Exhibit 99.6
GEKKO BRANDS, LLC
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into this 6th day of July, 2004 (the "Effective Date"), by and between GEKKO
BRANDS, LLC, an Alabama limited liability company ("Employer"), and
_____________, an individual resident of Phenix City, Alabama ("Employee").
Employer and Employee are sometimes referred to hereinafter as a "Party" or,
collectively, the "Parties."
WITNESSETH THAT
WHEREAS, pursuant to that certain Membership Interests Purchase Agreement,
dated of even date herewith (the "Purchase Agreement"), by and among Xxxxxxxx
Inc., a Delaware corporation ("Xxxxxxxx"), and the selling members as set forth
therein (the "Selling Members"), Xxxxxxxx acquired all of the membership
interests of Employer (the "Acquisition");
WHEREAS, Employee is one of the Selling Members, and, prior to the
Acquisition, Employee participated in the management of Employer;
WHEREAS, based on the terms and conditions of this Agreement, Employer
desires to continue to employ Employee, and Employee desires to continue his
employment with Employer;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
and reciprocal covenants and agreements set forth herein, and for other good and
valuable consideration, Employer and Employee agree as follows:
I.
EMPLOYMENT
1.1 Acceptance of Employment. Subject to the terms and conditions of this
Agreement, Employer hereby agrees to employ Employee, and Employee hereby agrees
to employment by Employer.
1.2 Duties and Responsibilities. Employee shall serve initially as a Vice
President of Employer and shall be responsible for such duties and
responsibilities as may be assigned to him from time to time by Xxxxxxxx'x Chief
Executive Officer ("CEO"), Chief Financial Officer ("CFO") or the duly elected
managers of Employer (the "Managers"). Employee shall devote his full business
time, attention, skill and energies to the business and affairs of Employer
throughout the Term (as defined below).
1.3 Location. Employee will be based in Phenix City, Alabama and may not
be required to relocate during the Term.
1.4 Chain of Authority. At all times during the Term, Employee will report
directly to either the CEO or CFO.
II.
EFFECTIVE DATE; TERM
2.1 Term. The term of this Agreement begins as of the Effective Date and
runs through January 29, 2009, unless otherwise terminated earlier in accordance
with this Agreement (the "Term").
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III.
COMPENSATION
3.1 Base Salary. For all services rendered by Employee pursuant to this
Agreement and in accordance with the terms and conditions of this Agreement,
Employee shall receive $_____________ per annum ("Base Salary"), payable in
accordance with Employer's standard payroll practices. Base Salary shall be
subject to adjustment upwards based upon a review of such salary by the CEO
and/or CFO, with such review to occur no less frequently than annually, but in
no event shall Base Salary be reduced below $_____________ per annum during the
Term.
3.2 Incentive Compensation.
(a) Basic Incentive Compensation. During the Term, Employee shall be
eligible to receive an annual bonus payment of up to 25% of his Base Salary
("Basic Incentive Compensation") for each fiscal year of Xxxxxxxx or portion
thereof during which Employee is employed by Employer during the Term based upon
Employer's performance as measured by Employer's achievement of the Operating
Targets (as defined below) for the respective periods indicated below for each
of the following four categories (each a "Category"):
(i) adjusted gross margin in dollars ("Margin"); (B) adjusted
inventory turnover ("Turnover"); (C) adjusted earnings before interest and taxes
("EBIT"); and (D) net sales by Employer of "Xxxxxxxx" and "Callaway" branded
merchandise with the exception of headwear (the "Sales"). For the purposes of
determining Margin, Turnover and EBIT under this Agreement, calculations of each
such Category shall be exclusive of Xxxxxxxx and Callaway
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branded merchandise, with the exception of headwear, and thus each such Category
requires measures that are "adjusted" accordingly.
