Exhibit 99.14
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated June 27, 1997 (this "Agreement"), by and
between Pumpkin Ltd., a Delaware corporation (the "Company"), and Gay Xxxxx
(the "Executive").
WHEREAS, pursuant to an Agreement dated June 27, 1997 (the "Asset
Purchase Agreement") among Pumpkin, Ltd. d/b/a Pumpkin Masters, Inc., a
Colorado company ("Pumpkin"), the Company, Pumpkin Masters Holdings, Inc., a
Delaware corporation ("Holdings"), and Security Capital Corporation, a
Delaware corporation ("SCC"), the Company has agreed to acquire substantially
all the assets and business of Pumpkin; and
WHEREAS, the Company desires to employ the Executive as President
and Chief Executive Officer, and the Executive desires to be retained in such
capacities on the terms and conditions set forth herein, effective upon the
closing of the transactions contemplated by the Asset Purchase Agreement, it
being understood that if no such closing shall occur, this Agreement shall
have no force and effect.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements made herein, the Company and the Executive agree as follows:
1. Prior Agreements. The Executive hereby releases the Company
and its affiliates from all payments and other obligations under all
agreements, plans or arrangements covering the Executive which are in effect
prior to the Commencement Date (as hereinafter defined) and which are not to
be assumed by the Company pursuant to the Asset Purchase Agreement, if any.
2. Employment; Duties. (a) The Company shall employ the Executive
as President and Chief Executive Officer of the Company for the "Employment
Period" as defined in Section 3. The Executive, in her capacity as President
and Chief Executive Officer of the Company, shall have such duties,
responsibilities and authority normally incident to such offices and as
described in the Bylaws of the Company. Subject to the foregoing, the
precise duties, responsibilities and authority of the Executive may be
expanded or modified, from time to time, at the discretion of the Company.
Except as provided below, during the Employment Period, the Executive shall
render her business services solely in the performance of her duties
hereunder and shall devote her full working time, attention, knowledge and
experience and give her best effort, skill and abilities, exclusively to
promote the business and interests of the Company. The Executive may not
serve as an officer or director of, make investments in, or otherwise
participate in, any other entity without the prior written consent of the
Board of Directors provided: (i) that the foregoing shall not be deemed to
prohibit the Executive from acquiring, directly or indirectly, solely as an
investment, not more than one percent (1%) of any class of securities of or
of the aggregate principal outstanding indebtedness of any entity that is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended, including the regulations issued thereunder; provided
further, that such investment would not prevent, directly or indirectly, the
transaction of business by the Company with any state, district, territory or
possession of the United States of America or any foreign country or any
governmental subdivision, agency or instrumentality thereof by virtue of any
statute, law, regulation or administrative practice and (ii) so long as it
does not interfere with the Executive's employment, the Executive may (x)
with the prior written consent of the Board of Directors (which consent will
not be unreasonably withheld), serve as a director in a noncompeting company,
(y) serve as an officer, director or otherwise participate in purely
educational, welfare, social, religious and civic organizations, and (z)
manage personal and family investments.
(b) The Executive shall be employed at Denver, Colorado or such other
place as the Company and Executive shall mutually agree.
3. Employment Period. This Agreement shall have a term of four
years, commencing as of the date of the closing of the transactions contemplated
by the Asset Purchase Agreement, as reference in the recitals above (the
"Commencement Date") and ending on the fourth anniversary of the Commencement
Date, unless sooner terminated in accordance with the provisions of Section 8 or
Section 9.
4. Compensation and Benefits.
(a) Base Compensation. The Executive shall be paid an aggregate
base salary (the "Base Salary") of $150,000 per annum, less statutory deductions
and withholdings. The Base Salary shall be payable in a manner consistent with
the normal payroll practices of the Company in effect from time to time. If,
at the completion of any fiscal year of the Company that ends during the
Employment Period, the Company has substantially achieved the performance goals
specified for such fiscal year in the business plan approved by the Board of
Directors, the Base Salary shall be increased by 10%, effective July 1 of the
immediately following fiscal year. As so increased, the aggregate base salary
amount shall be deemed the Base Salary amount for purposes of this Agreement.
