EXHIBIT 10.47
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") dated as of December 1, 1997 between
Skyline Multimedia Entertainment, Inc., a New York corporation (the "Company"),
and Xxxxxx Xxxxxx (the "Executive").
ARTICLE I
EMPLOYMENT
The Company hereby employs Executive, and Executive accepts
employment with the Company, upon the following terms and conditions:
1.1 (a) Employment. The Company hereby employs Executive, and Executive
agrees to serve, as the President and Chief Executive Officer of the Company and
its subsidiaries (the "Subsidiaries") during the term of this Agreement. Subject
to the Board of Directors of the Company and the Board of Directors of each
Subsidiary, the Executive shall actively manage, and have responsibility for and
supervision over, the business activities and affairs of the Company and the
Subsidiaries, and he shall manage, supervise and direct its and their officers,
employees and agents. The Executive agrees to devote as much business time and
attention and best efforts to the affairs of the Company and the Subsidiaries
during the term of this Agreement as is reasonably necessary to fulfill
Executive's responsibilities hereunder.
(b) Board of Directors. The Company agrees that during the term of
this Agreement it will use its best efforts to cause the Executive to be
nominated and elected to the Company's Board of Directors, and will vote its
stock to elect the Executive to the Board of Directors of each Subsidiary.
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1.2 Term. The Employment of the Executive by the Company under the
terms and conditions of this Agreement will commence as of December 1, 1997 and
continue until December 31, 1998, and shall be automatically renewed for
successive one year terms through December 31, 2000 (the "Term", and each one
year renewal, a "Renewal Term") upon the achievement of certain performance
goals for each such calendar year as established by the Board of Directors,
unless terminated sooner in accordance with the provisions of Article IV;
provided, however, that this Agreement shall be automatically renewed for
successive one year terms in the event such performance goals are not achieved
and the Board of Directors does not provide Executive with notice of termination
of this Agreement pursuant to Section 4.1(c)(vi) hereunder within ten (10) days
of determination of whether or not such performance goals have been achieved.
ARTICLE II
COMPENSATION
2.1 (a) Annual Salary. During the Term the Company shall pay to the
Executive an annual salary of $275,000 (the "Base Salary") payable in equal
installments every two weeks. Executive shall be entitled to a salary increase
at the sole discretion of the Board of Directors.
(b) Bonus. Executive shall be entitled to receive an annual bonus
at the sole discretion of the Board of Directors.
(c) Performance Bonus. In additional to any other compensation to be
received pursuant to this Agreement, Executive shall be entitled to receive,
commencing with the 1998 calendar year, a performance bonus (the "Performance
Bonus") based on satisfying the criteria, and in the amounts, set forth in the
Performance Bonus Award established by the Board of Directors or any
compensation committee thereof for each calendar year which ends during the Term
(or a partial
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calendar year in the case of death or a Permanent Disability determination). The
Performance Bonus shall be paid in cash periodically as the Board directs, but
no less frequently than annually promptly after the close of each calendar year.
2.2 Reimbursement of Expenses. The Executive shall be entitled to
receive prompt reimbursement of all reasonable expenses incurred by the
Executive in performing services hereunder, including all expenses of travel,
entertainment and living expenses while away from home on business at the
request of, or in the service of, the Company or any Subsidiary, provided that
such expenses are incurred and accounted for in accordance with the policies and
procedures established by the Company.
2.3 Automobile. At the Executive's option, the Company shall pay
directly, or shall reimburse the Executive, for the full cost of leasing an
automobile selected by the Executive. The Company shall also pay directly, or
reimburse the Executive, for all reasonable costs and expenses incurred by the
Executive in connection with the maintenance, insurance and operation of the
automobile.
2.4 Benefits. The Company shall pay to Executive the annual cost of a
disability insurance policy which provides for payments equal to 75% of Base
Salary during the term of disability, with payments commencing two months after
the commencement of the disability. The Executive shall be entitled to
participate in and be covered by all health, insurance, pension and other
employee plans and benefits established by the Company (collectively referred to
herein as the "Company Benefit Plans") for its executive employees generally,
subject to meeting applicable eligibility requirements. Additionally, the
Company shall reimburse Executive for the annual cost of a life insurance policy
on the life of Executive which provides for payment of an aggregate of one
million dollars to Executive's designated beneficiaries.
