Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made and entered into as of the 23rd day of
May, 1996, by and between SHOWPOWER, INC., a California corporation (hereinafter
the "Employer"), and Xxxxxxxx Xxxxxxxx (hereinafter the "Executive").
1. Employment. The Employer hereby employs the Executive and the
Executive hereby accepts employment upon the terms and conditions hereinafter
set forth.
2. Term. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall begin on the date of execution hereof
and continue for a term of three (3) consecutive years.
3. Duties. Executive shall perform such duties and responsibilities
as may be assigned from time to time by the Board of Directors, as President of
the Employer, effective July 1, 1996. Executive shall also be responsible for
and perform any duties described on Exhibit "A," attached hereto.
4. Compensation and Benefits. For services rendered by the Executive
under this Agreement, the Executive shall receive a base salary as set forth on
Exhibit "B," attached hereto. Executive shall also receive all benefits
including pension, group insurance and participation plans which the Employer's
Board of Directors may adopt from time to time and make available to Employer's
employees generally, and any other benefits listed on Exhibit "B." [Such
salaries and benefits will be reviewed annually, and an increase or bonus may be
granted in the sole discretion of the Employer's Board of Directors.]
5. Equity interest.
x. Xxxxx of Equity Interest. For so long as he shall remain an
employee of Employer, Executive is hereby granted an option to purchase
twenty four and three tenths shares of Common Stock of Employer for
$100.00 at any time. At such time as such interest is acquired by
Executive, Executive agrees to execute the Shareholders' Agreement of
all the Shareholders of Employer, a Share Deposit Agreeement, and such
other documents which Employer deems necessary, in its sole discretion,
to give effect to the rights and obligations contained in such
agreements. Such interest shall be purchased pro-rata from Xxxxx X.
Xxxxxxxxx and Xxxx X. Xxxxxxx only, and shall be personal to Executive
and may not be assigned or transferred. If at the time Executive
exercises his option to acquire such shares, Executive does not qualify
as a shareholder of an S corporation, Executive shall either take such
steps as may be necessary to so qualify.
b. Employer's Right of Repurchase. Upon the termination of
Executive's employment hereunder for any reason, Employer shall have
the right, upon sixty days written notice to Executive, to purchase the
equity interest of Executive, for a price equal to its fair market
value, as determined by an independent M.A.I. certified appraiser,
provided however, that in the event the Executive voluntarily resigns
from his position in the Employer, or is terminated for good cause, as
defined in paragraph 11 hereof, the Employer shall be obligated solely
to pay to Executive the amount that Executive has paid for such stock,
plus simple interest from the date of such purchase at the annual rate
of 10%. If Employer and Executive are unable to jointly designate such
appraiser within sixty days following Employer's notice, then each of
Employer and Consultant shall designate an independent M.A.I. certified
appraiser, and the two appraisers so designated shall jointly select a
third independent M.A.I. certified appraiser, whose valuation shall be
binding on the parties. If the two appraisers so designated shall be
unable to agree on the designation of the third appraiser, within sixty
days following the appointment of the later of the two, or if such
third appraiser shall not submit his or her valuation within ninety
days following his or her appointment, then the valuation shall be
determined in a binding arbitration conducted by the American
Arbitration Association in Los Angeles, California, according to the
expedited rules of such Association. The closing of the purchase shall
take place within thirty days following the determination of value, and
the purchase price shall be payable 25% at closing, and the balance by
a promissory note (bearing interest at a rate equal to the prime rate
of interest in effect as of the date of closing, as announced by
Citibank, n.a., New York, NY or its successor), payable in three equal
annual installments. The costs for such appraisal shall be borne
equally by the Employer and the Executive.
6. Accounting terms. For each of the following terms, the figures
used shall be that utilized by the Employer financial in the normal course of
business consistently applied from year to year, and, if applicable, in
accordance with the audit procedures utilized by Employer's certified public
accounting firm.
7. Indemnification of Employer. Executive indemnifies Employer against
any liability to any third parties arising from the Employer's entering into
this agreement, and he represents and warrants that he is authorized to enter
into and perform this Agreement under all applicable laws and regulations.
