EXHIBIT 10.47
RETENTION AGREEMENT ("Agreement"), dated as of
March
15, 2003, by and between Pueblo International, LLC, a Delaware limited
liability company and Pueblo Entertainment, Inc., a Delaware corporation
(the "Companies"), which are wholly owned subsidiaries of Nutritional
Sourcing Corporation, a Delaware corporation ("NSC") and Xxxxxxx X. Xxxx,
III (the"Executive").
WHEREAS, the Companies acknowledge the existence
of various risks and uncertainties in connection with the competitive
marketplace in Puerto Rico and the U.S. Virgin Islands and with matters
involving NSC and its current Chapter 11 proceedings;
WHEREAS, the Companies believe it is in the best
interests of the Companies to take appropriate actions to insure continuity
of key management and desire to induce Executive to remain in the employ of
the Companies, notwithstanding such risks and uncertainties;
WHEREAS, the Companies have requested Executive to
remain in the employ of the Companies, on the terms and conditions hereafter
set forth and Executive is willing to accept such terms; and
WHEREAS, considering the foregoing, the Executive
and the Companies agree to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual
promises and covenants set forth herein, the Companies and the Executive
(the"Parties") hereby agree as follows:
1. Employment, Duties, Acceptance and Term
1.1 The Companies hereby employ the Executive as President and
Chief Executive Officer ("CEO"), and the Executive agrees to be
so employed. The Executive shall report directly to the board
of directors of the Companies, respectively, or their designee
("Board of Directors").
During the Employment Period (as defined in Section 1.3 hereof),
the Executive will be responsible for managing the business and
affairs of the Companies and the day-to-day operations of the
Companies, and such other responsibilities as shall be determined
from time to time by the Board of Directors consistent with
Executive's titles and position. All staff in the Companies'
Florida and Puerto Rico offices are expected to report to Executive
through their managers. In addition, the Board of Directors
acknowledges and approves that Executive serves as of the date
hereof and will continue to serve as an officer and/or director of
certain other parent, subsidiary and affiliated companies of the
Companies (each such related entity referred to individually as
a"Group Affiliate"). Consistent with Executive's titles and
position the Executive shall take all such actions as may be
required to fulfill his duties as President and CEO or which are
within the scope of the business activities of the Companies or
which may be necessary to carry out any additional responsibilities
as may be given to the Executive by the Board of Directors,
including responsibilities with Group Affiliates. The Executive
shall not be paid or accept any salary for such duties, obligations
or responsibilities except for the amounts as expressly set forth
in this Agreement.
1.2 The Executive shall devote his full business time and attention to the
business of the Companies, including such additional duties and
responsibilities to which he is assigned under this Agreement, during
the period of his employment hereunder; provided, however, that the
Executive may continue to serve on the boards of directors and/or be
a designated officer of Group Affiliates to the extent that such
activities do not materially interfere with the execution of the
Executive's duties hereunder.
1.3 The Executive's employment under this Agreement shall commence as of
March 15, 2003 (the "Commencement Date") and end on the third
anniversary of the Commencement Date, subject to the provisions of
Section 3 of this Agreement (the"Employment Period"). The Employment
Period shall be automatically extended for an additional two year term,
subject to the provisions of Section 3 of this Agreement ("Renewal
Period") unless either the Companies or Executive shall give the other
party not less than 180 days written notice prior to the termination
of the Employment Period of the intention to not extend this Agreement
(a"Non-Renewal
Notice").
2. Compensation and Benefits
2.1 Base Salary. During the Employment Period, the Companies will pay to
Executive a Base Salary at the annual rate of Five Hundred Fifty
Thousand U.S. Dollars ($550,000.00), to be paid in substantially equal
installments on a weekly basis, subject to applicable payroll
withholdings and deductions. The Board of Directors shall review the
Base Salary on an annual basis and, at the Board of Director's
discretion, may increase the Base Salary. All compensation and benefits
payable to Executive pursuant to this Agreement will be paid by or on
behalf of Pueblo International, LLC directly to the Executive but shall
be the joint and several liability of the Companies.
2.2 Annual Incentive Compensation. If the Executive meets the annual
performance criteria established by the Board of Directors under the
Companies' Key Management Incentive Opportunity Program (KMIO), the
Companies shall pay to the Executive, within ninety (90) days of the
close of each fiscal year end or portion of such year during the
Employment Period, a KMIO bonus ("KMIO Incentive Compensation") in such
amount as determined by the KMIO formulas; however with a minimum
guarantee of 50% of annual Base Salary regardless of achieving minimum
KMIO performance targets, and may pay in excess of 50% as determined by
actual results achieved. The Board of Directors shall review the KMIO
Incentive Compensation Program on an annual basis and, at their
discretion will approve the performance targets for each fiscal year.
