Exhibit 10.4.5
EMPLOYMENT SECURITY AGREEMENT
This Employment Security Agreement is entered into as of the 26th day
of October, 1999, by and between Ballantyne of Omaha, Inc., a Delaware
corporation, with its principal place of business located at 0000 XxXxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000, (hereinafter the "Company") and Xxxx X. Xxxxxxx
of 00000 Xxxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, (hereinafter "Executive").
WHEREAS, Ballantyne of Omaha, Inc. (the "Company") considers the
establishment and maintenance of a sound and vital management to be essential to
protecting and enhancing the best interests of the Company and its shareholders,
and
WHEREAS, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a change in control exists, and
that possibility, and the uncertainty and questions that it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its shareholders, and
WHEREAS, the Board of Directors of the Company has determined that
appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management, including
Executive, to their assigned duties without distraction in the face of
potentially disturbing circumstances arising from the possibility of a change in
control of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties set forth herein, and for other good and valuable
consideration, the parties agree as follows:
Section 1. CHANGE IN CONTROL.
1.1 RIGHT TO CHANGE IN CONTROL SEVERANCE BENEFITS. In order to induce
Executive to remain in its employ, the Company agrees to provide
Executive the payments and benefits described in this Agreement
(in lieu of compensation and benefits under Executive's
Employment Agreement with the Company, dated as of January 1,
1997, and any severance payments and benefits Executive would
otherwise receive in accordance with the Company's severance pay
practices) if Executive's employment with the Company is
terminated subsequent to a "Change in Control" of the Company as
defined in SECTION 3, under the circumstances described in
SECTION 4.
1.2 NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not give
Executive any right to continued employment by the Company or a
Subsidiary, and any such right shall be governed solely by
Executive's Employment Agreement with the Company dated as of
January 1, 1997, and the right the Company or a Subsidiary
otherwise may have to terminate Executive's employment.
Section 2. TERM OF THIS AGREEMENT. This Agreement will be effective as
of October 26, 1999, and, except as otherwise provided in this Agreement, will
continue in effect until October 26, 2002; provided, that commencing on January
1, 2000, and on each subsequent January 1, the terms of this agreement will be
extended automatically so as to remain in effect for three (3) years
-1-
from that January 1, unless at least sixty (60) days prior to January 1 of a
given year, the Company notifies Executive that it does not wish to continue
this Agreement in effect beyond its then current expiration date; and provided
further, that if a Change in Control occurs prior to the expiration of this
Agreement, this Agreement will continue in effect for three (3) years from the
Change in Control.
Section 3. DEFINITION OF CHANGE IN CONTROL. No benefits will be
payable under this Agreement unless there is a Change in Control and Executive's
employment by the Company is terminated subsequently under the circumstances
described in SECTION 4 entitling Executive to benefits. For purposes of this
Agreement, a Change in Control of the Company means the occurrence of any of the
following events during the period in which this Agreement remains in effect. A
Change in Control will be deemed to occur on the date the event occurs:
3.1 CHANGE IN VOTING POWER. Any person or persons acting together
which would constitute a "group" for purposes of Section 13(d) of
the Exchange Act (other than the Company, ARC International,
Inc., any subsidiary of either, or any entity beneficially owned
by any of the foregoing) beneficially own (as defined in Rule
13(d)-3 under the Exchange Act) without Board approval or
consent, directly or indirectly, at least forty percent (40%) of
the total voting power of the Company entitled to vote generally
in the election of the Board;
3.2 CHANGE IN BOARD OF DIRECTORS. Either:
(a) the Current Directors (as hereinafter defined) cease for any
reason to constitute at least a majority of the members of
the Board (for these purposes, a "Current Director" means
any member of the Board as of the date of this Agreement,
and any successor of a Current Director whose election or
nomination for election by the company's stockholders was
approved by at least a majority of the current Directors
then on the Board) or
(b) at any meeting of the stockholders of the Company called for
the purpose of electing directors, a majority of the persons
nominated by the Board for election as directors fail to be
elected;
3.3 LIQUIDATION, MERGER OR CONSOLIDATION. The stockholders of the
Company approve:
(a) a plan of complete liquidation of the Company, or
(b) an agreement providing for the merger or consolidation of
the Company (i) in which the Company is not the continuing
or surviving corporation (other than consolidation or merger
with a wholly-owned subsidiary of the Company in which all
Shares outstanding immediately prior to the effectiveness
thereof are changed into or exchanged for the same
consideration) or (ii) pursuant to which the Shares are
converted into cash, securities or other property, except a
consolidation or merger of the Company in which the holders
of the Shares immediately prior to the consolidation or
merger have, directly or indirectly, at least a majority of
the common stock of the continuing or surviving corporation
immediately after such consolidation or merger, or in which
the Board
-2-
immediately prior to the merger or consolidation would,
immediately after the merger or consolidation, constitute a
majority of the board of directors of the continuing or
surviving corporation; or
3.4 SALE OF ASSETS. The stockholders of the Company approve an
agreement (or agreements) providing for the sale or other
disposition (in one transaction or a series of transactions) of
all or substantially all of the assets of the Company.