Executive covenants to file all necessary returns, and pay all taxes, that may
become due under state or federal law, arising out of this Agreement and his
relationship with Employer.
8. Business Expenses. Executive will be entitled to prompt
reimbursement of ordinary and necessary business expenses
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incurred by the Executive in performing the services hereunder, including all
reasonable travel and living expenses while away from home on business or at the
request of and in the service of Employer, provided that such expenses are
incurred and accounted for in accordance with the policies and procedures for
Employer, as may be modified from time to time by the Board of Directors.
9. Inventions. In consideration of this agreement and Executive's
continued employment with Employer, Executive hereby assigns to Employer all
discoveries, inventions, improvements and developments made or conceived by
them, alone or in collaboration with others, during and prior to his employment,
whether or not during regular working hours, and relating to any methods,
apparatus, products or components thereof, which, prior to the termination of
this Agreement are manufactured, sold, leased, used, or under development by or
pertain to the business of Employer. All such items are works for hire and shall
upon execution hereof become and remain the property of Employer, its successors
and assigns. Executive will disclose promptly in writing to Employer all such
discoveries, inventions, improvements and developments and, at the request of
Employer and at Employer's expense, Executive will make, execute, and deliver
all application papers, assignments or instruments, and perform or cause to be
performed such other lawful acts, as Employer may deem necessary or desirable in
making or prosecuting applications, domestic or foreign, for patents, re-issues,
and extensions thereof, and assist and cooperate with Employer or its
representative in any controversy or legal proceedings relating to such
discoveries, inventions, improvements and developments, or to the patents which
may be procured thereon. Executive hereby forever assign to Employer all the
right, title and interest to all inventions previously invented by Executive.
The obligations of Executive shall survive any termination of this Agreement.
10. Termination. This Agreement may be terminated prior to the
scheduled expiration of its term as follows:
a. The Employer may terminate this Employment Agreement at any
time with good cause, whereupon all compensation to Executive shall
cease upon the effective date of termination. As used in this Paragraph
11, the term "good cause" shall include incompetency, neglect of duty,
insubordination, dishonesty, breach of any provision of this Agreement,
any other conduct which is contrary to the faithful and diligent
performance of Executive's duties, or Executive's failure to adequately
perform any duties reasonably assigned to Executive, and specifically
shall include (i) dishonesty by Executive detrimental to the best
interests of Employer or any of its affiliates, (ii) continuing
inattention to or neglect of the duties to be performed by Executive,
(iii) willful disloyalty of Executive to Employer, (iv) the death of
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Executive, (v) participation by Executive in any fraud, (vi) the
imparting of any material confidential information by Executive in
violation of this Agreement, or (vii) any other material violation of
this Agreement by Executive, provided however, that no finding of good
cause shall result from the Executive's prudent exercise of his
business judgement in the performance of his duties hereunder.
b. The Employer may terminate this Employment Agreement at any
time without cause, provided however, if Employer wishes to continue to
enforce the covenant not to compete contained in the Non-Solicitation
and Non-Competition Agreement attached hereto as Exhibit "C", Employer
shall be required to continue to pay the Executive his base
compensation as provided herein commencing with the date of termination
and continuing for the term of the Non-Solicitation and Non-Competition
Agreement.
c. Upon the express written agreement of the parties.
11. Disclosure of Information and Restrictive Covenants. It is noted
by the parties hereto that in the regular performance of the duties encompassed
by this Agreement, Executive will become familiar with and have access to
Employer's business methods and operation, its clients, customer lists and
accounts and its trade secrets and other confidential information (collectively
the "Information"). Therefore, as part of the consideration to Employer for
entering into this Agreement, the Executive hereby covenants and agrees:
a. That Executive shall hold the Information in strictest
confidence and shall not disclose to any person, firm or company, the
Information, or any part thereof, except where authorized by the
Employer, and shall not use the Information, or any part thereof, in
any way which shall be detrimental to the Employer, it being understood
that the Executive shall not use any such information for Executive's
own benefit or the benefit of any other party, firm or company.
