EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.74
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this
“Agreement”)
is made and entered this ___ day of ____________, 2018 (the
“Effective
Date”) between Level Brands, Inc., a North Carolina
corporation whose principal place of business is 0000 Xxxxxx Xxxx,
Xxxxxxxxx, XX 00000 (the “Corporation”)
and Xxxx X. Xxxxxxx, an individual whose address is 0000 Xxxxxxxx
Xx., Xxxxxxxxx, XX 00000 (the “Executive”).
RECITALS
WHEREAS, the Corporation is a
branding and marketing company
focusing on lifestyle based segments including women’s,
men’s and entertainment segments (the
“Business”).
WHEREAS, the Corporation desires to
continue to employ the Executive and the Executive desires to
continue to be employed by the Corporation pursuant to the terms of
this Agreement.
WHEREAS, the Executive, by virtue of the
Executive’s employment with the Corporation, will become
familiar with and possessed with the manner, methods, trade secrets
and other confidential information pertaining to the
Corporation’s business, including the Corporation’s
client base.
NOW, THEREFORE, in consideration of the
mutual agreements herein made, the Corporation and the Executive do
hereby agree as follows:
1. Recitals.
The above recitals are true, correct, and are herein incorporated
by reference.
2. Employment.
The Corporation hereby agrees to continue to employ the Executive,
and the Executive hereby accepts continued employment, upon the
terms and conditions hereinafter set forth.
3. Authority
and Power During Employment Period.
a. Duties
and Responsibilities. During the term of this Agreement, the
Executive will serve as Chief Financial Officer and Chief Operating
Officer and in this capacity, shall serve as the
Corporation’s Chief Financial Officer and Chief Operating
Officer and perform such other or additional duties and
responsibilities consistent with Executive’s title(s),
status, and position as the Chief Financial Officer and Chief
Operating Officer.
b. Time
Devoted. Throughout the term of the Agreement, the Executive
shall devote a majority of the Executive’s business time and
attention to the business and affairs of the Corporation consistent
with the Executive’s senior executive position with the
Corporation, except for reasonable vacations and except for illness
or incapacity, but nothing in the Agreement shall preclude the
Executive from engaging in a business other than the Business of
the Corporation which do not compete with the Corporation,
including as a member of the Board of Directors of affiliated
companies, charitable and community affairs, provided that such
activities do not interfere with the regular performance of the
Executive’s duties and responsibilities under this
Agreement.
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c. Corporate
Policies. The Executive shall abide by all corporate
governance and employment policies of the Corporation which may be
adopted or modified from time to time including, but not limited
to, any xxxxxxx xxxxxxx and code of ethics polities.
4. Term.
The initial term (“Initial
Term”) of employment hereunder will commence on the
Effective Date and end on the third (3rd) anniversary of the
Effective Date and may be extended for additional one (1) year
periods (each a “Renewal
Term”) upon mutual consent of the parties by written
notice given by the Corporation to the Executive at least 60 days
before the expiration of the Initial Term or the Renewal Term, as
the case may be, unless this Agreement shall have been terminated
pursuant to Section 6 of this Agreement. When used herein,
“Term”
shall mean the Initial Term and any Renewal Term(s).
5. Compensation
and Benefits.
a. Salary.
The Executive shall be paid a base salary (“Base
Salary”), payable in accordance with the
Corporation’s policies from time to time for senior
executives, at an annual rate One Hundred Eighty Thousand dollars
($180,000). The Base Salary thereafter may be increased, but not
decreased, from time to time, by the Compensation Committee of the
Board of Directors in connection with reviews of Executive’s
performance, which such reviews shall occur no less frequently than
annually.
b. Performance
Bonus Opportunities.
(1) During
the Term, the Executive will be eligible for a performance
bonus (the “Performance
Bonus”), payable in a
combination of cash and awards of common stock
(“Performance Bonus
Stock Awards”), which such Performance Bonus shall be
based upon his relative achievement of annual performance goals
established by the Corporation’s Board of Directors upon
recommendation of the Compensation Committee of the Board of
Directors, with input from the Corporation’s senior executive
management, including the Executive. Such performance goals are to
be established by the Board of Directors no later than the
beginning of each fiscal year.