Section 4. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the
events described in SECTION 3 constituting a Change in Control occurs, Executive
will be entitled to the payments and benefits provided for in SECTION 5 if a
subsequent termination of Executive's employment occurs within three (3) years
from the date of that Change in Control, unless that termination is:
(a) because of Executive's death;
(b) by the Company for Cause or Disability; or
(c) by Executive other than for Good Reason.
Those payments and benefits will be in lieu of any future compensation under
Executive's Employment Agreement and/or severance payments Executive would
otherwise receive in accordance with the Company's severance pay practices.
4.1 CAUSE. Termination by the Company of Executive's employment for
"Cause" means termination by the Company of Executive's
employment for cause as defined in Section 4(c) of Executive's
Employment Agreement dated as of January 1, 1997, after a written
notice is delivered to Executive by the Chief Executive Officer
of the Company (or if Executive is the Chief Executive Officer,
the Chairman of the Compensation Committee of the Board of
Directors) that specifically identifies the manner in which the
Chief Executive Officer (or the Chairman of the Compensation
Committee) believes that Executive has given the Company cause
for termination of Executive's employment, and giving Executive
an opportunity for Executive, together with Executive's counsel,
to be heard before the Board of Directors of the Company, and a
finding that in the good faith opinion of two-thirds of the Board
of Directors, Executive committed conduct set forth in Section
4(c) of Executive's Employment Agreement, and specifying the
particulars of that finding in detail. For purposes of this
SUBSECTION 4.1, no act, or failure to act, on Executive's part
will be considered "willful" unless done, or omitted to be done,
by Executive not in good faith and without reasonable belief that
Executive's action or omission was in the best interest of the
Company.
4.2 DISABILITY. Termination by the Company of Executive's employment
for "Disability" means termination by the Company of Executive's
employment following and because of Executive's failure to
perform substantially all of the material duties of his position
for a period of at least one hundred eighty (180) consecutive
calendar days due to physical or mental illness or injury.
Executive will continue to receive Executive's full base salary
at the rate in effect and any bonus payments under the Key
Employee Bonus Plan payable during the one hundred eighty (180)
day qualification period until termination of Executive's
employment for Disability. After that termination, Executive's
benefits will be
-3-
determined in accordance with the Company's other benefit plans
and practices then in effect that apply to Executive. The company
will have no further obligation to Executive under this Agreement
and all supplemental benefits will be terminated. If the Company
and Executive disagree as to Executive's incapacity, each may
appoint a medical doctor to certify his opinion as to Executive's
incapacity, and if the doctors do not agree as to Executive's
incapacity, then the two doctors will appoint a third medical
doctor to certify his opinion as to Executive's incapacity, and
the decision of a majority of the three doctors will prevail.
(The Company will bear the costs of the doctors' opinions.)