b. That the relationship between the Executive and the accounts,
customers and clients of Employer results in a unique and special
situation whereby the Executive is placed in a position to either
further the business of the Employer or to deleteriously affect such
business and, accordingly, during the term of this Agreement and for a
period of thirty-six (36) months after the expiration or termination of
this Agreement, (i) the Executive shall not, in any way or for any
reason, encourage any customer, client or account of Employer to sever
or alter the relationship of such customer, client or account with
Employer; (ii) Executive shall not aid anyone else to take or secure
from Employer, its customers, clients
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or accounts; (iii) directly or indirectly solicit, take away, divert,
interfere or conduct business with any account or customer of Employer
with respect to services or products which are competitive with those
of the Employer; or (iv) directly or indirectly, alone or with any
third party, solicit, hire or retain any person employed by the
Employer (or any person under contract as an independent contractor).
c. That Executive shall, concurrent with the execution of this
Agreement, execute and be bound by the terms of a Non-Solicitation and
Non-Competition Agreement, in form substantially as attached hereto as
Exhibit "C", with such modifications thereto as Employer may elect.
12. Extent of Services. The Executive shall devote his or her entire
time, attention and energies to the business of the Employer or to such other
business as the Employer shall designate. The Executive shall not, during the
term of this Agreement, be engaged in any other business activity whether or not
such business activity is pursued for gain, profit, or other pecuniary
advantage, except as otherwise specifically approved in writing by the Board of
Directors of Employer. In no event shall the Executive be prevented from
investing his or her assets in such form or manner as will not require any
services on the part of the Executive in the operation of the affairs of the
companies in which such investments are made, provided however, that Executive
shall not, directly or indirectly, invest in any competitor of Employer.
13. Employer's Employment Policies. Executive's employment hereunder
shall be subject to and governed by such employment practices and policies as
Employer may adopt at any time or from time to time.
14. Remedies. The remedies provided herein shall be deemed cumulative,
and the exercise of one shall not preclude the exercise of any other remedy
based upon any particular occurrence or contingency, nor shall the specification
of remedies herein exclude any rights or remedies at law or in equity which may
be available hereto, including any rights to damages or injunctive relief.
Executive acknowledges and agrees that the remedy at law for breach of this
Agreement, including the provisions under paragraph 12 above, is inadequate
because a breach would result in irreparable harm and damage to Employer which
cannot be adequately compensated by a monetary award, and the covenants and
restrictions contained in this Agreement are reasonable as to scope and
duration, and necessary, fundamental and required for the protection of
Employer's business. Accordingly, Executive agrees that Employer shall be
entitled to an ex parte temporary restraining order and preliminary injunction
for breach of this Agreement or such other form of injunctive or equitable
relief as may be used by any court
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of competent jurisdiction to restrain or enjoin Executive from breaching any
such covenant or restriction or to specifically enforce this Agreement, and
Employer shall not be required to post any bond.
15. Executive's Restrictions. Executive represents and warrants to
Employer that there are no existing agreements or covenants whatsoever which
would inhibit or prevent Executive from entering into and performing this
Agreement and working for Employer.
16. Miscellaneous.
a. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified
mail to Executive's residence in the case of the Executive, or to its
principal office in the case of the Employer.
b. The waiver by the Employer of a breach of any provision of
this Agreement by the Executive shall not operate or be construed as a
waiver of any subsequent breach by the Executive.
c. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement may not be
assigned by Executive.
d. Employer shall be the owner of all discoveries, concepts,
ideas, processes, methods, formulas, techniques, trademarks, trade
names, copyrights, patents, improvements and know-how developed,
produced or conceived by Executive (either solely or jointly with other
persons) during the initial term and any renewal terms of this
Agreement, regardless of whether the same arise during the hours of
Executive's employment or with the use of Employer's facilities,
materials or personnel. Executive agrees, upon request, to execute any
and all documents necessary or desirable to evidence Employer's
ownership of any of such property or rights and to deliver copies of
any related items to Employer. All properties and rights of Employer
described in this subparagraph 17(d) shall be deemed to be within the
scope of the restrictions of Paragraph 12 of this Agreement.