(2) Any
Performance Bonus Stock Award shall be granted to the Executive
pursuant to the terms and conditions of the Corporation’s
2015 Equity Compensation Plan, or such other compensation plan as
may be adopted by the Corporation and its shareholders during the
Term (collectively, the “Plan”).
(3) The
determination of the achievement of the annual performance goals
shall be made by the Compensation Committee of the Board of
Directors as soon as practicable following the completion of the
Corporation’s audited financial statements for the applicable
fiscal year. The payment of each annual Performance Bonus, if any,
shall be made to the Executive within thirty (30) days of such
determination.
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c. Discretionary
Bonus.
(1) The
Compensation Committee of the Board of Directors shall review the
Executive’s performance on an annual basis, and in connection
with such annual review, the Executive may be entitled to receive
an annual discretionary bonus (the “Annual
Discretionary Bonus”) in such amount as may be
determined by the Board of Directors, upon recommendation of the
Compensation Committee, in its sole discretion.
(2) The
Compensation Committee shall commence each annual review by the
last business day of January of the following year. The Annual
Discretionary Bonus, if any, shall be paid to the Executive by the
last business day of February of the following year, or, if no
Annual Discretionary Bonus is awarded, the Compensation Committee
shall so notify the Executive in writing of such determination by
the last business day of February of the following year. For
example, the Compensation Committee review for the year ending
December 31, 2018 shall commence no later than January 31, 2019,
and, assuming an Annual Discretionary Bonus is to be awarded, the
Executive shall be paid the Annual Discretionary Bonus for the year
ending December 31, 2018 on or before February 28, 2019. The Annual
Discretionary Bonus, if any, may be paid to the Executive in the
form of cash, equity awards made under the Plan or a combination
thereof, as determined by the Compensation Committee in its sole
discretion.
d. Executive
Benefits. The Executive shall be entitled to participate in
all benefit programs of the Corporation currently existing or
hereafter made available to executive and/or salaried employees
including, but not limited to, stock option plans, pension and
other retirement plans, group life insurance, hospitalization,
surgical and major medical coverage, sick leave, salary
continuation, vacation and holidays, long-term disability, and
other fringe benefits.
e. Vacation.
During each fiscal year of the Corporation, the Executive shall be
entitled to such amount of vacation consistent with the
Executive’s position and length of service to the
Corporation.
f. Business
Expense Reimbursement. During the Term of employment, the
Executive shall be entitled to receive proper reimbursement for all
reasonable, out of-pocket expenses incurred by the Executive (in
accordance with the policies and procedures established by the
Corporation) in performing services hereunder, provided the
Executive properly accounts therefor.
g. Clawback
Provisions. Notwithstanding any other provisions in this
Agreement to the contrary, any incentive-based compensation, or any
other compensation, paid to the Executive pursuant to this
Agreement or any other agreement or arrangement with the
Corporation which is subject to recovery under any law, government
regulation or stock exchange listing requirement, will be subject
to such deductions and clawback as may be required to be made
pursuant to such law, government regulation or stock exchange
listing requirement (or any policy adopted by the Corporation
pursuant to any such law, government regulation or stock exchange
listing requirement).
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6. Termination.
a. Death.
This Agreement will terminate upon the death of the
Executive.
b. Disability.
(1) The
Executive’s employment will terminate in the event of his
disability, upon the first day of the month following the
determination of disability as provided below. Following such a
termination, the Executive shall be entitled to compensation in
accordance with the Corporation’s disability compensation
practice for senior executives, including any separate arrangement
or policy covering the Executive, but in all events the Executive
shall continue to receive his Base Salary, at the annual rate in
effect immediately prior to the commencement of disability, for
three (3) months after the termination. Any amounts provided for in
this Section 6b shall not be offset by other long-term disability
benefits provided to the Executive by the Corporation or Social
Security.