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2.5 Vacations and Holidays. During the Term, the Executive shall be
entitled to an annual vacation leave of a minimum of four weeks at full pay. The
Executive shall also be entitled to such holidays as are established by the
Company for all employees and such other religious holidays as is customary
pursuant to Executive's religious practice.
ARTICLE III
CONFIDENTIALITY AND NONDISCLOSURE
3.1 Confidentiality. The Executive will not during his employment by
the Company or thereafter at any time disclose, directly or indirectly, to any
person or entity or use, or permit the use of, any trade secrets or confidential
information relating to the Company or any Subsidiary (the "Confidential
Information") except as required by law. "Confidential Information" shall
include the terms of any lease for space, the terms of any agreement for the
development of any simulator, film, hardware, software or technology related
thereto, the terms of any license agreement relating to any of the foregoing,
and all information denominated as "Confidential" and made available only on a
restricted basis; provided however, that "Confidential Information" shall not
include information which comes into the public domain through no fault of
Executive or which Executive obtains after the termination of employment with
the Company or otherwise from a third party who, to the knowledge of Executive,
has the right to disclose such information.
3.2 Return of Company Material. Executive shall promptly deliver to the
Company on termination of Executive's employment with the Company, for whatever
the reason, or at any time the Company may so request, all Company or Subsidiary
memoranda, notes, records, reports, manuals, drawings, computer software, and
all documents containing Confidential Information belonging to the Company,
including all copies of such materials which Executive may then possess or have
under Executive's control.
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3.3 Non-Competition. Subject to Section 4.3(c) of this Agreement,
during the Term and any Renewal Term and for a two-year period thereafter (the
"Non-Compete Period") the Executive will not, directly or indirectly, without
the consent of the Board of Directors of the Company: (i) own, manage, operate,
join, control, or participate in or be connected with, as an officer, employee
partner, stockholder, director, adviser, consultant, or agent (whether paid or
unpaid), any business, which is at the time engaged in any activities which
compete with the business of the Company or any Subsidiary, including, but not
limited to, (a) engaging in the food or souvenir concession business at the same
or adjacent locations to where the Company or any Subsidiary conducts business,
and (b) leasing space or entering into licensing arrangements to provide
simulated rides, virtual reality arcade games or theater-based attractions,
where tickets are sold to the public, at the same or adjacent locations to where
the Company or any Subsidiary conducts business; the foregoing provision being
also intended to prohibit Executive from acquiring or holding in excess of 5% of
any issue of stock or securities of any Company which has any securities listed
on a national securities exchange or quoted in the daily listing of
over-the-counter market securities; (ii) utilize any employees of the Company to
perform any service which conflicts with their full-time employment with the
Company or otherwise take actions which result in the termination of any
employee's relationship with the Company; provided, however, that
notwithstanding any other provision contained in this Agreement, in the event of
termination of Executive for any reason, the restrictions contained in this
Section 3.3 shall be effective only for so long as the Company continues to pay
Executive his then monthly base Salary in advance during the Non-Compete Period.
3.4 Right to Injunctive and Equitable Relief. As a result of
Executive's position as founder and a principal shareholder of the Company,
Executive's obligations not to disclose or use Confidential Information and to
refrain from the activities described in this Article III are of a special
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and unique character which gives them a peculiar value, and which is supported
by valuable consideration. The Company cannot be reasonably or adequately
compensated in damages in an action at law in the event Executive breaches such
obligations. Therefore, the Executive expressly agrees that the Company shall be
entitled to injunctive and other equitable relief without bond or other security
in the event of such breach in addition to any other rights or remedies which
the Company may possess. Furthermore, the obligations of Executive and the
rights and remedies of the Company under this Article III are cumulative and in
addition to, and not in lieu of, any obligations, rights, or remedies created by
applicable law relating to misappropriation or theft of trade secrets or
confidential information.
