EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated for reference purposes and
effective on and as of September 4, 1998, by and between EDUCATIONAL
INSIGHTS, INC., a California corporation ("EI") and XXXXXXXX X. XXXXXXXX
("Xxxxxxxx"), is made with reference to and incorporation of the following:
RECITALS:
A. EI desires to employ Xxxxxxxx as its President and Chief Executive
Officer and Xxxxxxxx is willing to accept such employment by EI, on the terms
and subject to the conditions set forth in this Agreement:
NOW THEREFORE, for valuable consideration given and received, the parties
agree as follows:
1. EMPLOYMENT.
1.1. "AT-WILL" EMPLOYMENT. Xxxxxxxx'x employment with EI shall begin
on and as of the effective date first above written but neither this
Agreement nor Xxxxxxxx'x employment with EI has any fixed term. Xxxxxxxx'x
employment with EI is terminable "at-will"; that is, this Agreement and
Xxxxxxxx'x employment with EI may be terminated at any time (on notice given
if and as hereafter provided) by either party, for any reason whatsoever, or
for no reason at all, and without necessity of justification or explanation,
in the sole and absolute discretion of the terminating party. This "at-will"
employment, and this Section 1.1, may not be superseded, amended, altered,
supplemented or made subject to interpretation or construction in any way
whatsoever except pursuant to a subsequent written instrument which makes
specific reference to this Section 1.1 of this Agreement and is signed by
both (a) an officer of EI specifically authorized and directed to perform
such act by resolution of the Board of Directors of EI (the "Board") duly
adopted at a meeting of the Board duly held and (b) Xxxxxxxx. Without
limiting the foregoing in any way, neither this Section 1.1 nor the "at-will"
nature of Xxxxxxxx'x employment may be superseded, amended, altered,
supplemented or made subject to interpretation or construction by any other
writing or by any verbal or non-verbal utterance, conduct, act or omission.
1.2. NO FUTURE COMMITMENTS. No promises or commitments have been made
by EI to Xxxxxxxx regarding term of employment, future positions or duties,
future work assignments, future compensation or benefits, extensions of this
Agreement or any other terms or conditions of employment except as
specifically set forth in this Agreement. EI's willingness to employ
Xxxxxxxx and to pay or extend to Xxxxxxxx the salary, other compensation and
payments and benefits specified herein are the sole consideration for
Xxxxxxxx'x obligations under this Agreement. Xxxxxxxx agrees that he will not
assert any claim for other or different consideration from EI or any other
person for performance of Xxxxxxxx'x obligations under this Agreement.
2. XXXXXXXX'X DUTIES AND OBLIGATIONS.
2.1. POSITION. Subject to the remaining provisions of this Agreement,
(a) Xxxxxxxx shall be appointed (in accordance with EI's Bylaws) as a
Director on the Board to serve in such capacity subject to EI's Bylaws as in
effect from time-to-time hereafter and, (b) shall be employed by and serve EI
as its President and Chief Executive Officer ("CEO"). In his capacities as
an employee, President and CEO of EI, Xxxxxxxx shall do and perform all
services, acts or things necessary or advisable to manage and conduct the
business of EI, including the hiring and terminating of employees, at all
times subject to (c) the strategic policies and employee/personnel policies
as set by the Board from time to time, with and by which Xxxxxxxx shall
comply and be bound and (d) the specific consent of the Board when required
by the terms of this Agreement. In order to accommodate Xxxxxxxx, Xxxxxxxx
is not required to immediately begin performance of his duties. Rather,
Xxxxxxxx shall begin performance of his duties hereunder as soon as is
practicable for him after the effective date of this Agreement but not later
than September 21, 1998 (the "start date").
