Exhibit 10.6
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as of January 24, 2007,
between Courtside Acquisition Corp., a Delaware corporation (the "COMPANY") and
Xxxxxxx Xxxxxxx ("EXECUTIVE").
WHEREAS, Executive is currently employed as Vice President Group Publisher
of American Community Newspapers LLC ("LLC") pursuant to an employment agreement
dated as of December 9, 2004 (the "ORIGINAL Agreement");
WHEREAS, the Company has entered into an Asset Purchase Agreement (the
"PURCHASE AGREEMENT") dated as of January 24, 2007, by and among the Company,
American Community Newspapers, LLC ("ACN") and ACN Holding LLC, the sole member
of LLC ("Holding"), pursuant to which the Company will purchase certain of the
assets, and assume certain of the liabilities, of ACN (the "ACQUISITION");
WHEREAS, the Company desires to enter into a new employment agreement with
Executive to take effect upon consummation of the Acquisition (the "COMMENCEMENT
DATE"); and
WHEREAS, Executive is willing to enter into such employment agreement on
the terms, conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, the parties hereby
agree as follows:
1. Employment and Duties.
(a) During the Term (as defined in Section 4), the Company shall
employ Executive in the position of Vice President Group Publisher of the
Company and Operating Sub (as defined below) and such other positions as shall
be given to Executive by the Board of Directors (the "BOARD") or the Company's
Chairman of the Board and Chief Executive Officer (the "CEO"). Executive shall
report to the CEO. Executive shall have such responsibilities, duties and
authorities reasonably accorded to and expected of such positions, as well as
those that may be established by the Board or the CEO, which responsibilities,
duties and authorities will be generally consistent with those of a vice
president. Executive hereby accepts this employment upon the terms and
conditions contained herein and agrees to devote his full business time,
attention and efforts to promote and further the business of the Company and the
Company's to-be-formed operating subsidiary which will hold the assets of ACN
upon consummation of the Acquisition (referred to herein as "Operating Sub"),
and Executive shall not, during the Term, be engaged in any other business
activity pursued for gain, profit or other pecuniary advantage without the prior
written consent of the Board. However, the foregoing limitations shall not be
construed as prohibiting Executive from making personal passive investments in
such form or manner as will neither require his services
in the operation or affairs of the companies or enterprises in which such
investments are made, nor violate the terms of Section 3 hereof. Notwithstanding
the foregoing, Executive shall also be able to devote occasional business time
to charitable and community activities, so long as such activities do not
interfere with the discharge of his duties and responsibilities to the Company
and Operating Sub.
(b) Executive faithfully shall adhere to, execute and fulfill all
policies established by the Board.
(c) Executive shall be located at the Company's Eden Prairie,
Minnesota office, or such other location in the greater Minneapolis/St. Xxxx,
Minnesota metropolitan area or as the Executive and the Board may mutually
determine, from which Executive shall execute his responsibilities hereunder.
Executive understands and agrees that he shall be required to travel frequently
for business reasons to and from the principal offices of, and on behalf of the
Company and Operating Sub, and Executive agrees that none of such travel
requirements shall constitute Good Reason (as defined below).
2. Compensation. For all services rendered by Executive in any capacity
required hereunder, the Company shall compensate Executive as follows:
(a) Base Salary. During the Term, Executive shall be paid a base
salary at the rate of $175,000 per year (the "BASE SALARY"), payable on a
regular basis in accordance with the Company's standard payroll procedures, but
not less frequently than monthly. The Base Salary shall be subject to annual
increases, commencing at the beginning of each calendar year, at the discretion
of the Board.
(b) Incentive Bonus Plan. Commencing for the calendar year in which
the consummation of the Acquisition occurs and thereafter during the Term,
Executive shall be eligible to receive a fiscal year-end performance cash bonus
equal to up to $80,000 (the "BONUS"). The amount of such bonus, if any, shall be
determined after the audited financial statements of the Company are prepared
and shall be based upon the Company's and the Executive's level of achievement
of preestablished performance goals which shall be determined by the Board, in
its sole discretion, and such other factors as may be determined by the Board,
in its sole discretion.
(c) Benefits and Other Compensation. Executive shall be entitled to
receive additional benefits and compensation from the Company as follows:
(i) Payment of such premiums (or such portion thereof as is
provided by the Company's plans) for coverage for Executive under health,
hospitalization, dental, life and other insurance plans that the Company may
have in effect from time to time, on the same terms generally provided to other
executive employees in similar positions from time to time.