(b) Annual Bonus. In addition to the Base Salary, including any
increase pursuant to the provisions of Section 4(a), the Executive shall be
entitled to receive an annual bonus for each fiscal year of the Company that
ends during the Employment Period in an amount calculated as follows: (i) if the
Company's total EBITDA for such fiscal year is equal to or less than
$1,500,000.00, zero, (ii) if the Company's total EBITDA for such fiscal year is
greater than $1,500,000.00 and equal to or less than $1,800,000.00, an amount
equal to 1.5% of the Company's total EBITDA for such fiscal year and (iii) if
the Company's total EBITDA for such fiscal year is greater than $1,800,000.00,
(x) an amount equal to 1.5% of the portion of the Company's total EBITDA for
such fiscal year up to $1,800,000.00, plus (y) an amount equal to 2.5% of the
portion of the Company's total EBITDA for such fiscal year in excess of
$1,800,000.00 and equal to or less
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than $2,300,000.00 plus (z) an amount equal to 4% of the portion of the
Company's total EBITDA for such fiscal year in excess of $2,300,000.00. For
purposes of the foregoing, "EBITDA" shall have the meaning ascribed to it in
the Asset Purchase Agreement, without giving effect to the Seller Exclusions
(as such term is defined in the Asset Purchase Agreement). The bonus
contemplated by this Section 4(b), if earned, shall be paid to the Executive
within thirty (30) days immediately following the release of the Company's
audited financial statements for the fiscal year upon which the bonus is
based.
(c) Benefits. The Executive shall be entitled to participate,
to the extent eligible, in the employee benefit and group insurance programs
provided by the Company for its officers and employees generally and in
accordance with the terms of the applicable plan documents as they may be
revised from time to time. The Company shall reimburse the Executive on a
regular basis for all reasonable expenses incurred by the Executive in the
performance of her duties hereunder in furtherance of the business of the
Company during the Employment Period. The Executive shall provide the Company
an itemized account to substantiate all such expenditures.
5. Trade Secrets. The Executive acknowledges that it is in the
legitimate business interest of the Company to prohibit her disclosure or use of
Trade Secrets and Confidential Information relating to the Company and its
direct or indirect subsidiaries for any purpose other than in connection with
her performance of her duties to the Company, and to prohibit any potential
appropriation of such Trade Secrets and Confidential Information by the
Executive. The Executive therefore agrees that all Trade Secrets and
Confidential Information relating to the Company and its direct or indirect
subsidiaries heretofore or in the future obtained by the Executive shall be
considered confidential and the proprietary information of the Company and its
direct or indirect subsidiaries. During the Employment Period the Executive
shall not use or disclose, or knowingly or intentionally permit or authorize any
other person or entity to use or disclose, any Trade Secrets or other
Confidential Information, other than as necessary to further the business
objectives of the Company in accordance with the terms of her employment
hereunder. The term "Trade Secrets or other Confidential Information" includes,
by way of example and without limitation, matters of a technical nature, such as
scientific, trade and engineering secrets, "know-how", formulas, secret
processes, drawings, patterns (whether or not published), works of authorship,
machines, inventions, computer programs (including documentation of such
programs), services, materials, unfiled trademark applications, copyright
applications, patent applications, new product plans, other plans, technical
information, technical improvements, manufacturing techniques, specifications,
manufacturing and test data, progress reports and research projects, and matters
of a business nature, such as business plans, prospects, financial information,
proprietary information about costs, profits, markets, sales, lists of customers
and suppliers of the Company and its direct or indirect subsidiaries,
procurement and promotional information, credit and financial data concerning
customers or suppliers of the Company and its direct or indirect subsidiaries,
information relating to the management, operation and planning of the Company
and its direct and indirect subsidiaries, and other information of a similar
nature to the extent not available to the public, and plans for future
development. After termination of the Executive's employment with the Company
for any reason, the Executive shall not use or disclose Trade Secrets or other
Confidential Information.
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6. Return of Documents and Property. Upon the termination of the
Executive's employment with the Company, or at any time upon the request of the
Company, the Executive (or her heirs or personal representatives) shall deliver
to the Company (a) all documents and materials (including, without limitation,
computer files) containing Trade Secrets or other Confidential Information
relating to the business and affairs of the Company and its direct and indirect
subsidiaries, and (b) all documents, materials and other property (including,
without limitation, computer files) belonging to the Company or its direct or
indirect subsidiaries, which in either case are in the possession or under the
control of the Executive (or her heirs or personal representatives).
