EXHIBIT 10.17
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement") is made as of this 24th day of February, 1997, by and
between GIANT GROUP, LTD., a Delaware corporation (the "Corpora-
tion"), and XXXX XXXXXXXX (the "Employee"), and, in accordance with
Section 17 of the EMPLOYMENT AGREEMENT dated as of July 24, 1993
(the "Prior Agreement") by and between Corporation and Employee,
amends and restates in its entirety such Prior Agreement, upon the
terms and conditions hereinafter set forth.
W I T N E S S E T H
WHEREAS, the Employee has been serving the Corporation in
the capacities of Chairman of the Board of Directors, President and
Chief Executive Officer, and has been employed by the Corporation
under the Prior Agreement, which Employee may terminate in his
discretion on sixty (60) days notice, and both the Corporation and
the Employee desire to continue their relationship, subject to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby amend and restate the Prior
Agreement in its entirety on the following terms and conditions,
which shall be effective from and after the date hereof:
1. RETENTION, TERM AND DUTIES
1.1 RETENTION. The Company hereby employs the Employee
as its Chairman of the Board of Directors, President and Chief
Executive Officer, and the Employee hereby accepts such employment,
upon the terms and subject to the conditions of this Agreement.
1.2 TERM. The term of employment of the Employee by the
Company shall be for the period commencing on January 1, 1994 (the
"Commencement Date") and ending on December 31, 2000 (the "Term"),
unless this Agreement is sooner terminated pursuant to Section 5, 6
or 8 herein. Notwithstanding anything contained herein to the
contrary, the term of employment will be automatically extended for
successive two (2) year periods commencing January 1, 2001
(referred to below as an "Extended Term"), unless either party to
this Agreement elects to terminate this agreement by providing
notice pursuant to Section 12 hereof of such election to the other
party during the thirty (30) day period commencing one (1) year
prior to the expiration of the then applicable Term or Extended
Term.
1.3 POSITIONS. The Employee shall serve as Chairman of
the Board of Directors and Chief Executive Officer of the
Corporation, and as a director and senior executive officer of such
subsidiaries of the Corporation as the Employee and the Corporation
may determine from time to time. The Employee shall continue to
serve as Chairman of the Executive Committee (or other committee
exercising similar powers and authority) of the Corporation (the
"Executive Committee"), and of such subsidiaries of the Corporation
as the Employee shall determine from to time, for so long as the
Employee is providing services to the Corporation hereunder and
such committee exists.
1.4 DUTIES. The Employee shall be the most senior
executive of the Corporation (and its subsidiaries), with duties
and responsibilities commensurate with such positions. All
employees of the Corporation and its subsidiaries shall report to
the Employee. The Employee shall report only to the Corporation's
Board of Directors.
2. SCOPE OF SERVICES
2.1 SERVICES. Subject to Section 2.2 herein, the
Employee agrees that he shall perform his services to the best of
his ability. During the term of this Agreement the Employee shall
not render any services for others in any line of business in which
the Corporation or its subsidiaries are significantly engaged
without first obtaining the Corporation's written consent; and he
shall devote his full business time, care, attention and best
efforts to the Corporation's business.
2.2 OTHER INTERESTS. So long as such activities do not
materially interfere with the Employee's performance of his obliga-
tions hereunder, the Employee may devote such time and activity as
may be reasonably required with respect to the activities of Xxxx
Xxxxxxxx, Inc. The Employee may make and maintain investments in
any business (whether publicly or privately held) (provided that
without the consent of the Board of Directors, the Employee shall
not make material investments in any business which is in direct
material competition with the Corporation or its subsidiaries at
the time the investment is made). The Corporation makes
investments in other corporations (the "Investee Corporations"),
and presently has a substantial investment in Rally's, Inc.