4.3 GOOD REASON. Termination by Executive of Executive's employment
for "Good Reason" means termination by Executive of Executive's
employment based on:
(a) The assignment to Executive of duties inconsistent with his
position and status with the Company as they existed
immediately prior to a Change in Control, or a substantial
change in Executive's title, offices or authority, or in the
nature of his responsibilities, as they existed immediately
prior to a Change in Control, except in connection with the
termination of his employment for Cause or Disability or as
a result of his death or by Executive other than for Good
Reason;
(b) A reduction by the Company in Executive's base salary as in
effect on the date of this Agreement or as his salary may be
increased from time to time;
(c) A failure by the Company to continue the Company's Key
Employees' Bonus Plan, as it may be modified from time to
time, substantially in the form in effect immediately prior
to a Change in Control (the "Plan"), or a failure by the
Company to continue Executive as a participant in the Plan
on a basis substantially similar to his participation
immediately prior to a Change in Control, or to pay
Executive the amounts that Executive would be entitled to
receive in accordance with the Plan;
(d) The Company's requiring Executive to be based more than
thirty-five (35) miles from the location where Executive is
based immediately prior to a Change in Control, except for
required travel on the Company's business to an extent
substantially consistent with Executive's business travel
obligations prior to the Change in Control, or if Executive
consents to that relocation, the failure by the Company to
pay (or reimburse Executive for) all reasonable moving
expenses incurred by Executive or to indemnify Executive
against any loss realized in the sale of his principal
residence in connection with that relocation;
(e) The failure by the Company to continue in effect any
retirement plan, life insurance plan, medical insurance
plan, disability plan or any other benefit plan in which
Executive is participating immediately prior to Change in
Control of the Company (or provide plans providing Executive
with substantially similar benefits), the taking of any
action by the Company that would adversely affect
Executive's participation or materially reduce his benefits
under any of those plans or deprive
-4-
Executive of any material fringe benefit enjoyed by
Executive immediately prior to a Change in Control; or
(f) The failure by the Company to obtain the assumption of this
Agreement by any successor, as contemplated in SECTION 6.
4.4 NOTICE OF TERMINATION. Any purported termination by the Company
pursuant to SUBSECTIONS 4.1 OR 4.2 or by Executive pursuant to
SUBSECTION 4.3 will be communicated by written Notice of
Termination to the other party. For purposes of this Agreement, a
"Notice of Termination" means a notice that indicates the
specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's
employment under the provision so indicated. Any purported
termination not effected pursuant to a Notice of Termination
meeting the requirements set forth in this Agreement will not be
effective.
4.5 DATE OF TERMINATION. For purposes of this Agreement, the date of
the termination of Executive's employment ("Date of Termination")
will be:
(a) if Executive's employment is terminated by his death, the
end of the month in which his death occurs,
(b) if Executive's employment is terminated for Disability,
thirty (30) days after Notice of Termination is given, or
(c) if Executive's employment is terminated by Executive or the
company for any other reason, the date specified in the
Notice of Termination, which will not be later than thirty
(30) days after the date on which the Notice of Termination
is given.
Section 5. BENEFITS UPON CERTAIN TERMINATIONS FOLLOWING A CHANGE IN
CONTROL. If within three (3) years following the Change in Control, Executive's
employment by the Company is terminated by the Company other than for Death,
Disability or Cause, or if Executive terminates his employment for Good Reason,
then the following provisions will apply:
5.1 COMPENSATION THROUGH DATE OF TERMINATION. The Company will pay
Executive within thirty (30) days after termination:
(a) Any unpaid amount of Executive's base salary through the
date of termination;
(b) With respect to any year then completed, any unpaid amount
accrued to Executive pursuant to the Key Employees' Bonus
Plan; and
(c) With respect to any year then partially completed, a pro
rata portion through the date of termination of Executive's
annual bonus under the Key Employees' Bonus Plan, based upon
the amount of his bonus for the previous year.