7. Discoveries and Work. All Discoveries and Works made or
conceived by the Executive during her employment by the Company, whether during
the Employment Period or at any time prior thereto, jointly or with others, that
relate to the then-current present or anticipated activities of the Company or
its direct subsidiaries, or are used or usable by the Company or its direct
subsidiaries shall be owned by the Company or its direct subsidiaries. The term
"Discoveries and Works" includes, by way of example but without limitation,
Trade Secrets and other Confidential Information, patents and patent
applications, trademarks and trademark registrations and applications, service
marks and service xxxx registrations and applications, trade names, copyrights
and copyright registrations and applications and patterns (whether or not
published). The Executive shall (a) promptly notify, make full disclosure to,
and execute and deliver any documents requested by, the Company, as the case may
be, to evidence or better assure title to Discoveries and Works in the Company
or its direct subsidiaries, as so requested, (b) renounce any and all claims,
including but not limited to claims of ownership and royalty, with respect to
all Discoveries and Works and all other property owned or licensed by the
Company or its direct subsidiaries, (c) assist the Company or its direct
subsidiaries in obtaining or maintaining for itself at its own expense United
States and foreign patents, copyrights, trademarks, trade secret protection or
other protection of any and all Discoveries and Works, and (d) promptly execute,
whether during her employment with the Company or thereafter, all applications
or other endorsements necessary or appropriate to maintain patents and other
rights for the Company or its direct subsidiaries and to protect the title of
the Company or its direct subsidiaries thereto, including but not limited to
assignments of such patents and other rights. Any Discoveries and Works which,
within two years after the termination of the Executive's employment with the
Company, are made, disclosed, reduced to a tangible or written form or
description, or are reduced to practice by the Executive and which pertain to
the business carried on or products or services being sold or developed by the
Company or its direct subsidiaries at the time of such termination shall, as
between the Executive and, the Company, be presumed to have been made during the
Executive's employment by the Company. The Executive acknowledges that all
Discoveries and Works shall be deemed "works made for hire" under the Copyright
Act of 1976, as amended, 17 U.S.C. Section 101.
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8. Termination.
(a) The Company or the Executive may terminate this Agreement,
with or without cause or for "EBITDA cause", with or without prior notice.
Except as provided in Sections 8(b) and 18, in the event the Company or the
Executive terminates this Agreement, the Executive's rights and the obligations
of the Company hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base
Salary, any annual bonus and all other compensation or benefits provided for in
this Agreement.
(b) In the event the Company terminates this Agreement without
"cause" or for "EBITDA cause" or in the event that the Executive terminates this
Agreement upon notice for "Good Reason", and for so long as the Executive
continues to observe and perform the covenants contained in Sections 5, 6, 7,
11, 12, and 13 of this Agreement, the Executive shall be entitled to continue to
receive payments of her Base Salary, subject to applicable statutory deductions
and withholdings and payable at such times and in such amounts as if this
Agreement were not terminated, and to the continued provision of benefits
referred to in Section 4(c), for the one year period following such termination.
All other compensation and benefits provided for in Section 4 of this Agreement
shall cease upon such termination; provided that, if the termination of this
Agreement occurs between August 1 and December 31 of any fiscal year, and the
Executive would have been entitled or would have become entitled to a bonus,
calculated in accordance with Section 4(b), for or in connection with the fiscal
year in which such termination occurred, upon such fiscal year's completion, the
Executive shall be entitled to receive from the Company an amount equal to 80%
of such bonus, payable as specified in Section 4(b). The following example
illustrates the application of the proviso in the preceding sentence: if a
termination of this Agreement were to occur on September 30 of 1999 and at the
end of 1999 the Company's total EBITDA for 1999 is determined to be $2,000,000,
the Executive would receive in 2000 a bonus of $25,600 in connection with her
employment during 1999 based on the following calculation ($1,800,000 x 1.5% =
$27,000) + ($200,000 x 2.5% = $5,000) = $32,000; and $32,000 x 80% = $25,600.
For purposes of this Agreement, "cause" shall mean (i) the willful
failure of the Executive to follow the directions of the Company which might
result in or does result in an adverse material effect on the business, property
or operations of the Company (other than any such failure resulting from her
incapacity due to physical or mental illness or disability which is subject to
the provisions of Section 9), after written notice of such failure from the
Board of Directors and a 10-day opportunity to cure, (ii) any act of fraud or
dishonesty, misappropriation or embezzlement, wilful misconduct or gross
negligence in connection with the performance of the Executive's duties
hereunder, (iii) a breach by the Executive of any material provision hereof or
of any material contractual or material legal duty to the Company (including,
but not limited to, the unauthorized disclosure of Trade Secrets or other
Confidential Information, non-compliance with the written policies, guidelines
and procedures of the Company), after written notice thereof from the Board of
Directors and a 30-day opportunity to cure in the event that such breach was not
wilful, (iv) the conviction of the Executive of the commission of a crime or
offense involving moral turpitude (including pleading guilty or no contest to
such a crime or offense or a lesser charge which results
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from plea bargaining) which results in the imprisonment of the Executive,
whether or not committed in connection with the business of the Company or
(v) breach by the Executive of the provisions of any stockholders agreement
or other agreement relating to the Executive's acquisition of an equity
interest in the Company to which the Executive may become a party on or after
the date hereof.