Notwithstanding his duties under this Agreement, the Employee may
devote such time and energy as may reasonably be required to tend
to the business matters of such other Investee Corporations and may
receive compensation for services he renders to Rally's Hamburgers,
Inc. and any other Investee Corporation. The Employee acknowledges
that some of the Investee Corporations are publicly-held entities.
The Employee agrees that he will not invest in any Investee
Corporation except in conformity with policies established from
time to time by the Corporation's Board of Directors and applicable
securities laws.
3. COMPENSATION
3.1 BASE. The Corporation shall pay to the Employee an
annual base salary of $1,000,000 (the "Base Compensation"), payable
in equal installments (in accordance with the Corporation's
standard practices, but no less often than semi-monthly) subject to
all withholding for income, FICA and other similar taxes, to the
extent required by applicable law.
3.2 BONUS. In addition to the Base Compensation payable
to the Employee pursuant to Section 3.1 hereof, the Corporation may
pay to the Employee any additional amounts as, in the discretion of
the Corporation's Board of Directors or the Compensation Committee,
it may desire as a result of the Employee's services (the "Bonus").
3.3 NO REDUCTION. The compensation paid to the Employee
by the Corporation pursuant to this Section 3 shall not be reduced
by any amounts received or earned by the Employee with respect to
any outside activities or services permitted under Section 2.2
hereof.
4. OTHER BENEFITS
4.1 LIFE INSURANCE. So long as it does not adversely
affect the Employee's ability to obtain life insurance in the
general market at prevailing premiums, the Corporation, at its
discretion, shall have the right to take out life insurance or
other insurance with respect to the Employee, at the Corporation's
cost and for the Corporation's benefit, and the Employee shall have
no rights in such insurance policies or their proceeds. The
Employee shall cooperate with the Corporation in obtaining such
insurance, and shall timely submit to any required medical or other
examinations in Beverly Hills, California, provided that if such
medical examination cannot be conducted by the Employee's personal
physician, (a) the Employee shall have the right to have such
physician attend such examinations and (b) the examining physician
shall be based in Beverly Hills, California and be subject to the
Employee's approval, not to be unreasonably withheld. Upon
termination of this Agreement, the Employee shall have the right to
acquire ownership of such insurance policies upon reimbursement to
the Corporation of the cash surrender value thereof, if any, and
the pro rata portion of any premium paid applicable to future
periods.
4.2 INSURANCE BENEFITS. The Corporation shall continue
to make available to the Employee disability, medical, life
insurance, and any other benefits of a type, nature and amount
comparable to those benefits which have been heretofore provided to
the Employee up to this time by the Corporation, and in any event
no less favorable than the best benefits of its type made available
to any other employee of the Corporation.
4.3 EXPENSES. To the extent not otherwise reimbursed
under this Agreement, the Corporation shall reimburse the Employee
for all reasonable and customary expenses which the Employee shall
incur in connection with the Employee's services to the Corporation
or any subsidiary pursuant to this Agreement. The foregoing shall
include first class hotel, travel and meals for the Employee and
his spouse when outside the Los Angeles metropolitan area on
Corporation business (it being understood that the Employee's
spouse is a public figure who can help promote the Corporation's
image, and that while she travels with the Employee, as a condition
for the Corporation being responsible for the expenses of such
spouse, such spouse shall be obligated to attend such meetings,
dinners, seminars and other functions as the Corporation so
designates in order to promote the Corporation's business). As
used herein, the term "first class travel," when applied to air
transportation, shall mean the best service available on a
particular route, including without limitation, use of aircraft
owned, leased or chartered by the Corporation or any of its
subsidiaries. All other benefits are to be authorized by and
subject to approval by the Corporation's Board of Directors.
4.4 VACATION; SICK LEAVE. The Corporation shall provide
to the Employee such paid vacation and paid sick leave benefits
which do not materially interfere with the Employee's performance
of his obligations hereunder, but not less than six (6) weeks per
annum of paid vacation and six (6) weeks of paid sick leave.