(2) “Disability,”
for the purposes of this Agreement, shall be deemed to have
occurred if (A) the Executive is unable, by reason of a physical or
mental condition, to perform his duties under this Agreement for an
aggregate of ninety (90) days in any 12-month period or (B) the
Executive has a guardian of the person or estate appointed by a
court of competent jurisdiction. Anything herein to the contrary
notwithstanding, if, following a termination of employment due to
disability, the Executive becomes re-employed, whether as an
executive or a consultant, any compensation, annual incentive
payments or other benefits earned by the Executive from such
employment shall be offset against any compensation continuation
due to the Executive hereunder.
c. Termination
by the Corporation For Cause.
(1) Nothing
herein shall prevent the Corporation from terminating Executive for
Cause, as hereinafter defined. The Executive shall continue to
receive compensation only for the period ending with the date of
such termination as provided in this Section 6c. Any rights and
benefits the Executive may have in respect of any other
compensation shall be determined in accordance with the terms of
such other compensation arrangements or such plans or
programs.
(2) “Cause”
shall mean (A) committing or participating in an injurious act of
fraud, gross neglect, misrepresentation, embezzlement or dishonesty
against the Corporation; (B) committing or participating in any
other injurious act or omission wantonly, willfully, recklessly or
in a manner which was grossly negligent against the Corporation;
(C) engaging in a criminal enterprise involving moral turpitude;
(D) conviction for a felony under the laws of the United States or
any state thereof; (E) violation of any Federal or state securities
laws, rules or regulations, or any rules or regulations of any
stock exchange or other market on which the Corporation’s
securities may be listed or quoted for trading; (F) violation of
the Corporation’s corporate governance policies; or (G) any
assignment of this Agreement in violation of Section 14 of this
Agreement.
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(3) Notwithstanding
anything else contained in this Agreement, this Agreement will not
be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a notice of termination
stating that the Executive committed one of the types of conduct
set forth in Section 6c(2) of this Agreement and specifying the
particulars thereof and the Executive shall be given a thirty (30)
day period to cure such conduct set forth in Section
6c(2).
d. Termination
by the Corporation Other Than For Cause and Not in Connection with
a Change of Control.
(1) The
foregoing notwithstanding, the Corporation may terminate the
Executive’s employment for whatever reason it deems
appropriate; provided,
however, that in the event such termination is not based on
Cause, as provided in Section 6c above, and not in connection with
a Change of Control, as provided in Section 6g below, the
Corporation may terminate this Agreement upon giving the Executive
thirty (30) days’ prior written notice. During such thirty
(30) day period, the Executive shall continue to perform the
Executive’s duties pursuant to this Agreement.
Notwithstanding any such termination, the Corporation shall
continue to pay to the Executive the Base Salary and Executive
Benefits he would be entitled to receive under this Agreement for
the balance of the Term of this Agreement in accordance with the
Corporation’s regular payroll policies.
(2) In
the event that the Executive’s employment with the
Corporation is terminated pursuant to this Section 6d, Section 6f,
or Section 6g then Section 7a of this Agreement and all references
thereto shall be voidable as to the Executive and the Corporation.
In addition, in the event that the Executive’s employment
with the Corporation is terminated pursuant to this Xxxxxxx 0x,
Xxxxxxx 0x, xx Xxxxxxx 0x, the Executive’s stock options
and/or restricted shares granted to the Executive during the Term
(to the extent not fully vested as of the termination date), shall
become fully vested as of the termination date, and the Executive
shall be permitted to exercise such options for up to twelve (12)
months following the termination date.
e. Voluntary
Termination. If the Executive terminates the
Executive’s employment on the Executive’s own volition
(except as provided in Section 6f prior to the expiration of the
Term of this Agreement, including any renewals thereof, such
termination shall constitute a voluntary termination and in such
event the Executive shall be limited to the same rights and
benefits as provided in connection with a termination for Cause as
provided in Section 6c.
f. Constructive
Termination of Employment. A termination by the Corporation
without Cause under Section 6d (a “Constructive
Termination”) shall be deemed to have occurred upon
the occurrence of one or more of the following events without the
express written consent of the Executive:
(1) a
material breach of the Agreement by the Corporation;
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(2) failure
by a successor company to assume the obligations under the
Agreement; and/or
(3) a
material change in the Executive’s duties and
responsibilities as described in Section 3a hereof.
