time such payments are due, and
Executive’s rights with respect to equity or equity-related
awards shall be governed by the applicable terms of the related
plan or award agreement.
(d) Termination by the
Employer without Cause or by Executive with Good Reason .
Subject to Section 10(e) , if the Employer terminates
Executive’s employment during the Employment Period other
than for Cause or Disability pursuant to Section 9(a)
or if Executive terminates his employment hereunder with Good
Reason: (i) the Employer shall pay Executive
(A) Executive’s Base Salary due through the Date of
Termination, (B) a Pro Rata
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Bonus at the time other executives of
the Employer receive annual bonuses for the calendar year in which
the Date of Termination occurs, (C) all Accrued Benefits, if
any, to which Executive is entitled as of the Date of Termination,
in each case at the time such payments are due and (D) a cash
lump sum in an amount equal to two times the sum of
Executive’s Base Salary and Target Bonus for the year of
termination, (ii) all outstanding equity awards held by
Executive immediately prior to his termination shall immediately
vest (with outstanding options remaining exercisable for the length
of their remaining term), and (iii) Executive and his covered
dependents shall be entitled to continued participation on the same
terms and conditions as applicable immediately prior to
Executive’s Date of Termination for 24 months; provided that
if such continued coverage is not permitted under the terms of such
benefit plans, the Employer shall pay Executive an additional
amount that, on an after-tax basis, is equal to the cost of
comparable coverage obtained by Executive.
(e) Change in Control
. This Section 10(e) shall apply if there is (i) a
termination of Executive’s employment by the Employer other
than for Cause or Disability pursuant to Section 9(a)
or by Executive for Good Reason during the two-year period after a
Change in Control or (ii) a termination of Executive’s
employment by the Employer prior to a Change in Control, if the
termination was at the request of a third party or otherwise arose
in anticipation of a Change in Control. If any such termination
occurs, Executive shall receive benefits set forth in
Section 10(d) , except that (i) in lieu of the
lump-sum payment under Section 10(d)(i)(D) , Executive
shall receive in a lump sum after the termination of his employment
an amount equal to three multiplied by the sum of
(A) Executive’s Base Salary and
(B) Executive’s Target Bonus and (ii) the benefits
described in Section 10(d)(iii) shall be continued for
the greater of 36 months or the balance of the Employment Period.
Notwithstanding anything to the contrary herein, this
Section 10(e) shall not apply upon Executive’s
death.
(f) Liquidated Damages
. The parties acknowledge and agree that damages which will result
to Executive for termination by the Employer of Executive’s
employment without Cause or by Executive for Good Reason shall be
extremely difficult or impossible to establish or prove, and agree
that the amounts payable to Executive under
Section 10
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