ARTICLE IV
TERMINATION
4.1 Termination by the Company. The Board of Directors may terminate
the Executive's employment hereunder as follows:
(a) Upon the death of Executive, whereupon this Agreement shall
immediately terminate;
(b) Upon a determination of Permanent Disability; "Permanent
Disability" shall mean a physical or mental incapacity as a result of which
Executive becomes totally unable to continue the performance of his duties
hereunder for a period of 180 consecutive days or an aggregate of 270 days in
any 24-month period. A determination of Permanent Disability shall be subject to
the certification of a qualified medical doctor agreed to by the Company and
Executive or, in the event of Executive's incapacity to designate a doctor,
Executive's legal representative. In the absence of agreement between the
Company and Executive, each party shall nominate a qualified medical doctor
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and the two doctors so nominated shall select a third doctor, who shall make the
determination as to the occurrence and continuance of a Permanent Disability; or
(c) For cause. "Cause" shall mean only the following:
(i) the willful and, after notice and an opportunity to cure,
continued failure by Executive to substantially perform his duties hereunder
(other than such failure resulting from Executive's incapacity due to physical
or mental illness);
(ii) willful and, after notice and an opportunity to cure,
continued misconduct by Executive (which includes a willful breach of a material
term of this Agreement by Executive in the performance of his duties hereunder);
(iii) conviction of a felony relating to the performance of
Executive's duties to the Company;
(iv) willful theft from the Company;
(v) a willful violation of any law, rule or regulation, or the
imposition of a final order issued by any regulatory authority against the
Company, which, in any event, prohibits Executive from holding an executive
position with the Company or any Subsidiary; or
(vi) the failure to achieve the performance goals for any
calendar year of the Term or Renewal Term as set forth in the Performance Bonus
Award.
For purposes of this Agreement, no act, or failure to act, on
Executive's part shall be considered "willful" unless done, or omitted to be
done, by Executive in bad faith and without a reasonable belief that such action
or omission by Executive was in the best interests of the Company, and no
termination by the Company for "Cause" shall be effective unless Executive shall
have been given written notice of the breaches of this Section 4.1(c) and a
period of 60 days within which to cure any such breach, or if not curable,
Executive shall be given, within 30 days after the giving of
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such notice of breach of this Section 4.1(c) by the Company, an opportunity to
make a presentation to the Board at a meeting of the Board. Following such
meeting, the Board shall determine whether to terminate Executive's services for
"Cause" pursuant to this Section 4.1(c) and shall notify Executive of its
decision.
4.2 Termination by Executive for Good Reason. Executive may terminate
his employment hereunder for Good Reason. For purposes of this Agreement, the
term "Good Reason" shall mean and shall be deemed to exist if, without the prior
written consent or written waiver of Executive, (i) Executive is assigned duties
or responsibilities that are inconsistent in any material respect with the scope
of the duties or responsibilities associated with his titles or position, as set
forth in this Agreement (or which he may receive during the Term), (ii)
Executive's duties or responsibilities are significantly reduced, except with
respect to any corporate action initiated or recommended by Executive and
approved by the Board, (iii) the Company fails to provide Executive the
Performance Bonus as required under this Agreement and the Performance Bonus
Award, (iv) the Company fails to perform substantially any material term or
provision of this Agreement, (v) Executive's office location is relocated to one
that is more than ten (10) miles from the location at which Executive was based
immediately prior to the relocation, (vi) the Company fails to obtain the full
assumption of this Agreement by a successor entity (whether as a result of
merger, reorganization or otherwise), or (vii) Executive is not elected to the
Board or is not reelected thereto or is forced to resign therefrom for any
reason not constituting Cause. Termination by Executive pursuant to this Section
4.2 shall be effective on the date that Executive first provides written notice
to the Board of the events specified in this Section 4.2(i-vii).
4.3 Severance Payments.
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(a) Termination for Cause. In the event of termination pursuant to
Section 4.1(c), Executive shall receive no severance, and shall be entitled to
receive, in lieu of any other payments or benefits, his accrued but unpaid
salary at the rate provided in Section 2.1(a) (as increased from time to time by
the Board), plus any amounts due but unpaid for any prior completed fiscal or
calendar year including any Performance Bonus for such prior calendar year and
any discretionary bonuses for any prior calendar or fiscal year, and any
reimbursable expenses incurred prior to the date of termination (collectively,
the "Accrued Obligations").
(b) Termination as a Result of Death. In the event of termination
pursuant to Section 4.1(a), Executive's estate or beneficiaries, as the case may
be, shall be entitled to receive, in addition to any other payments or benefits
hereunder, (i) the proceeds from any insurance policies paid for by the Company
in favor of Executive's estate or beneficiaries, (ii) any Accrued Obligations,
(iii) all unpaid salary, whether or not accrued, remaining through the final
Renewal Term, and (iv) an amount equal to $900,000 offset by any Performance
Bonus amounts received under this Agreement. Such amounts shall be paid promptly
in a lump sum in cash. In addition, all options that are unvested at the date of
termination shall vest, and the restriction on any options or stock held by
Executive shall terminate.