5. DEATH OF EMPLOYEE
5.1 EFFECT. This Agreement shall automatically
terminate upon the Employee's death (the "Section 5 Termination").
Upon such termination the Corporation shall: (i) pay to the
Employee's estate the accrued amount of the compensation, benefits,
reimbursements or other sums payable pursuant to this Agreement,
such amounts to be prorated through the date of the Section 5
Termination (other than expense reimbursements which will be paid
in full), if, as and when such amounts would be paid but for such
termination of this Agreement; (ii) pay to Employee's estate a lump
sum payment equal to the greater of: (A) twice the then Base
Compensation, or (B) what would have been the aggregate Base
Compensation payable after the Employee's death through the end of
the Term or Extended Term, as the case may be, and (iii) provide to
the immediate family of the Employee the continuation of their
health insurance benefits at the Corporation's expense for a period
of two years from the Section 5 termination date. Except for the
amounts payable by Corporation pursuant to the preceding sentence,
all obligations of the Corporation with respect to compensation and
benefits under this Agreement shall cease upon a Section 5
Termination.
5.2 OPTION EXTENSION. The Corporation shall use its
best efforts to obtain stockholder approvals, to the extent
required, of amendments to its 1985 Non-Qualified Stock Option Plan
and its 1996 Employee Stock Option Plan which would provide that
the termination date for all options held under such plans by the
Employee and exercisable as of the date of his death shall remain
exercisable until (i) the termination date as set forth in the
respective option certificates or (ii) 18 months after the Section
5 Termination, whichever is later.
6. DISABILITY OF EMPLOYEE
6.1 DETERMINATION. The Employee shall be considered
disabled if, due to illness or injury, either physical or mental,
he is unable to perform his customary duties and responsibilities
as required by this Agreement for more than six (6) months in the
aggregate out of any period of twelve (12) consecutive months. The
determination that the Employee is disabled shall be made by the
Executive Committee or, if there is no Executive Committee, by the
Board of Directors of the Corporation (with the Employee abstaining
from the decision if he is then a member of such Committee or the
Board), based upon an examination and certification by a physician
based in Beverly Hills, California, selected by the Corporation
subject to the Employee's approval, which approval shall not be
unreasonably withheld. The Employee agrees to submit timely to any
required medical or other examination, provided that such examina-
tion shall be conducted in Beverly Hills, California and that if
the examining physician is other than the Employee's personal
physician, the Employee shall have the right to have such personal
physician present at such examination.
6.2 EFFECT OF DISABILITY. If the Employee is determined
to be disabled pursuant to this Section 6, the Corporation shall
have the option to terminate this Agreement by written notice to
the Employee stating the date of termination, which date may be any
time subsequent to the date of such determination, except that the
Corporation shall pay to the Employee: (i) the accrued amount of
the compensation, benefits, reimbursements and other sums payable
pursuant to this Agreement, prorated through the date of termina-
tion (other than expense reimbursements which shall be paid in
full), if, as and when such amounts would be paid but for the
termination of this Agreement, and (ii) a lump sum payment equal to
the greater of: (A) twice the then Base Compensation, or (B) what
would have been the aggregate Base Compensation payable after the
date of termination through the end of the Term or Extended Term,
as the case may be. Except for the amounts payable by the
Corporation pursuant to the preceding sentence, all obligations of
the Corporation with respect to compensation and benefits under
this Agreement shall cease upon any such termination.
6.3 OPTION EXTENSION. The Corporation shall use its
best efforts to obtain stockholder approvals, to the extent
required, of amendments to its 1985 Non-Qualified Stock Option Plan
and its 1996 Employee Stock Option Plan which would provide that
the termination date for all options held under such plans by the
Employee and exercisable as of the date of the termination of
Employee (as a result of Employee's disability) shall remain
exercisable until (i) the termination date as set forth in the
respective option certificates or (ii) 18 months after the date of
termination (as a result of Employee's disability), whichever is
later.
