AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") dated
as of January 28, 2000, between XXXXXXXXXX.XXX, INC., a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXXXX (the "Executive").
PRELIMINARY STATEMENTS
A. The Company and the Executive are parties to that certain Employment
Agreement dated as of
August 10, 1998 (the "Prior Employment Agreement");
B. The Company and the Executive desire to amend and restate the Prior
Employment Agreement as set forth herein;
C. The Compensation Committee ("Compensation Committee") of the Board
of Directors of the Company (the "Board") has approved the execution and
delivery by the Company of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment. The Company hereby agrees to continue to employ the
Executive and the Executive hereby agrees to continue to serve the Company, on
the terms and conditions set forth in this Agreement.
2. Term of Agreement. Subject to the terms and conditions hereof, the
term of the Executive's employment pursuant to this Agreement (the "Term") shall
commence on August 10, 1999 and shall continue in effect through August 31,
2002. The Term may be extended or renewed at any time by mutual written
agreement of the Company and the Executive.
3. Position and Duties. The Executive shall serve as the Senior Vice
President and Chief Financial Officer of the Company, shall perform
substantially the same duties as he currently performs and shall have
substantially the same authority as he currently exercises. The Executive shall
also have such other powers and duties as may from time to time be delegated to
him by the Board, the Chairman of the Board, the Chief Executive Officer or, if
there is no Chief Executive Officer, the highest ranking executive officer of
the Company, provided that such duties are consistent with his present duties
and with the Executive's position. The Executive shall report to the Company's
Chief Executive Officer or, if there is no Chief Executive Officer, the highest
ranking executive officer of the Company. The Executive shall devote
substantially all of his working time and efforts during normal business hours
to the business and affairs of the Company in substantially the same manner
(both as to working time and effort) as the Executive has devoted to the Company
in the past; provided, that it shall not be a violation of this Agreement for
the Executive to (i) serve on corporate, civic or charitable boards or
committees, and (ii) deliver lectures or fulfill speaking engagements, so long
as such activities are approved by the Company's Chief Executive Officer and do
not interfere with the performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement.
4. Place of Performance. In connection with his employment by the
Company, the Executive shall be based at the Company's principal executive
offices except for required travel on the Company's business.
5. Compensation and Related Matters.
(a) Base Salary. The Executive shall receive a base salary, payable in
substantially equal bi-weekly installments, at the annual rate of at least
$315,000 during each fiscal year during the Term, or such greater amount as
shall be determined by the Compensation Committee or the entire Board, in its
sole discretion (the "Base Salary"). The Base Salary shall be reviewed at least
annually for merit increases and may, by action and in the discretion of the
Compensation Committee or the Board, be increased at any time or from time to
time. Any increase in the Base Salary or other compensation granted by the
Compensation Committee or the Board shall in no way limit or reduce any other
obligation of the Company under this Agreement and, unless otherwise specified
by the Compensation Committee or the Board, once established at an increased
specified rate, the Base Salary shall not thereafter be reduced.
(b) Incentive Compensation. In addition to the Base Salary, during the
Term the Executive shall be entitled to receive an annual bonus (the "Annual
Bonus") for each fiscal year for which the Company achieves its budgeted EBITDA
target (the "Target"), in an amount equal to fifty percent (50%) of the
Executive's Base Salary for such fiscal year. The Target for each fiscal year
shall be approved by the Compensation Committee not later than 90 days after the
beginning of each fiscal year. For purposes of this Section, the term "EBITDA"
means the Company's earnings before income taxes, depreciation and amortization,
as determined in accordance with generally accepted accounting principles,
consistently applied with the Company's past practices, and as reflected in the
Company's audited financial statements for the relevant fiscal year. If the
Company does not achieve the Target for any fiscal year, no Annual Bonus shall
be payable for such fiscal year. The Annual Bonus payable with respect to any
fiscal year (net of any tax or other amount properly withheld therefrom) shall
be paid by the Company to the Executive within sixty (60) days after the end of
the fiscal year; provided, that (i) any amount paid shall be subject to increase
or decrease based upon the results of the Company's audited financial statements
with respect to such year, (ii) the amount of Annual Bonus payable for any
fiscal year during which the Term expires or this Agreement is terminated shall
be prorated and payable only with respect to the portion of the fiscal year
during which the Executive was employed by the Company and (iii) no Annual Bonus
shall be payable with respect to any fiscal year during which the Executive's
employment is terminated by the Company for Cause, or by the Executive for other
than Good Reason. In addition to the Annual Bonus, the Executive shall be
entitled to receive such other bonuses or incentive compensation as the
Compensation Committee may determine in its sole discretion, taking into
consideration such criteria as it shall deem relevant.
