EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of the
31st day of May, 1997, between THINK New Ideas, Inc., a Delaware corporation
(the "Company"), and Xxxxx Xxxxxx, an individual resident of Los Angeles,
California (the "Employee").
WITNESSETH:
WHEREAS, it is the desire of the Company to offer the Employee
employment with the Company upon the terms and subject to the conditions set
forth herein; and
WHEREAS, it is the desire of the Employee to accept the Company's offer
of employment with the Company upon the terms and subject to the conditions set
forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements contained herein and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound hereby, agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Employee and the
Employee hereby agrees to be employed by the Company upon the terms and subject
to the conditions set forth herein for the period of employment as set forth in
Section 2 hereof (the "Period of Employment").
2. TERM; PERIOD OF EMPLOYMENT. Subject to extension or termination as
hereinafter provided, the Period of Employment hereunder shall be from the date
hereof (the "Effective Date") through the second anniversary of the Effective
Date. Thereafter, the Period of Employment may be extended for successive one
(1) year periods (each, a "Renewal Period") at the option of the Company upon
delivery of written notice by the Company to the Employee, subject to acceptance
by the Employee, not less than one (1) month prior to the expiration of the
Period of Employment, as previously extended. The phrase "Period of Employment"
as used herein shall, unless otherwise indicated: (a) specifically include any
extensions permitted hereunder or provided herein, except as otherwise noted;
and (b) be deemed to have terminated as of the date of any notice provided to
the Employee pursuant to Section 9 hereof, notwithstanding the Company's
obligation to pay the Employee pursuant to Subsections 9(b) and 9(c) hereof.
3. OFFICE AND DUTIES. During the Period of Employment:
a) the Employee shall serve as the chief creative officer of
the Company, having the authority and duties of an officer as set forth in the
bylaws of the Company (the "Bylaws") with the responsibilities reasonably
prescribed for such position by the board of directors of the Company (the
"Board of Directors") in accordance with the Bylaws;
b) in addition to the foregoing, the Employee shall serve as
the president of the Company's wholly-owned subsidiary, Xxxxx Xxxxxxx &
Associates, Inc. for so long as the Company owns at least a majority of the
outstanding voting securities of such entity and thereafter, the Employee shall
serve as the president of any west coast division of the Company;
c) the Employee shall devote substantially all of his time to
the business and affairs of the Company except for vacations, illness or
incapacity, as hereinafter set forth. Notwithstanding the preceding sentence,
nothing in this Agreement shall preclude the Employee from devoting reasonable
amounts of time:
(i) for serving as a director, officer or member of a
committee of any organization or entity involving no conflict of interest with
the Company; or
(ii) engaging in charitable and community activities;
PROVIDED, HOWEVER, that such activities do not interfere with the performance by
the Employee of his duties hereunder. In consideration of such employment, the
Employee agrees that he shall not, directly or indirectly, individually or as a
member of any partnership or joint venture, or as an officer, director,
stockholder, employee or agent of any other person, firm, corporation, business
organization or other entity, engage in any trade or business activity or
pursuit for his own account or for, or on behalf of, any other person, firm,
corporation, business organization or other entity, irrespective of whether the
same competes, conflicts or interferes with that of the Company or the
performance of the Employee's obligations hereunder; PROVIDED, however, that
nothing contained herein shall be construed to prevent the Employee from: (x)
investing in the stock of any corporation, which does not compete with the
Company, which is listed on a national securities exchange or traded in the
over-the-counter market if the Employee does not and will not as a result of
such investment own more than five percent (5%) of the stock of such corporation
("Permitted Investments"); or (y) engaging in personal business ventures to
which the Employee devotes time outside of the time required to be devoted to
the business of the Company hereunder. The Employee represents and warrants that
he is not party to any agreement, oral or written, which restricts in any way:
(a) his ability to perform his obligations hereunder; or (b) his right to
compete with a previous employer or such employer's business;
d) the Employee shall be entitled to four (4) weeks of
vacation per year, subject to adjustment at the discretion of the Board of
Directors.
e) the Employee shall be nominated by the Board of Director to
stand for re-election as a director of the Company for as long as the Employee
is employed by the Company.