5.2 ADDITIONAL SEVERANCE. In lieu of any further salary and bonus
payments to Executive for periods subsequent to the date of
termination or other severance
-5-
payments, the Company will pay as severance pay to Executive
three times the sum of:
(a) Executive's annual base salary as of the date of Change in
Control, or as of the date of termination of employment,
whichever is greater;
(b) Executive's annual bonus under the Key Employees' Bonus
Plan. Executive's annual bonus amount is to be based on the
greater of:
(1) the average of Executive's bonus for the two fiscal
years of the Company preceding the year in which the
Change in Control occurs, or
(2) the average of Executive's bonus for the two fiscal
years of the Company preceding the year in which the
termination of employment occurs.
The additional severance pay provided for in this SECTION 5.2
shall be transferred to a "Rabbi Trust", effective as of the date of
termination of employment, and paid to Executive in thirty-six (36)
equal monthly installments commencing on the first day of the next
month following the date of termination, and on the first day of each
subsequent month, until fully paid.
5.3 BENEFIT PLANS. Unless Executive's employment is terminated for
cause, the Company will maintain in full force and effect for
Executive's continued benefit until Executive attains the age of
sixty-five (65) years, health, dental, disability and other welfare
benefits, plans, programs and arrangements substantially equivalent to
the most valuable coverage provided under any plan maintained by the
Company from time to time during such period. In addition, the Company
shall continue to provide Executive with the same life insurance
coverage maintained by the Company on his life immediately prior to
the date of termination. These benefits shall be reduced by the amount
of similar benefits provided to Executive during such Period by a
subsequent employer, as determined solely by the Board. For the
purposes of enforcing this offset provision, Executive shall notify
the Company as to the terms and conditions of any subsequent
employment and the corresponding benefits received pursuant thereto,
and shall provide, or cause to provide the Company, correct, complete,
and timely information concerning the same.
5.4 NO MITIGATION REQUIRED. Executive will not be required to
mitigate the amount of any payment provided for in this SECTION 5 by
seeking other employment or otherwise, nor will the amount of any
payment provided for in this SECTION 5 be reduced by any compensation
earned by Executive as the result of employment by another employer
after the Date of Termination, or otherwise (except for a reduction in
benefits as set forth in SUBSECTION 5.3).
5.5 TAX GROSS-UP PAYMENT. If any payments or benefits provided
pursuant to this Agreement or any other payments or benefits provided
to Executive by the Company are subject to an excise tax on an "excess
parachute payment" under Section 4999 of the Internal Revenue Code of
1986 (the "Code"), or any successor provision of the Code, or are
subject to an excise or penalty tax under any similar provision of any
other revenue system to which Executive may be subject, the Company
will provide a gross-up
-6-
payment to Executive in order to place Executive in the same after-tax
position Executive would have been in had no excise or penalty tax
become due and payable under Code Section 4999 (or any successor
provision) or any similar provision of that other revenue system. No
gross-up payment will be made for any excise or penalty tax
attributable to any stocks option granted to Executive.
Section 6. SUCCESSORS: BINDING AGREEMENT.
6.1 ASSUMPTION BY COMPANY'S SUCCESSOR. The Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and
substance reasonably satisfactory to Executive, to expressly assume
and agree to perform this Agreement. Failure of the Company to obtain
that agreement prior to the effectiveness of any succession will be a
breach of this Agreement and will entitle Executive to compensation
from the Company in the same amount and on the same terms as Executive
would be entitled under this Agreement if Executive terminated
Executive's employment for Good Reason within three (3) years
following a Change in Control, except that for purposes of
implementing the foregoing, the date on which that succession becomes
effective will be deemed the Date of Termination. As used in this
Agreement, "Company" means Ballantyne of Omaha, Inc. and any successor
to its business and/or assets that executes and delivers the agreement
provided for in this SUBSECTION 6.1 or that otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
6.2 ENFORCEMENT BY EXECUTIVE'S SUCCESSOR. This Agreement will inure
to the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees. If Executive dies subsequent to
the termination of Executive's employment while any amount would still
be payable to Executive pursuant to this Agreement if Executive had
continued to live, all those amounts, unless otherwise provided in
this Agreement, will be paid in accordance with the terms of this
Agreement to executive's devisee, legatee or other designee or, if
there be no designee, to Executive's estate; that payment to be made
in a lump sum within sixty (60) days from the date of the Executive's
death.