7. INDEMNIFICATION AND INSURANCE
7.1 OBLIGATION. The Corporation shall indemnify and
hold harmless, and in any action, suit or proceeding, defend the
Employee (with the Employee having the right to use counsel of his
choice) against all expenses, costs, liabilities and losses
(including attorneys' fees, judgments and fines, and amounts paid
or to be paid in any settlement) (collectively "Indemnified
Amounts") reasonably incurred or suffered by the Employee in
connection with the Employee's service as a director or officer of
the Corporation or any affiliate to the full extent permitted by
the By-laws of the Corporation as in effect on the date of this
Agreement, or, if greater, as permitted by the General Corporation
Law of the State of Delaware (the "GCL"), provided that the
indemnity afforded by the Corporation's By-laws shall never be
greater than permitted by the GCL. The Company shall advance on
behalf of Employee all Indemnified Amounts as they are incurred.
To the extent a change in the GCL (whether by statute or judicial
decision) permits greater indemnification than is now afforded by
the By-laws and a corresponding amendment shall not be made in said
By-laws, it is the intent of the parties hereto that the Employee
shall enjoy the greater benefits so afforded by such change.
7.2 DETERMINATION. A determination that indemnification
with respect to any claims by the Employee pursuant to this Section
7 is proper shall be made by independent legal counsel selected by
the Board of Directors of the Corporation and set forth in a
written opinion furnished by such counsel to the Board of
Directors, the Corporation and the Employee. In the event it is
determined by such counsel that Employee is not entitled to
indemnification pursuant to this Section 7 (and if such determina-
tion is contested by Employee, such determination is confirmed by
the final non-appealable order of a court of competent jurisdic-
tion), or if a court of competent jurisdiction determines in a
final non-appealable order that Employee is not entitled to
indemnification pursuant to this Section 7, Employee hereby
undertakes that he shall promptly reimburse the Company for all
such advances of Indemnified Amounts made by the Company on
Employee's behalf. Pending any such final non-appealable determi-
nation, in accordance with Section 7.1 the Corporation shall
advance on behalf of Employee all Indemnified Amounts as they are
incurred.
7.3 EFFECT. This Agreement establishes contract rights
which shall be binding upon, and shall inure to the benefit of, the
heirs, executors, personal and legal representatives, successors
and assigns of the Employee and the Corporation.
7.4 OTHER RIGHTS. The contract rights conferred by this
Section 7 shall not be exclusive of any other right which the
Employee may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation or By-laws, agreement, vote of
stockholders or disinterested directors or otherwise. This Section
7 shall not be deemed to affect any rights to subrogation which may
exist in any policy of directors and officers liability insurance.
7.5 NOTICE OF CLAIMS. The Employee shall advise
promptly the Corporation in writing of the institution of any
action, suit or proceeding which is or may be subject to this
Section 7, provided that Employee's failure to so advise the
Corporation shall not affect the indemnification provided for
herein, except to the extent such failure has a material and
adverse effect on the Corporation's ability to defend such action,
suit or proceeding.
7.6 INDEMNIFICATION INSURANCE. The Employee shall be
covered by insurance, to the same extent as other senior executives
and directors of the Corporation are covered by insurance, with
respect to (a) directors and officers liability, (b) errors and
omissions, and (c) general liability insurance. The Corporation
shall maintain reasonable and customary insurance of the type
specified in parts (b) and (c) in the preceding sentence. The
Employee shall be a named insured or additional insured, without
right of subrogation against him, under any policies of insurance
carried by the Corporation. The Corporation will, in good faith,
make efforts to maintain insurance coverage of the type specified
in part (a) above at commercially reasonable rates, but the failure
to obtain such coverage shall not constitute a breach of the
Corporation's obligations hereunder.