Anything
herein to the contrary notwithstanding, the Executive shall give
written notice to the Board of Directors of the Corporation that
the Executive believes an event has occurred which would result in
a Constructive Termination of the Executive’s employment
under this Section 6f, which written notice shall specify the
particular act or acts, on the basis of which the Executive intends
to so terminate the Executive’s employment, and the
Corporation shall then be given the opportunity, within thirty (30)
days of its receipt of such notice, to cure said event; provided,
however, there shall be no period permitted to cure a second
occurrence of the same event and in no event will there be any
period to cure following the occurrence of two events described in
this Section 6f.
(g)
Change
in Control. If at any time during the Term,
Executive’s employment with the Corporation is terminated by
the Corporation not for Cause within two years after the Change of
Control (as hereinafter defined) or in the 90 days prior to the
Change of Control upon the request of the acquiror, the Corporation
shall pay to Executive an amount equal to the greater of (i) 1.5
multiplied by
Executive’s Base Salary that Executive is then earning or
(ii) all Executive’s Base Salary remaining to be paid to
Executive during the Initial Term, payable in a lump-sum payment on
the termination date of Executive’s employment hereunder but
not earlier than the closing of the Change of Control. For purposes
hereof, a “Change of
Control” shall mean
a change of control of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”), whether or not the
Corporation is in fact required to comply with that regulation,
provided that, without limitation, such a change in control shall
be deemed to have occurred if (A) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation or a corporation
owned, directly or indirectly, by the shareholders of the
Corporation in substantially the same proportions as their
ownership of stock of the Corporation, is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the
Corporation representing more than 50% of the combined voting power
of the Corporation’s then outstanding securities; or (B)
during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who
at the beginning of such period constitute the Board of Directors
and any new director (other than a director designated by a person
who has entered into an agreement with the Corporation to effect a
transaction described in clauses (A) or (D) of this Section) whose
election by the Board of Directors or nomination for election by
the Corporation’s shareholder’s was approved by a vote
of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority; (C) the Corporation
enters into an agreement, the consummation of which would result in
the occurrence of a change in control of the Corporation; or (D)
the shareholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior to it
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) of
more than 50% of the combined voting power of the voting securities
of the Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or the shareholders of the
Corporation approve a plan of complete liquidation of the
Corporation or an agreement for the sale or disposition by the
Corporation of all or substantially all the Corporation’s
assets.
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7. Covenant
Not To Compete and Non-Disclosure of
Information.
a. Covenant
Not To Compete. The Executive acknowledges and recognizes
the highly competitive nature of the Corporation’s Business
and the goodwill, continued patronage, and the names and addresses
of the Corporation’s Clients (as hereinafter defined)
constitute a substantial asset of the Corporation having been
acquired through considerable time, money and effort. Accordingly,
in consideration of the execution of this Agreement, and as except
as may specifically otherwise approved by the Corporation’s
Board of Directors, the Executive agrees to the
following:
(1) That
during the Restricted Period (as hereinafter defined) and within
the Restricted Area (as hereinafter defined), the Executive will
not, individually or in conjunction with others, directly or
indirectly, engage in any Business Activities (as hereinafter
defined), whether as an officer, director, proprietor, employer,
partner, independent contractor, investor (other than as a holder
solely as an investment of less than four and ninety-nine one
hundred percent (4.99%) of the outstanding capital stock of a
publicly traded corporation), consultant, advisor, agent or
otherwise.