(ii) The operating targets for each of Margin, Turnover, EBIT
and Sales (the "Operating Targets") are as follows:
(A) Bonus Period Sales Target
------------ ------------
Effective Date - Fiscal Year 2005 __________
Fiscal Year 2006 __________
Fiscal Year 2007 __________
Fiscal Year 2008 __________
(B) Bonus Period Margin Target
------------ ------------
Fiscal Year 2005 __________
Fiscal Year 2006 __________
Fiscal Year 2007 __________
Fiscal Year 2008 __________
(C) Bonus Period EBIT Target
------------ -----------
Fiscal Year 2005 __________
Fiscal Year 2006 __________
Fiscal Year 2007 __________
Fiscal Year 2008 __________
(D) Bonus Period Turnover Target
------------ ---------------
Fiscal Year 2005 __________
Fiscal Year 2006 __________
Fiscal Year 2007 __________
Fiscal Year 2008 __________
As applicable, the Targets shall be calculated consistent with Employer's past
practices as in effect on the Effective Date. For the sake of clarity, the
Operating Targets for Margin, Turnover and EBIT are exclusive of Xxxxxxxx and
Callaway branded merchandise with the exception of headwear, and, conversely,
the Operating Target for Sales refers to net sales by Employer of
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Xxxxxxxx and Callaway branded merchandise with the exception of headwear.
"Fiscal Year" as used in this Agreement refers to the fiscal year of Xxxxxxxx.
(iii) Basic Incentive Compensation shall be determined based
upon an incentive score ("Incentive Score") for each of the Operating Targets
calculated independently in accordance with the following formulas:
Margin Incentive Score = Margin / Margin Target
Turnover Incentive Score = Turnover / Turnover Target
EBIT Incentive Score = EBIT / EBIT Target
Sales Incentive Score = Sales / Sales Target
(iv) A minimum Incentive Score of 0.8 for a Category is
necessary for Employee to qualify for Basic Incentive Compensation with respect
to that Category. Employee shall be entitled to receive Basic Incentive
Compensation of 3.125% of Base Salary in each Category for which an Incentive
Score of 0.8 is achieved. In any Category with an Incentive Score in excess of
0.8, Basic Incentive Compensation with respect to such Category shall increase
ratably from 3.125% up to a maximum of 6.25% of Base Salary (i.e., the
percentage of Base Salary represented by such Basic Incentive Compensation for a
Category shall increase .15625 percentage points with each increase in Incentive
Score of 0.01 over 0.8). For example, an Incentive Score of 0.90 in a Category
will result in Basic Incentive Compensation of 4.6875% of Base Salary for such
Category and an Incentive Score of 0.95 will result in a Basic Incentive
Compensation of 5.46875% of Base Salary for such Category. An Incentive Score
shall be calculated for each Category and Basic Incentive Compensation shall be
paid for each Category in which an Incentive Score of 0.80 or greater is
achieved. In no event shall Basic Incentive
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Compensation be greater than 6.25% of Base Salary for a single Category or 25%
of Base Salary for all Categories in the aggregate.
(b) Xxxxxxxx Incentive Compensation. In addition to Basic Incentive
Compensation, during the Term, Employee shall receive additional incentive
compensation ("Xxxxxxxx Incentive Compensation") (Basic Incentive Compensation
and Xxxxxxxx Incentive Compensation being collectively referred to herein as
"Incentive Compensation") in an amount equal to ___% of the amount by which
Employer's net sales of Xxxxxxxx and Callaway branded merchandise (with the
exception of headwear) exceeds the net sales threshold established for such
Xxxxxxxx and Callaway branded merchandise ("Xxxxxxxx/Callaway Sales Threshold")
for each of the respective periods as set forth below:
Period Xxxxxxxx/Callaway Sales Threshold
------ ---------------------------------
Effective Date - Fiscal Year 2005 __________
Fiscal Year 2006 __________
Fiscal Year 2007 __________
Fiscal Year 2008 __________
Solely for purposes of calculating Employer's net sales of Xxxxxxxx and
Callaway branded merchandise under this Section 3.2, Xxxxxxxx shall reimburse
Employer for commission payments made by Employer to sales representatives that
are directly related to the sale of Xxxxxxxx and Callaway branded merchandise,
excluding any such commission payments related to headwear sales; provided,
however, that such reimbursement by Xxxxxxxx as provided herein shall in no
event exceed ___%of such sales of Xxxxxxxx and Callaway branded merchandise.