8. TERMINATION
8.1 BY THE CORPORATION FOR CAUSE. The Corporation may
terminate this Agreement for cause at any time. For purposes of
this Agreement, the term "cause," when used in connection with
termination of the Agreement by the Corporation under this Section
8.1, shall be limited to (i) the willful engaging by the Employee
in gross misconduct which is materially injurious to the Corpora-
tion, (ii) conviction of the Employee of a felony involving any
financial impropriety which would materially interfere with the
Employee's ability to perform his services required under this
Agreement or otherwise be materially injurious to the Corporation,
or (iii) the willful refusal of the Employee to perform in a
material respect any of his material obligations under this
Agreement without proper justification after being notified with
specificity by the Board of Directors in writing of the particular
respects in which the Board of Directors asserts that Employee has
not performed such material obligations. For purposes of this
Section 8.1, no act, or failure to act, on the Employee's part
shall be considered willful unless done, or admitted to be done, by
the Employee in bad faith and without reasonable belief that such
action or omission was in the best interest of the Corporation.
8.2 BY THE EMPLOYEE FOR CAUSE. The Employee may
terminate this Agreement for cause at any time. For purposes of
this Agreement, the term "cause" when used in connection with the
termination of the Agreement by the Employee under this Section 8.2
shall be limited to the failure of the Corporation to perform in a
material respect any of its material obligations under this
Agreement without proper justification.
8.3 PROCEDURE FOR "CAUSE" TERMINATION. Any termination
of this Agreement pursuant to Section 8.1 or 8.2 hereof shall be
effective only if (i) the terminating party exercises such right of
termination in writing delivered to the non-terminating party
within sixty (60) days of the terminating party having actual
knowledge of the event giving rise to the right of termination, and
(ii) the non-terminating party shall have failed to correct or
reverse the event giving rise to such right of termination within
thirty (30) days of the receipt of such notice. Such termination
shall be effective upon the expiration of the period referred to in
clause (ii) above; provided, however, that should the Corporation
seek such termination the Employee may contest such termination and
demand arbitration as to the validity of the termination pursuant
to the procedure in Section 11.1 of this Agreement.
8.4 BY THE CORPORATION WITHOUT "CAUSE". The Corporation
may not terminate the Agreement without "cause," as defined in
Section 8.1 of this Agreement.
8.5 BY THE EMPLOYEE WITHOUT "CAUSE". The Employee shall
have the right to terminate this Agreement without "cause" and in
his discretion, upon written notice to be given to the Corporation
not less than sixty (60) days prior to the effective date of such
termination: (i) at any time after January 1, 1999; or (ii) at any
time, if Employee does not beneficially own (as defined in Rule
13-d under the Securities Exchange Act of 1934, as amended, or any
successor provision) or control at least ten percent (10%) of the
issued and outstanding shares of the Corporation's Common Stock.
8.6 EFFECT OF TERMINATION. (a) If this Agreement is
terminated for any reason prior to the end of the stated Term, or
an Extended Term, as the case may be, neither party shall have any
further obligation under this Agreement except with respect to
those provisions of this Agreement which, by their terms, require
performance by the parties subsequent to termination of this
Agreement.
(b) If this Agreement is terminated by the Corporation
for "cause" pursuant to Section 8.1 hereof or by the Employee
without "cause" pursuant to Section 8.5 hereof, the Corporation
shall pay to the Employee the accrued amount of the compensation
benefits, reimbursement and other sums payable pursuant to this
Agreement up to the effective date of termination, prorated through
the effective date of termination (other than expense reimburse-
ments which will be paid in full) if, as and when such amounts
could be paid but for the termination of this Agreement.
(c) If this Agreement is terminated by the Employee for
"cause" pursuant to Section 8.1 hereof or without "cause" from and
after January 1, 1999, or by the Corporation without "cause," the
Employee shall be entitled to receive (i) health insurance benefits
provided for in this Agreement (A) through the end of the stated
Term or (B) 24 months from the date of termination, whichever is
the longer, and (ii) a lump sum payment equal to the greater of (A)
twice the then Base Compensation or (B) what would have been the
aggregate Base Compensation payable after the date of termination
through the end of the Term or Extended Term, as the case may be.