e. This Agreement contains the entire agreement of the parties;
provided, that the parties may also execute an agreement of
non-solicitation governing some of the matters set forth in Paragraph
12, in which case all of such terms are incorporated herein. This
Agreement may not be changed orally but only by an agreement in writing
signed by the party
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against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
f. In the event that any section, paragraph, sentence, clause or
phrase of this Agreement shall be declared invalid for any reason, such
invalidity shall not thereby affect the remainder of said agreement.
g. This Agreement is to be governed by and construed under the
laws of the state of California, and the venue for such dispute shall
be in Los Angeles, California.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the date and year first above written.
Employer:
ATTEST: SHOWPOWER, INC., a California
corporation, Employer
By: /s/ PLEASE SUPPLY**************
------------------------------- ------------------------------
Secretary Chairman of the Board
Executive:
/s/ Xxxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxxx Xxxxxxxx
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EXHIBIT "A"
ADDITIONAL SPECIFIC DUTIES
Executive shall, effective July 1, 1996, be employed as the President
of the Employer. His duties shall include primary responsibility for the
operations, administration, financing and human resource management. Prior to
July 1, 1996, Executive shall be employed as the Employer's Vice President -
Operations.
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EXHIBIT "B"
COMPENSATION AND BENEFITS PACKAGE
Base Salary: Effective July 1, 1996 $ 150,000 per year, payable
in twenty six equal installments on every other
Wednesday.
Incentive Compensation: Executive shall be entitled to receive additional
compensation each year equal to three and
thirty-three hundredths (3.33%) percent of the "Free
Cash Flow" of the Employer. For purposes of this
Agreement, Free Cash Flow shall mean the amount
equal to Employer's EBITDA (as defined in accordance
with Generally Accepted Accounting Principals GAAP)
minus the sum of amounts paid for (i) principal
repayments, (ii) interest expense (iii) capital
lease payments and (iv) the cash portion of capital
investments, excluding investments funded with
proceeds of any offerings of the equity securities
of the Employer.
Automobile: Employer shall provide Executive with an automobile
of his choosing and shall reimburse Executive for
the cost of reasonable and proper maintenance and
insurance expenses for such automobile, provided
however, that such reimbursements, shall not exceed
$1,000 per month.
Other benefits:
a. Life Insurance. Employee shall be eligible to participate in the
Employer's Group Life Insurance Plan, which provides a life insurance policy
with a death benefit of ten times Executive's base compensation. The value of
the insurance premium will be reported as taxable compensation to Executive.
b. 401(K) Plan. Executive shall be eligible to participate in
Employer's 401(K) Plan, which provides that all contributions by Executive up to
the first six percent (6%) of base compensation shall be matched by Employer at
the rate of fifty cents for each Executive dollar contributed. The vesting
period under such plan shall commence as of the first date of Executive's
employment with the Company.
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c. Health Insurance. Executive shall be eligible to participate in
Employer's group health insurance plans which provides for medical and dental
coverages.
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EXHIBIT "C"
NON-SOLICITATION and NON-COMPETITION AGREEMENT
THIS NON-SOLICITATION and NON-COMPETITION AGREEMENT is entered into as
of this 23rd day of May, 1996, between Xxxxxxxx Xxxxxxxx ("Executive") and
SHOWPOWER, INC., a corporation organized and existing under the laws of the
state of California (hereinafter called "Employer"), and is made with reference
to the following facts:
A. Employer is engaged in the business of providing temporary
electrical power and/or heating, ventilation and air
conditioning and cooling ("HVAC") and related services for
private, public and spectator events, power generation and HVAC
and distribution equipment for such events and related
engineering, design and consulting services on an international
basis and enjoys a fine international reputation, which could be
irreparably damaged should Employee compete with Employer in
violation of this Non-Solicitation Agreement; and
B. Employer conducts its sales, marketing, services and promotion
on a worldwide basis and, accordingly, the geographic scope of
this Non-Solicitation Agreement shall be all states of the
United States and all countries of the world (the "Territory");
and
C. Executive is presently employed by Employer, and through such
employment relationship has been and will be provided with
information concerning Employer's business and shall receive
training in such business and will continue to come in contact
with Employer's customers throughout the duration of the
employment relationship.