For purposes of this Agreement, "EBITDA cause" shall mean (i) the
failure of the Company to achieve annual EBITDA (as defined in the Asset
Purchase Agreement), without giving effect to the Seller Exclusions, of at least
One Million Dollars ($1,000,000.00) in any one fiscal year or (ii) the failure
of the Company to achieve average annual EBITDA (as defined in the Asset
Purchase Agreement), without giving effect to the Seller Exclusions, of at least
One Million Five Hundred Thousand Dollars ($1,500,000.00) in any two consecutive
fiscal years.
For purposes of this Agreement, "Good Reason" shall mean (i) the
Company changes the Executive's status, title or position or the nature or the
scope of the Executive's authorities, duties or responsibilities as originally
contemplated by this Agreement and such change represents a material reduction
in such status, title, position, authority, duty or responsibility conferred
hereunder, (ii) the Company changes its principal location of business or the
Executive's place of employment, without the Executive's consent, from the
Denver, Colorado area, (iii) a sale of stock or series of related sales or a
merger, consolidation or similar corporate reorganization of the Company, and as
a result of which Holdings, the sole stockholder of the Company, shall own,
directly or indirectly, less than 51% of the outstanding voting securities of
the Company, (iv) a sale of stock or series of related sales or a merger,
consolidation or similar corporation reorganization of Holdings, and as a result
of which SCC and its Affiliates shall own, directly or indirectly, less than 51%
of the outstanding voting securities of Holdings, (v) the sale of assets of the
Company having fair value greater than 80% of the fair value of all assets of
the Company pursuant to any single sale or series of related sales (other than
the sale of inventory in the ordinary course of business or (vi) a material
breach by the Company of any material provision hereof, after written notice of
such breach by the Executive and a 10-day opportunity to cure. If the Executive
terminates this Agreement for "Good Reason", her notice thereof shall include
the specific section of this Agreement which was relied upon and the reason that
the Company act has given rise to her termination for Good Reason.
(c) In the event the Company terminates this Agreement for cause
or the Executive terminates this Agreement (other than for Good Reason), the
Executive's rights hereunder shall cease as of the effective date of the
termination, including, without limitation, the right to receive the Base
Salary, any annual bonus and all other compensation or benefits provided for in
this Agreement.
9. Disability; Death.
(a) If, prior to the expiration of the Employment Period or the
termination of this Agreement, the Executive shall be unable to perform her
duties by reason of mental or physical disability for at least one-hundred
eighty (180) consecutive days or any one-hundred eighty (180) days (whether or
not consecutive) in any three-hundred sixty (360) consecutive day period,
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the Company shall have the right to terminate this Agreement and the
remainder of the Employment Period by giving written notice to the Executive
to that effect. Immediately upon the giving of such notice, the Employment
Period shall terminate.
(b) Upon termination of this Agreement pursuant to Section 9(a),
the Executive shall be entitled to continue to receive payments of her Base
Salary, subject to applicable statutory deductions and withholdings and payable
at such times and in such amounts as if this Agreement were not terminated, for
the six-month period following such termination; provided, however, that any
such payments shall be offset by the amount of all proceeds of disability
insurance maintained for the Executive as an employee benefit from the Company
paid to the Executive. In the event of a dispute as to whether the Executive is
disabled within the meaning of Section 9(a), either party may from time to time
request a medical examination of the Executive by a doctor appointed by the
Chief of Staff of a hospital selected by mutual agreement of the parties, or as
the parties may otherwise agree, and the written medical opinion of such doctor
shall be conclusive and binding upon the parties as to whether the Executive has
become disabled and the date when such disability arose. The cost of any such
medical examination shall be borne by the Company. If, prior to the expiration
of the Employment Period or the termination of this Agreement, the Executive
shall die, the Employment Period shall terminate without further notice. The
Executive's estate shall be entitled to continue to receive payments of her Base
Salary, subject to applicable statutory deductions and withholdings and payable
at such times and in such amounts as if this Agreement were not terminated, for
the six-month period following such termination; provided, however, that any
such payments shall be offset by the amount of all proceeds of life insurance
maintained for the Executive as an employee benefit from the Company paid to the
Executive's estate.