Any amounts payable to the Employee under this paragraph (c) shall
not be reduced by any amounts earned or received by the Employee
from any third party at any time after such termination; there
being no requirement on the part of the Employee to mitigate
damages and no amounts received by him from others may be used to
mitigate damages.
8.7 CONSULTING. If this Agreement is terminated for any
reason other than pursuant to Section 5, 6, or 8.1 hereof or by the
Employee without "cause" (other than pursuant to Section 8.5
hereof), the Employee shall, at his option, continue to provide
services to the Corporation as a consultant, for a term commencing
as of the effective date of the termination of this Agreement
extending through and including the end of the Term or Extended
Term, as the case may be. The Employee shall have the right to
terminate such consultant arrangements at any time on thirty (30)
days prior notice to the Corporation. As a consultant the Employee
shall provide such services to the Corporation as he and the
Corporation shall mutually agree are appropriate under the circum-
stances (and in the event the Corporation and Employee fail to so
agree, Employee shall be entitled to receive the consultant
compensation provided for herein so long Employee is willing to
perform the services he believes are appropriate under the
circumstances); the Employee shall be entitled to receive compensa-
tion from the Corporate at a rate of not less than one hundred
thousand dollars ($100,000) per annum or such other amount as the
Employee and the Corporation shall agree upon; and the Employee
shall not be required to travel outside the Los Angeles, California
area without his consent.
8.8 TERMINATION FOLLOWING CHANGE OF OWNERSHIP. If this
Agreement is terminated by either party within one year following a
"change in the ownership" (as defined below) of the Corporation,
and in lieu of the benefits provided for in Section 8.6(b) and
8.6(c)(ii), Corporation shall pay to Employee a lump sum payment
equal to 2.99 times the average annual compensation paid by the
Corporation and includible by Employee in his gross income during
the five tax years ended prior to the tax year in which such change
of ownership or control occurs. For purposes of this Section 8.8,
a "change in the ownership" of the Corporation will be deemed to
have occurred upon: (i) completion of a transaction resulting in a
consolidation, merger, combination or other transaction in which
the common stock of the Corporation is exchanged for or changed
into other stock or securities, cash and/or any other property and
the holders of the Corporation's common stock immediately prior to
completion of such transaction are not, immediately following
completion of such transaction, the owners of at least a majority
of the voting power of the surviving entity, (ii) a tender or
exchange offer by any person or entity other than Employee and/or
his affiliates for fifty percent (50%) of the outstanding shares of
common stock of the Corporation is successfully completed, (iii)
the Corporation has sold all or substantially all of the
Corporation's assets, (iv) during any period of twenty-four (24)
consecutive months, individuals who at the beginning of such period
constituted the board of directors of the Corporation (together
with any new or replacement directors whose election by the board
of directors, or whose nomination for election, was approved by a
vote of at least a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for reelection was previously so approved)
cease for any reason to constitute a majority of the directors then
in office, and (v) any other event resulting in a change in the
ownership of the Corporation. Notwithstanding anything contained
herein to the contrary, the payment by Corporation to Employee
pursuant to this Section 8.8 shall be reduced to the extent
necessary to prevent any portion of such payment to be character-
ized as an excess parachute payment under Section 280G of the
Internal Revenue Code of 1986, as amended, or any successor
provision thereof, which may be applicable to a payment pursuant to
this Section 8.8.
8.9 EXPIRATION OF TERM. Subject to Section 8.8, upon
the termination of this Agreement upon the expiration of the Term
or Extended Term, as the case may be, or by Employee pursuant to
Section 8.5, the Corporation shall pay Employee a lump sum termina-
tion payment equal to twice the then Base Compensation.