D. Employer and Executive recognize that Employer's business
methods, operations and information and its relationship with
its customers, clients and accounts are confidential and
proprietary having been developed at considerable time and
expense to Employer.
NOW, THEREFORE, in consideration of and mutually in reliance on the
premises, representations, covenants, undertakings and agreements herein set
forth, and for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
17. Non-Solicitation. During the three (3) year period beginning with
the date of termination of Executive's employment with Employer or any of its
subsidiaries or affiliates, Executive shall not for any reason, either directly
or indirectly, (a) make
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known to any person, firm or corporation, the names and addresses of any of
Employer's clients or any other information pertaining to them; (b) call on,
solicit, take away, or attempt to call on, solicit or take away, any of
Employer's clients on whom Executive called or with whom Executive became
acquainted during Executive's employment with Employer or induce any such client
to patronize any competitor of Employer, either on Executive's behalf or that of
another person, firm or corporation or (c) call on, solicit, take away, or
attempt to call on, solicit, or take away, any of Employer's employees,
consultants and independent contractors with whom Executive became acquainted
during Executive's employment with Employer or induce any such employee,
consultant or independent contractor to become an employee, consultant or
independent contractor to any competitor of Employer, either on Employee's
behalf or that of another person, firm or corporation. The foregoing is not
intended to restrict Executive's right to call on persons in connection with
matters that are exclusively personal or social.
18. Covenant Not to Compete. To accord to Company the full value of the
Executive's time and as a material inducement to Company to enter into and
perform the transactions contemplated by the Employment Agreement and this
Covenant Not to Compete and by Purchaser to enter into and perform the
transactions contemplated by the Stock Purchase Agreement, as such terms are
defined in that certain Stock Purchase Agreement dated May 23, 1996 between
Company and Purchaser, except as otherwise provided hereinbelow, during the
three (3) year period beginning with the date of termination of Employee's
employment with Employer or any of its subsidiaries or affiliates, Executive
shall not for any reason engage or become interested, own, purchase, organize or
take preparatory steps for the organization of, build, finance, acquire, lease,
operate, manage, or invest in any business or permit his name or any part
thereof to be used or employed in connection with any business in competition
with or otherwise similar to Company's Business (as defined below), directly or
indirectly (as legal or beneficial owner, stockholder, partner, director,
officer, Executive, consultant, manager, agent or associate, or otherwise),
anywhere in the Territory, except that Executive may hold, as a passive investor
only, not more than five percent (5%) of the outstanding securities of any class
of any publicly held company engaged in such business or related business.
19. Employer's Business. For purposes of this Non-Solicitation
Agreement, the parties agree that Employer's Business is a full service company
which provides and/or operates temporary electric power supply, service
personnel, chillers, air handlers, heaters, mobile generators and distribution
equipment to provide temporary electrical power and distribution and/or heating,
air conditioning and cooling and ventilation services and equipment for a
variety of functions, throughout the United States and overseas on an
international basis, and the provision of engineering, design and consulting
services related to such equipment and of or in connection with:
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19..1 Clients engaged in the trade show, event, motion
picture, television, product launch, entertainment and music
industries, including by way of example but not limited to: broadcast
and cable television companies; record companies; production companies;
live stage shows for paying audiences;
19..2 Live sporting events, automobile rallies and races;
product launches, trade shows and exhibitions; amateur athletic events;
all video/satellite broadcast companies; corporate and industrial
theatre;
19..3 Any musical event where a "musical term" is included in
the name of the event. As used herein, "musical term" shall included by
way of example, but not by way of limitation: jazz; punk; rock; and
roll; country music; rap music; gospel music; and Christian music;
19..4 Any event which takes place in a temporary structure and
for which either temporary electrical power or environmental controls
are utilized; and
19..5 All existing, prospective and former customers of
Employer in the businesses and industries described above; "Prospective
customers" are limited to those industries and businesses described
above.