(2) That
during the Restricted Period and within the Restricted Area, the
Executive will not, directly or indirectly, compete with the
Corporation by soliciting, inducing or influencing any of the
Corporation’s Clients which have a business relationship with
the Corporation at the time during the Restricted Period to
discontinue or reduce the extent of such relationship with the
Corporation.
(3) That
during the Restricted Period and within the Restricted Area, the
Executive will not (A) directly or indirectly recruit, solicit or
otherwise influence any employee or agent of the Corporation to
discontinue such employment or agency relationship with the
Corporation, or (B) employ or seek to employ, or cause or permit
any business which competes directly or indirectly with the
Business Activities of the Corporation (the “Competitive
Business”) to employ or seek to employ for any
Competitive Business any person who is then (or was at any time
within two (2) years prior to the date Executive or the Competitive
Business employs or seeks to employ such person) employed by the
Corporation.
b. Non-Disclosure
of Information. The Executive acknowledges that the
Corporation’s trade secrets, private or secret processes,
methods and ideas, as they exist from time to time, customer lists
and information concerning the Corporation’s sources,
products, services, pricing, training methods, development,
technical information, marketing activities and procedures, credit
and financial data concerning the Corporation and/or the
Corporation’s Clients, and (the “Proprietary
Information”) are valuable, special and unique assets
of the Corporation, access to and knowledge of which are essential
to the performance of the Executive hereunder. In light of the
highly competitive nature of the industry in which the
Corporation’s business is conducted, the Executive agrees
that all Proprietary Information, heretofore or in the future
obtained by the Executive as a result of the Executive’s
association with the Corporation shall be considered
confidential.
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In
recognition of this fact, the Executive agrees that the Executive,
during the Restricted Period, will not use or disclose any of such
Proprietary Information for the Executive’s own purposes or
for the benefit of any person or other entity or organization
(except the Corporation) under any circumstances unless such
Proprietary Information has been publicly disclosed generally or,
unless upon written advice of legal counsel reasonably satisfactory
to the Corporation, the Executive is legally required to disclose
such Proprietary Information. Documents (as hereinafter defined)
prepared by the Executive or that come into the Executive’s
possession during the Executive’s association with the
Corporation are and remain the property of the Corporation, and
when this Agreement terminates, such Documents shall be returned to
the Corporation at the Corporation’s principal place of
business, as provided in the Notice provision (Section 10) of this
Agreement.
c. Documents.
“Documents”
shall mean all original written, recorded, or graphic matters
whatsoever, and any and all copies thereof, including, but not
limited to: papers; books; records; tangible things;
correspondence; communications; telex messages; memoranda;
work-papers; reports; affidavits; statements; summaries; analyses;
evaluations; client records and information; agreements; agendas;
advertisements; instructions; charges; manuals; brochures;
publications; directories; industry lists; schedules; price lists;
client lists; statistical records; training manuals; computer
printouts; books of account, records and invoices reflecting
business operations; all things similar to any of the foregoing
however denominated. In all cases where originals are not
available, the term “Documents” shall also mean
identical copies of original documents or non-identical copies
thereof.
d. Corporation’s
Clients. The “Corporation’s
Clients” shall be deemed to be any persons,
partnerships, corporations, professional associations or other
organizations for or with whom
the Corporation has performed Business Activities, including, but not limited to, suppliers or
vendors with whom the Corporation has done or is endeavoring to do
business.
e. Restrictive
Period. The “Restrictive
Period” shall be deemed to be one (1) year following
termination of this Agreement.
f. Restricted
Area. The “Restricted
Area” shall be deemed to mean the United
States.
g. Business
Activities. “Business
Activities” shall be deemed to any business activities
concerning owning, operating, managing, promoting or
soliciting clients for the
Corporation’s Business, and any additional activities
which the Corporation or any of its affiliates may engage in during
any portion of the twelve (12)
months prior to the termination of Executive’s
employment.