2.2. SPECIFIC MATTERS REQUIRING CONSENT OF BOARD. Without limiting the
effect of powers customarily reserved to the Board or other policies
promulgated by
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the Board from time to time, Xxxxxxxx shall not, without specific prior
written approval of the Board, do or obligate EI to do any of the following:
(a) Enter into any agreements with any institutional lender;
(b) Permit any customer of EI to become indebted to EI in an
amount in excess of $750,000.00 for more than 120 days;
(c) Purchase capital equipment for amounts in excess of the
aggregate amounts budgeted for such expenditures and approved by the Board;
(d) Sell any single capital asset, or any group of capital assets,
of EI having a market value in excess of that permitted under EI's
institutional borrowing arrangements as in effect from time to time;
(e) Commit EI to the expenditure of more than $500,000.00 in the
development of any single new product; or
(f) Commit EI to any merger, consolidation, acquisition of
properties or products or product lines, partnership or alliance or joint
undertaking requiring the commitment of EI capital stock or the direct or
indirect expenditure of more than $1,000,000.00.
2.3. DEVOTION TO EI'S BUSINESS. Subject to the provisions of Section
2.6(a) of this Agreement, Xxxxxxxx (a) shall devote his entire productive
time, ability and attention to the business of EI during his employment with
EI and (b) shall not engage in any other business duties or pursuits
whatsoever, or directly or indirectly render any services of a business,
commercial or professional nature to any other person or organization for
compensation, without the prior written consent of the Board. However, the
expenditure of reasonable amounts of time for educational, charitable,
professional and/or trade-related activities shall not be deemed a breach of
this Agreement if those activities do not materially interfere with the
services required under this Agreement.
2.4. NO COMPETITIVE ACTIVITIES.
(a) Xxxxxxxx represents and warrants to EI that Xxxxxxxx is not
subject to any non-competition or non-disclosure agreement with any third
party(ies) which does or would in any way prohibit Xxxxxxxx'x employment with
EI or (except as contemplated by Section 2.6 of this Agreement) the
performance of his duties hereunder.
(b) Subject to the provisions of Section 2.6(a) of this Agreement,
during his employment with XX Xxxxxxxx shall not, directly or indirectly,
either as an employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director or in any other individual or
representative capacity, engage or participate in any business that is in
competition in any manner whatsoever with the business of EI. However, this
Section 2.4 shall not be interpreted to prohibit Xxxxxxxx from making passive
personal investments or conducting other private business affairs if those
activities do not materially interfere with the services required under this
Agreement.
2.5. UNIQUENESS OF XXXXXXXX'X SERVICES. Xxxxxxxx represents and agrees
that the services to be performed under the terms of this contract are of a
special, unique, unusual, extraordinary and intellectual character that gives
them a peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in an action at law. Xxxxxxxx therefore expressly
agrees that EI, in addition to any other rights or remedies that EI may
possess, shall be entitled to injunctive and other equitable relief to
prevent or remedy a breach of this Agreement by Xxxxxxxx.
2.6 BINNEY & XXXXX INC. AGREEMENT.
(a) Xxxxxxxx has provided to EI a copy of that agreement, entitled
"Agreement", among Binney & Xxxxx Inc., Xxxxxxxx X. Xxxxxxxx and
Revell-Monogram, Inc. dated Sept 4, 1998 (the "Binney & Xxxxx Agreement").
Based on Xxxxxxxx'x covenants, representations and warranties set forth in
Section 2.6(b) below (on which EI is relying notwithstanding any review of
the Binney & Xxxxx Agreement by EI and/or its attorneys'), and on condition
that such performance shall not materially
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interfere with the performance of Xxxxxxxx'x duties as CEO/President of EI,
Xxxxxxxx'x performance of the obligations imposed on him under paragraphs
9.G., 9.J. and 9.K. of the Binney & Xxxxx Agreement shall not be deemed to
constitute a breach of this Agreement by Xxxxxxxx. The foregoing shall not
be interpreted or construed to permit Xxxxxxxx to engage in any other
activity which would constitute a breach or violation of this Agreement,
whether such activity arises under or is related to any amendment,
modification or supplement of or to the Binney & Xxxxx Agreement or otherwise.