2.3 Special Inducement. As a special inducement to convince Executive to
enter into this Agreement and in acknowledgement of prior agreements and
understandings initially made to induce Executive to accept employment by
the Companies, the Companies agree (a) to pay Executive the Supplemental
Retirement Benefit accrued through January 31, 2003, as determined
consistent with the formulas prepared by Mercer Human Resource A
Consulting or as otherwise agreed by the parties, and (b) to make
such payment at the time the parties enter into a Supplemental
Retirement Benefit Agreement as agreed by the parties. The Companies
and Executive commit to reach a mutually satisfactory resolution of the
matters set forth in (a) and (b) above within 90 days of the Effective
Date.
2.4 Special Incentive Compensation. The Executive is also a participant in
the Special Incentive Program (SIP) covered under a separate agreement,
which will terminate on August 1, 2003 unless mutually extended.
2.5 The Companies shall pay or reimburse the Executive for all reasonable
business and travel expenses actually incurred or paid by the Executive
during the period of employment hereunder in the performance of services
under this Agreement, upon timely presentation of expense statements or
vouchers or such other supporting information as Companies may require.
2.6 The Companies shall provide Executive with an automobile allowance of
$237.50 per week.
2.7 The Companies shall provide to the Executive medical and disability
benefits and insurances and coverage under applicable employee benefit
plans currently provided generally to senior executives of the Companies
pursuant to the terms, conditions and limitations of the Companies' plans
and its regulations in effect and as they may be modified from time to
time. However, because the Executive's employment is covered by this
Agreement, the Executive is not eligible to participate in or seek
coverage under any Companies' separation or severance plan, policy or
benefit or similar program, other than as provided in this Agreement.
2.8 The Executive shall be entitled to cumulative paid vacation in the amount
of four weeks of paid vacation per calendar year. All cumulative
vacation time accrued to date and not used will continue to accumulate in
addition to any future unused vacation time and carry forward
indefinitely. The Executive is to report quarterly on the status of
Executive's vacation accruals and time taken. The Executive shall not be
entitled to receive a payment for any accrued but unused vacation until
time of separation. The Executive will schedule Executive's vacation
with the approval of the Board of Directors and subject to the operating
needs of the Companies. The Executive has an accrued and unused vacation
time balance of 128 days as of December 31, 2002.
2.9 The Executive's principal work location is in Coral Gables, Florida and
secondary work location is in San Xxxx, Puerto Rico. Executive's work
locations may not be changed nor can Executive's business travel
obligations be materially increased without the prior written consent of
Executive.
2.10 The Executive is deemed to have been an employee of a common controlled
group since January 31, 1983 and Executive's benefit levels (including
retirement benefits) are to reflect employment from that date.
3. Termination of Employment Relationship
3.1 The Companies may at any time, by written notice to Executive, terminate
Executive's employment hereunder and this Agreement for"Cause" as of the
date of such notice. For purposes of this Agreement,"Cause" shall be
defined as any of the following:
(i) the commission by the Executive, in connection with the
performance of Executive's duties or obligations hereunder, of acts of
dishonesty, gross negligence or willful misconduct; which act (or
failure to act) the Board of Directors, in the exercise of their
discretion, determines materially affects adversely, the value,
reliability or performance of the Executive in regard to
Executive's employment by the Companies; or
(ii) the conviction of the Executive of (or pleading nolo
contendere or
similar plea by the Executive to) any felony or serious violation
of law which the Board of Directors, in the exercise of their
discretion, determines materially affects adversely, the value,
reliability or performance of the Executive in regard to
Executive's employment by the Companies; or
(iii) the Executive's refusal or neglect to comply with the reasonable
and prudent directions and/or instructions of the Board of
Directors consistent with the terms of this Agreement, and the
Executive's failure to cure such alleged material default,
refusal or failure within ten (10) calendar days from date of
receipt of the written notice from the Board of Directors to
Executive of such default, refusal or failure; or
(iv) the Executive's material breach of any of the Executive's
obligations (including the obligation to comply with all of the
Companies' material policies and procedures) to the Companies and
the Executive's failure to cure such alleged material breach with
ten (10) calendar days from the date of receipt of the written
notice from the Board of Directors to Executive of such alleged
material breach; or
(v) Executive's willful and continued failure to substantially
perform Executive's duties with the Companies, or any subsidiary
of the Companies, as such duties may reasonably be defined from
time to time by the Board of Directors (other than failure
resulting from Executive's incapacity due to physical or mental
illness) after a written demand for substantial performance is
delivered to Executive by the Board of Directors, which demand
specifically identifies the manner in which the Board of
Directors believes that Executive has not substantially performed
Executive's duties; or
(vi) a material and documented breach of the Executive's covenants
under Section 4 of this Agreement.