9. CONFIDENTIAL INFORMATION: NONDISCLOSURE, ETC.
9.1 CONFIDENTIALITY. Except as may be in furtherance of
the Employee's performance of his functions as the Corporation's
most senior executive officer (including, without limitation, in
connection with acquisitions, dispositions, financings and other
significant corporate transactions, developments or planning which
involve the participation of third parties) or otherwise with the
consent of the Board of Directors or the Executive Committee, the
Employee shall not, throughout the Term of this Agreement and
thereafter, disclose to any third party, or use or authorize any
third party to use, any material information relating to the
material business or interests of the Corporation (or any of its
subsidiaries) which Employee knows to be confidential and valuable
to the Corporation or any of its subsidiaries (the "Confidential
Information"). The Confidential Information is and will remain the
sole and exclusive property of the Corporation, and, during the
Term of this Agreement, the Confidential Information, when
entrusted to the Employee's custody, shall be deemed to remain at
all times in the Corporation's sole possession and control.
Notwithstanding the foregoing, the Employee may, after prior
written notice to the Corporation (to the extent such notice is
possible under the circumstances) disclose such Confidential
Information pursuant to subpoena or other legal process, and
promptly thereafter shall advise the Corporation in writing as to
the Confidential Information which was disclosed and the
circumstances of such disclosure.
9.2 RETURN OF DOCUMENTS. Upon termination of this
Agreement for any reason whatsoever, or whenever requested by the
Executive Committee or the Board of Directors of the Corporation,
the Employee shall return or cause to be returned to the
Corporation all of the Confidential Information or any other
property of the Corporation in the Employee's possession or custody
or at his disposal, which he has obtained or been furnished,
without retaining any copies thereof.
10. NON-COMPETITION
10.1 RESTRICTION. Subject to Section 2.2 hereof, the
Employee shall not, throughout the Term or Extended Term of this
Agreement, as the case may be, without the Corporation's prior
written consent, render services to a business, or plan for or
organize a business, which is materially competitive with or
similar to the business of the Corporation or of any of its
subsidiaries by becoming an owner, officer, director, shareholder
(owning more than 4.9% of such business' equity interests),
partner, associate, employee, agent or representative or consultant
or serve in any other capacity in any such business.
10.2 TRADE SECRETS. Subject to Section 2.2 hereof, all
ideas and improvements which are protectable by patent or copyright
or as trade secrets, conceived or reduced to practice (actually or
constructively) during the Term of this Agreement by the Employee,
shall be the property of the Corporation; provided, however, that
the provisions of this Section 10.2 shall not apply to an invention
for which no equipment, supplies, facility or trade secret
information of the Corporation was used and which was developed
entirely on the Employee's own time, and (a) which does not relate
to (i) the business of the Corporation or any of its subsidiaries
or (ii) the actual or demonstrably anticipated research or develop-
ment by the Corporation of any of its subsidiaries or (b) which
does not result from any work performed by the Employee pursuant to
this Agreement.
11. REMEDIES
11.1 ARBITRATION. In the event of any dispute or
controversy arising under, out of or relating to this Agreement or
the breach hereof other than under Section 9 or 10 hereunder for
which the Corporation may seek injunctive relief, it shall be
determined by arbitration in Los Angeles, California to be heard by
a single arbitrator chosen by the Corporation and the Employee,
provided that if the Corporation and the Employee cannot agree on a
single arbitrator, each shall select one arbitrator and the
arbitrators so selected shall select a third arbitrator, and the
panel of three arbitrators shall determine the dispute. The
arbitration is to commence within four (4) weeks after service a
demand for arbitration by either party, and each party shall have
the right to make one document request on the other party prior to
commencement of the arbitration proceeding, but no other discovery
shall be conducted other than that which is agreed upon in writing
by both parties. Such arbitration and any award made therein shall
be binding upon the Corporation and the Employee.