20. Information Use. Executive shall use the information and training
provided by Employer as governed by this Non-Solicitation Agreement during the
employment relationship with Employer only for the purposes of carrying out and
completing the obligations of Executive's position, and shall not use such
information or training for any other purpose. Executive agrees that, during the
term of Executive's employment with Employer, Executive shall refer any
inquiries and prospects exclusively to Employer. In addition, Executive shall
comment favorably regarding Employer and Employer's conduct of Employer's
Business if asked by any third party.
21. Confidentiality.
21..1 Executive will hold in strictest confidence, not
disclose to any person, firm or corporation, and not exploit or use,
without the express authorization of an officer of Employer, the nature
of Executive's duties and responsibilities on behalf of Employer, any
information, process, development or experimental work, work in
process, client list, pricing policy and financial data, or any other
secret or confidential matter relating to the sales or business of
Employer or its affiliates or subsidiaries.
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21..2 Executive acknowledges and agrees that the names,
addresses, preferences and all documentation of Employer, whether
prepared by Executive or otherwise, relating to identity, preferences,
purchasing patterns, modes of operation, program designs and sales and
contact details of Employer's clients, and the identity of any and all
suppliers of goods or services, forwarding agents, referral sources
constitute trade secrets of Employer; and that the sale or unauthorized
use or disclosure of any of Employer's trade secrets obtained by
Executive during Executive's employment with Employer shall constitute
unfair competition and a violation of applicable state law. Employer
competes and will compete in the marketplace by virtue of its ability
to formulate and maintain secrecy of the information described herein.
Executive shall not, in any way, infringe upon this secrecy by engaging
in unfair competition with Employer.
21..3 All records of the accounts of clients, route books,
itineraries, costing sheets, prices, schedules, other documentation,
computer hardware and software, and any other records and books
relating in any manner whatsoever to the clients of Employer, whether
prepared by Executive or otherwise, and whether situated inside or
outside the offices of Employer, shall be the exclusive property of
Employer, regardless of who actually purchased, prepared, entered, or
in any manner worked on the original document and/or record.
21..4 All obligations of Executive under this Section 4 shall
survive for an indefinite period following the execution and delivery,
and any termination, of this Non-Solicitation Agreement. The trade
secrets and information referred to in this Non-Solicitation Agreement
gravely affect the effective and successful conduct of Employer's
business and its good will, and any breach of this Section 4 is a
material breach.
22. Remedies. The parties to this Non-Solicitation Agreement
acknowledge and agree that (a) the remedy at law for a breach of this
Non-Solicitation Agreement is inadequate because a breach would result in
irreparable harm and damage to Employer which cannot be adequately compensated
by a monetary award, and (b) the covenants and restrictions contained in this
Non-Solicitation Agreement are reasonable as to scope and duration and
necessary, fundamental and required for the protection of Employer's Business.
Accordingly, Executive agrees that Employer shall be entitled to an ex parte
temporary restraining order and preliminary injunction for breach of this
Non-Solicitation Agreement, or such other form of injunctive or equitable relief
as may be used by any court of competent jurisdiction to restrain or enjoin
Executive from breaching any such covenant or restriction or to specifically
enforce this Non-Solicitation Agreement, and Employer shall not be required to
post any bond. Further,
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Executive agrees that Employer's right to equitable relief hereunder is in
addition to any other relief or remedy to which Employer is entitled at law and
in equity.
23. Successors and Assigns. This Non-Solicitation Agreement and the
respective rights and obligations of the parties hereunder shall be binding
upon, inure to the benefit of, and be enforceable by the parties hereto and
their respective parent, affiliate and subsidiary corporations, successors
(including but not limited to, any successor in interest to all or substantially
all of the asset of Employer's Business), heirs, assigns and legal and personal
representatives; it being understood that Employer may freely assign its rights
hereunder to any corporation, entity, business or person into which or with
which Employer shall merge, combine, affiliate or consolidate, or which
controls, is controlled by or is under common control with Employer.
Notwithstanding the above, however, Executive may not assign any rights, nor
delegate any duties under, this Non-Solicitation Agreement.
