BEEN DENIED.
13.2
ANY FURTHER DISPUTE OR CONTROVERSY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY AND ALL
DISPUTES, CLAIMS (WHETHER IN TORT, CONTRACT, STATUTORY OR OTHERWISE), BREACHES
OR DISAGREEMENTS CONCERNING THE INTERPRETATION OR APPLICATION OF THE PROVISIONS
OF THIS AGREEMENT SHALL BE RESOLVED BY ARBITRATION BEFORE A PANEL OF THREE
ARBITRATORS AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA")
UNDER ITS COMMERCIAL ARBITRATION RULES THEN IN EFFECT.
NO ARBITRATION
PROCEEDING RELATING TO THIS AGREEMENT MAY BE INITIATED BY EITHER THE COMPANY OR
THE EXECUTIVE UNLESS THE CLAIMS REVIEW AND APPEALS PROCEDURES SPECIFIED IN
SECTION 13.1 HAVE BEEN EXHAUSTED.
WITHIN TEN (10) BUSINESS DAYS OF THE
INITIATION OF AN ARBITRATION HEREUNDER, THE COMPANY AND THE EXECUTIVE WILL EACH
SEPARATELY DESIGNATE AN ARBITRATOR, AND WITHIN TWENTY (20) BUSINESS DAYS OF
SELECTION, THE APPOINTED ARBITRATORS WILL APPOINT A NEUTRAL ARBITRATOR.
ALL
ARBITRATORS SHALL BE MEMBERS OF THE NATIONAL PANEL OF COMMERCIAL ARBITRATORS
MAINTAINED BY THE AAA.
THE ARBITRATORS SHALL ISSUE
9
THEIR WRITTEN DECISION (INCLUDING A STATEMENT OF FINDING OF FACTS) WITHIN THIRTY
(30) DAYS FROM THE DATE OF THE CLOSE OF THE ARBITRATION HEARING.
THE DECISION
OF THE ARBITRATORS SELECTED HEREUNDER WILL BE FINAL AND BINDING ON BOTH
PARTIES.
THIS ARBITRATION PROVISION IS EXPRESSLY MADE PURSUANT TO AND SHALL BE
GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-16 (OR REPLACEMENT
OR SUCCESSOR STATUTE).
PURSUANT TO SECTION 9 OF THE FEDERAL ARBITRATION ACT,
THE COMPANY AND THE EXECUTIVE AGREE THAT A JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MAY BE ENTERED UPON THE AWARD
MADE PURSUANT TO THE ARBITRATION.
14.
DEFINITIONS.
FOR PURPOSES OF THIS
AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE MEANINGS INDICATED BELOW:
(A)
"AFFILIATE" SHALL HAVE THE MEANING SET FORTH IN
RULE 12B-2 PROMULGATED UNDER SECTION 12 OF THE EXCHANGE ACT.
(B)
"AUDITOR" SHALL HAVE THE MEANING SET FORTH IN
SECTION 5.2 HEREOF.
(C)
"BASE AMOUNT" SHALL HAVE THE MEANING SET
FORTH IN SECTION 280G(B)(3) OF THE CODE.
(D)
"BENEFICIAL OWNER" SHALL HAVE THE MEANING SET
FORTH IN RULE 13D-3 UNDER THE EXCHANGE ACT.
(E)
"BOARD" SHALL MEAN THE BOARD OF DIRECTORS OF
THE COMPANY.
(F)
"CAUSE" FOR TERMINATION BY THE COMPANY OF
THE EXECUTIVE'S EMPLOYMENT SHALL MEAN (I) THE WILLFUL AND CONTINUED FAILURE BY
THE EXECUTIVE TO SUBSTANTIALLY PERFORM THE EXECUTIVE'S DUTIES WITH THE COMPANY
(OTHER THAN ANY SUCH FAILURE RESULTING FROM THE EXECUTIVE'S INCAPACITY DUE TO
PHYSICAL OR MENTAL ILLNESS OR ANY SUCH ACTUAL OR ANTICIPATED FAILURE AFTER THE
ISSUANCE OF A NOTICE OF TERMINATION FOR GOOD REASON BY THE EXECUTIVE PURSUANT TO
SECTION 6.1 HEREOF) AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS
DELIVERED TO THE EXECUTIVE BY THE BOARD, WHICH DEMAND SPECIFICALLY IDENTIFIES
THE MANNER IN WHICH THE BOARD BELIEVES THAT THE EXECUTIVE HAS NOT SUBSTANTIALLY
PERFORMED THE EXECUTIVE'S DUTIES, OR (II) THE WILLFUL ENGAGING BY THE EXECUTIVE
IN CONDUCT WHICH IS DEMONSTRABLY AND MATERIALLY INJURIOUS TO THE COMPANY OR ITS
SUBSIDIARIES, MONETARILY OR OTHERWISE.
FOR PURPOSES OF CLAUSES (I) AND