(c) Stock Options. During the Term, the Executive shall be entitled to
receive stock option grants, no less frequently than annually. The number of
stock options and the terms and conditions of stock options granted to the
Executive shall be determined by the Compensation Committee in its discretion;
provided, that beginning in 2000, the Executive shall be granted stock options
to purchase at least 50,000 shares of the Company's common stock during each
calendar year.
(d) Expenses. During the Term, the Company, in accordance with its
expense reimbursement policies and procedures in effect for senior management
employees from time to
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time, shall reimburse the Executive for all reasonable expenses actually paid or
incurred by the Executive in the course of and pursuant to the business of the
Company.
(e) Other Benefits. The Executive shall be entitled to participate in
or receive benefits under any employee benefit plan or arrangement made
available generally by the Company to its executives, subject to and on a basis
consistent with the terms, conditions and overall administration of such plan or
arrangement. The Company shall also provide the Executive such coverage under
any directors and officers liability policies it maintains as is provided to its
other senior management employees. Nothing paid or provided to the Executive
under any plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the Base Salary or any other obligation
payable to the Executive pursuant to this Agreement.
(f) Vacation. The Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its senior executive officers. The Executive shall also be entitled to all
paid holidays given by the Company to its senior executive officers.
(g) Perquisites and Fringe Benefits. The Executive shall be entitled to
continue to receive all perquisites and fringe benefits provided or available to
senior executive officers of the Company in accordance with present practice and
as may be changed from time to time with respect to all senior executive
officers of the Company.
(h) Working Facilities. The Company shall furnish the Executive with an
office, a secretary and such other facilities and services suitable to his
position and adequate for the performance of his duties hereunder.
6. Other Offices. The Executive agrees to serve without additional
compensation as an officer and/or director of any of the Company's present or
future subsidiaries; provided, that the Executive shall be indemnified for
serving in any and all such capacities on a basis no less favorable than may be
from time to time provided to other senior executives of the Company.
7. Restrictive Covenants.
(a) Noncompetition. The Executive agrees that he will not, either
during the Term and for a period of one year following any termination of this
Agreement, directly or indirectly, engage in, operate, have any investment or
interest or otherwise participate in any manner (whether as an employee,
officer, director, partner, agent, security holder, creditor, consultant or
otherwise) in any sole proprietorship, partnership, corporation or business or
any other person or entity that engages, directly or indirectly, in a Competing
Business; provided, that the Executive may continue to hold Company securities
and/or acquire, solely as an investment, shares of capital stock or other equity
securities of any company which are publicly traded, so long as the Executive
does not control, acquire a controlling interest in, or become a member of a
group which exercises direct or indirect control of, more than five percent (5%)
of any class of capital stock of such corporation. For purposes of this
Agreement, the term "Competing Business" means the ownership, operation,
management or distribution of an on-line service that provides sports news,
information and content and/or that markets, sells or otherwise distributes
sports-related products, whether such service is accessed through the Internet,
a commercial on-line service or otherwise.
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(b) Unauthorized Disclosure. During the Term and for a period of two
years following any termination of this Agreement, the Executive shall not,
without the written consent of the Board or a person authorized thereby,
disclose to any person, other than an employee of the Company (or its
subsidiaries) or a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of his duties as
an executive of the Company, any confidential information obtained by him while
in the employ of the Company with respect to any of the Company's customers,
suppliers, creditors, lenders, investment bankers, methods of distribution or
methods of marketing; provided, however, that confidential information shall not
include any information known generally to the public (other than as a result of
unauthorized disclosure by the Executive). Notwithstanding the foregoing,
nothing herein shall be deemed to restrict the Executive from disclosing
Confidential Information to the extent required by law.
(c) Nonsolicitation of Employees. During the Term and for a period of
two years following any termination of this Agreement, the Executive shall not
directly or indirectly, for himself or for any other person, firm, corporation,
partnership, association or other entity, attempt to employ or enter into any
contractual arrangement with any employee or former employee of the Company,
unless such employee or former employee has not been employed by the Company for
a period in excess of six months.