Section 7. NOTICE. For purposes of this Agreement, notices and all
other communications provided for in this Agreement will be in writing and will
be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage pre-paid, addressed to the
respective addresses set forth on the first page of this Agreement, provided
that all notices to the Company will be directed to the attention of the Chief
Executive Officer of the Company (or if the notice is from the Chief Executive
Officer, to the Secretary of the Company), or to that other address as either
party may have furnished to the other in writing in accordance with this SECTION
7, except that notice of change of address will be effective only upon receipt.
Section 8. MODIFICATION AND WAIVER. No provision of this Agreement may
be modified, waived or discharged unless that waiver, modification or discharge
is agreed to in writing by Executive and that officer as may be specifically
designated by the Board of Directors of the Company. No waiver by either party
at any time of any breach by the other party of, or compliance with, any
condition or provision of this Agreement to be performed by that other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
time or at any prior or subsequent time.
-7-
Section 9. CONSTRUCTION. This Agreement supersedes any oral agreement
between Executive and the Company and any oral representation by the Company to
Executive with respect to the subject matter of this Agreement. The validity,
interpretation, construction an performance of the Agreement will be governed by
the laws of the State of Nebraska.
Section 10. SEVERABILITY. If any one or more of the provisions of this
Agreement, including but not limited to SECTION 16 hereof, or any word, phrase,
clause, sentence or other portion of a provision is deemed illegal or
unenforceable for any reason, that provision or portion will be modified or
deleted in such a manner as to make this Agreement as modified legal and
enforceable to the fullest extent permitted under applicable laws. The validity
and enforceability of the remaining provisions or portions will remain in full
force and effect.
Section 11. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which will take effect as an original and all of
which will evidence one and the same agreement.
Section 12. LEGAL FEES. If the Company breaches this Agreement or if,
within three (3) years following a Change in Control, (a) Executive's employment
is terminated by the Company other than for Cause or Disability or (b) Executive
terminates Executive's employment for Good Reason, the Company will reimburse
Executive for all legal fees and expenses reasonably incurred by Executive as a
result of that termination (including all those fees and expenses, if any,
incurred in contesting or disputing the termination or in seeking to obtain or
enforce any right or benefit provided by this Agreement, unless the Company is
the prevailing party in such litigation).
Section 13. EMPLOYMENT BY A SUBSIDIARY. Either the Company or a
Subsidiary may be Executive's legal employer. For purposes of this Agreement,
any reference to Executive's termination of employment with the Company means
termination of employment with the company and all Subsidiaries, and does not
include a transfer of employment between any of them. The actions referred to
under the definition of "Good Reason" in SUBSECTION 4.3 include the actions of
the Company or Executive's employing Subsidiary, as applicable. The obligations
created under this Agreement are obligations of the Company. A Change in Control
of a Subsidiary will not constitute a Change in Control for purposes of this
Agreement unless there is also a contemporaneous Change in Control of the
Company. For purposes of SECTION 1 and this paragraph, a "Subsidiary" means an
entity more than fifty percent (50%) of whose equity interests are owned
directly or indirectly by the Company.
Section 14. EMPLOYMENT CONTRACT. In the event of any discrepancy
between the terms of this Employment Security Agreement and the terms of
Executive's Employment Agreement dated as of January 1, 1997, the terms of this
Employment Security Agreement shall take precedence. In all other respects, the
terms and provisions of Executive's Employment Contract dated January 1, 1997,
except SECTIONS 8 AND 9 thereof, which sections are modified and clarified by
SECTION 16 of this Employment Security Agreement, shall remain in full force and
effect, and are incorporated herein by this reference.