For purposes of this Agreement, no act or failure to act, on the part of
the Executive, shall be considered"willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without reasonable
belief that that Executive's action or omission was in the best interests
of the Company. Any act, or failure to act, based upon directions of the
Board of Directors or the authority given pursuant to a resolution duly
adopted by the Board of Directors or based upon the advice of counsel for
the Companies shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the
Company. The cessation of employment of the Executive shall not be
deemed to be for"Cause" unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative
vote of not less than 75% of the entire membership of the Board of
Directors (excluding the Executive if he is a member of the Board of
Directors) at a meeting of the Board of Directors called and held for
such purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity to be heard before the Board of
Directors), finding that, in the good faith opinion of the Board of
Directors, the Executive is guilty of the conduct described above, and
specifying the particulars thereof in detail.
In the event of termination for"Cause" pursuant to this Section 3.1, the
Companies shall be liable and shall pay to the Executive only that
portion of the Base Salary pursuant to Section 2.1 which has been
fully earned and unpaid as of the date of the Executive's receipt of
such written notice from the Board of Directors. The Executive shall
not be entitled to KMIO Incentive Compensation on account of the year
in which the Executive is terminated if for"Cause." The Executive
will be entitled to all accumulated and unused vacation pay regardless
of the reason for termination, in addition to a fair estimate of all
benefits accrued but not yet paid under the SIP arrangement.
3.2 The Companies may, at any time during the term of this Agreement, by
written notice to the Executive, terminate the Executive's employment
hereunder"Without Cause" (which shall include termination due to death
or disability of the Executive or pursuant to a Non-Renewal Notice by the
Companies) as of the date of such notice to Executive by the Board of
Directors. In the event of such termination"Without Cause" pursuant to
this Section 3.2, the Companies shall pay the Executive, within ten (10)
days of the date of notice of termination the following amounts: (a) an
amount equal to three times Executive's annual Base Salary then in
effect, if such termination occurs during the Employment Period and an
amount equal to one and one-half the annual Base Salary then in effect if
such termination occurs during the Renewal Period; (b) a pro-rated
portion of the current year's KMIO Incentive Compensation, to be
determined based upon the actual sales and EBITDA results year to date as
of the most recently completed four week fiscal period compared with the
KMIO annual targets prorated for the short period multiplied by the
amount of base compensation received as of the effective termination
date, however in no situation is this amount to be less than 50% of Base
Salary as outlined in Section 2.2; (c) advance the estimated amount to be
paid under SIP arrangement based upon reasonable and available
projections resulting in a SIP award and this advanced amount is to be
increased or partially repaid based upon the eventual actual and final
SIP calculations; and (d) an amount equal to continuation of automobile
allowance, medical and other insurance benefits for three years if such
termination occurs during the Employment Period and an amount equal to
one and one-half year's continuation of such benefits if such termination
occurs during the Renewal Period.
This Section 3.2 also applies in the event of a deemed termination
"Without Cause" which shall occur if, upon a"change of control" of the
Companies and/or NSC, the Executive is not guaranteed in the Executive's
good faith judgment the same position, title and responsibilities with a
new financially responsible owner, under terms and conditions at least as
favorable to the Executive in all material respects as those contained in
this Agreement. "Change of control" includes a change in the majority of
the ultimate equity ownership or control for whatever reason, whether
involving consideration or not.
3.3 If payments are due Executive pursuant to this Section 3, then the
Companies shall pay to Executive an amount which, on an after-tax basis
(including federal income and excise taxes and state and local income
taxes), equals the excise tax, if any, imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the"Code"), upon Executive by
reason of"parachute payments" (as defined in Section 280G(b)(2) of the
Code) made by the Companies.
4. Protection of Confidential Information, Non-Competition
4.1 Executive and Companies acknowledge that the services Executive provides
to the Companies are unique (for purposes of this Section 4 the term
"Companies" shall include the entity owning the Companies as well as all
entities owned by the Companies). Executive and Companies further
acknowledge that the business knowledge and relationships of the
Executive acquired during Executive's employment with the Companies is a
critical asset of the Companies. In addition, the Executive's work for
the Companies will bring the Executive into close contact with many
confidential affairs of the Companies that are not readily available to
the public and plans for future developments of the Companies.