h. Covenants
as Essential Elements of this Agreement. It is understood by
and between the parties hereto that the foregoing covenants
contained in Sections 7a and b are essential elements of this
Agreement, and that but for the agreement by the Executive to
comply with such covenants, the Corporation would not have agreed
to enter into this Agreement. Such covenants by the Executive shall
be construed to be agreements independent of any other provisions
of this Agreement. The existence of any other claim or cause of
action, whether predicated on any other provision in this
Agreement, or otherwise, as a result of the relationship between
the parties shall not constitute a defense to the enforcement of
such covenants against the Executive. To
the extent that the covenants contained in this Section 7 may later
be deemed by a court to be too broad to be enforced with respect to
their duration or with respect to any particular activity or
geographic area, the court making such determination shall have the
power to reduce the duration or scope of the provision, and to add
or delete specific words or phrases to or from the provision. The
provision as modified shall then be enforced.
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i. Survival
After Termination of Agreement. Notwithstanding anything to
the contrary contained in this Agreement, the covenants in Sections
7a and b shall survive the termination of this Agreement and the
Executive’s employment with the Corporation.
j. Remedies.
(1) The
Executive acknowledges and agrees that the Corporation’s
remedy at law for a breach or threatened breach of any of the
provisions of Section 7a or b herein would be inadequate and the
breach shall be per se deemed as causing irreparable harm to the
Corporation. In recognition of this fact, in the event of a breach
by the Executive of any of the provisions of Section 7a or b, the
Executive agrees that, in addition to any remedy at law available
to the Corporation, including, but not limited to monetary damages,
all rights of the Executive to payment or otherwise under this
Agreement and all amounts then or thereafter due to the Executive
from the Corporation under this Agreement may be terminated and the
Corporation, without posting any bond, shall be entitled to obtain,
and the Executive agrees not to oppose the Corporation’s
request for equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available to the
Corporation.
(2) The
Executive acknowledges that the granting of a temporary injunction,
temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an
adequate remedy upon breach or threatened breach of Section 7a or b
and consequently agrees, upon proof of any such breach, to the
granting of injunctive relief prohibiting any form of competition
with the Corporation. Nothing herein contained shall be construed
as prohibiting the Corporation from pursuing any other remedies
available to it for such breach or threatened breach.
8. Indemnification.
The Executive shall be continue to be covered by the Articles of
Incorporation, as amended, and By-Laws of the Corporation with
respect to matters occurring on or prior to the date of termination
of the Executive’s employment with the Corporation, subject
to all the provisions of North Carolina and Federal law, the
Articles of Incorporation, as amended, of the Corporation and the
By-Laws of the Corporation then in effect. Such reasonable
expenses, including attorneys’ fees, that may be covered by
the these indemnification provisions shall be paid by the
Corporation on a current basis in accordance with such provision,
the Corporation’s Articles of Incorporation, as amended,
By-Laws and North Carolina law. To the extent that any such
payments by the Corporation pursuant to these provisions may be
subject to repayment by the Executive pursuant to the provisions of
the Articles of Incorporation, as amended, and/or By-Laws, or
pursuant to North Carolina or Federal law, such repayment shall be
due and payable by the Executive to the Corporation within twelve
(12) months after the termination of all proceedings, if any, which
relate to such repayment and to the Corporation’s affairs for
the period prior to the date of termination of the
Executive’s employment with the Corporation and as to which
Executive has been covered by such applicable
provisions.
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9. Withholding.
Anything to the contrary notwithstanding, all payments required to
be made by the Corporation hereunder to the Executive or the
Executive’s estate or beneficiaries shall be subject to the
withholding of such amounts, if any, relating to tax and other
payroll deductions as the Corporation may reasonably determine it
should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Corporation may accept other
arrangements pursuant to which it is satisfied that such tax and
other payroll obligations will be satisfied in a manner complying
with applicable law or regulation.