(d) Injunction. It is recognized and hereby acknowledged by the Company
and the Executive that a breach by the Executive of any of the agreements
contained in this Section 7 may cause irreparable harm or damage to the Company
or its subsidiaries, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Executive and the Company agree that the Company and
any of its subsidiaries shall be entitled to an injunction issued by any court
of competent jurisdiction enjoining and restraining any and all violations of
such agreements by the Executive or his associates, affiliates, partners or
agents, and that such right to an injunction shall be cumulative and in addition
to whatever other remedies the Company may possess.
8. Termination. The Executive's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
(a) Death. The Executive's employment under this Agreement shall
terminate automatically upon his death.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive is absent from the performance of his
duties under this Agreement for a period of three months during any twelve-month
period, and within 10 days after written notice of termination is given, the
Executive does not return to the performance of his duties under this Agreement,
the Company may terminate the Executive's employment under this Agreement for
"Disability."
(c) Cause. The Company may at any time terminate the Executive's
employment under this Agreement for Cause. For purposes of this Agreement,
"Cause" means: (i) the willful and continued failure by the Executive to
substantially perform his duties under this Agreement (other than any such
failure resulting from the Executive's incapacity due to physical or mental
illness or from the termination of this Agreement by the Executive for Good
Reason), after a demand for substantial performance is delivered to the
Executive by the Company specifically identifying the manner in which the
Company believes the Executive has not substantially performed his duties, and
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the Executive shall have failed to resume substantial performance of such duties
within thirty (30) days of receiving such demand, (ii) the willful engaging by
the Executive in criminal conduct (including embezzlement and criminal fraud)
which is demonstrably and materially injurious to the Company, monetarily or
otherwise, or (iii) the conviction of the Executive of a felony (other than a
traffic violation) or the conviction of the Executive of a misdemeanor which
impairs the Executive's ability substantially to perform his duties with the
Company. For purposes of this paragraph, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company. Notwithstanding anything
herein to the contrary, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution, duly adopted by the affirmative vote of not
less than a majority of the members of the Board then in office (other than the
Executive) at a meeting of the Board called and held for such purpose (after
reasonable notice to the Executive and an opportunity for him, together with his
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board the Executive was guilty of conduct set forth in clause (i), (ii)
or (iii), above, and specifying the particulars thereon in detail.
(d) Termination by the Executive. The Executive may terminate his
employment under this Agreement (i) for Good Reason, or (ii) if his health
should become impaired to any extent that makes the continued performance of his
duties under this Agreement hazardous to his physical or mental health or his
life, provided that the Executive shall have furnished the Company with a
written statement from a qualified doctor to such effect and provided, further,
that at the Company's request and expense the Executive shall submit to an
examination by a doctor selected by the Company and such doctor shall have
concurred in the conclusion of the Executive's doctor.
For purposes of this Agreement, "Good Reason" means, without the
Executive's prior written consent, the occurrence of any one or more of the
following: (A) any action by the Company which results in a material diminution
in the nature or status of the Executive's position, authority, duties or
responsibilities; (B) a failure by the Company to pay any amounts of Base
Salary, Annual Bonus or other amounts payable hereunder, or to comply with its
other obligations and agreements contained herein; (C) a failure of the Company
to obtain an agreement from any successor to the Company to assume and agree to
perform this Agreement, as contemplated in Section 10(c) hereof; (D) Executive
no longer reports directly to the person(s) specified in Section 3 hereof, or
(E) any purported termination by the Company of the Executive's employment that
is not effected pursuant to a Notice of Termination satisfying the requirements
of subsection 8(e) hereof and otherwise in accordance with the terms of this
Agreement, and for purposes of this Agreement, no such termination shall be
effective.
The Executive's right to terminate his employment for Good Reason shall
not be affected by his incapacity due to physical or mental illness, nor shall
the Executive's continued employment constitute consent to, or a waiver of his
rights with respect to, any circumstances constituting Good Reason. With respect
to the matters set forth in clauses (A), (B), (C) and (D), above, the Executive
shall give the Board thirty (30) days prior written notice of his intent to
terminate this Agreement, and the Company shall have the right to cure any such
breach or alleged breach within such 30-day period.
(e) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than termination pursuant
to Section 8(a), above) shall be
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communicated by written Notice of Termination to the other party hereto given in
accordance with Section 12. For purposes of this Agreement, a "Notice of
Termination" shall mean a written notice which indicates the specific
termination provision in this Agreement relied upon and sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated. The failure by the
Executive to set forth in any Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason shall not waive any right of the
Executive hereunder or preclude the Executive from asserting such fact or
circumstance in enforcing his rights hereunder.