(c) Termination Without Cause or For Good Reason. In the event of
termination by the Company without Cause or by Executive for Good Reason,
Executive shall be entitled to receive (i) Accrued Obligations through the date
of termination, plus (ii) all unpaid salary, whether or not accrued, remaining
through the final Renewal Term, plus (iii) an amount equal to $900,000 offset by
any Performance Bonus amounts received under this Agreement (each of the amounts
in subclauses (i) through (iii) payable in a lump sum in cash within 30 days
after the date of termination, (iv) continuation, at the Company's expense, of
any group health (which may be
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provided by payment of COBRA continuation coverage premiums), life insurance and
long-term disability coverages at the levels in effect on Executive's date of
termination for a period of eighteen months following such date of termination
(or Executive shall receive from the Company the economic equivalent of such
coverages in cash), and (v) all options that are unvested at the date of
termination shall vest, and the restriction on any options or stock held by
Executive shall terminate. Additionally, in the event of termination of
Executive by the Company without Cause or by Executive for Good Reason, the
restrictions contained in Section 3.3 of this Agreement shall terminate as of
such termination date and be of no further force and effect for any purpose.
(d) Voluntary Termination. If Executive shall voluntarily resign
for other than Good Reason, he shall be entitled only to Accrued Obligations
through the effective date of such resignation or voluntary termination, and
that any such amounts shall be promptly paid in a lump sum in cash.
(e) Termination due to Permanent Disability. If Executive's
employment hereunder is terminated as a result of Permanent Disability, in lieu
of any other payments or benefits (other than any such disability benefits he
may receive), he shall be paid a single lump sum in cash within thirty (30) days
of the date of his termination, an amount equal to (i) all Accrued Obligations,
(ii) all unpaid salary, whether or not accrued, remaining through the Final
Renewal Term, plus (iii) an amount equal to $900,000 offset by any Performance
Bonus amounts received under this Agreement. In addition the unvested portion of
any options held by Executive on such date shall vest, and any restriction on
any options or stock held by Executive shall terminate.
(f) General Release. Prior to Executive's receipt of any severance
payment under this Section 4.3, Executive shall issue a general release to the
Company in such form as the Company may reasonably require, which release shall
extinguish all actual or potential claims or causes of
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action he has, may have had, or hereafter may have against the Company. The
Company shall simultaneously provide a release to Executive in the form mutatis
mutandis given to the Company by Executive.
(g) Other Payments Upon Termination. If notice of termination of
Executive is given by Executive or the Company, Executive shall continue to
receive his Base Salary (as increased from time to time by the Board), bonus
payments and benefits as provided in Article II until the date of termination,
and shall also be entitled to reimbursement for reimbursable expenses as set
forth in Section 2.2.
(h) Company's Option to Terminate Executive after Notice of
Termination. The Company, or, if notice is given by the Company, the Executive,
may, at any time during the period after notice of termination by Executive or
the Company and before the date of termination specified in the notice given in
accordance with Section 4.1 or Section 4.2, as the case may be (the "Notice
Period"), elect to terminate this Agreement and Executive's employment hereunder
immediately. In such event the Company shall pay Executive an amount equal to
all Accrued Obligations he would have received or been entitled to for the
duration of the Notice Period at the rate provided in Article II. Such amounts
shall be paid within thirty (30) days after the election pursuant to this
Section 4.3(h). Nothing contained in this Section 4.3(h) shall be deemed to
reduce in any way any amounts due Executive pursuant to any other term or
provision of this Article IV.