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(c) Computation of Incentive Compensation.
(i) Incentive Compensation shall be calculated based upon
Xxxxxxxx'x Fiscal Year, and any Incentive Compensation that may be payable at
the end of such Fiscal Year shall be paid by the later of (x) ninety (90) days
after then end of such Fiscal Year in which the Incentive Compensation becomes
payable and (y) the resolution of any dispute concerning such Incentive
Compensation. For purposes of the computation of Incentive Compensation over any
period which is less than a Fiscal Year, Base Salary and Incentive Compensation
shall be pro-rated based on the actual number of days of employment during such
Fiscal Year.
(ii) All calculations involved in establishing Incentive
Compensation shall be made without regard to either inter-company allocations
and management fees charged to Employer by Xxxxxxxx or any of its affiliates, or
increases in audit, legal or other professional fees from their pre-Acquisition
levels which directly and solely result from the Acquisition or from being an
affiliate of Xxxxxxxx.
(iii) The right to receive Incentive Compensation under this
Section 3.2, as applicable, shall vest when such Incentive Compensation becomes
payable in accordance with the terms and conditions of this Agreement ("Vested
Incentive Compensation").
3.3 Benefit Plans. Employer will continue to maintain all the Employer
sponsored benefit plans set forth on Schedule 3.3 hereto, which were provided by
Employer for at least two-years prior to the Acquisition, and, as applicable,
Employee shall continue to be eligible for and participate in such plans, in
accordance with the terms and conditions of this Agreement at levels which are
at least equal to those currently provided by the premium amounts set forth on
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Schedule 3.3. In addition, Employee will be entitled to any additional benefits
substantially comparable to those benefits made available to comparable officers
of Xxxxxxxx as may be in effect from time to time. Notwithstanding anything to
the contrary herein, Employee's eligibility and participation in the benefits
provided by Employer's benefit plans will be subject to, and in accord with, the
terms and conditions of such plans.
3.4 Xxxxxxxx Stock Incentive Plan. Xxxxxxxx shall include Employee as a
participant in Xxxxxxxx'x Stock Incentive Plan, a copy which has been provided
to Employee, or if Employee is prohibited by law from participation in such
plan, Xxxxxxxx shall compensate Employee in the same manner as Employee would be
treated if he were a participant in such plan.
3.5 Expenses. Employee shall be reimbursed in accordance with Employer's
reimbursement policy for all reasonable Employer approved business-related
expenses incurred by Employee in accordance with the policies and procedures of
Employer.
3.6 Automobile Allowance. Employer shall pay Employee an automobile
allowance during the Term equal to$________ per month payable in accordance with
Employer's standard practices in effect from time to time during the Term.
3.7 Vacation. Employee shall receive vacation time each calendar year
during the Term in accordance with Employer's vacation policies in effect from
time to time, but in no event less than four (4) weeks per year.
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3.8 Net Compensation. The amount of any gross payments provided for in
this Agreement shall be paid net of any applicable withholding required under
federal, state or local law.
IV.
TERMINATION OF EMPLOYMENT
4.1 Voluntary Termination By Employee. Employee may terminate his
employment hereunder at any time by giving at least ninety (90) days prior
written notice to Employer of his intention to do so. In the event such notice
of termination is given, said ninety (90) day period shall be counted as a
period of regular employment for all purposes under this Agreement, unless
expressly provided otherwise herein, including the payment of Base Salary and
the vesting of Incentive Compensation, provided that Employee continues to carry
out in good faith, as determined in Employer's reasonable judgment, his duties
and responsibilities during such ninety (90) period. Notwithstanding the
foregoing, Employer reserves the right to terminate Employee's employment at any
time after Employee's notice of voluntary termination upon payment in full of
all amounts which would have been due if Employee had remained employed through
the entire ninety (90) day notice period.