(b) Xxxxxxxx represents and warrants to EI that,
(1) That copy of the Binney & Xxxxx Agreement provided to EI
is a true copy of such agreement as in effect this date and contains all
provisions material to this Agreement and the performance of Xxxxxxxx'x
obligations hereunder; and
(2) Xxxxxxxx'x use or disclosure of any of the information
described in paragraph 9. J. of the Binney & Xxxxx Agreement is not necessary
to the performance of any of his obligations under this Agreement.
2.7. CONFIDENTIALITY. Xxxxxxxx is employed in a position of trust and
confidence. As a material inducement to EI, Xxxxxxxx covenants with EI as
follows:
(a) As used herein, the phrase "confidential information of EI"
means all information which is (1) disclosed to Xxxxxxxx or known by Xxxxxxxx
as a consequence of or through Xxxxxxxx'x employment with EI (including,
without limitation, information belonging to third parties or entities
affiliated with or related to EI and information conceived, originated or
developed by Xxxxxxxx in the performance of his duties hereunder), (2)
regularly used in the operation of EI's business and (3) not generally known
in the relevant industry about EI's products, product development and design,
marketing, purchasing practices, costing and pricing processes, planning
strategies, future plans as developed, customer relationships, employee
relationships and finances.
(b) In the course of the performance of his duties hereunder,
Xxxxxxxx will have access to and become acquainted with confidential
information of EI. Except as is required in the course of his employment
hereunder, Xxxxxxxx shall not, directly or indirectly, use, misuse,
misappropriate, disseminate or disclose, or use for his own or another's
benefit, any confidential information of EI either during the effectiveness
of this Agreement or at any other time thereafter.
(c) All files (computer and otherwise), records, documents,
notebooks, computer codes and programs, drawings, specifications, equipment
and similar repositories of or containing confidential information of EI,
including all copies and forms thereof, whether prepared by Xxxxxxxx or
others, are and shall remain exclusively the property of EI and, to the
extent then in Xxxxxxxx'x possession or control, shall be left with or
immediately returned to EI on any termination of Xxxxxxxx'x employment.
(d) Xxxxxxxx shall honor, and shall not breach, any prior
obligations Xxxxxxxx may have with respect to any trade secret, proprietary
information or confidential information of third parties (specifically
including previous employers) which he may possess. Xxxxxxxx shall not
utilize any of such information, or any materials evidencing any such
information, in the performance of his duties hereunder without the prior
written consent of the owner thereof.
(e) Except as disclosure may be required by law, the terms and
conditions of this Agreement shall be kept confidential by the parties.
(f) The provisions of this Section 2.7 shall survive, in full
force and effect, any termination of Xxxxxxxx'x employment with EI or of this
Agreement. Xxxxxxxx acknowledges that EI would not have an adequate remedy
at law for the material breach of the provisions of this Section 2.7 by
Xxxxxxxx or any person affiliated with Xxxxxxxx. Accordingly, EI shall be
entitled to obtain all such injunctive relief, temporary and permanent,
against Xxxxxxxx as may be necessary to restrain or prevent such possible or
threatened breach.
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3. SALARY, OTHER COMPENSATION AND BENEFITS.
3.1. SALARY. Subject to the remaining terms and conditions of this
Agreement, EI shall pay to Xxxxxxxx an initial salary for the twelve (12)
calendar months beginning the start date at the rate of $19,166.67 per month
($230,000.00 annualized), gross, payable according to EI's customary payroll
procedures. Xxxxxxxx'x salary shall be reviewed annually by EI's
Compensation Committee of the Board ("Compensation Committee") based on such
criteria as the Compensation Committee shall establish in its discretion. In
the event that Xxxxxxxx'x salary is decreased, Xxxxxxxx may elect to be
terminated; if he so elects, Xxxxxxxx shall be compensated as if such
termination were a Termination Other Than For Cause pursuant to Section 4.4
of this Agreement.