Accordingly, the Executive hereby agrees that, as a material and
essential condition of Executive's employment by the Companies and in
consideration of this Agreement and the compensation and other benefits
provided for herein, the Executive is subject to and encumbered by the
restrictive covenants set forth in this Section 4 and that the Companies
shall have the right to enforce these restrictive covenants.
4.1.1 The Executive hereby covenants, warrants and agrees that the Executive
will not, during the period of Executive's employment hereunder or at any
time thereafter, directly or indirectly divulge, use, furnish, disclose
or make available to anyone any Confidential Information, except as may
be necessary for Executive to communicate on a"need to know" basis in
the ordinary course of performing Executive's duties as an employee of
the Companies.
4.1.2 For purposes of this Agreement,"Confidential Information" shall mean any
and all information, data and knowledge that (i) has been created,
discovered, developed or otherwise become known to the Companies
(including, without limitation, information, data and knowledge created,
discovered, developed, or made known by the Executive during the period
of or arising out of Executive's employment by the Companies) or in which
property rights have been assigned or otherwise conveyed to the
Companies, which information, data or knowledge has commercial value in
the business in which the Companies is engaged, except such information,
data or knowledge as is or becomes known to the public without violation
of the terms of this Agreement, or (ii) arises out of or relates to the
business affairs of the Companies (including without limitation, any
information which the Companies considers to be privileged). By way of
illustration, but not limitation, Confidential Information includes
financial information, supply and service information, marketing
information, personnel information, customer information, trade secrets,
business and customer links and relations, customer lists, contact lists
or information, processes, know-how, improvements, discoveries,
developments, designs, inventions, training methods, sales techniques,
marketing plans, strategies, forecasts, new products, unpublished
financial statements or parts thereof, budgets, projections, licenses,
prices, costs, and employee, customer and supplier lists or parts
thereof, terms of supply or service contracts, terms of agreements
between customers and the Companies and any information relating to the
business affairs of the Companies, in whatever form maintained. The
Executive further acknowledges that such Confidential Information would
inevitably be disclosed were he to become employed by, engaged by or
otherwise provide competitive services to a competitor of the Companies.
4.1.3 All ideas, creations, improvements and other works of authorship created,
developed, written or conceived by Executive at any time during
Executive's employment by the Companies and relating to the Companies'
business are works for hire within the scope of Executive's employment
and shall be the property of the Companies free of any claim whatsoever
by Executive and any person claiming any rights or interests through the
Executive.
4.1.4 The Executive hereby covenants, warrants and agrees that he shall not,
directly or indirectly, make or retain a copy of, nor make or cause to be
made any notes of, nor remove or cause to be removed from the premises of
the Companies, any document, notation or recording, whether mechanically
or electronically or physically or mentally or otherwise maintained or
copied, incorporating any trade secret or other Confidential Information
belonging to or relating to the Companies unless such copying or making
of notes is necessary for the proper and efficient discharge of
Executive's duties on behalf of the Companies, provided, however, the
Executive shall return such document, papers, copies or notes to the
Companies forthwith after the authorized purpose has ceased or has been
completed or on the demand of the Companies.
4.1.5 In the event of the termination of employment of the Executive, whether
by the Companies or by the Executive and for whatever reason, the
Executive hereby covenants, warrants and agrees that the Executive will
immediately deliver to the Companies, within three (3) days of such
termination or as directed by the Board of Directors: (i) all
Confidential Information in whatever form it is maintained or it exists;
(ii) all other documents, reports, notes, customer lists, customer data,
business plans, specifications, programs, computer printouts and data and
all other materials of any nature, whether originals or reproductions and
in whatever form maintained or they exist, pertaining to the Companies,
the business affairs of the Companies or the Executive's work with the
Companies, and the Executive will not, directly or indirectly, take or
possess, or deliver to any other person or entity, any of the foregoing
or any reproduction or variation of any of the foregoing; and (iii) any
and all other property or equipment which is properly the property of the
Companies.
