EXHIBIT 10.53
AMENDED AND RESTATED
SEPARATION AGREEMENT
AND
GENERAL RELEASE
This Amended and Restated Separation Agreement and General Release is made
this 15th day of May, 1998 by and among Xxxxxx Xxxxxx ("Xxxxxx"), Skyline
Multimedia Entertainment, Inc. (the "Company"), Prospect Street NYC Discovery
Fund, L.P. ("Prospect Street") and the Employees Retirement Plan of the Brooklyn
Union Gas Company ("BUG").
WHEREAS, the parties hereto desire to amend the Separation Agreement and
General Release dated April 15, 1998 among the parties hereto, as amended by
Amendment No. 1 dated May 7, 1998 (the "Separation Agreement") and restate such
Separation Agreement in its entirety.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Separation Agreement is hereby
amended and restated in its entirety to read as follows:
A. As consideration for entering into this Agreement and the terms and
conditions set forth herein, I have been offered:
(i) as payment in connection with the purchase by the Company of the
securities referenced in Section B(iii) hereof, $206,250 payable as
follows: (1) $154,687.50 upon execution of this Agreement, and (2)
$51,562.50, of which amount I acknowledge receipt of $21,654, and the
balance of which is to be paid bi-weekly at the rate of $3,750
commencing on the date hereof until fully paid. Additionally, the
Company agrees to forgive amounts previously agreed to be refunded by me
to the Company in the amount of $750,000;
(ii) as payment in connection with the purchase by Prospect Street of
the securities referenced in Section B(V) hereof, the aggregate amount
of $100, which amount represents fair value for such securities in light
of the pledge related thereto, and in consideration of Prospect Street
and BUG providing certain financing for the Company; and
(iii) the opportunity to continue to receive the Company-subsidized
health benefits I was receiving on the last active day of my employment
through the period ending on January 15, 1999 or, at the Company's
option, to receive the economic equivalent thereof.
After consultation with my own counsel, I understand that these payments
and benefits exceed any payment, benefit, or other thing of value that I
might otherwise be entitled to under any Company policy, plan or
procedure.
B. In consideration of the compensation and benefits to be received by me
pursuant to paragraph A hereof, I hereby:
(i) resign from all positions and capacities held with the Company and
its subsidiaries, including, but not limited to, as an officer,
director and employee of the Company and its subsidiaries effective
as of April 15, 1998;
(ii) agree that during the ten year period ending on April 15, 2008 (the
"Non-Compete Period"), I will not, directly or indirectly, without
the consent of the Board of Directors of the Company: own, manage,
operate, join, control, or participate in or be connected with, as an
officer, employee, partner, stockholder, director, adviser,
consultant, agent or otherwise (whether paid or unpaid), any
business, which directly or indirectly competes with the currently
existing or contemplated businesses of the Company or its
subsidiaries at locations within New York City, including, but not
limited to (a) engaging in the food or souvenir concession business
at the same locations or at locations in close proximity to where the
Company currently conducts business, or (b) leasing space or entering
into licensing arrangements to provide simulated rides, virtual
reality arcade games or theater-based attractions;
(iii) agree that all options and warrants previously issued to me by the
Company are deemed canceled as of April 15, 1998 and to submit to the
Company all such options and warrants in my possession;
(iv) grant to Prospect Street an irrevocable proxy coupled with interest
to vote all of the shares of capital stock of the Company held by me,
the form of which is attached hereto as Exhibit A and to renew,
reexecute or reaffirm such irrevocable proxy as may from time to time
be required until the shares which are the subject of such
irrevocable proxy can be transferred as contemplated in subparagraph
(v) below and agree to vote all shares of capital stock of the
Company or execute consents with respect thereto as shall be
instructed by Prospect Street;
(v) agree to transfer to Prospect Street all shares of Class A common
stock of the Company held by me simultaneously with the release of
such shares from current escrow arrangements or pledge agreements and
to promptly instruct any escrow agent to transfer such shares upon
release; and
(vi) agree to use reasonable efforts to cause all shares of Class A common
stock currently held in escrow in connection with the escrow
arrangements or pledge agreements referred to in paragraph B(v) above
to be substituted with an equal number of shares of common stock of
the Company, which shares of common
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stock the Company hereby agrees to issue in exchange for such Class A
common stock.
C. The Company has advised me of, and I acknowledge that I do not have to
sign this Separation Agreement and General Release.