(f) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death, (ii)
if the Executive's employment is terminated for Disability, thirty (30) days
after Notice of Termination is given (provided that the Executive shall not have
returned to the performance of his duties during such thirty (30) day period),
(iii) if the Executive's employment is terminated by the Company for Cause, the
date specified in the Notice of Termination after the expiration of any cure
periods, and (iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given after the expiration
of any cure periods; provided, that if within thirty (30) days after any Notice
of Termination one party notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be the date finally
determined to be the Date of Termination, either by mutual written agreement of
the parties or by a binding and final arbitration award or an adjudication by a
court of competent jurisdiction (and in such event the Company shall continue to
perform its obligations hereunder until the date so determined).
9. Compensation Upon Termination or During Disability.
(a) Death. If the Executive's employment is terminated by reason of his
death, the Company shall pay to such person as the Executive shall have
designated in a notice filed with the Company, or, if no such person has been
designated, to his estate, any unpaid amounts of his Base Salary or Annual Bonus
accrued prior to the date of his death; and upon making such payments, the
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of the Executive's
death pursuant to Section 5(c)); provided, that the Executive's spouse,
beneficiaries or estate shall also be entitled to receive any amounts or other
benefits payable pursuant to any pension or employee benefit plan, life
insurance policy or other plan, program or policy then maintained or provided by
the Company in accordance with the terms thereof. In addition, all unvested
stock options held by the Executive on the Date of Termination shall continue to
vest and become exercisable in accordance with the vesting schedule for such
stock options then in effect, and each such stock option, together with any
previously vested and unexercised stock options, shall be exercisable in
accordance with their respective terms for a period of one (1) year following
the date on which it becomes vested (or, in the case of any previously vested
and unexercised options, one (1) year following the Date of Termination) or, if
earlier, until the then scheduled expiration date(s) of such options.
(b) Disability. During any period that the Executive fails to perform
his duties hereunder as a result of incapacity due to physical or mental
illness, the Executive shall continue to receive his Base Salary and any Annual
Bonus until the Executive's employment is terminated pursuant to Section 8(b)
hereof, or until the Executive terminates his employment pursuant to Section
8(d)(ii) hereof, whichever first occurs. If the Executive's employment is
terminated by reason of his Disability, the Company shall pay to the Executive
any unpaid amounts of his Base Salary or Annual
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Bonus accrued prior to the date of such termination; and upon making such
payments, the Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of
such termination pursuant to Section 5(c)); provided, that the Executive shall
also be entitled to receive any amounts or other benefits payable pursuant to
any pension or employee benefit plan, life insurance policy or other plan,
program or policy then maintained or provided by the Company in accordance with
the terms thereof. In addition, all unvested stock options held by the Executive
on the Date of Termination shall continue to vest and become exercisable in
accordance with the vesting schedule for such stock options then in effect, and
each such stock option, together with any previously vested and unexercised
stock options, shall be exercisable in accordance with their respective terms
for a period of one (1) year following the date on which it becomes vested (or,
in the case of any previously vested and unexercised options, one (1) year
following the Date of Termination) or, if earlier, until the then scheduled
expiration date(s) of such options; provided, that such vesting shall
discontinue immediately, and any unexercised options shall terminate and be
cancelled immediately upon a breach by the Executive of the provisions of
Section 7 hereof or the Executive's acceptance of employment with another
entity.
(c) Cause; Other than for Good Reason. If the Executive's employment is
terminated by the Company for Cause, or by the Executive for other than Good
Reason, the Company shall pay the Executive his Base Salary and accrued vacation
pay through the Date of Termination at the rate in effect at the time Notice of
Termination is given (or on the Date of Termination if no Notice of Termination
is required hereunder) plus all other amounts to which the Executive is entitled
under any plan, program, policy or practice of the Company or otherwise at the
time such payments are due and such payments shall, assuming the Company is in
compliance with the provisions of this Agreement, fully discharge the Company's
obligations hereunder.