4. COMPENSATION AND BENEFITS. In exchange for the services rendered by
the Employee pursuant hereto in any capacity during the Period of Employment,
including without limitation, services as an officer, director, or member of any
committee of the Company or any affiliate, subsidiary or division thereof, the
Employee shall be compensated as follows:
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a) COMPENSATION. During the first year of the Period of
Employment, the Company shall pay the Employee compensation equal to Three
Hundred Thousand Dollars ($300,000) at a rate of Twenty-Five Thousand Dollars
($25,000) per month. During the second year of the Period of Employment, the
Company shall pay the Employee compensation equal to Three Hundred Fifty
Thousand Dollars ($350,000) at the rate of Twenty-Nine Thousand One Hundred
Sixty-Six Dollars and Sixty-Six Cents ($29,166.66) per month (such monthly
amount as the same may be increased from time to time by the Board of Directors
shall be defined as the "Monthly Compensation"). Such salary shall be payable in
accordance with the customary payroll practices of the Company.
b) ORACLE ACCOUNT BONUS. In the event that, during the first
year of the Period of Employment, Oracle Corporation ("Oracle") enters into a
one (1) year advertising services agreement with the Company, the Employee shall
be entitled to receive a bonus of One Hundred Fifty Thousand Dollars ($150,000)
upon execution of such agreement; in the event that, during the second year of
the Period of Employment, Oracle extends such agreement or otherwise enters into
another agreement with the Company for a successive period of one (1) year, the
Employee shall be entitled to receive a bonus of One Hundred Thousand Dollars
($100,000) upon extension or execution of such agreement. In the event that
Oracle does not enter into such an agreement with the Company during either the
first or the second year of the Period of Employment, but the Company's billing
from advertising services equals or exceeds Sixteen Million Dollars
($16,000,000) in either or both such years, the Employee shall be entitled to
receive in each such year the bonus he would otherwise have received in such
year had Oracle signed or otherwise extended the agreement as described above;
provided that, any such bonus shall be payable to the Employee in equal
quarterly installments.
c) PROFITABILITY BONUS. The Employee shall be entitled to
receive a bonus nine (9) months from the Effective Date (payable within thirty
(30) days thereof) equal to ten percent (10%) of the profits on the amount by
which the Company's xxxxxxxx on the Oracle account exceed Sixteen Million
Dollars ($16,000,000). The Employee shall also be entitled to receive a bonus
eighteen (18) months from the Effective Date (payable within thirty (30) days
thereof) equal to ten percent (10%) of the profits on the amount by which the
Company's xxxxxxxx on the Oracle account exceed Twenty Million Dollars
($20,000,000). In addition, without limiting the foregoing, the Company may pay
the Employee a bonus if, in the sole judgment of the Board of Directors, the
earnings of the Company or the services of the Employee merit such a bonus.
d) WITHHOLDING AND EMPLOYMENT TAX. Payment of all compensation
hereunder shall be subject to customary withholding tax and other employment
taxes as may be required with respect to compensation paid by an
employer/corporation to an employee.