3.2. INCENTIVE PAYMENTS.
(a) As an incentive to Xxxxxxxx to accept employment with EI, EI
shall pay to Xxxxxxxx the sum of $63,000.00 within forty-five (45) days next
following the start date if Xxxxxxxx is then employed by EI; provided,
however, and notwithstanding the foregoing to the contrary, if Xxxxxxxx is
not then employed by reason of either a Termination Other Than For Cause or a
Termination on Change of Control (as those terms are defined in Sections
4.1(b) and 4.1(c) below, respectively), EI shall nevertheless pay such
$63,000.00 sum to Xxxxxxxx within forty-five (45) days next following the
start date.
(b) Beginning with calendar year 1999 and for so long as Xxxxxxxx
is employed by EI, Xxxxxxxx shall be eligible to earn a discretionary bonus
for each year. The actual amount and terms and timing of payment of any such
bonus are to be determined in the sole discretion of the Board based on
criteria it determines and upon its evaluation of Xxxxxxxx'x performance
during such year; provided, however, that (1) with Xxxxxxxx'x advice and
consultation, the Board shall, from time to time, establish "targets" of EI
profitability as one of several criteria for evaluating Xxxxxxxx'x
performance and (2) Xxxxxxxx'x bonus shall be tied to a sliding scale
relative to criteria achievement with an amount equal to at least fifty
percent (50%) of his then current year's base salary to be earned by Xxxxxxxx
if such criteria are met or exceeded.
3.3. MOVING EXPENSE ALLOWANCE. If Xxxxxxxx is then employed by EI, EI
shall pay to Xxxxxxxx the sum of $50,000.00, in ten (10) consecutive monthly
installments of $5,000.00 each beginning on the first day of the first full
calendar month next following the start date, as a non-accountable moving
expense allowance.
3.4. INCENTIVE STOCK OPTION. EI shall, pursuant to and in accordance
with EI's Stock Awards Plan (the "Awards Plan"), immediately grant and issue
to Xxxxxxxx an Incentive Stock Option evidencing Xxxxxxxx'x right to purchase
up to 300,000 shares of EI's common stock in accordance with the provisions
of an option agreement prepared as provided by the Awards Plan (the "Option")
the enjoyment of which shall be conditioned on Xxxxxxxx'x subsequent
employment with EI on the start date.
3.5. BENEFITS. During his employment with EI, Xxxxxxxx shall be
eligible to participate in such of EI's benefit plans as may be, from time to
time, generally available to executive officers of EI, including, without
limitation, medical and life insurance, retirement and/or savings and profit
sharing plans, if any. For purposes of establishing the length of service
under any such benefit plans or programs, Xxxxxxxx'x employment with EI will
be deemed to have commenced on the start date. EI will provide Xxxxxxxx with
directors' and officers' liability insurance consistent with current and
future coverage provided to its Board Members. EI acknowledges that if
Xxxxxxxx does not initially participate in the medical plan (it is currently
anticipated that Xxxxxxxx will not participate until March 15, 2000) that
there will not be any limitation or waiting period due to the pre-existing
condition provisions when Xxxxxxxx does begin to participate.
3.6. REIMBURSEMENT FOR EXPENSES. During Xxxxxxxx'x employment with EI,
EI shall reimburse Xxxxxxxx for reasonable and properly documented
out-of-pocket business and/or entertainment expenses incurred by Xxxxxxxx in
connection with the performance of his duties under this Agreement.
4. PAYMENTS ON TERMINATION.
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4.1 DEFINITIONS. For the purposes of this Article 4, the following
terms shall have the following meanings:
(a) "Termination For Cause" shall mean and include termination of
Xxxxxxxx'x employment by EI by reason of Xxxxxxxx'x theft, embezzlement,
fraud, unethical or immoral activities involving EI, continued incapacity to
perform his duties and/or material reduction of work hours by Xxxxxxxx for
any reason whatsoever.
(b) "Termination Other Than For Cause" shall mean and include
Xxxxxxxx'x death and/or termination of Xxxxxxxx'x employment by EI for any
reason other than a Termination For Cause or Termination on Change of Control
(as that phrase is hereafter defined).