(d) Good Reason; Other than Cause or Disability. If the Company
terminates the Executive's employment other than for Cause or Disability, or the
Executive terminates his employment for Good Reason, then:
(i) within thirty (30) days after the Date of Termination, the
Company shall pay the Executive an amount equal to his Base Salary
through the Date of Termination at the rate in effect at the time
Notice of Termination is given (or the Date of Termination where no
Notice of Termination is required hereunder), together with any accrued
Incentive Compensation and other amounts to which the Executive is then
entitled under any plan, policy, practice or program of the Company at
the time such payments are due; and
(ii) in lieu of any further salary, incentive compensation or
other payments for periods subsequent to the Date of Termination, and
as a severance benefit to the Executive, the Company will continue to
pay the Executive an amount equal the installments of Base Salary at
the rate in effect at the time Notice of Termination is given (or the
Date of Termination where no Notice of Termination is required
hereunder) that would have been paid to the Executive had his
employment not been terminated for a period of one (1) year following
the Date of Termination; provided, that the Executive shall use
reasonable efforts to seek other employment following such termination,
and the amount of any payment provided for in this clause (ii) will be
reduced by any compensation the Executive earns as the result of
employment by another employer or business during the period the
Company is obligated to make payments hereunder.
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(e) Acceleration of Vesting; Sale of Shares. Unless the Company
terminates the Executive's employment for Cause, the Executive terminates his
employment for other than Good Reason or the Executive's employment is
terminated due to his death or Disability, upon (i) termination of the
Executive's employment or (ii) upon a Change of Control, all unvested stock
options held by the Executive on the Date of Termination shall immediately vest
and become exercisable; and all such stock options, together with any previously
vested and unexercised stock options, shall be exercisable by the Executive in
accordance with their respective terms for a period of one (1) year following
the Date of Termination or the date of the Change in Control, as the case may
be, or, if earlier, until the then scheduled expiration date(s) of such options.
The Company shall provide the Executive such cooperation and assistance as may
reasonably be necessary to effect cashless exercises of such stock options, as
well as the sale of any restricted Company securities beneficially owned by the
Executive at the Date of Termination.
For purposes of this Agreement, a "Change in Control" means and shall
be deemed to have occurred if: (i) any person, entity or "group", within the
meaning of Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), other than (A) the Company, its
subsidiaries or any employee benefit plan established and maintained by the
Company or its subsidiaries, or (B) the Executive or any of the Executive's
affiliates, becomes the "beneficial owner" (within the meaning of Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of securities of
the Company representing forty percent (40%) or more of the combined voting
power of the Company's then outstanding securities entitled to vote generally in
the election of directors; (ii) the individuals who, as of the date hereof
constitute the Company's Board of Directors (as of the date hereof, the
"Incumbent Board") cease for any reason to constitute a majority of the Board of
Directors, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's stockholders
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board (other than the election or nomination of an individual
whose initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board; or (iii) the shareholders of
the Company approve (A) a reorganization, merger or consolidation with respect
to which persons who were the shareholders of the Company immediately prior to
such reorganization, merger or consolidation do not, immediately thereafter, own
more than 50% of the combined voting power entitled to vote generally in the
election of directors of the reorganized, merged or consolidated company's then
outstanding voting securities, (B) a liquidation or dissolution of the Company,
or (C) the sale of all or substantially all of the assets of the Company, unless
the approved reorganization, merger, consolidation, liquidation, dissolution or
sale is subsequently abandoned.
10. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive other
than by will or the laws of descent and distribution. This Agreement and all
rights of the Executive hereunder shall inure to the benefit of and be enforce
able by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devises and legatees. If the
Executive dies while any amounts would still be payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid
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in accordance with the terms of this Agreement to the Executive's personal or
legal representatives or, if there be no such persons, the Executive's estate.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, the term "Company" means the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers an assumption and agreement provided for
in this Section 10(c) or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law, or otherwise.
11. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices provided by the
Company or any of its subsidiaries and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive may
have under any stock option or other agreements with the Company or any of its
subsidiaries. Except as herein specifically provided, amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of the Company or any of its subsidiaries at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program.
12. Notice. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
If to the Company: XxxxxxXxxx.xxx, Inc.
0000 X.X. 0xx Xxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
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13. Miscellaneous.
(a) This Agreement has been approved by the Compensation Committee. No
provisions of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is agreed to in a writing signed by the
Executive and such officer as may be specifically designed by the Compensation
Committee or the Board.
(b) The failure by either party hereto to insist upon compliance with
any condition or provision of this Agreement shall not be deemed a waiver of
such condition or provision or any other provision hereof.
(c) No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement and this Agreement
supersedes any other agreement or understanding between the Company and the
Executive relating to the Executive's employment and any compensation or
benefits in respect thereof (including, without limitation, the Prior Employment
Agreement).
(d) The Company may withhold from any accounts payable under this
Agreement all Federal, state or other taxes as legally shall be required.
(e) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida, without
reference to principles of conflicts of laws.
(f) The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(g) This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Employment Agreement as of the date and year first above written.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Title: President and Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
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