24. Severability. The covenants and other provisions contained herein
shall cover the activities of Executive in every part of the Territory; and such
covenants shall be construed as if each covenant is divided into separate and
distinct covenants in respect of Employer's Business, each capacity in which
Executive is prohibited from soliciting, each portion of the Term and each part
of the Territory. Each such covenant shall constitute separate and several
covenants distinct from all other such covenants. Each of the parties hereto
recognizes that the territorial restrictions contained in this Non-Solicitation
Agreement are properly required for adequate protection of Employer's Business
and that in the event any covenant or other provision contained herein shall be
deemed to be illegal, unenforceable or unreasonable by a court or other tribunal
of competent jurisdiction with respect to any part of the Territory, the Term or
any other provision of this Non-Solicitation Agreement, such covenant shall not
be affected with respect to any other part of the Territory or with respect to
any other jurisdiction, and each of the parties hereto agrees and submits to the
reduction of said territorial restriction to such an area, to the Term as said
court or tribunal shall deem reasonable.
25. Notices. All notices hereunder to the parties hereto shall be in
writing and sent by certified or registered mail, and by air mail if mailed to
an addressee outside of the continental United States, return receipt requested,
postage prepaid, or by telegraph or telex, addressed to the respective parties,
in the case of Executive, to Executive's last known residential address as
reflected in the records of Employer; and if to Employer, to the principal
business office of Employer.
Any party may by written notice complying with the requirements of this
Section specify another or different person or
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address for the purpose of notification hereunder. All notices hereunder shall
be deemed to have been given and received on the next day following the sending
of such telegram or telex and, if mailed, on the fifth business day following
such mailing.
26. Other Restrictions. The restrictions, covenants and agreements
contained herein, are in addition to, and Executive shall further be subject to
and restricted by, any other restrictions, covenants and agreements set forth in
any other agreement of the parties relating to the subject matter hereof,
including without limitation any employment agreement or covenant not to
compete. In the event the terms of such other agreement(s) is more or less
restrictive than those contained herein, and a conflict exists between such
agreements, it is the parties' intent and their agreement that the more
restrictive terms shall apply to Executive.
27. Entire Agreement. Except as may otherwise be referred to,
referenced or incorporated herein, this Non-Solicitation Agreement contains the
entire and only agreements of the parties hereto respecting the matters herein
set forth, supersedes or incorporates all prior agreements and understandings
between the parties hereto regarding the matters herein contemplated, and this
Non-Solicitation Agreement may not be changed or terminated orally, nor shall
any change, termination or attempted waiver of any of the provisions herein
contained be binding unless in writing signed by the party against whom the same
is sought to be enforced, nor shall this paragraph itself be waived verbally.
This Non-Solicitation Agreement may be amended only by a written instrument duly
executed by or on behalf of the parties hereto.
28. Counterparts. This Non-Solicitation Agreement may be executed by
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all of such counterparts together shall constitute one
and the same instrument.
29. Governing Law. This Non-Solicitation Agreement is made and
intended to be performed in the State of California, and shall take effect
under, be construed and enforced according to, and the rights and obligations of
the parties shall be governed in all respects by, the laws of the State of
California applicable to agreements made and to be performed in that State.
30. Attorneys' Fees. In the event of any controversy, claim or
dispute between the parties hereto arising out of or relating to this
Non-Solicitation Agreement, including but not limited to a controversy settled
by arbitration, the prevailing party shall be entitled to recover from the
losing party reasonable expenses, attorneys' fees and costs.
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31. Headings. The headings in this Non-Solicitation Agreement have
been inserted for convenience of reference only, and shall in no way affect the
interpretation of the terms or provisions of this Non-Solicitation Agreement.
32. No Waiver. Employer's failure to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver or
deprive Employer of its right thereafter to insist upon strict adherence to that
term or any other term of this Agreement. Any waiver must be in writing.
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IN WITNESS WHEREOF, this Non-Solicitation Agreement has been duly
executed on the date first above written.
EXECUTIVE: EMPLOYER:
SHOWPOWER, INC.
By: PLEASE SUPPLY*********
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Xxxxxxxx Xxxxxxxx Its:
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