4.2 During the period of the Executive's employment and for a period of
six (6) months following the voluntary or involuntary termination of
Executive's employment hereunder for"Cause," the Executive hereby
covenants, warrants and agrees that the Executive will NOT, as an
individual, agent, partner, investor, officer or employee of a
corporation or any other entity or in any other capacity, directly or
indirectly (i) solicit or induce, or in any manner attempt to solicit or
induce, any person employed by or acting as an agent of the Companies to
leave his or her employment with or engagement by the Companies to join
another enterprise or companies which is engaged in a similar business
and competes with the Companies in Puerto Rico and/or the U.S. Virgin
Islands as an employee or agent; or (ii) hire, contract with or otherwise
employ or engage any former or current employee, agent or consultant of
the Companies to join another common enterprise or entity which is
engaged in a similar business and competes with the Companies in Puerto
Rico and/or the U.S. Virgin Islands in any of their business areas or
interests. In the event the Companies breaches its obligations under
Section 2 or 3.2 of this Agreement, this Section 4.2 shall be null and
void.
4.3 During the period of Executive's employment and for a period of six (6)
months following the voluntary or involuntary termination of Executive's
employment hereunder for"Cause," the Executive shall NOT, as an
individual, agent, partner, investor, officer or employee of a
corporation or any other entity or in any other capacity, directly or
indirectly (i) induce or attempt to induce any customer or supplier of
the Companies to cease being a customer or supplier of the Companies; or
(ii) induce or attempt to induce any customer or supplier of the
Companies to become a customer or supplier of any person, firm or
corporation which in any way competes with the Companies in Puerto Rico
and/or the U.S. Virgin Islands in any of their business areas or
interests; or (iii) enter the employ of, or render any services to, any
person, firm or corporation which is in any way competes with the
Companies in any of their business areas or interests in Puerto Rico
and/or the U.S. Virgin Islands, (iv) interfere with the business
relationships or prospective business relationships of the Companies; or
(v) otherwise compete with the Companies in Puerto Rico and/or the U.S.
Virgin Islands. In the event the Companies breaches its obligations
under Section 2 or 3.2 of this Agreement, this Section 4.2 shall be null
and void.
4.4 If the Executive commits a material breach of any of the provisions of
Section 4.1, 4.2 or 4.3 hereof, the Companies shall have the right and
remedy to have the provisions of this Agreement specifically enforced by
way of a temporary restraining order and/or a preliminary and/or
permanent injunction by any court having jurisdiction, without the
posting of any bond or security by the Companies, it being acknowledged
and agreed by the Executive and the Companies that any such breach will
cause irreparable injury to the Companies and that money damages will not
provide an adequate remedy to the Companies. Such right and remedy shall
be in addition to, and not in lieu of, any other rights and remedies
available to the Companies under law or in equity. Further, should the
Companies commence an action for injunctive relief, the Companies shall
have the right in the same proceeding and court to seek and obtain money
damages caused by such breach.
4.5 If any of the covenants or other provisions contained in Section 4.1, 4.2
or 4.3, or any part thereof, is hereafter construed to be invalid or
unenforceable in any respect, the same shall not affect the remainder of
the covenant, covenants or provisions which shall be given the maximum
effect possible without regard to the invalid portions and the remainder
shall then be fully enforceable.
4.6 If any of the covenants or other provisions contained in Section 4.1, 4.2
or 4.3, or any part thereof, is held to be unenforceable because of the
duration of such provision or the geographical or product/business area
covered thereby, the parties agree that such provisions shall be reformed
and construed to reduce the duration and/or area of such provision to the
extent necessary for enforceability and, in its reduced form, said
provision shall then be fully enforceable.
4.7 The Parties hereto intend to and hereby irrevocably confer exclusive
jurisdiction to enforce the covenants and other provisions contained in
Sections 4.1, 4.2 and 4.3, upon the courts in the State of Florida (and
the federal courts resident in such State), with venue being set in
Miami-Dade County and further expressly agree not to assert that any
action brought in such courts has been brought in an inconvenient forum.
The Parties further agree that, to the fullest extent permitted by law,
valid service of process may be undertaken by certified mail to the
addresses in Section 5.
4.8 The covenants and other provisions of this Section 4 shall survive the
termination of this Agreement or the voluntary or involuntary termination
of the Executive's employment regardless of the circumstances of such
termination.
5. Notices
All notices or other communications given pursuant hereto by one party to
another shall be in writing and deemed given when (a) delivered by hand,
(b) sent by fax/telecopier (with receipt confirmed), provided that a copy
is mailed the same day by registered or certified mail, postage prepaid,
return receipt requested, or (c) when received by the addressee, if sent
by Express Mail, Federal Express or other express delivery service
(receipt requested), in each case to the appropriate addresses and
fax/telecopier numbers for the Companies and the Executive set forth
below (or to such other address and/or fax/telecopier number as any
party may designate by notice to the others from time to time).