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Executive in the performance of
his services
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pursuant to this Agreement. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any request for
reimbursement, and in a format and manner consistent with the Company's expense
reporting policy.
(iii) The Company shall provide Executive with other executive
perquisites as may be available to, or deemed appropriate for, Executive by the
Board and shall allow Executive to participate in all other company-wide
employee benefits, including a defined contribution pension plan and 401 (k)
plan, as may be made available generally to executive employees from time to
time.
(iv) Executive shall be entitled to four (4) weeks of paid
vacation per calendar year (pro rated for partial calendar years worked), such
vacation to be taken at such times and intervals as shall be determined by
Executive. Vacation shall not be cumulative.
(v) During the Term, Executive shall receive a car allowance of
$1,000 per month.
(d) No Other Compensation or Benefits; Payment. The compensation and
benefits specified in this Section 2 shall be in lieu of any and all other
compensation and benefits. Payment of all compensation and benefits to Executive
hereunder shall be made in accordance with the relevant Company policies in
effect from time to time, including normal payroll practices, and shall be
subject to all applicable employment and withholding taxes.
(e) Equity Plan. Prior to the Commencement Date at the special meeting
of its stockholders called to approve the Acquisition, the Company will request
approval of an Incentive Equity Plan (the "Equity Plan") providing for an
aggregate of 1,650,000 shares of the Company's common stock to be reserved for
issuance thereunder. The Executive will be eligible to participate in the Equity
Plan and will receive an initial grant, effective upon the Commencement Date,
comprised of 247,500 non-qualified stock options (the "OPTIONS"), all vesting in
eight (8) equal installments on each of December 31, 2007, June 30, 2008,
December 31, 2008, June 30, 2009, December 31, 2009, June 30, 2010, December 31,
2010 and on the fourth (4th) anniversary of the Commencement Date, and otherwise
subject to the terms of the Equity Plan. The non-qualified stock options will
have an exercise price equal to the fair market value of the Company's common
stock on the Commencement Date.
(f) Cessation of Employment. In the event Executive shall cease to be
employed by the Company for any reason, then Executive's compensation and
benefits shall cease on the date of such event, except as otherwise provided
herein or in any applicable employee benefit plan or program.
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3. Non-Competition.
(a) Executive shall not during the period of his employment by or with
the Company and for the Applicable Period (defined below), for himself or on
behalf of, or in conjunction with, any other person, persons, company,
partnership, limited liability company, corporation or business of whatever
nature:
(i) engage, as an officer, director, manager, member,
shareholder, owner, partner, joint venturer, trustee, or in a managerial
capacity, whether as an employee, independent contractor, agent, consultant or
advisor, or as a sales representative, of or to any business of selling
advertising for any publication, direct mail advertiser, newspaper, radio, or
cable television, that is located within 75 miles of any market in the United
States and any other country in which the Company operates, that the Company
either does business in, or intends to do business in, at the time of
termination;
(ii) call upon any person who is at that time, or within the
preceding twelve (12) months has been, an employee of the Company, for the
purpose, or with the intent, of enticing such employee away from, or out of, the
employ of the Company or for the purpose of hiring such person for Executive or
any other person or entity, unless any such person was terminated by the Company
more than six (6) months prior thereto;
(iii) call upon any person who, or entity that is then or that
has been within one year prior to that time, a customer of the Company, for the
purpose of soliciting or selling products or services in competition with the
Company; or
(iv) call upon any prospective acquisition or investment
candidate, on the Executive's own behalf or on behalf of any other person or
entity, which candidate was known by Executive to have, within the previous
twelve (12) months, been called upon by the Company or for which the Company
made an acquisition or investment analysis or contemplated a joint marketing or
joint venture arrangement with, for the purpose of acquiring or investing or
enticing such entity into a joint marketing or joint venture arrangement.
For purposes of this Section 3,
o the term "COMPANY" shall be deemed to include Operating Sub.
o the term "APPLICABLE PERIOD" shall mean (A) the one (1) year period
following termination of Executive's employment with the Company under
Section 4(b) or Section 4(c)(i), or (B) in the case of a termination
of Executive's employment by the Company under Section 4(c)(ii) or by
Executive under Section 4(d), a period of time equal to the Severance
Period (defined in Section 4(f) below).