(c) "Termination on Change of Control" shall mean a termination of
Xxxxxxxx'x employment with EI as a result of a "Change of Control" as that
phrase is defined in Section 19.2 of the Awards Plan.
4.2. NOTICE OF TERMINATION. EI may effect a Termination for Cause
without prior notice of any kind. Except in the instance of Xxxxxxxx'x death
which shall automatically terminate Xxxxxxxx'x employment, EI may effect a
Termination Other Than For Cause upon giving not less than thirty (30) days'
prior written notice to the other of such termination.
4.3. PAYMENTS ON TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION. In the
event of a Termination For Cause, voluntary termination by Xxxxxxxx except in
connection with a Change of Control (Section 4.5), EI shall promptly pay to
Xxxxxxxx all accrued salary, other compensation to the extent earned, vested
deferred compensation (other than pension plan or applicable plan), any
benefits under any EI plans in which Xxxxxxxx is a participant to the full
extent of Xxxxxxxx'x then existing rights under such plans, accrued vacation
pay and any appropriate business expenses incurred by Xxxxxxxx in connection
with his duties hereunder, all to the date of termination. XXXXXXXX SHALL NOT
BE PAID, NOR SHALL EI HAVE ANY OBLIGATION TO PAY, ANY OTHER COMPENSATION OR
PAYMENT OF ANY KIND, INCLUDING WITHOUT LIMITATION, SEVERANCE COMPENSATION.
4.4. PAYMENTS ON TERMINATION OTHER THAN FOR CAUSE. In the event of a
Termination Other Than For Cause, EI shall promptly pay to Xxxxxxxx or, in the
event of Xxxxxxxx'x death, his then designated beneficiary:
(a) All accrued salary, other compensation to the extent earned,
vested deferred compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any EI plans in which Xxxxxxxx is a participant to the full
extent of Xxxxxxxx'x then rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by Xxxxxxxx in connection with his duties
hereunder, all to the date of termination; and
(b) Subject to the provisions of Section 4.7, as severance
compensation,
(1) An amount equal to one year's then base salary, plus
(2) An amount equal to the earned portion, if any, of the
discretionary bonus referred to in Section 3.2(b) of this Agreement, pro rated
to the date of termination, plus
(3) If, and on condition that, the Option has not then fully
vested according to its terms, an amount equal to (A) the excess of the
"closing" price for EI common stock as quoted at the date of termination over
the Option "strike price" multiplied by (B) the number of shares of EI common
stock not then vested under the terms of the Option.
4.5. PAYMENTS ON TERMINATION ON CHANGE OF CONTROL. In the event of a
Termination On Change of Control, EI shall promptly pay to Xxxxxxxx:
(a) All accrued salary, other compensation to the extent earned,
vested deferred compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any EI plans in which Xxxxxxxx is a participant to the full
extent of Xxxxxxxx'x then
Page 26 of 29 sequentially numbered pages
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by Xxxxxxxx in connection with his duties hereunder, all to
the date of termination; and
(b) Subject to the provisions of 4.7, as severance compensation,
(1) An amount equal to the earned portion, if any, of the
discretionary bonus referred to in Section 3.2(b) of this Agreement, pro
rated to the date of termination, plus
(2) An amount equal to one year's then base salary; provided,
however, that if Xxxxxxxx is employed by a new employer in connection with
such Change of Control, such amount shall be payable to Xxxxxxxx by EI only
if, and when, Xxxxxxxx'x employment with such new employer is terminated
(whether terminated by Xxxxxxxx or such new employer for any reason other
than cause) prior to the first anniversary of the effective date of such
Change of Control.
4.6. OFFSETTING INDEBTEDNESS; NO OTHER PAYMENTS UPON TERMINATION. The
foregoing severance payments shall be reduced by the amount of any
indebtedness of Xxxxxxxx to EI then unpaid, whether or not then due or owing.