10. No Conflicts. The Executive represents to the Company that the
execution, delivery and performance by the Executive of this Agreement do not
conflict with or result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default under any contract, agreement
or understanding, whether oral or written, to which the Executive is a party or
of which the Executive is or should be aware.
11. Non-Competition. From and after the Commencement Date, the
Executive will not, except pursuant to the terms hereof, directly or indirectly,
own, manage, operate, join, finance, control or participate in the ownership,
management, operation or control of, or be employed or engaged by or be
otherwise connected in any manner with, any business under a name similar to the
name of any of the Company or any direct or indirect subsidiary thereof. Prior
to the termination of the Executive's employment hereunder and for a period
after any such termination or expiration of this Agreement equal to the greater
of (i) twelve (12) months and (ii) the balance of the then existing Employment
Period (as if this Agreement were not terminated), the Executive will not
(except as an officer, director, employee, agent or consultant of the Company)
directly or indirectly, own, manage, operate, join, or have a financial interest
in, control or participate in the ownership, management, operation or control
of, or be employed as an employee, agent or consultant, or in any other
individual or representative capacity whatsoever, or use or permit her name to
be used in connection with, or be otherwise connected in any manner with (i) any
business or enterprise
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engaged (wherever located) in the design, development, manufacture,
distribution or sale of any products, or the provision of any services, which
the Company or its direct subsidiaries were designing, developing,
manufacturing, distributing, selling or providing at any time up to an
including the date of termination of this Agreement or (ii) any business
which is similar to or competitive with the business carried on or planned by
the Company or its direct subsidiaries at any time during the period of the
Executive's employment by the Company, whether during or prior to the
Employment Period, unless the Executive shall have obtained the prior written
consent of the Board of Directors, provided that the foregoing restriction
shall not be construed to prohibit the ownership by the Executive of not more
than one percent (1%) of any class of securities of or of the aggregate
principal outstanding indebtedness of any corporation which is engaged in any
of the foregoing businesses, that is registered pursuant to the Securities
Exchange Act of 1934, which securities are publicly owned and regularly
traded on any national exchange or in the over-the-counter market, provided
further, that such ownership represents a passive investment and that neither
the Executive nor any group of persons including the Executive in any way,
either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations, otherwise takes
part in its business other than exercising her rights as a shareholder, or
seeks to do any of the foregoing.
12. Non-Solicitation. Prior to the termination of the Executive's
employment hereunder and for a period after any such termination or expiration
of this Agreement equal to the greater of (i) twelve (12) months and (ii) the
balance of the then existing Employment Period (as if this Agreement were not
terminated), the Executive agrees, directly or indirectly, whether for her own
account or for the account of any other individual or entity, not to solicit,
divert, appropriate, accept or canvas the trade, business or patronage of, or
sell any products or services which are the same as or similar to those
designed, developed, manufactured, distributed or sold by the Company or its
direct subsidiaries to, any individuals or entities that were either customers
of the Company or any of its direct subsidiaries during the time the Executive
was employed by the Company, whether during or prior to the Employment Period,
or prospective customers with respect to whom a sales effort, presentation or
proposal was made by the Company or any of its direct subsidiaries during the
twelve months preceding the date of termination or expiration, as the case may
be. The Executive further agrees that prior to the termination of the
Executive's employment hereunder and for a period of two years thereafter, she
shall not, directly or indirectly, (i) solicit, induce, enter into any agreement
with, or attempt to influence any individual who at the time of any such
solicitation is an employee or consultant of the Company or any of its direct
subsidiaries to terminate his or her employment relationship with the Company or
any of its direct subsidiaries or to become employed by the Executive or any
individual or entity by which Executive is employed.
13. Enforcement. (a) The Executive agrees that the remedies at law
for any breach or threat of breach by her of any of the provisions of Sections
5, 6, 7, 11, 12 and 13 hereof will be inadequate, and that, in addition to any
other remedy to which the Company may be entitled at law or in equity, the
Company shall be entitled to a temporary or permanent injunction or injunctions
or temporary restraining order or orders to prevent breaches of the provisions
of Sections 5, 6, 7, 11, 12 and 13 hereof and to enforce specifically the terms
and provisions thereof, in each case
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without the need to post any security or bond. Nothing herein contained
shall be construed as prohibiting the Company from pursuing, in addition, any
other remedies available to the Company for such breach or threatened breach.