4.2 Termination for "Cause". Employer may immediately terminate Employee's
employment hereunder for "Cause" as defined below effective thirty (30) days
after giving written notice to Employee, unless the misconduct, breach or
failure identified in such notice is corrected within the thirty (30) days after
receipt of such notice, provided, however, that if such misconduct, breach or
failure is not capable of being corrected, as determined in good faith by
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the CEO and the managers of Employer, then such thirty (30) day correction
period shall not apply and Employee's employment shall terminate immediately
upon the giving of such notice. In addition, if Employer shall have given notice
to Employee under this Section 4.2 for substantially the same misconduct, breach
or failure more than once within any twelve (12) month period, Employer shall be
entitled to immediately terminate Employee's employment for such misconduct,
breach or failure. Either Party may refer the issue of whether or not any
alleged misconduct, breach or failure is capable of being corrected for
resolution by arbitration as provided under Article VIII hereof.
For purposes of this Agreement, the term "Cause" includes any one or more
of the following:
(i) any material breach by Employee of this Agreement or the failure
by Employee to substantially or satisfactorily perform his duties or
responsibilities as properly assigned to Employee from time to time under this
Agreement (other than failure resulting from "Disability" as defined herein);
(ii) Employee's willful misconduct and gross negligence;
(iii) Employee's material misappropriation of any of Employer's
funds or property;
(iv) Employee's material violation of Employer's policies;
(v) Employee's breach of his non-compete covenants pursuant to the
Purchase Agreement;
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(vi) Employee engaging in fraudulent or illegal conduct which
materially damages Employer or any of its affiliates or subsidiaries as
determined by the CEO in good faith; or
(vii) the conviction of, or the entering of a guilty plea or plea of
no contest by Employee with respect to a felony.
4.3 Termination by Employer Other Than for Cause. Employer may terminate
Employee's employment hereunder at any time by giving at least ninety (90) days
prior written notice to Employee of its intention to do so. In the event such
notice of termination is given, said ninety (90) day period shall be counted as
a period of regular employment for all purposes under this Agreement, unless
expressly provided otherwise, including the payment of Base Salary and the
vesting of Incentive Compensation.
4.4 Termination Upon Death or Total Disability of Employee. Upon the death
or Total Disability (hereinafter defined) of Employee during the Term,
Employee's employment under this Agreement shall terminate. For purposes of this
Agreement, the term "Total Disability" shall be defined as the failure of
Employee to perform his normal duties hereunder for a period of three (3)
consecutive months, or for a total of six (6) months within any twelve (12)
month period, during the Term by reason of Employee's mental or physical
Disability. The term "Disability" shall mean an infirmity preventing Employee
from performing the essential functions of his job where no reasonable
accommodation is possible, or where such reasonable accommodation would be an
undue burden on the Employer. Any question as to the existence of a Disability
which cannot be resolved by the Parties shall be determined by a mutually
agreeable
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qualified independent physician. The cost of any such medical examination shall
be paid by Employer.
V.
EFFECT OF TERMINATION
5.1 Voluntary Termination; Termination For Cause. If Employee voluntarily
terminates his employment (except under circumstances constituting a
"Constructive Discharge" as defined in Section 5.4), or if Employee's employment
is terminated by Employer for Cause, then in such event Employee shall be paid
the accrued value of Base Salary through the date of such termination only,
together with any unpaid Vested Incentive Compensation and any accrued and
unused vacation time.
5.2 Termination Upon Total Disability. In the event Employee's employment
is terminated by reason of his Total Disability, then in such event, Employee,
or his representative, shall be entitled to receive all unpaid Vested Incentive
Compensation, any accrued and unused vacation time, and accrued automobile
allowance and all other benefits provided Employee through the date of such
termination by reason of Total Disability.
5.3 Termination Upon Death. In the event Employee's employment is
terminated by reason of his death, then subject to applicable law, Employer
shall pay Employee's spouse, legal representative or his estate a lump sum
payment in an amount equal to his current Base Salary for the remaining Term or
____ months, whichever period is less. In addition, such spouse, legal
representative or estate shall be entitled to receive all unpaid Vested
Incentive Compensation,
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any accrued and unused vacation time, and accrued automobile allowance and all
other benefits provided Employee through the date of Employee's termination by
reason of his death.