Xxxxxxxx shall not receive, and EI shall have no obligation to pay to
Xxxxxxxx, any other payments of any kind on the event of termination of
Xxxxxxxx'x employment with EI.
4.7. RELEASE.
(a) As a condition to the payment of any severance compensation in
Section 4.4 (b) and/or 4.5 (b) above, Xxxxxxxx agrees to execute a release
as described below. Excepting only Xxxxxxxx'x rights of enforcement of EI's
promises as expressly set forth herein, Xxxxxxxx hereby releases, acquits and
forever discharges EI, and all of its affiliate and subsidiary corporations,
their present and former, principals, officers, agents, associates,
representatives, directors, employees, predecessors, successors and assigns
and all persons acting by, through, under or in concert with them, or any of
them, jointly and individually, of and from any and all other claims,
demands, causes of action, obligations, damages and liabilities, WHETHER
KNOWN OR UNKNOWN, WHICH XXXXXXXX HAS OR MAY HEREAFTER OBTAIN OR ACCRUE based
on or arising out of events occurring prior to the date executed ("Claims")
on account of Xxxxxxxx'x employment, any termination of his employment and/or
any fact, matter, incident, claim, injury or event, circumstance, happening,
occurrence and/or thing of any kind or nature whatsoever pertaining thereto,
including but not limited to emotional distress; any and all claims for
wrongful discharge; intentional or negligent infliction of emotional
distress; unlawful discrimination based upon age, race, sex, marital status,
religion, national origin, medical condition, disability, handicap or
otherwise; breach of any implied covenant of good faith and fair dealing;
violation of any section of the Labor Code of the State of California; the
California Fair Employment and Housing Act ("FEHA"), Title VII of the Civil
Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of
1967, as amended ("ADEA"), the Americans with Disabilities Act ("ADA") or any
other relevant federal, state or local law(s) or regulation(s); unpaid wages,
salary, bonuses, commissions or other compensation of any sort; damages of
any nature, including compensatory, general, special or punitive; and/or
costs, fees or other expenses, including attorney's fees, incurred in any of
these matters.
(b) Xxxxxxxx understands and expressly waives any and all rights
and benefits conferred by the provisions of Section 1542 of the Civil Code of
the State of California based on or arising out of events occurring prior to
the date executed, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE
MATERIALLY EFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Xxxxxxxx understands and acknowledges that the significance and consequence
of the foregoing waiver of Section 1542 of the Civil Code is that, excepting
only enforcement of EI's promises hereunder, EVEN IF XXXXXXXX SHOULD
EVENTUALLY SUFFER DAMAGES ARISING OUT OF XXXXXXXX'X EMPLOYMENT WITH EI, OR
THE TERMINATION OF SUCH EMPLOYMENT FOR ANY REASON, XXXXXXXX WILL NOT BE
PERMITTED TO MAKE ANY CLAIM FOR THOSE DAMAGES. Furthermore, Xxxxxxxx
acknowledges that Xxxxxxxx intends these
Page 27 of 29 sequentially numbered pages
consequences even as to Claims for injury or damages that may exist as of the
date of this Agreement but which Xxxxxxxx does not know exist, and which, if
known, would materially affect Xxxxxxxx'x decision to execute this Agreement,
regardless of whether such lack of knowledge is a result of ignorance,
oversight, error, negligence or any other cause. Xxxxxxxx does not waive any
claims, known or unknown, arising after the date the release is executed.
(c) In accordance with the Older Workers Benefit Protection Act of
1990, Xxxxxxxx expressly acknowledges his awareness and understanding of the
following:
(1) Xxxxxxxx has the right to and should consult with an
attorney before signing this Agreement;
(2) Xxxxxxxx has twenty-one (21) days from the date on which he
receives this Agreement to consider this Agreement; and
(3) Xxxxxxxx has seven (7) days after signing this Agreement to
revoke this Agreement. The revocation must be in writing, must specifically
revoke this Agreement, and must be received by EI prior to the eighth calendar
day following the execution of this Agreement. Unless so revoked by Xxxxxxxx,
this Agreement shall become enforceable and irrevocable according to its terms
on the eighth calendar day next following execution of this Agreement.