If to the Companies:
Pueblo International, LLC
Pueblo Entertainment, Inc.
c/o Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Telephone No. (000) 000-0000
Fax. No. (000) 000-0000
Attention: General Counsel
If to the Executive at:
Xxxxxxx X. Xxxx, III
00 Xxxxxxxxx Xx., Xxx 00X
Xxxxx Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Fax No.: __________________
6. General
6.1 Except as otherwise provided in Section 4, any dispute or controversy
arising out of or related to this Agreement, the Executive's employment
with the Companies or the termination of that employment shall be
resolved exclusively by arbitration, conducted before a panel of three
(3) arbitrators in Miami, Florida, in accordance with the applicable
rules for arbitration of employment disputes of the American Arbitration
Association ("AAA"), the CPR Institute for Dispute Resolution ("CPR") or
JAMS/Endispute then in effect. The choice of the AAA, CPR or
JAMS/Endispute arbitration rules shall be made by the party initiating
arbitration. The Companies shall pay the administrative costs of the AAA
and the arbitrators' reasonable costs and fees. The Executive is
responsible for Executive's own attorneys' fees and other fees and
expenses, if any, with respect to the Executive's conduct of the
arbitration. The arbitrator is expressly empowered to award reasonable
attorneys' fees and expenses to the prevailing party as well as all other
remedies to which the party would be entitled if the dispute were
resolved in court. The arbitrator shall not have the authority to alter
or amend any lawful policy, procedure or practice of the Companies or
agreement to which the Companies are a party or the substantive rights or
defenses of either party under any statute, contract, constitution or
common law. The decision and award of the arbitrators is final and
binding. The arbitrators shall promptly issue a written decision in
support of their award. Judgment upon the award rendered by the
arbitrators may be entered in any court of competent jurisdiction. The
Federal Arbitration Act or any applicable state law shall govern the
application and enforcement provision of this Section.
6.2 The article headings contained herein are for reference purposes only and
shall not in any way affect the meaning or interpretation of this
Agreement.
6.3 This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to
the subject matter hereof.
6.4 This Agreement may not be amended, modified, superseded or waived, except
by a written instrument executed by both parties hereto, or in the case
of a waiver, by the party waiving compliance. The failure of either
party at any time or times to require performance of any provision
hereof, or any similar provision or policy applicable to any other
individual, shall in no manner affect the right of either party at a
later time to enforce the same. No waiver by either party of the breach
of any term or covenant contained in this Agreement whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
6.5 This Agreement shall be subject to and governed by the laws of the State
of Florida.
6.6 This Agreement may be executed in any number of counterparts each of
which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
6.7 A telecopy signature on this Agreement shall have the same force and
effect as an original signature.
7. Severability
If any provision of this Agreement is hereafter construed to be invalid
or unenforceable in any respect, the same shall not affect the remaining
provisions of this Agreement, without regard to the invalid portion, and
any such invalid provisions shall be reformed and construed to the
extent necessary to permit their enforceability so as to reflect the
intent of the parties hereto.
8. Representation
The Companies and the Executive represent and warrant that each is fully
authorized and empowered to enter into this Agreement and the performance
of each of their respective obligations under this Agreement will not
violate any agreement between each of them and any other person, firm or
organization.
9. Survivorship
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment or this Agreement
to the extent necessary to the intended preservation of such rights
and obligations.
10. Successors and Assigns
The respective rights and obligations of the Companies under this
Agreement shall inure to the benefit of and shall be binding upon the
respective successors and assigns of the Companies. This Agreement is
assignable by the Companies to any corporate entity which acquires
directly or indirectly by merger, consolidation, purchase or otherwise,
all or substantially all of the assets or stock of the Companies. Upon
such assignment, the Companies shall not be released from liability
hereunder. This Agreement shall not be assignable by the Executive, but
may become part of the Executive's estate in case of death.
11. Effective Date
This Agreement shall become effective and enforceable on the execution of
this Agreement by all Parties (the"Effective Date").
[Signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PUEBLO INTERNATIONAL, LLC
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title:___________________________________
PUEBLO ENTERTAINMENT, INC.
By /s/Xxxxxx X. X'Xxxxx
Name: Xxxxxx X. X'Xxxxx
Title: Chief Financial Officer
/s/ Xxxxxxx X. Xxxx, III
Xxxxxxx X. Xxxx, III
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