5.4 Termination Other Than For Cause. In the event that (i) Employer
terminates Employee's employment other than for Cause, or (ii) Employee
voluntarily terminates under circumstances constituting a "Constructive
Discharge", as defined below (both events in this Section 5.4(i) and (ii)
constituting termination without Cause for purposes of this Agreement and the
Purchase Agreement), Employee shall receive a lump sum severance payment in an
amount equal to his Base Salary for a period of____ months, plus all unpaid
Vested Incentive Compensation and any accrued and unused vacation time,
automobile allowance and all other benefits provided Employee as of the date of
such termination, provided, however, that Employee delivers a fully executed
release and waiver of all claims against Employer and its affiliates and
subsidiaries substantially in the form attached as Exhibit A hereto (the
"Release Agreement"). Employee shall be deemed to have been "Constructively
Discharged" solely for purposes of this provision in any case in which Employee
terminates his employment thirty (30) days or more after having given Employer
prior written notice of a material breach by Employer of this Agreement, unless
Employer, within such thirty (30) day period, has taken reasonable steps to
correct such material breach, and provided that either Party may refer the issue
of whether or not a Constructive Discharge has taken place for resolution by
arbitration, as provided under Article VIII hereof.
5.5 Other Effects of Termination. Upon termination of employment for any
reason, Employer shall have no obligation to provide Employee with any salary or
other benefits not
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required by law or expressly described in Sections 5.1, 5.2, 5.3 and 5.4;
provided that the controlling provisions of any employee benefit or welfare plan
shall determine the additional benefits, if any, available to Employee.
VI.
CUSTOMERS; PROPRIETARY INFORMATION; EMPLOYEES
In further consideration of Employer's obligations under this Agreement,
Employee hereby enters into the following agreements:
6.1 Non-Solicitation. Employee agrees that at all times during the Term
neither he nor any entity for which he has a direct or indirect interest or for
which he serves as an advisor, director, officer, employee, consultant, agent or
lender (any such entity is hereinafter a "Related Party") will in any way,
either directly or indirectly, on his behalf or on behalf of any other person,
firm, corporation or other entity, solicit, divert, take away or attempt to
solicit, divert or take away from Employer any account, customer or client of
Employer, or limit restrict or cancel the business of any such account, customer
or client. Employee further agrees that at all times during the Term neither he
nor any Related Party will, directly or indirectly, attempt to seek to cause any
account, customer or client of Employer, to refrain from patronizing Employer.
6.2 Proprietary Matters. Employee acknowledges that during the Term and in
light of his prior relationship with Employer, Employee has knowledge about, is
acquainted with, and has and will continue to have access to, Employer's
information that is of a confidential, proprietary and secret nature. Employee
shall at all times during the Term keep confidential all such knowledge or
information of a confidential, proprietary or secret nature, including matters,
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relating to, without limitation thereof: the business, accounts, books and
records, memoranda, customer lists, purchasing sources, marketing matters,
devices, secret inventions, pricing formula, software, codes and other
information related to the business, products or sales of Employer and its
customers and vendors. Employee also agrees to comply with Employer's policies,
as established from time to time, for the protection of its confidential and
proprietary information, including, for example, executing Employer's standard
confidentiality and proprietary information agreements.
6.3 Confidentiality. Employee agrees that all information that he obtains
or has obtained from Employer or otherwise acquires as a result of his
employment hereunder relating to Employer, its affiliates or subsidiaries, and
which is not known to the public, other than through a breach of this Agreement
by Employee, shall remain the confidential property of Employer and that neither
he nor any Related Party will at any time during the Term directly or indirectly
make such information known to third parties or use it for the benefit of
himself or itself, other than as may be necessary in the continued conduct of
the business of Employer. This Section 6.3 shall survive termination of this
Agreement.