ARTICLE V
ASSUMPTION OF OBLIGATIONS BY SUCCESSOR TO COMPANY
5.1 Merger etc.; Change of Control
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(a) In the event of a future disposition of the properties and
business of the Company substantially as an entirety by merger, consolidation,
sale of assets, reorganization or otherwise, then the Company may elect:
(i) to assign this Agreement and all of its rights and
obligations hereunder to the acquiring, surviving or reorganized entity;
provided that such entity shall assume in writing all of the obligations of the
Company hereunder; and provided further, that the Company (in the event and so
long as it remains in existence) shall remain liable for the performance of its
obligations hereunder in the event of a breach of this Agreement by the
acquiring, surviving or reorganized entity; or
(ii) in addition to its other rights of termination, to
terminate this Agreement upon at least 90 days' written notice and by paying
Executive an amount equal to (a) all Accrued Obligations through the date of
termination, (b) all unpaid salary, whether or not accrued, remaining through
the final Renewal Term, plus (c) an amount equal to $900,000 offset by any
Performance Bonus amounts received under this Agreement, all such amounts
pursuant to subclauses (a) through (c) shall be payable in a single lump sum
within 30 days after the date of termination. In addition, upon the date of
termination hereunder, (A) all options which the Executive then holds which are
not vested shall immediately vest, (B) the restrictions on any stock held by
Executive shall terminate, (C) Executive, at the Company's expense, shall
continue to be a participant in any group health (which may be provided by
payment of the COBRA continuation coverage premiums), life insurance and
long-term disability plans or programs maintained by the Company (or shall
receive from the Company the economic equivalent of such coverages in cash) at
the level in effect on Executive's date of termination for a period of eighteen
months following his date of termination.
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(b) In the event of a change of control (a "Change of Control")
which is not agreed to in writing by Executive (other than a Change of Control
pursuant to contractual obligations existing on the date hereof to which the
Company or Executive are bound), Executive may terminate this Agreement, in
which event the Company shall pay Executive, upon Executive's execution of a
general release of claims in lieu of any other payments or benefits, an amount
equal to (i) all Accrued Obligations through the date of termination, (ii) all
unpaid salary, whether or not accrued, remaining through the final Renewal Term,
plus (iii) an amount equal to $900,000 offset by any Performance Bonus amounts
received under this Agreement, all such amount pursuant to subclauses (i)
through (iii) shall be paid in a single lump sum within 30 days after the date
of termination. In addition, upon the date of termination hereunder, (A) all
options which Executive then holds which are not vested shall immediately vest,
(B) the restrictions on any stock held by Executive shall terminate and, (C)
Executive, at the Company's expense, shall continue to be a participant in any
group health (which may be provided by payment of COBRA continuation coverage
premiums), life insurance and long-term disability plans or programs maintained
by the Company (or shall receive from the Company the economic equivalent of
such coverages in cash) at the level in effect on Executive's date of
termination for a period of eighteen months following his date of termination.
(c) For purposes of this Agreement, "Change of Control" means any
of the following:
(i) the acquisition by any "person" (as such term is used in
Section 13(d) or 14(d) of the Securities Exchange Act of 1934) of 30% or more of
the voting power of securities of the Company (or securities convertible or
exchangeable into voting securities of the Company or beneficially owned by such
person) or the acquisition by an existing stockholder of an additional 5% of the
voting power of securities of the Company (or securities convertible or
exchangeable into
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voting securities of the Company or beneficially owned by such person) over and
above that owned by such person as of the date hereof; excluding, however, the
following: (x) any acquisition of the Company's securities by the Company or a
Subsidiary of the Company, (y) any acquisition of the Company's securities by an
employee benefit plan (or related trust) sponsored or maintained by the Company
or a Subsidiary of the Company, or (z) any acquisition by an existing
stockholder of the Company as of the date hereof pursuant to a contractual
arrangement existing as of the date hereof and by which the Company or Executive
is a party and bound thereby; or
(ii) any merger, sale of substantially all of the assets, or
reorganization, of the Company, under circumstances where the holders of 20% or
more of the equity securities of the surviving, acquiring or reorganized entity
of such transaction were not holders of 20% or more of the Common Stock of the
Company immediately prior to the consummation of such transaction; or
(iii) any change in the composition of the Board of Directors
of the Company not approved by a majority of the Board prior to such change,
other than pursuant to a contractual arrangement existing as of the date hereof
and by which the Company or Executive is a party and bound thereby; or
(iv) the addition of more than two additional directors to the
Board of Directors or a change in 1/3 of the current members of the Board of
Directors, in either case, without the written consent of Executive, other than
pursuant to a contractual arrangement existing as of the date hereof and by
which the Company or Executive is a party and bound thereby.