D. By signing this Separation Agreement and General Release, and in
consideration for the payments and benefits described in paragraph A hereof, I,
for myself and my heirs, executors, administrators, trustees, legal
representatives and assigns (collectively referred to as the "Releasors") hereby
forever release and discharge the Company, and any and all of its parent
corporations, shareholders, creditors subsidiaries, divisions, and each of their
affiliated or related entities, officers, directors, employees, agents,
representatives, successors and assigns, and any and all of its or their past,
present or future officers, directors, agents, stockholders, trustees,
fiduciaries, administrators, employees or assigns (whether acting as agents for
the Company or in their individual capacities) (collectively referred to as
"Releasees"), from any and all claims, demands, causes of action, and
liabilities of any kind whatsoever (based upon any legal or equitable theory,
whether contractual, common-law, statutory, federal, state, local or otherwise),
whether known or unknown, by reason of any act, omission, transaction, conduct
or occurrence up to and including the date of execution of this Agreement, which
the Releasors ever had, now have or hereafter can, shall or may have against the
Releasees for, upon or by reason of any act, omission, transaction or occurrence
up to and including the effective date of this Agreement.
E. The Company, and any and all of its parent corporations, shareholders,
subsidiaries, divisions, and each of their affiliated or related entities,
officers, directors, employees, agents, representatives, successors and assigns,
and any and all of its or their past, present or future officers, directors,
agents, stockholders, trustees, fiduciaries, administrators, employees or
assigns (whether acting as agents for the Company or in their individual
capacities) (collectively referred to as "Releasors") hereby forever release and
discharge Xxxxxx Xxxxxx, his heirs, executors, administrators, trustees, legal
representatives, advisors, family members and assigns (collectively referred to
as "Releasees") from any and all claims, demands, causes of action, and
liabilities of any kind whatsoever (based upon any legal or equitable theory,
whether contractual, common-law, statutory, federal, state, local or otherwise),
whether known or unknown, by reason of any act, omission, transaction, conduct
or occurrence up to and including the date of execution of this Agreement, which
the Releasors ever had, now have or hereafter can, shall or may have against the
Releasees for, upon or by reason of any act, omission, transaction or occurrence
up to and including the effective date of this Agreement.
F. The parties hereto agree that from the date of this Agreement and
continuing indefinitely thereafter, none of the parties hereto shall say or do
anything which could disparage, undermine or be reasonably interpreted to
denigrate the capabilities, performance, integrity or reputation of any other
party or any of such other party's directors, officers, stockholders, agents,
employees, consultants, representatives or affiliates.
G. This Agreement constitutes the complete understanding between the
parties and supersedes all prior agreements with respect to the subject matter
hereof. No other promises or agreements shall be binding unless in writing and
signed by the parties.
H. This Agreement shall be governed by the laws of the State of New York.
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I. This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
each of the parties hereto as of the date first written above.
XXXXXX XXXXXX
SIGNATURE: ___________________________
SKYLINE MULTIMEDIA ENTERTAINMENT, INC.
By: __________________________________
Name: Xxxxxx Xxxxxxxx
Title: Executive Director of
Operations and Finance
PROSPECT STREET NYC DISCOVERY FUND, L.P.
By: Prospect Street Discovery Fund, Inc., General Partner
By: ______________________________
Name: Xxxx X. Xxxxx, III
Title:
EMPLOYEES RETIREMENT PLAN OF
THE BROOKLYN UNION GAS COMPANY
By: __________________________________
Name: Xxxxxx Xxxxxxx
Title:
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IRREVOCABLE PROXY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned (the "Grantor"), a shareholder of Skyline Multimedia
Entertainment, Inc., a New York corporation (the "Company"), does hereby
irrevocably constitute and appoint Prospect Street NYC Discovery Fund, L.P.
("Prospect Street"), with full powers of delegation and substitution, as
attorney and agent for the Grantor and in its name, place and stead with respect
to any and all shares of capital stock of the Company of whatever class or
series from time to time held by the Grantor to vote as the Grantor's proxy or
proxies at any meeting of the shareholders of the Company (and any adjournment
thereof) or to take any consensual or other action permitted to be taken by the
Grantor as a shareholder of the Company, in each case with respect to such
matters, including without limitation, the election of directors, as may be
voted on, consented to or taken by, and according to the number of votes that
would be entitled to be cast by, the Grantor. This Proxy and all authority
conferred hereunder is irrevocable and coupled with an interest, and shall not
be terminated or terminable by any act of the Grantor or by operation of law,
including, without limitation, the death, dissolution, liquidation or cessation
of existence of the Grantor, or by the occurrence of any other event or events.
This Proxy is granted in consideration of the agreement by Prospect Street to
provide financing for the Company.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE
AGAINST ANY DONEE, ASSIGNEE OR OTHER TRANSFEREE OF THE CAPITAL STOCK
WHICH IS THE SUBJECT HEREOF.
IN WITNESS WHEREOF, the Grantor has duly executed this Proxy as of the 15th
day of April, 1998.
_____________________
Xxxxxx Xxxxxx
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On April 15, 1998, Xxxxxx Xxxxxx appeared before me and acknowledged to me
that he executed the foregoing instrument.
_____________________
Notary Public
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