10. Notices.
Any notice required or permitted to be given under the terms of
this Agreement shall be sufficient if in writing and if sent
postage prepaid by registered or certified mail, return receipt
requested; by overnight delivery; by courier; or by confirmed
telecopy, in the case of the Executive to the Executive’s
last place of business or residence as shown on the records of the
Corporation, or in the case of the Corporation to its principal
office as set forth in the first paragraph of this Agreement, or at
such other place as it may designate.
11. Waiver.
Unless agreed in writing, the failure of either party, at any time,
to require performance by the other of any provisions hereunder
shall not affect its right thereafter to enforce the same, nor
shall a waiver by either party of any breach of any provision
hereof be taken or held to be a waiver of any other preceding or
succeeding breach of any term or provision of this Agreement. No
extension of time for the performance of any obligation or act
shall be deemed to be an extension of time for the performance of
any other obligation or act hereunder.
12. Completeness
and Modification. This Agreement constitutes the entire
understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties
hereto concerning the Agreement, including, but not limited to the
Original Agreement. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived,
only by a written instrument executed by the parties or, in the
case of a waiver, by the party to be charged.
13. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute
but one agreement.
14. Binding
Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and
assigns. This Agreement shall not be assignable by the Executive
but shall be assignable by the Corporation in connection with the
sale, transfer or other disposition of its business or to any of
the Corporation’s affiliates controlled by or under common
control with the Corporation.
15. Governing
Law. This Agreement shall become valid when executed and
accepted by the Corporation. The parties agree that it shall be
deemed made and entered into in the State of North Carolina and
shall be governed and construed under and in accordance with the
laws of the State of North Carolina. Anything in this Agreement to
the contrary notwithstanding, the Executive shall conduct the
Executive’s business in a lawful manner and faithfully comply
with applicable laws or regulations of the state, city or other
political subdivision in which the Executive is
located.
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16. Further
Assurances. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary
to carry out the intent and purposes of this
Agreement.
17. Headings.
The headings of the sections are for convenience only and shall not
control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
18. Survival.
Any termination of this Agreement shall not, however, affect the
ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
19. Severability.
The invalidity or unenforceability, in whole or in part, of any
covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of
this Agreement shall not affect the validity or enforceability of
the remaining portions thereof.
20. Enforcement.
Should it become necessary for any party to institute legal action
to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys’ fees
at all trial and appellate levels, expenses and costs.
21. Venue.
The Corporation and Executive acknowledge and agree that the U.S.
District Court for the State of North Carolina, or if such court
lacks jurisdiction, the State of North Carolina(or its successor)
in and for Mecklenburg County, North Carolina, shall be the venue
and exclusive proper forum in which to adjudicate any case or
controversy arising either, directly or indirectly, under or in
connection with this Agreement and the parties further agree that,
in the event of litigation arising out of or in connection with
this Agreement in these courts, they will not contest or challenge
the jurisdiction or venue of these courts.
22. Construction.
This Agreement shall be construed within the fair meaning of each
of its terms and not against the party drafting the
document.
23. Role
of Counsel. The Executive acknowledges his understanding
that this Agreement was prepared at the request of the Corporation
by Xxxxxxxx Law Group LLP, its counsel, and that such firm did not
represent the Executive in conjunction with this Agreement or any
of the related transactions. The Executive, as further evidenced by
his signature below, acknowledges that he has had the opportunity
to obtain the advice of independent counsel of his choosing prior
to his execution of this Agreement and that he has availed himself
of this opportunity to the extent he deemed necessary and
advisable.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE
TERMS OF THIS AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO
ABIDE BY ITS TERMS AND CONDITIONS.
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the Effective Date.
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Witness:
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THE CORPORATION:
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_____________________________
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_____________________________
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By:
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/s/
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Xxxxxx X.
Xxxxxxxxxx
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Chief Executive
Officer
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Witness:
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THE
EXECUTIVE
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_____________________________
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_____________________________
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Xxxx X.
Xxxxxxx
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