6.4 Employees. Employee agrees that neither he nor any Related Party will
at any time during the Term directly or indirectly on behalf of himself or on
behalf of any person, firm, corporation or other entity, solicit, entice,
divert, employ or attempt to take away any employee or former employee of
Employer or its affiliates, or induce or attempt to induce any such employee to
quit its employment with Employer; provided, however, Employee may hire any
employee terminated by Employer immediately after such termination, and Employee
may hire
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any employee who resigns his employment with Employer one hundred eighty (180)
days after such resignation.
6.5 Return of Employer's Property. Upon termination of this Agreement for
any reason, Employee will return to Employer all books, papers, records, disks,
tapes, electronic storage media or other property of Employer of any kind or
nature which is in his possession, or under his control, and that neither he nor
any Related Party will at any time during the Term directly or indirectly make
such information known to third parties or use it for the benefit of himself,
other than as may be necessary in the continued conduct of the business of
Employer.
VII.
COVENANTS FAIR AND REASONABLE
Employee understands and acknowledges that the covenants contained in this
Agreement, including without limitation Article VI , are given in addition to
similar covenants of Employee under the Purchase Agreement. Employee further
represents that the said covenants are fair and reasonable as to time, area and
scope of restricted activity and are required for the fair and reasonable
protection of the business of Employer in light of Employee's prior and
continuing relationship with Employer. Employee further acknowledges that
without the restrictions imposed by his covenants provided herein including but
not limited to his future activities imposed by the said covenants, the business
of Employer would suffer irreparable and immeasurable harm. Each covenant of
Employee set forth herein shall be construed as an agreement independent of any
other provision of this Agreement, and the existence of any claim or cause of
action whether predicated on this Agreement, or otherwise, shall not constitute
a
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defense to the enforcement by Employer of the said covenants, and any court
having jurisdiction shall have the power to reduce the duration and/or area of
any such restriction, such that and in its reduced form, such covenant(s) may
and shall be enforceable.
The Parties hereto intend to and hereby confer jurisdiction to enforce the
covenants contained herein upon the courts of any state or other jurisdiction in
which any alleged breach of any such covenant occurs. If the courts of any of
one or more of such states or other jurisdictions shall hold such covenants not
wholly enforceable by reason of the scope thereof or otherwise, it is the intent
of the Parties hereto that such determination not bar or in any way affect the
Employer's right to the relief provided above in the courts of any other states
or jurisdictions as to breaches of such covenants in such other respective
states or jurisdictions, and the above covenants as they relate to each state or
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
VIII.
ARBITRATION
Subject to the right of Employer to seek injunctive relief for violations
of Article VI above and without waiving the same, the Parties agree that all
disputes, controversies or claims that may arise among them (including their
agents and employees), arising out of or relating to this Agreement, or the
breach, termination or invalidity thereof, shall be submitted to, and determined
by, binding arbitration. Such arbitration shall be conducted before a single
arbitrator in Columbus, Georgia pursuant to the Commercial Arbitration Rules
then in effect of the American Arbitration Association, except to the extent
such rules are inconsistent with this
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Article VIII. The arbitrator shall apply the laws of the State of Georgia
(without regard to conflict of law rules) in determining the substance of the
dispute, controversy or claim and shall decide the same in accordance with
applicable usages and terms of trade. The prevailing party in any such
arbitration shall be entitled to recover its reasonable attorneys' fees, costs
and expenses incurred in connection with the arbitration. Any award pursuant to
such arbitration shall be final and binding upon the Parties, and judgment on
the award may be entered in any federal or state court sitting in any court
having jurisdiction. The obligations set forth in this Article VIII shall
survive the termination of this Agreement.
IX.
MISCELLANEOUS
9.1 Amendments. This Agreement and the attachments hereto may not be
amended except by an agreement in writing signed by Employer and Employee.
9.2 Parties Bound. The rights and obligations of Employee and Employer
shall inure to the benefit of and shall be binding upon their respective heirs,
legal or personal representatives, successors and assign.