e) OPTIONS. In consideration of the Employee's agreement to
render the services provided herein, the Employee shall receive an option
exercisable to purchase an aggregate of 250,000 shares of the Company's common
stock (the "Common Stock") at an exercise price of $3.69 per share, which amount
represents the last sale/transaction price at which shares of the Common Stock
were traded on the NASDAQ National Market System ("Nasdaq") on the Effective
Date. Such option shall vest and become exercisable to purchase 62,500 shares of
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Common Stock on each of the first through fourth anniversaries of the Effective
Date; subject to acceleration as follows: (x) in the event that, during the
first year of the Period of Employment, the Company's gross xxxxxxxx from
advertising business introduced by the Employee exceeds Twenty Million Dollars
($20,000,000) and the Company realizes a profit margin before taxes of eight
percent (8%) from such advertising business, the option to acquire an aggregate
of 125,000 shares of Common Stock shall immediately vest and be exercisable; and
(y) in the event that, during the second year of the Period of Employment, the
Company's gross xxxxxxxx from advertising business introduced by the Employee
exceeds Thirty Million Dollars ($30,000,000) and the Company realizes a profit
margin before taxes of fifteen percent (15%) from such advertising business, the
option to acquire the remaining 125,000 shares of Common Stock shall immediately
vest and be exercisable. If either or both of the targets in subsections (x) and
(y) are not met, the option granted herein shall vest and be exercisable in four
annual increments as first set forth in this Section 4(e). In the event that the
Employee's employment hereunder is terminated by the Company pursuant to
Subsection 9(a) prior to exercise of the option granted hereunder, such option,
to the extent not exercised, shall expire. In the event that the Employee's
employment hereunder is otherwise terminated, such option, to the extent that
the same has vested and become exercisable, must be exercised within ninety (90)
days after such termination.
e) Any bonus payable hereunder may be paid by the Company,
upon request of the Employee, by issuance of securities of the Company,
including options to purchase Common Stock at an exercise price based upon the
last sale/transaction price of the Common Stock on Nasdaq on the day prior to
the issuance of such options (the "Exercise Price"). The number of shares of
Common Stock issuable pursuant to such options shall be determined by dividing
the amount of the bonus payable by the Company by the Exercise Price.
5. BUSINESS EXPENSES. The Company shall: (a) pay or reimburse the
Employee for all reasonable travel or other expenses incurred by the Employee in
connection with the performance of his duties under this Agreement, provided
that the same are previously authorized by the Company, in accordance with such
procedures as the Company may from time to time establish for employees and as
required to preserve any deductions for federal income taxation purposes to
which the Company may be entitled; and (b) pay the Employee Eight Hundred
Dollars ($800) per month as an automobile allowance, which amount shall include
all expenses related to maintenance of such an automobile including all
necessary repairs, registration, insurance and fuel.
6. DISABILITY. The Company shall provide the Employee with
substantially the same disability insurance benefits as those, if any, currently
being provided by the Company, if any, for similar employees, which insurance
benefits must provide for disbursement thereunder of an amount equal to no less
than sixty percent (60%) of the Employee's then current compensation as set
forth in Section 4(a) hereof.
7. DEATH. The Company shall provide the Employee with substantially the
same life insurance benefits as those currently being provided by the Company
for similar employees. In the event of the Employee's death, the obligation of
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the Company to make payments pursuant to Section 4 hereof shall cease as of the
date of such Employee's death and the Company shall pay to the estate of the
Employee any amount due to the Employee under Sections 4 and 5 which has accrued
up to the date of death.
8. OTHER BENEFITS. The Employee shall be entitled to participate in
fringe benefit, deferred compensation and stock option plans or programs of the
Company, if any, to the extent that his position, tenure, salary, age, health
and other qualifications make him eligible to participate, subject to the rules
and regulations applicable thereto. Such additional benefits shall include, but
not be limited to, paid sick leave and individual health insurance (all in
accordance with the policies of the Company) and professional dues and
association memberships. Except as specifically set forth herein, the terms of,
and participation by the Employee in, any deferred compensation plan or program
shall be determined by the Board of Directors in its sole discretion.