A waiver by the Company of any breach of any provision hereof shall not
operate or be construed as a waiver of a breach of any other provision of
this Agreement or of any subsequent breach by the Executive.
(b) It is expressly understood and agreed that although the Company
and the Executive consider the restrictions contained in Sections 5, 6, 7, 11
and 12 hereof to be reasonable for the purpose of preserving the goodwill,
proprietary rights and going concern value of the Company, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in such Sections 5, 6, 7, 11 and 12 is an
unenforceable restriction on the Executive's activities, the provisions of such
Sections 5, 6, 7, 11 and 12 shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such other extent
as such court may judicially determine or indicate to be reasonable.
Alternatively, if the court referred to above finds that any restriction
contained in Sections 5, 6, 7, 11 or 12 or any remedy provided herein is
unenforceable, and such restriction or remedy cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained therein or the availability of any other remedy.
The provisions of Sections 5, 6, 7, 11 and 12 shall in no respect limit or
otherwise affect the Executive's obligations under other agreements with the
Company.
14. Assignment. The rights and obligations of the parties under this
Agreement shall not be assignable by either the Company or the Executive,
provided, however, subject to Section 8 hereof, that this Agreement is
assignable by the Company to any affiliate of the Company, to any successor in
interest to any business of the Company, or to a purchaser of all or
substantially all of the assets of any business of the Company.
15. Notices. Any notice required or permitted under this Agreement
shall be deemed to have been effectively made or given if in writing and
personally delivered, mailed properly addressed in a sealed envelope, postage
prepaid by certified or registered mail, delivered by a reputable overnight
delivery service or sent by facsimile. Unless otherwise changed by notice,
notice shall be properly addressed to the Executive if addressed to:
Gay Xxxxx
X.X. Xxx 00000
Xxxxxx, XX 00000
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with a copy to:
Pendleton, Friedberg, Xxxxxx & Xxxxxxxxx, P.C.
000 X. 00xx Xxxxxx #0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
and properly addressed to the Company if addressed to:
Pumpkin Ltd.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chairmen of the Board
with a copy to:
Capital Partners, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
with a copy to:
Xxxxxx Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
16. Severability. Wherever there is any conflict between any
provision of this Agreement and any statute, law, regulation or judicial
precedent, the latter shall prevail, but in such event the provisions of this
Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring them within the requirements of the law. In the event that
any provision of this Agreement shall be held by a court of proper jurisdiction
to be indefinite, invalid, void or voidable or otherwise unenforceable, the
balance of the Agreement shall continue in full force and effect unless such
construction would clearly be contrary to the intentions of the parties or would
result in an unconscionable injustice.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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18. Effect of Termination. Notwithstanding anything to the contrary
contained herein, if this Agreement or the Executive's employment is validly
terminated pursuant to Section 8 or Section 9 or expires by its terms, the
provisions of Sections 5, 6, 7, 11, 12, 13, 14, 16 and 19 shall continue in full
force and effect.
19. Miscellaneous; Choice of Law and Enforcement. This Agreement,
together with the Stock Option Agreement and the Stockholders' Agreement of the
Company, each dated the date hereof, constitute the entire agreement, and
supersedes all prior agreements, of the parties hereto relating to the subject
matter hereof, and there are no written or oral terms or representations made by
either party other than those contained herein. This Agreement shall be
governed by and construed in accordance with the domestic laws of the State of
Colorado, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Colorado or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Colorado, except to the extent that the General Corporation Law of the
State of Delaware (the "GCL") applies as a result of the Company being
incorporated in the State of Delaware, in which case such GCL shall apply. Any
action to enforce the terms of this Agreement shall be brought in the Colorado
District Court in Denver, Colorado and, in any such action, the presiding party
shall be entitled to recover its costs and expenses, including without
limitation, its reasonable attorneys' fees and related costs or expenses.
20. Indemnification. The Company shall indemnify and hold the
Executive harmless from and against any and all claims, actions, causes of
action, liabilities, damages, costs and expenses, including the Executive's
reasonable attorneys' fees in connection with any litigation or threatened
litigation against the Executive in connection with Executive's duties as an
employee of Company under this Agreement; provided the Executive has acted in a
manner consistent with the applicable standard of conduct set forth in the GCL,
Section 145 (or any successor Section thereto).
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the day and year first above written.
PUMPKIN LTD.
By: /s/ Xxxxxx Xxxxxx
-----------------------
Name:
Title:
/s/ Gay Xxxxx
--------------------------
Gay Xxxxx
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