9.3 Entire Agreement; Assignability. This instrument contains the entire
agreement of the Parties. The rights arising hereunder are personal to the
Parties and may not be assigned, transferred, pledged or otherwise encumbered,
except that Employer may assign its rights hereunder to (i) any affiliate of
Employer and (ii) to any successor in interest or purchaser of substantially all
of the assets of Employer's business.
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9.4 Waiver of Breach or Violation Not Deemed Continuing. The waiver by any
Party of a breach or violation of any provision of this Agreement shall not
operate as or be construed to be a waiver of any subsequent breach hereof.
9.5 Notices. Any and all notices required or permitted to be given under
this Agreement will be sufficient only if furnished in writing and sent by
registered or certified mail to his last known residence in the case of
Employee, or to the principal office of Employer in Phenix City, Alabama in the
case of Employer.
9.6 Authority. The provisions of this Agreement required to be approved by
the manager of Employer have been so approved and authorized.
9.7 Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Georgia. If any disputes arise
between the parties that require judicial determination, the parties expressly
submit and consent to venue and jurisdiction in the federal or state courts,
located in or serving the county of Muscogee, State of Georgia.
9.8 Section Headings. The article and section headings contained in this
Agreement are for convenience only and shall in no manner be construed as part
of this Agreement.
9.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and together shall
constitute one and the same Agreement.
9.10 Invalidity of Provisions. Should any one or more provisions of this
Agreement for any reason be deemed by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision
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of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein, and there
shall be substituted for such invalid, illegal or unenforceable provision such
other provision as will most nearly accomplish the intent of the Parties to the
extent permitted by applicable law. In case this Agreement, or any one or more
provisions hereof, shall be held to be invalid, illegal or unenforceable within
any governmental jurisdiction or subdivision thereof, this Agreement or any such
provision thereof shall not as a consequence thereof be deemed to be invalid,
illegal or unenforceable in any other governmental jurisdiction or subdivision
thereof.
9.11 Construction. When used herein, the masculine gender shall be deemed
to include the feminine gender, and the singular shall be deemed to include the
plural, unless the context clearly indicates to the contrary.
9.12 No Set-Off. Employer may not set-off any amounts owed to Employee
hereunder against any amounts Employee may owe Employer without Employee's
written consent.
9.13 Survival of Certain Obligations. The obligations of Employer under
Article V, of Employee under Article VI and VII and of both Employer and
Employee under Articles VIII and IX shall survive the expiration of the term of
this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, Employee has hereunto set his hand and Employer has
hereunto caused its name to be signed by its duly authorized officers with one
original being delivered to each Party hereto as of the day and year first above
written.
GEKKO BRANDS, LLC
By: _________________________________
XXXXXXX X. XXXXXX, XX., Manager
Attest:_______________________________
XXXXXX XXXXX
"Employer"
___________________________(L.S.)
"Employee"
Sworn to and subscribed before
me on ________________________, 2004.
_____________________________________
Notary Public
State of _________________________
County of ________________________
Comm. Exp. _______________________
(Notarial Seal)
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EXHIBIT A
RELEASE OF ALL EMPLOYMENT RELATED CLAIMS
For and in consideration of the amount of [amount] (the "Payment") and
other good and valuable consideration described herein, [employee's name], for
himself and his legal representatives, successors and/or assigns ("Releasor"),
makes this Release of All Employment Related Claims ("Agreement") in favor of
Gekko Brands, LLC, its constituent members and each of their parents,
subsidiaries and affiliates and all of their respective members, managers,
officers, directors, shareholders, employees, agents, servants, representatives,
heirs, executors, administrators, assigns, predecessors and successors in
interest (all such persons and organizations are hereafter referred to as
"Releasee").
I. AGREEMENTS OF RELEASOR
(a) Releasor hereby settles with, reaches accord and satisfaction with,
and generally releases Releasee with respect to each and every claim, cause of
action, right, liability or demand of any kind arising out of Releasor's
employment by Releasee which arose at any time prior to and may arise until the
date this Agreement is duly executed. Such claims that are hereby released
include by way of example, but not limitation:
(i) all claims arising from Releasor's employment with Releasee
and the termination thereof; and
(ii) all employment related claims based on any federal, state, or
local anti-discrimination provision, statute, ordinance,
regulation, or policy (statutory or common), or legal or
equitable theory including but not limited to 42 U.S.C.