11.2 INJUNCTIVE RELIEF. The Employee acknowledges and
agrees that any material breach which occurs or which is threatened
of Section 9 or 10 hereof shall cause substantial and irreparable
damage to the Corporation in an amount and of a character difficult
to ascertain. Accordingly, in addition to any other relief to
which the Corporation may otherwise be entitled at law, in equity
or by statute, or under this Agreement, the Corporation shall also
be entitled to seek such immediate temporary, preliminary and
permanent injunctive relief on such breach or threatened breach of
Section 9 or 10 hereof as may be granted through appropriate
proceedings.
11.3 FEES. If any action at law or in equity or
arbitration is necessary to enforce or interpret the terms and
conditions of this Agreement, the prevailing party shall be
entitled to reasonable attorney's, accountant's and expert's fees,
costs and necessary disbursements in addition to any other relief
to which it or he may be entitled. As used in this Section 11.3,
the term prevailing party shall include, but not be limited to, any
party against whom a cause of action, demand for arbitration,
complaint, cross-complaint, counterclaim, cross-claim or third
party complaint is voluntarily dismissed, with or without
prejudice.
12. NOTICES
All notices required or permitted hereunder shall be in
writing and shall be delivered in person, by facsimile, telex or
equivalent form of written communication, or sent by certified or
registered mail, return receipt requested, postage prepaid, as
follows:
To Corporation:
GIANT GROUP, LTD.
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Vice Chairman
GIANT GROUP, LTD.
c/o Xxxxx Xxxxxxxxxxx, Esq.
Christensen, Miller, Fink, Jacobs,
Xxxxxx, Xxxx & Xxxxxxx, LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
To the Employee:
Xxxx Xxxxxxxx
0000 Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
or such other party and/or address as either party may designate in
a written notice delivered to the other party in the manner
provided herein. All notices required or permitted hereunder shall
be deemed duly given and received on the date of delivery, if
delivered in person or by facsimile, telex or other equivalent
written telecommunication, or on the seventh day next succeeding
the date of mailing if sent by certified or registered mail.
13. FURTHER ACTION
The Corporation and the Employee each agrees to execute
and deliver such further documents as may be reasonably necessary
by the other in order to give effect to the intentions expressed in
this Agreement.
14. HEADING; INTERPRETATIONS
The headings and captions used in this Agreement are for
convenience only and shall not be construed in interpreting this
Agreement.
15. ASSIGNABILITY
This Agreement and the rights and duties under it may not
be assigned by any party hereto without the prior written consent
of the other party hereto. The parties expressly agree that any
attempt to assign rights and duties without such written consent
shall be null and void and of no force and effect. The terms and
provisions of this Agreement shall bind successors and assigns of
the Corporation.
16. ENTIRE AGREEMENT
This Agreement contains the entire agreement and under-
standing of the parties with respect to the matters herein, and
supersedes all existing negotiations, representations or agreements
and all other oral, written and other communications between them
concerning the subject matter of this Agreement.
17. AMENDMENTS
This Agreement may be amended or modified in whole or in
part only by an agreement in writing signed by the Corporation and
the Employee.
18. WAIVER AND SEVERABILITY
The waiver by either party of a breach of any terms or
conditions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by such party. In the event that
one or more provisions of this Agreement shall be declared to be
invalid, illegal or unenforceable under any law, rule or regula-
tion, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of the other
provisions of this Agreement.
19. GOVERNING LAW
This Agreement and the rights of the parties under it
shall be governed by and construed in accordance with laws of the
State of California, including all matters of construction,
validity, performance and enforcement and without giving effect to
the principles of conflict of laws, except that matters of
corporate law and governance shall be governed by and construed in
accordance with the laws of the State of Delaware.
20. COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed Agreement as of
the day and year first above written.
GIANT GROUP, LTD.
By: /s/ Xxxx Xxxxxxxx
--------------------------
/s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX
