EMPLOYMENT AGREEMENT
EXHIBIT
10.13
This
Employment Agreement (this “Agreement”) is made and entered into by and between
Wyndcrest DD Holdings, Inc. (the “Company”) and Xxxx X. Xxxxxx
(“Employee”).
1.
Employment.
The
Company agrees to employ Employee, and Employee agrees to perform his services
exclusively for the Company, on the terms and conditions set forth in this
Agreement.
2.
Term.
The
term
(the “Term”) of this Agreement shall commence on November 1, 2007 (the
“Commencement Date”) and shall, unless terminated sooner pursuant to the
provisions of Section 6, terminate on February 28, 2008; provided, however,
that
the Term shall, subject to the termination provisions of Section 6, be
automatically extended for an additional period of four months ending on June
28, 2008, unless either the Company or Employee notifies the other in writing,
not less than thirty (30) days prior to February 28, 2008, that it or he does
not wish the Term to be so extended. Unless this Agreement has been terminated,
as soon as practicable following February 28, 2008, the Compensation Committee
of the Board of Directors of the Company will evaluate the duties that Employee
has performed and the compensation that the Company has paid Employee in
connection with setting terms on which Employee may be retained to provide
services to the Company following the expiration of the Term.
3.
Position
and Duties.
During
the term of his employment under this Agreement, Employee shall serve as Special
Advisor to the Company. Employee will at all times perform all of the duties
and
obligations required of him by the terms of this Agreement in a loyal and
conscientious manner and to the best of Employee’s ability and experience.
Employee shall render the services required of him under this Agreement
primarily in Jupiter, Florida.
4.
Base
Salary.
In
consideration for all rights and services provided by Employee, Employee shall
receive an annualized base salary during the Term (the “Base Salary”), which
shall be payable at such intervals as salaries are paid by the Company to other
employees of the Company (but no less frequently than monthly), subject to
the
usual and required employee payroll deductions and withholdings. The Base Salary
shall be $250,000.00 during the Term.
5.
Expenses
and Benefits.
(a)
Employee shall be entitled to reimbursement for all reasonable and ordinary
expenses incurred by Employee in the course of, and directly related to, the
rendering of services pursuant to this Agreement in accordance with the
Company’s policies for reimbursement of such expenses, and the limitations
thereon, that are in effect at the time such expenses are incurred. Such
expenses shall be supported by reasonable documentation and accepted standards
and rules that the Company will put into place from time to time.
(b)
During his employment under this Agreement, Employee shall be entitled to
participate in or receive benefits under the Company’s medical, health,
disability, retirement, welfare, and insurance plans then in effect and
generally made available from time to time to the management employees of the
Company, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements.
(c)
Employee shall be entitled to twenty (20) days of paid vacation each 12-month
period during the Term. Such vacation time shall accrue and cumulate in
accordance with the Company’s vacation policy.
6.
Termination.
(a)
The
Company may terminate Employee’s employment and the Company’s obligations under
this Agreement at any time for any reason, or for no reason, for cause or
without cause, on thirty (30) days written notice.
(b)
Employee may terminate Employee’s employment under this Agreement and the
Company’s obligations under this Agreement at any time for any reason, or for no
reason, on thirty (30) days written notice.
(c)
Any
termination by the Company or by Employee pursuant to paragraphs (a) or (b)
of
this Section 6 shall be effected by written notice of termination given to
the
other, and such termination shall be effective at the end of thirty (30) day
notice period or such other date as the parties may agree. The Company shall
have the right in its sole discretion to determine whether or not Employee
comes
into the office and works during the period of time from the date the notice
is
given until the termination date; provided that, in any case, Employee shall
be
considered a full-time employee of the Company through the termination
date.
7.
Compensation
Upon Termination.
(a)
If
the Company terminates Employee’s employment and its obligations under this
Agreement for cause, the Company shall pay Employee his Base Salary, any accrued
but unused vacation through the date on which his employment is terminated,
and
any expenses incurred prior to termination payable under paragraph (a) of
Section 5, and the Company shall have no other obligations to Employee under
this Agreement after the date of termination; provided that the Company shall
retain all rights and remedies it may have against Employee by reason of any
breach of this Agreement by Employee.
(b)
If
the Company terminates Employee’s employment under this Agreement other than for
cause, or if Employee terminates such employment, then in either such event
the
Company shall pay Employee his accrued compensation through the date that is
no
later than thirty (30) days following written notice of termination and any
expenses incurred prior to termination payable under paragraph (a) of Section
5.
8.
Non-Solicitation
of Employees.
Employee
agrees that he will not at any time during the Term, or during the twelve-month
period following any termination of this Agreement or his employment hereunder,
solicit (directly or indirectly) any employees or then engaged contractors
of
the Company to render services as an employee or contractor for or on behalf
of
Employee or any other person.