Section 1981 et seq., the Civil Rights Act of 1964, as
amended, the Pregnancy Discrimination Act, the Americans with
Disabilities Act, the Age Discrimination in Employment Act,
the Older Workers Benefit Protection Act and the Equal Pay
Act.
IT IS THE INTENT OF RELEASOR TO RELEASE ALL CLAIMS DIRECTLY RELATED TO
EMPLOYEE'S EMPLOYMENT WITH EMPLOYER ONLY. RELEASOR EXPRESSLY RESERVES ALL RIGHTS
WITH RESPECT TO ANY NON-EMPLOYMENT RELATED CLAIMS AGAINST RELEASEE, INCLUDING,
BUT NOT LIMITED TO RIGHTS ARISING UNDER THAT CERTAIN MEMBERSHIP PURCHASE
AGREEMENT DATED JULY 6, 2004.
(b) Releasor covenants not to hereafter xxx or to authorize anyone else to
file a lawsuit on his behalf against Releasee in respect of any claim released
hereunder (except as may be necessary to enforce the terms of this Agreement or
to test the knowing and voluntary nature hereof). Releasor also covenants and
agrees not to induce, incite, or encourage employment related claims of any
nature against Releasee.
(c) Releasor represents and agrees:
(i) That he would not be entitled to the Payment if he did not
sign this Agreement;
(ii) That the foregoing Payment is the only amount which he is
entitled to receive from Releasee solely as a result of his
employment by Releasee, and that he hereby waives all other
employment related payments or claims for payments;
(iii) That he acknowledges and understands his continuing obligation
to maintain the confidentiality of Releasee's trade secrets,
confidential and proprietary information;
(iv) That he has signed this Agreement voluntarily and of his own
free will; and
(v) That he fully understands his right to discuss this Agreement
in all detail with an attorney, understands that Releasee
recommends to him that he consult an attorney, and
acknowledges that he has been given a reasonable period of
time to consider whether he should sign the Agreement.
II. AGREEMENTS OF RELEASEE
(a) Releasee will pay the Payment to Releasee in thirteen (13)
substantially equal bi-weekly payments over Six (6) months (the "Severance
Period") commencing on or after the eighth day after Releasor signs this
Agreement upon delivery by Releasor of the signed Ratification attached hereto;
and
(b) Releasee will extend to Releasor the right to continue health
insurance under the Consolidated Omnibus Budget Reconciliation Act of 1986
(COBRA).
III. GENERAL
(a) Releasor has up to twenty-one (21) days to decide whether he wants to
sign this Agreement. If Releasor signs the Agreement, he will then have seven
(7) days from the day he signs the Agreement in which to revoke the Agreement.
The Agreement will not become effective until he delivers a signed Ratification
on or after the eighth day after he signs the Agreement.
(b) The provisions of this Agreement are fully severable, and, if any
provision of the Agreement is found to be unenforceable, the other paragraphs
shall remain fully valid and enforceable.
(c) This Agreement constitutes the full and entire agreement between the
parties hereto, and fully supersedes all prior agreements and understandings
between the parties hereto relating to this subject matter.
Submitted this ____ day of ________, 200___.
GEKKO BRANDS, LLC
By:_____________________________
Title:___________________________
________________________ ___________________________________(L.S.)
Date Accepted Signature of Releasor
RATIFICATION
Releasor, [employee's name], hereby swears that Releasor was given up to
twenty-one (21) days to decide whether to sign the Release of All Employment
Related Claims (hereinafter "Agreement"). Releasor signed the Agreement at least
seven (7) days ago and has not revoked the Agreement. Accordingly, upon receipt
of the Payment as described within the Agreement, Releasor acknowledges being
fully bound by all provisions of the Agreement.
_________________ ______________________________(L.S.)
Date Signature of Releasor