(b) Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenant, and because of the
immediate
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and irreparable damage that could be caused to the Company for which it would
have no other adequate remedy, Executive agrees that the foregoing covenant may
be enforced by the Company in the event of breach by him, by injunctions and
restraining orders.
(c) It is agreed by the parties that the foregoing covenants in this
Section 3 impose a reasonable restraint on Executive in light of the activities,
business and plans of the Company; it is also the intent of the Company and
Executive that such covenants be construed and enforced in accordance with any
change in the activities, business or plans of the Company throughout the Term.
(d) The covenants in this Section 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant.
(e) All of the covenants in this Section 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Executive against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement of such covenants; provided, however, that the
Company's continued failure to make payments to Executive under Section 2 or
Section 4 of this Agreement shall constitute such a defense.
(f) Notwithstanding any of the foregoing, if any applicable law shall
reduce the time period during which Executive shall be prohibited from engaging
in any competitive activity described in Section 3(a) hereof, the period of time
for which Executive shall be prohibited pursuant to Section 3(a) hereof shall be
the maximum time permitted by law.
4. Term; Termination; Rights on Termination. The term of this Agreement
shall begin on the Commencement Date and until the fourth (4th) anniversary
thereof (the "TERM"). This Agreement shall become null and void in the event of
the termination of the Purchase Agreement prior to the consummation of the
Acquisition contemplated thereby. Notwithstanding any provision in this
Agreement to the contrary, this Agreement shall become effective only upon
consummation of the Acquisition. This Agreement may also be terminated by
Executive, if Executive is not issued the Options on the Commencement Date, such
termination to be effected by written notice given by Executive to the Company
within ten (10) days after the Commencement Date (upon which this Agreement
shall be null and void). In addition, this Agreement and Executive's employment
may be terminated in any one of the following ways:
(a) Death. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall not have performed his duties
hereunder on a full-time basis for one hundred twenty (120) days or more in any
one hundred fifty (150) day
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period, Executive's employment under this Agreement may be terminated by the
Company upon thirty (30) days written notice if Executive is unable to resume
his full time duties at the conclusion of such notice period. Executive's
compensation during any period of disability prior to the effective date of such
termination shall be the amounts normally payable to him in accordance with his
then current annual base salary, reduced by the amounts of disability pay, if
any, paid to Executive under any Company disability program. Executive shall not
be entitled to any further compensation from the Company for any period
subsequent to the effective date of such termination, except for a prorated
portion of the targeted Bonus for the current fiscal year and pay or benefits,
if any, in accordance with then existing severance policies of the Company and
the severance terms of Company benefit plans.
(c) Termination by the Company.
(i) FOR CAUSE. FOR CAUSE. The Company may terminate this
Agreement immediately upon written notice to Executive for cause, which shall
be: (1) Executive's conviction of, or plea of nolo contendere to, a felony or
other crime involving moral turpitude; (2) Executive's breach of any fiduciary
duty owed to the Company or Operating Sub or their affiliates, or breach of the
provisions of Section 3 or Section 6 hereof that is not cured within ten (10)
days of written notice to Executive, (3) any other material breach by Executive
of this Agreement that is not cured within twenty (20) days of written notice to
Executive, or (4) Executive's commission of (A) any act of willful dishonesty or
fraud, (B) any act of embezzlement or other misappropriation of Company assets,
or (C) gross negligence or intentional nonperformance of duties, so long as such
breach or matter is not corrected or cured to the Company's reasonable
satisfaction within ten (10) days of notice to Executive thereof. In the event
of a termination for Cause, as enumerated above, Executive shall have no right
to any severance compensation.
(ii) WITHOUT CAUSE. In addition to the provisions of Section
4(c)(i), the Company may, at any time, terminate this Agreement upon written
notice to Executive, if such termination is approved by a majority of the Board
of the Company. In the event of such a termination "Without Cause," Executive
shall have the right to receive severance compensation as set forth below in
Section 4(f).
(d) Termination by Executive For Good Reason. Executive may terminate
this Agreement upon thirty (30) days' written notice to the Company in the event
of (1) a material breach by the Company of the terms of this Agreement, (2) the
Board assigning Executive duties that are not commensurate with the position of
vice president, (3) a reduction in Executive's Base Salary or Bonus percentage
set forth in Section 2 above, or a material change in the aggregate benefits
provided to Executive (other than reductions in benefits which apply to all
employees of the Company, generally), or (4) the office of the Company to which
Executive is assigned is moved out of the greater Minneapolis/St. Xxxx,
Minnesota metropolitan area, so long as such breach or matter is not corrected
or cured within such thirty (30) day period. Such events shall hereinafter be
referred to as "FOR GOOD REASON." In the event of a termination For Good Reason,
Executive shall
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have the right to receive severance compensation as set forth below in Section
4(f). If Executive resigns or otherwise terminates his employment for any reason
other than For Good Reason, Executive shall receive no severance compensation.
(e) Payment Through Termination. Upon termination of this Agreement
for any reason provided above, Executive (or Executive's estate, as applicable)
shall be entitled to receive all compensation earned and all benefits and
reimbursements (including payments for accrued vacation and sick leave) due
through the effective date of termination. Additional compensation subsequent to
termination, if any, shall be due and payable to Executive only to the extent,
and in the manner, expressly provided above. All other rights and obligations
under this Agreement shall cease as of the effective date of termination, except
that Executive's obligations under Sections 3, 5, 6, 7 and 9 shall survive such
termination in accordance with their terms.
(f) Severance. If Executive's employment is terminated by the Company
pursuant to Section 4(c)(ii) Without Cause, or by Executive pursuant to Section
4(d) For Good Reason, the Company shall, subject to Executive's execution of a
general release of all claims and rights that Executive may have against the
Company and its related entities and their respective officers, directors, and
employees, including but not limited to all claims and rights relating to
Executive's employment and/or termination, in a form reasonably acceptable to
the Company and Executive (a "RELEASE"), continue to pay Executive (the
"SEVERANCE") his then current Base Salary plus the targeted Bonus for the
remainder of the Term (the "SEVERANCE PERIOD"). Notwithstanding anything herein
to the contrary, the Severance payments shall terminate twenty (20) days after
the Company provides notice to Executive that the Company intends to terminate
such payments because Executive has breached a provision of Sections 3, 5, or 6
of this Agreement. It is understood and agreed that the Release shall not
release or affect (x) any right of Executive to indemnification in his capacity
as an officer of the Company or Operating Sub or member of the Board, on the
same terms available to other officers or members of the Board generally or (y)
any remaining obligations of the Company under this Agreement to be performed
from and after the date of such Release.
(g) Non-Disparagement. Each of the Company and Executive agrees that,
during the Term and following the expiration or early termination thereof, it or
he, as the case may be, will not make any derogatory comments, either written or
oral, which could be construed as negative or derogatory concerning the other,
to any persons including, but not limited to, clients, customers, potential
clients, potential customers, vendors, employees, or financial or credit
institutions.
(h) Vesting. Following termination of Executive's employment with the
Company under Section 4(a), Section 4(b), Section 4(c)(ii) or Section 4(d), all
options scheduled to vest on the vesting date immediately following the date of
such termination shall automatically vest.
5. Inventions. Executive shall disclose promptly to the Company any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries
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("INVENTIONS"), whether patentable or not, that are conceived or made by
Executive, solely or jointly with another, during the period of employment and
that are directly related to the business or activities of the Company and that
Executive conceives as a result of his employment by the Company. Executive
hereby assigns and agrees to assign all his interests in the Inventions to the
Company or its nominee. Executive agrees that all Inventions that he develops or
conceives and/or documents during such period shall be deemed works
made-for-hire for the Company within the meaning of the copyright laws of the
United States or any similar or analogous law or statute of any other
jurisdiction, and accordingly, the Company shall be the sole and exclusive owner
for all purposes for the distribution, exhibition, advertising and exploitation
of the Inventions or any part of them in all media and by all means now known or
that may hereafter be devised, throughout the universe in perpetuity. Executive
agrees that in furtherance of the foregoing, he shall disclose, deliver and
assign to the Company all Inventions and shall execute all such documents,
including patent and copyright applications, as the Company reasonably shall
deem necessary to further document the Company's ownership rights therein and to
provide the Company the full and complete benefit thereof. Should any arbitrator
or court of competent jurisdiction ever hold that the materials derived from
Executive's contributions to the Company do not constitute works made-for-hire,
Executive hereby irrevocably assigns to the Company, and agrees that the Company
shall be the sole and exclusive owner of, all right, title and interest in and
to all Inventions, including the copyrights and any other proprietary rights
arising therefrom. Executive reserves no rights with respect to any Inventions,
and hereby acknowledges the adequacy and sufficiency of the compensation paid
and to be paid by the Company to Executive for the Inventions and the
contributions he will make to the development of any such information or
Inventions. Executive agrees to cooperate with all lawful efforts of the Company
to protect the Company's rights in and to any or all of such information and
Inventions and will, at the request of the Company, execute any and all
instruments or documents necessary or desirable in order to register, establish,
acquire, prosecute, maintain, perfect or defend the Company's rights in and to
the Inventions. Any such Inventions that were developed by Executive prior to
his employment with ACN (and its predecessors) shall not be covered by the terms
of this Section 5. However, to the extent that any such Inventions are deemed
owned by Executive and Executive has permitted the Company (or ACN or its
predecessors) to use such Inventions, the Company shall have a perpetual,
non-exclusive, royalty-free license to use such Inventions, which license shall
survive the termination of this Agreement.
6. Confidential Information and Trade Secrets. Executive acknowledges and
agrees that all Confidential Information, Trade Secrets and other property
delivered to or compiled by Executive by or on behalf of the Company or its
representatives, vendors or customers that pertain to the business of the
Company shall be and remain the property of the Company and be subject at all
times to its discretion and control. Executive agrees that he shall maintain
strictly the confidentiality of, and shall not, during, or for a period of five
(5) years after, the expiration of the Term, disclose, any such Confidential
Information or Trade Secrets.
For purposes hereof, "CONFIDENTIAL INFORMATION" means and includes:
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o All business or financial information, plans, processes and
strategies, market research and analyses, projections, financing
arrangements, consulting and sales methods and techniques, expansion
plans, forecasts and forecast assumptions, business practices,
operations and procedures, marketing and merchandising information,
distribution techniques, customer information and other business
information, including records, designs, patents, business plans,
financial statements, manuals, memoranda, lists and other
documentation respecting the Company, Operating Sub and its
affiliates;
o All information and materials that are proprietary and confidential to
a third party and that have been provided to the Company by such third
party for Company use; and
o All information derived from such Confidential Information.
Confidential Information shall not include information and materials that are
already, or otherwise become, known by or generally available to the public
without restriction on disclosure, other than as a result of an act or omission
by Executive in breach of the provisions of this Agreement or any other
applicable agreement between Executive and the Company.
For purposes hereof, the term "TRADE SECRET" shall have the meaning given in the
Delaware enactment of the Uniform Trade Secrets Act, and shall include, without
limitation, the whole or any portion or phase of any scientific or technical
information, design, process, formula, concept, data organization, manual, other
system documentation, or any improvement of any thereof, in any case that is
valuable and secret (in the sense that it is not generally known to the
Company's competitors). Any such Confidential Information and Trade Secrets that
were developed by Executive prior to his employment with ACN (and its
predecessors) shall not be covered by the terms of this Section 6.
7. Return of Company Property; Termination of Employment. At such time, if
ever, as Executive's employment with the Company is terminated, he shall be
required to participate in an exit interview for the purpose of assuring a
proper termination of his employment and his obligations hereunder. On or before
the actual date of such termination, Executive shall return to the Company all
records, materials and other physical objects relating to his employment with
the Company (and Operating Sub), including, without limitation, all Company
credit cards and access keys and all materials relating to, containing or
derived from any Trade Secrets or Confidential Information.
8. No Prior Agreements. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his employment by
the Company (and Operating Sub) and the performance of his duties hereunder will
not violate or be a breach of any agreement with a former employer, client or
any other person or entity. Further, Executive agrees to indemnify the Company
and Operating Sub
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for, and hold the Company and Operating Sub harmless from, and against, all
claims, including, but not limited to, attorneys' fees and expenses of
investigation, by any such third party that such third party may now have or may
hereafter come to have against the Company or Operating Sub based upon or
arising out of any noncompetition agreement, invention or secrecy agreement
between Executive and such third party that was in existence as of the date of
this Agreement.
9. Binding Effect; Assignment. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their respective
heirs, legal representatives, successors and assigns. Executive understands that
he has been selected for employment by the Company (and Operating Sub) on the
basis of his personal qualifications, experience and skills. Executive agrees,
therefore, that he cannot assign all or any portion of his performance under
this Agreement. In addition, the Company may not assign this Agreement except to
Operating Sub or another subsidiary of the Company, without the prior written
consent of Executive.
10. Complete Agreement. Except as specifically provided herein, this
Agreement is not a promise of future employment. Executive has no oral
representations, understandings or agreements with the Company, Operating Sub,
or any of their officers, directors or representatives covering the same subject
matter as this Agreement. This Agreement is the final, complete and exclusive
statement and expression of the agreement between the Company and Executive
regarding the subject matter contained herein and of all the terms of this
Agreement, it cannot be varied, contradicted or supplemented by evidence of any
prior or contemporaneous oral or written agreements. The Original Agreement and
any rights granted to Executive thereby are superseded by this Agreement,
effective as of the Commencement Date.
11. Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To the Company or Operating Sub:
Courtside Acquisition Corp.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
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To Executive:
Xxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received, if earlier.
Either party may change the address for notice by notifying the other party of
such change in accordance with this Section 11.
12. Severability; Headings. It is the intention of the parties that the
provisions herein shall be enforceable to the fullest extent permitted under
applicable law and that the unenforceability of any provision or provisions
hereof, or any portion thereof, shall not render unenforceable or otherwise
impair any other provisions or portions thereof. If any provision of this
Agreement is determined by a court of competent jurisdiction to be
unenforceable, void or invalid in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending provisions or
portions thereof and to alter the bounds thereof, including specifically, any
time, place and manner restrictions contained in any of the restrictive
covenants contained herein, in order to render it valid and enforceable. In any
event, the balance of this Agreement shall be enforced to the fullest extent
possible without regard to such unenforceable, void or invalid provisions or
part thereof. The Section headings herein are for reference purposes only and
are not intended in any way to describe, interpret, define or limit the extent
or intent of this Agreement or of any part hereof.
13. Arbitration. Any unresolved dispute or controversy arising under or in
connection with this Agreement (excluding specifically, however, claims and
counterclaims of the Company or Operating Sub arising out of any breach by
Executive of the provisions of Sections 3, 5, 6, and 7) shall be settled
exclusively by arbitration, conducted in accordance with the rules of the
American Arbitration Association then in effect, as modified hereby.
Notwithstanding anything contained in the rules to the contrary, however, the
arbitrators shall not have the authority to add to, detract from, or modify any
provision hereof, nor to award punitive or special damages to any injured party.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The arbitration proceeding shall be held in Minneapolis,
Minnesota.
14. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Minnesota without reference to its
conflicts of laws provisions.
15. Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered (which deliveries may be
by telefax) by the parties. It shall not be necessary in
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making proof of this Agreement or any counterpart hereof to produce or account
for any of the other counterparts.
16. Modifications. This Agreement may not be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought, or his or its duly authorized representative or officer. No waiver by
Executive or the Company of any breach of any provision hereof will be deemed a
waiver of any prior or subsequent breach of the same or any other provision. The
failure of Executive or the Company to exercise any right provided herein will
not be deemed on any subsequent occasions to be a waiver of any right granted
hereunder to either of them
17. EXECUTIVE ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE WAS
GIVEN AN OPPORTUNITY TO READ IT, CAREFULLY EVALUATE IT, AND ASK ANY QUESTIONS HE
MAY HAVE HAD REGARDING IT OR ITS PROVISIONS. EXECUTIVE ALSO ACKNOWLEDGES THAT HE
HAD THE RIGHT TO HAVE THIS AGREEMENT REVIEWED BY AN ATTORNEY OF HIS CHOOSING AND
THAT THE COMPANY GAVE HIM A REASONABLE PERIOD OF TIME TO DO SO IF HE SO WISHED.
EXECUTIVE FURTHER ACKNOWLEDGES THAT HE IS NOT BOUND BY ANY AGREEMENT THAT WOULD
PREVENT HIM FROM PERFORMING HIS DUTIES AS SET FORTH HEREIN, NOR DOES HE KNOW OF
ANY OTHER REASON WHY HE WOULD NOT BE ABLE TO PERFORM HIS DUTIES AS SET FORTH
HEREIN.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COURTSIDE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
EXECUTIVE
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
XXXXXXX XXXXXXX
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