9. TERMINATION OF EMPLOYMENT. Notwithstanding any other provision of
this Agreement, employment hereunder may be terminated:
a) By the Company, in the event of the employee's death or
Disability (as hereinafter defined) or for "Just Cause." "Just Cause" shall be
defined to be limited to: (i) the Employee's indictment or conviction of a crime
involving a felonious act or acts, including dishonesty, fraud or moral
turpitude by the Employee; (ii) prolonged or repeated absence from duty without
the consent of the Company (for reasons other than the Employee's health or
incapacity); (iii) habitual engaging in any activity which is competitive with
the business of the Company; and (iv) habitual and willful misconduct on the
part of the Employee relating to the performance of his duties hereunder. The
Employee shall be deemed to have a "Disability" for purposes of this Agreement
if he is unable to perform, by reason of physical or mental incapacity, a
material portion of his duties or obligations under this Agreement for a period
of one hundred twenty (120) consecutive days in any 365-day period. The Board of
Directors shall determine whether and when the Disability of the Employee has
occurred and such determination shall not be arbitrary or unreasonable. The
Company shall by written notice to the Employee given within thirty (30) days
after discovery of the occurrence of an event or circumstance which constitutes
"Just Cause, " specify the event or circumstance giving rise to the Company's
exercise of its right hereunder and, with respect to Just Cause arising under
Section 9(a)(i), the Employee's employment hereunder shall be deemed terminated
as of the date of such notice; with respect to Just Cause arising under Section
9(a)(ii), the Company shall provide the Employee with thirty (30) days written
notice of such violation and the Employee shall be given reasonable opportunity
during such thirty (30) day period to cure the subject violation;
b) By the Company in its sole and absolute discretion,
provided that in such event the Company shall, as liquidated damages or
severance pay, or both, pay the Employee an amount equal to the Employee's then
Monthly Compensation (as defined in Section 4(a) hereof) multiplied by the sum
of the number of months remaining during the Period of Employment exclusive of
any subsequent Renewal Period, as previously defined in Section 2 hereof (the
"Termination Formula");
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c) By the Employee: (i) upon any material violation of any
material provision of this Agreement by the Company, which violation remains
unremedied for a period of thirty (30) days after written notice of the same is
delivered to the Company by the Employee; and (ii) upon any material change in
the responsibilities of the Employee, without the Employee's prior consent;
provided that, in such event the Company shall, as liquidated damages or
severance pay, or both, pay to the Employee an amount equal to the Employee's
Monthly Compensation multiplied by the Termination Formula; or
d) By the Employee in the event that Xxxxx X. Xxxxxxx is
removed by the Board of Directors as Chief Executive Officer and/or Chairman of
the Board of Directors. In such event the Company shall pay to the Employee an
amount equal to the Employee's Monthly Compensation multiplied by the
Termination Formula and bonuses accrued through the date of such termination.
Nothing set forth in this section shall: (i) require the Employee in
the event of termination pursuant to Subsections 9(b) or 9(c) above to mitigate
damages during the period in which the Employee is receiving payment thereunder
(the "Severance Period"); or (ii) entitle the Company to offset the amounts owed
by the Company to the Employee pursuant to Subsections 9(b) or 9(c) by any
income or compensation received by the Employee from sources other than the
Company during such Severance Period. In addition, the Company shall not be
entitled to withhold or otherwise offset any amounts payable to the Employee
under Subsections 9(b) or 9(c) above in response to an alleged violation by the
Employee of any of the obligations which are imposed under this Agreement and
survive termination hereof until such time as court of competent jurisdiction or
other appropriate governing body has rendered judgment or otherwise made a
determination with respect to whether such violation has occurred.
In the event that this Agreement is terminated pursuant to Sections
9(b) or 9(c), the Employee shall be entitled to continue to participate, at the
Company's expense, in any health insurance plan of the Company then in place for
such period as the Employee is entitled to receive severance payment hereunder.
10. NON-COMPETITION. Notwithstanding any earlier termination, during
the Period of Employment (including any Renewal Period) and for one (1) year
thereafter:
a) the Employee shall not, anywhere in North America directly
or indirectly, individually or as a member of any partnership or joint venture,
or as an officer, director, stockholder, employee or agent of any other person,
firm, corporation, business organization or other entity, participate in, engage
in, solicit or have any financial or other interest in any activity or any
business or other enterprise in any field which at the time of termination is
competitive with the business or is in substantially the same business as the
Company or any affiliate, subsidiary or division thereof (unless the Board of
Directors shall have authorized such activity and the Company shall have
consented to in writing), as an individual or as a member of any partnership or
joint venture, or as an officer, director, stockholder, investor, employee or
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agent of any other person, firm, corporation, business organization or other
entity; PROVIDED, HOWEVER, that nothing contained herein shall be construed to
prevent the employee from investing in Permitted Investments; and
b) the Employee shall not: (i) solicit or induce any employee
of the Company to terminate his or her employment or otherwise leave the
Company's employ or hire any such employee (unless the Board of Directors shall
have authorized such employment and the Company shall have consented thereto in
writing); or (ii) contact or solicit any clients or customers of the Company,
either as an individual or as a member of any partnership or joint venture, or
as an officer, director, stockholder, investor, employee or agent of any other
person, person, corporation, business organization or other entity.
11. CONFIDENTIAL INFORMATION. The parties hereto recognize that it is
fundamental to the business and operation of the Company, its affiliates,
subsidiaries and divisions thereof to preserve the specialized knowledge, trade
secrets, and confidential information of the foregoing concerning the field of
advertising, marketing and interactive Internet solutions. The strength and good
will of the Company is derived from the specialized knowledge, trade secrets,
and confidential information generated from experience through the activities
undertaken by the Company, its affiliates, subsidiaries and divisions thereof.
The disclosure of any of such information and the knowledge thereof on the part
of competitors would be beneficial to such competitors and detrimental to the
Company, its affiliates, subsidiaries and divisions thereof, as would the
disclosure of information about the marketing practices, pricing practices,
costs, profit margins, design specifications, analytical techniques, concepts,
ideas, process developments (whether or not patentable), customer and client
agreements, vendor and supplier agreements and similar items or technologies. By
reason of his being an employee of the Company, in the course of his employment,
the Employee has or shall have access to, and has obtained or shall obtain,
specialized knowledge, trade secrets and confidential information such as that
described herein about the business and operation of the Company, its
affiliates, subsidiaries and divisions thereof. Therefore, the Employee hereby
agrees as follows, recognizing and acknowledging that the Company is relying on
the following in entering into this Agreement:
a) The Employee hereby sells, transfers and assigns to the
Company, or to any person or entity designated by the Company, any and all
right, title and interest of the Employee in and to all creations, designs,
inventions, ideas, disclosures and improvements, whether patented or unpatented,
and copyrightable material, made or conceived by the Employee solely or jointly,
in whole or in part, during or before the term hereof (commencing with the date
of the Employee's employment with the Company) which: (i) relate to methods,
apparatus, designs, products, processes or devices created, promoted, marketed,
distributed, sold, leased, used, developed, relied upon or otherwise provided by
the Company or any affiliate, subsidiary or division thereof; or (ii) otherwise
relate to or pertain to the business, operations or affairs of the Company or
any affiliate, subsidiary or division thereof. Whether during the Period of
Employment or thereafter, the Employee shall execute and deliver to the Company
such formal transfers and assignments and such other papers and documents as may
be required of the Employee to permit the Company or any person or entity
designated by the Company to file, enforce and prosecute the patent applications
to any of the foregoing and, as to copyrightable material, to obtain cop right
thereon; and
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b) Notwithstanding any earlier termination, during the Period
of Employment (including any Renewal Period) and for a period of one (1) year
thereafter, the Employee shall, except as otherwise required by or compelled by
law, keep secret and retain in strict confidence, and shall not use, disclose to
others, or publish any information, other than information which is in the
public domain or becomes publicly available through no wrongful act on the part
of the Employee, which information shall be deemed not to be confidential
information, relating to the business, operation or other affairs of the
Company, its affiliates, subsidiaries and divisions thereof, including but not
limited to confidential information concerning the design and marketing
practices, pricing practices, costs, profit margins, products, methods,
guidelines, procedures, engineering designs and standards, design
specifications, analytical techniques, technical information, customer, client,
vendor or supplier information, employee information, and any and all other
confidential information acquired by him in the course of his past or future
services for the Company or any affiliate, subsidiary or division thereof. The
Employee shall hold as the Company's property all notes, memoranda, books,
records, papers, letters, formulas and other data and all copies thereof and
therefrom in any way relating to the business, operation or other affairs of the
Company, its affiliates, subsidiaries and divisions thereof, whether made by him
or otherwise coming into his possession. Upon termination of his employment or
upon the demand of the Company, at any time, the Employee shall deliver the same
to the Company within twenty-four (24) hours of such termination or demand.
12. REASONABLENESS OF RESTRICTIONS. The Employee hereby agrees that the
restrictions in this Agreement, including without limitation, those relating to
the duration of the provisions hereof and the territory to which such
restrictions apply, are necessary and fundamental to the protection of the
business and operation of the Company, its affiliates, subsidiaries and
divisions thereof, and are reasonable and valid.
13. REFORMATION OF CERTAIN PROVISIONS. In the event that a court of
competent jurisdiction determines that the non-competition or the
confidentiality provisions hereof are unreasonably broad or otherwise
unenforceable because of the length of their respective terms or the breadth of
their territorial scope, of for any other reason, the parties hereto agree that
such court may reform the terms and/or scope of such covenants so that the same
are reasonable and, as reformed, shall be enforceable.
14. REMEDIES. Subject to Section 15 below, in the event of a breach of
any of the provisions of this Agreement, the non-breaching party shall provide
written notice of such breach to the breaching party. The breaching party shall
have thirty (30) days after receipt of such notice in which to cure its breach.
If, on thirty-first (31st) day after receipt of such notice, the breaching party
shall have failed to cure such breach, the non-breaching party thereafter shall
be entitled to seek damages. It is acknowledged that this Agreement is of a
unique nature and of extraordinary value and of such a character that a breach
hereof by the Employee shall result in irreparable damage and injury to the
Company for which the Company may not have any adequate remedy at law.
Therefore, if, on the thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the non-breaching party
shall also be entitled to seek a decree of specific performances against the
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breaching party, or such other relief by way of restraining order, injunction or
otherwise as may be appropriate to ensure compliance with this Agreement. The
remedies provided by this section are non-exclusive and the pursuit of such
remedies shall not in any way limit any other remedy available to the parties
with respect to this Agreement, including, without limitation, any remedy
available at law or equity with respect to any anticipatory or threatened breach
of the provisions hereof. In the event of any litigation or other proceeding
between the Company and the Employee with respect to the subject matter of this
Agreement and the enforcement of the rights hereunder, the losing party shall
reimburse the prevailing party for all of his/its reasonable costs and expenses,
as well as any forum fees, relating to such litigation or other proceeding,
including, without limitation, his/its reasonable attorneys' fees and expenses,
provided that such litigation or proceeding results in a final settlement
requiring payment to the prevailing party or final judgment.
15. CERTAIN PROVISIONS; SPECIFIC PERFORMANCE. In the event of a breach
by the Employee of the non-competition or Confidentiality provisions hereof,
such breach shall not be subject to the cure provision of Section 14 above and
the Company shall be entitled to seek immediate injunctive relief and a decree
of specific performance against the Employee. Such remedy is non-exclusive and
shall be in addition to any other remedy to which the Company or any affiliate,
subsidiary or division thereof may be entitled.
16. CONSOLIDATION; MERGER; SALE OF ASSETS. Nothing in this Agreement
shall preclude the Company from combining, consolidating or merging with or
into, transferring all or substantially all of its assets to, or entering into a
partnership or joint venture with, another corporation or other entity, or
effecting any other kind of corporate combination, provided that, the
corporation resulting from or surviving such combination, consolidation or
merger, or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of the
Company hereunder. Upon such a consolidation, merger, transfer of assets or
formation of such partnership or joint venture, this Agreement shall inure to
the benefit of, be assumed by, and the binding upon such resulting or surviving
transferee corporation or such partnership or joint venture, and the term
"Company," as used in this Agreement, shall mean such corporation, partnership
or joint venture, or other entity and this Agreement shall continue in full
force and effect and shall entitle the Employee and his heirs, beneficiaries and
representatives to exactly the same compensation, benefits, perquisites,
payments and other rights as would have been their entitlement had such
combination, consolidation, merger, transfer of assets or formation of such
partnership or joint venture not occurred.
17. SURVIVAL. Sections 10 through 15 shall survive the termination for
any reason of this Agreement (whether such termination is by the Company, by the
Employee, upon the expiration of this Agreement by its terms or otherwise);
provided, however, that in the event that the Company ceases to exist and
neither an affiliate, subsidiary or division thereof has assumed, at its option,
the obligations of the Company hereunder, the Employee shall no longer be bound
by the non-competition provision set forth in Section 10 hereof.
18. SEVERABILITY. The provisions of this Agreement shall be considered
severable in the event that any of such provisions are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable. Such
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invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
19. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the Company and the Employee with respect to the subject
matter hereof and thereof. This Agreement may not be amended changed, modified
or discharged, nor may any provision hereof be waived, except by an instrument
in writing executed by or on behalf of the party against whom enforcement of any
amendment waiver, change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
20. NOTICES. All notices, request, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
physically delivered, delivered by express mail or other expedited service or
upon receipt if mailed, postage prepaid, via first class mail as follows:
a) To the Company : THINK New Ideas, Inc.
0000 Xxxxxx Xxxxxxxxx-Xxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Chief Executive Officer
b) To the Employee: Xx. Xxxxx Xxxxxx
00000 Xxxxxxxx Xxxxxxxxx, # 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
c) With an addition; it copies
by like means to: Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
and/or to such other persons and addresses as any party hereto shall have
specified in writing to the other.
21. ASSIGNABILITY. This Agreement shall not be assignable by the
Employee, but shall be binding upon and shall inure to the benefit of his heirs,
executors, administrators and legal representatives. This Agreement shall be
assignable by the Company to any affiliate, subsidiary or division thereof and
to any success or in interest.
22. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware, without regard to the principles of
conflicts of laws thereof.
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23. WAIVER AND FURTHER AGREEMENT. Any waiver of any breach of any terms
or conditions of this Agreement shall not: operate as a waiver of any other
breach of such terms or conditions or any other term or condition hereof, nor
shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as the other party may reasonably require in order to effectuate the
terms and purposes of this Agreement.
24. HEADINGS OF NO EFFECT. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
25. VESTING. Upon termination of this Agreement pursuant to Sections
9(b) or 9(d) any and all options, warrants, rights or other securities which are
exercisable or convertible into shares with of common stock of the Company
granted to the Employee prior to such expiration shall be accelerated, vest and
become immediately exercisable (subject to applicable law).
26. CONDITIONS. It shall be a condition to the vesting of the option
granted in Section 4 above and to performance of the respective obligations of
each of the Company and the Employee hereunder that Oracle become a client of
the Company by June 15, 1997; in the event that Oracle does not become a client
of the Company by June 15, 1997, this Agreement shall terminate and neither
party hereto shall have any further obligation hereunder.
27. INDEMNIFICATION. To the fullest extent allowed, and in the manner
provided, by Delaware law, the Company shall indemnify the Employee and hold the
Employee harmless from and against any claims arising out of the Employee's
performance of his services hereunder as permitted by the Articles of
Incorporation of the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THINK NEW IDEAS, INC., the Company
/s/ Xxxxx X. Xxxxxxx
By: ----------------------------------------
Xxxxx X Xxxxxxx, Chief Executive Officer
THE EMPLOYEE
/s/ Xxxxx Xxxxxx
By: ----------------------------------------
Xxxxx Xxxxxx