9.
Confidentiality.
The
terms
of the Confidential Information and Inventions Agreement attached hereto as
Exhibit A are incorporated herein by this reference as if set forth in full
herein and Employee agrees to act in accordance with and be bound by all of
such
terms. Employee covenants and agrees to keep the specific terms and provisions
of this Agreement in strictest confidence and not to disclose the same to any
other person, other than (a) to Employee’s legal, financial and accounting
advisers, to the extent necessary in order for them to discharge their
professional responsibilities to Employee, (b) as required by applicable law
or
a court order binding on Employee, (c) in order to enforce or judicially
construe this Agreement, or (d) for the purpose of providing information
relating to Employee’s income to prospective employers, creditors and other
third parties with a legitimate financial interest therein.
10.
Rules,
Regulations, Policies and Procedures.
Employee
acknowledges that he shall perform his services in full compliance with all
of
the Company’s rules, regulations, policies and procedures, as the same may be in
effect from time to time.
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11.
Miscellaneous
Provisions.
(a)
Notices.
All
notices or other communications required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be considered properly given if
delivered to the address set forth below, in the case of the Company, or to
the
address set forth beneath Employee’s signature hereto, in the case of Employee,
by (1) U.S. certified mail, return receipt requested, postage prepaid, (2)
facsimile with confirmation of successful transmission, or (3) personal
delivery. Either party may change his or its address by giving written notice
of
the change to the other party in accordance with this provision. Any notice
given prior to the notice of change of address shall not be affected by the
notice of address change.
Address
for the Company:
Wyndcrest
DD Holdings, Inc.
000
Xxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Chief Executive Officer
Telecopier:
(000) 000-0000
with
a
copy to:
Wyndcrest
DD Holdings, Inc.
000
Xxxx
Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
General Counsel
Telecopier:
(000) 000-0000
(b)
Entire
Agreement; Amendment.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all prior agreements between the
parties with respect thereto. This Agreement may only be amended or modified
pursuant to a writing executed by both of the parties hereto.
(c)
Employee
Representation.
Employee hereby represents to the Company that the execution and delivery of
this Agreement by Employee and the Company and the performance by Employee
of
Employee’s duties hereunder shall not constitute a breach of, or otherwise
contravene, the terms of any employment agreement or other agreement or policy
to which Employee is a party or otherwise bound.
(d)
Governing
Law and Venue.
This
Agreement shall be enforced, governed by and construed in accordance with the
laws of the State of California.
The parties agree that all actions or proceedings initiated by either party
hereto arising directly or indirectly out of this Agreement shall be litigated
in federal or state court in Los Angeles, California. The parties hereto
expressly submit and consent in advance to such jurisdiction and agree that
service of summons and complaint or other process or papers may be made by
registered or certified mail addressed to the relevant party at the address
set
forth herein. The parties hereto waive any claim that a federal or state court
in Los Angeles, California, is an inconvenient or an improper forum.
(e)
Assignment.
This
Agreement, and all of Employee’s rights and duties hereunder, shall not be
assignable or delegable by Employee. Any purported assignment or delegation
by
Employee in violation of the foregoing shall be null and void ab initio
and of
no force and effect. This Agreement may be assigned by the Company to a person
or entity which is an affiliate or a successor in interest to substantially
all
of the business operations of the Company. Upon such assignment, the rights
and
obligations of the Company hereunder shall become the rights and obligations
of
such affiliate or successor person or entity.
(f)
Survival.
The
terms set forth in Sections 7-11, inclusive, shall survive any termination
of
this Agreement.
(g)
Cooperation.
Employee shall provide Employee’s reasonable cooperation in connection with any
action or proceeding (or any appeal from any action or proceeding) which relates
to events occurring during Employee’s employment hereunder, provided that the
Company reimburses Employee for any costs or expenses reasonably incurred in
connection with such cooperation.
(h)
Severability.
If any
provision of this Agreement is determined to be invalid or unenforceable for
any
reason and to any extent, the remainder of this Agreement shall not be affected
thereby, but shall be enforced to the greatest extent permitted by
law.
(i)
Captions.
All
titles and captions of sections and subsections contained in the Agreement
are
for convenience of or reference only and shall not be deemed part of this
Agreement.
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(j)
Counterparts.
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
In
witness whereof, the parties hereto intending to be bound thereby hereby execute
and deliver this Employment Agreement as of the __ day of November,
2007.
WYNDCREST
DD HOLDINGS, INC.
|
Xxxx
Xxxxxx
Chief
Executive Officer
|
Xxxx X. Xxxxxx |
||
|
|
Address:
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EXHIBIT A
[See
Attached Employee Confidential Information and Inventions
Agreement]
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