5. GENERAL PROVISIONS.
5.1. WITHHOLDINGS. All compensation and benefits to Xxxxxxxx hereunder
shall be reduced by all federal, state, local and other withholdings and similar
taxes and payments required by applicable law.
5.2. NOTICES. Any notices permitted or required under this Agreement
shall be deemed given upon the date of personal delivery or forty-eight (48)
hours after deposit in the United States mail, postage fully prepaid, certified
with return receipt requested, addressed as follows:
If to EI, at:
Educational Insights, Inc.
00000 Xxxxxx Xxx.
Xxxxxx, XX 00000-0000
Attn.: Chairman, Board of Directors
If to Xxxxxxxx, at:
Xx. Xxxxxxxx X. Xxxxxxxx
00 Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
or at any other address as any party may, from time to time, designate by notice
given in compliance with this Section 5.2.
5.3. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, the place of its intended
performance.
5.4. TITLES AND CAPTIONS. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
5.5. ASSIGNMENT; AGREEMENT BINDING. This Agreement may be assigned by EI
to any successor-in-interest to all or substantially all of EI's assets,
properties and business, but not otherwise without the prior written consent of
Xxxxxxxx. This Agreement and the obligations imposed on Xxxxxxxx hereunder are
personal and unique to Xxxxxxxx; accordingly, Xxxxxxxx shall not assign this
Agreement, or any interest in this Agreement, without the prior written consent
of EI. Any assignment, or attempted assignment, in violation of the foregoing
shall be of no force or effect
Page 28 of 29 sequentially numbered pages
and need not be recognized by the non-assigning party. This Agreement shall
be binding upon the authorized successors and assigns of the parties hereto.
5.6. ATTORNEY FEES. In the event a suit or action is brought by any
party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that each party shall bear its own attorneys' fees
and costs except as provided by statute. In the event any arbitration or
mediation pertaining to this Agreement and its enforcement or interpretation
is maintained by the parties, each party shall pay its own costs and
attorneys' fees and one-half of any arbitrator or mediator fees and expenses
incurred.
5.7. ARBITRATION. If at any time during Xxxxxxxx'x employment or
thereafter any dispute, difference or disagreement shall arise upon or in
respect of the Agreement or the meaning and construction hereof, as an
express condition precedent to the maintenance of any legal proceeding
related thereto, every such dispute, difference and disagreement shall first
be referred to a single arbitrator agreed upon by the parties, or if no
single arbitrator can be agreed upon, an arbitrator or arbitrators shall be
selected in accordance with the rules of the American Arbitration Association
and such dispute, difference or disagreement shall be settled by arbitration
in Los Angeles County, CA, in accordance with the then prevailing commercial
rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
5.8. PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that this Agreement or any
section hereof was drafted by such party.
5.9. FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action
as may be necessary or appropriate to achieve the purposes of the Agreement.
5.10. PARTIES IN INTEREST. Nothing herein shall be construed to be to
the benefit of any third party, nor is it intended that any provision shall
be for the benefit of any third party.
5.11. SAVINGS CLAUSE. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid, shall not be affected thereby.
5.12. SEPARATE COUNSEL. The parties acknowledge that each party has
been represented in this transaction by legal counsel of its choice.
5.13. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings and
agreements between them respecting the subject matter of this Agreement.
This Agreement may be amended, altered or supplemented only by a written
instrument referring specifically to this Agreement signed by the parties
hereto.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement,
by the undersigned thereunto duly authorized, at Carson, CA, on and as of the
date first above written.
EDUCATIONAL INSIGHTS, INC.
("EI")
By: /s/ Xxx Xxxxxx /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------- --------------------------
Xxx Xxxxxx, President/CEO XXXXXXXX X. XXXXXXXX
("XXXXXXXX")
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