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ARTICLE VI
GENERAL PROVISIONS
6.1 Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt required, postage prepaid, as follows:
If to the Company:
Skyline Multimedia Entertainment, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman, Compensation Committee of the Board of Directors
If to Executive:
Xxxxxx Xxxxxx
0000 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
6.2 No waivers. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Executive and the Company. No waiver by either party hereto at
any time or any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver or similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
6.3 No Mitigation; No Offset. In the event of Executive's termination
of employment, he shall be under no obligation to seek other employment and
there shall be no offset against any amounts due Executive hereunder on account
of any remuneration Executive may obtain from any
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subsequent employment. Any amounts due Executive hereunder are in the nature of
liquidated damages, and not in the nature of a penalty.
6.4 Legal Fees. The Company shall promptly pay or reimburse the
Executive for his reasonable costs of enforcing this Agreement, including,
specifically, the fees and expenses of his counsel.
6.5 Arbitration. Any and all disputes or controversies arising out of
or relating to this Agreement, other than injunctive relief pursuant to Section
3.4, shall be resolved by arbitration at the American Arbitration Association at
its New York City offices before a panel of three arbitrators under the then
existing rules and regulations of the American Arbitration Association. The
parties agree that in any such arbitration, the arbitrators shall not have the
power to reform or modify this Agreement in any way and to that extent their
powers are so limited. The determination of the arbitrators shall be final and
binding on the parties hereto and judgment on it may be entered in any court of
competent jurisdiction. Except as required by law, neither the Company nor
Executive shall issue any press release or make any statement which is
reasonably foreseeable to become public with respect to any arbitration or
dispute between the parties without receiving the prior written consent of the
other party to the content of such press release or statement. In the event
Executive prevails in such proceedings, as determined by the arbitrators, the
Company shall reimburse Executive for all expenses (including, without
limitation, reasonable legal fees and expenses) incurred by Executive in
connection with such proceeding or any other proceeding in which Executive
prevails in contesting or defending any claim or controversy arising out of or
relating to this Agreement. All such amounts shall be paid promptly, but in any
event within ten (10) days after Executive provides the Company with a statement
of such amounts to be recovered. In the event Executive does not prevail in such
proceedings, as determined by the arbitrators, each party hereto shall be
responsible for their own
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expenses (including, without limitation, legal fees and expenses) incurred in
connection with such proceedings.
6.6 D&O Insurance. The Company agrees to use its best efforts to obtain
and maintain a directors and officers liability insurance policy covering
Executive in an amount that is no less than the policy currently in effect for
senior executives or, if no such policy exists, a sufficient amount to provide
such indemnification, and to maintain such policy during the Term and any
Renewal Term (and for so long thereafter as is practicable in the circumstances,
taking into account the availability of such insurance).
6.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to its
Conflicts of Laws provisions.
6.8 Severability or Partial Invalidity. The invalidity or
unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
6.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
6.10 Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior written or oral and all contemporaneous
oral agreements, understanding, and negotiations between the parties with
respect to the subject matter hereof. This Agreement is intended by the parties
as the final expression of their agreement with respect of such terms as are
included in this agreement and may not be contradicted by evidence of any prior
or contemporaneous agreement. The parties further intend that this Agreement
constitutes the complete
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and exclusive statements of its terms and that no extrinsic evidence may be
introduced in any judicial proceeding involving this Agreement.
6.11 Assignment. Subject to the provisions of Article V hereof, this
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by any party without the prior written consent of the other party.
Any such assignment or delegation without the prior written consent of the other
party shall be void and be of no effect. Notwithstanding the foregoing
provisions of this Section 6.11, the Company may assign or delegate its rights,
duties and obligations hereunder to any person or entity which succeeds to all
or substantially all of the business of the Company through merger,
consolidation, reorganization, or other business combination or by acquisition
of all or substantially all of the assets of the Company; provided that such
person assumes the Company's obligations under this Agreement in accordance with
Section 5.1.
6.12 Beneficial Interests. This Agreement shall inure to the benefit of
and be enforceable by Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to Executive's devisee, legatee, or other designee,
if there be no such designee, to Executive's estate.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
SKYLINE MULTIMEDIA ENTERTAINMENT, INC.
A New York corporation
By: s/Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
Executive Vice President-Finance and
Chief Financial Officer
EXECUTIVE
s/Xxxxxx Xxxxxx
------------------------------------
XXXXXX XXXXXX
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