Section 15. ARBITRATION. Except for the rights and duties of the
parties set forth in SECTION 16 of this Agreement, any dispute or controversy
arising under or in connection with this Agreement shall be settled exclusively
by arbitration in Omaha, Nebraska, according to the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be
-8-
entitled to seek specific performance of his right to be paid for all periods up
to the date of termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
Section 16. RESTRICTIVE COVENANT.
16.1 NEED FOR PROTECTION. Executive acknowledges that, because of his
Senior Executive position with the Company, his knowledge of the affairs of the
Company and his relations with its dealers, distributors and customers are such
that he could do serious damage to the financial welfare of the Company, should
he compete or assist others in competing with the business of the Company.
Consequently, in his Employment Agreement with the Company dated as of January
1, 1997, he agreed, in SECTION 8 thereof, not to disclose certain information to
any competitor, and, in SECTION 9 thereof, not to compete with the Company for
three (3) years after the termination of his employment. Both parties hereto
agree that SECTIONS 8 AND 9 of the Executive's Employment Agreement dated as of
January 1, 1997, need clarification and modification, while maintaining the
basic intent of the parties in said regard. Accordingly, SECTIONS 8 AND 9 are
modified as follows:
16.2 CONFIDENTIAL INFORMATION.
(a) NON-DISCLOSURE. Except as the Company may permit or direct
in writing, during the term of this Agreement and
thereafter, Executive agrees that he will never disclose to
any person or entity any confidential or proprietary
information, knowledge, or data of the Company, which he may
have obtained while in the employ of the Company, relating
to any customers, customer lists, methods of distribution,
sales, prices, profits, costs, contracts, inventories,
suppliers, dealers, distributors, business prospects,
business methods, manufacturing ideas, formulas, plans or
techniques, research, trade secrets, or know how of the
Company.
(b) RETURN OF RECORDS. All records, documents, software,
computer disks, and any other form of information relating
to the business of the Company, which are or were prepared
or created by Executive, or which may or did come into his
possession during the term of his employment with the
Company, including any and all copies thereof, shall be
returned to, or, as the case may be, shall remain in the
possession of the Company.
(c) FUTURE EMPLOYMENT. Nothing in this section shall limit the
Executive's right to carry the Executive's accumulated
career knowledge and professional skills to any future
employment, subject to the specific limitations of the
foregoing provisions of this section and the respective
covenants set forth below.
16.3 NON-COMPETITION.
(a) GLOBAL OPERATIONS. The parties hereto acknowledge that the
Company's operations are global, and that it sells and
distributes its products to dealers, distributors and
customers worldwide; thus, the company's need for protection
against unfair competition is global.
-9-
(b) COVENANT NOT TO COMPETE. Executive agrees that he will not,
during the term of this Agreement and for a period of three
(3) years after his employment with the Company has
terminated:
(1) engage directly or indirectly, for his own personal
benefit or for the benefit of any person or entity
other than the Company, in the manufacture, assembly,
distribution or sale of such motion picture theatre
equipment, restaurant equipment, or any other type of
products manufactured, assembled, distributed or sold
by the Company anywhere in the world, or,
(2) develop, promote, invest in, provide financing for, be
employed by, or operate any business on his own behalf,
or for any other person or entity, which is in
competition with the Company, or, assist any other
person in doing so.
(c) COVENANT NOT TO SOLICIT. Executive agrees that he will not,
for a period of three (3) years after his employment with
the Company has terminated:
(1) directly or indirectly, on behalf of himself or any
person or entity, engage in, or assist any other person
or entity to engage in, the manufacture, assembly,
distribution, or sale to any customer, distributor or
dealer of the Company, wherever located, of said motion
picture theatre equipment, restaurant equipment, or any
other type of product manufactured, assembled,
distributed or sold by the Company, if said customer,
distributor or dealer is one with whom he had contact
or with whose account he was involved during the twelve
(12) months prior to the termination of his employment,
or,
(2) directly or indirectly request or advise any of the
aforesaid customers, distributors or dealers referred
to in (1) above, of this subsection, to curtail their
business with the Company or to patronize another
business which is in competition with the Company, or,
(3) directly or indirectly, on behalf of himself or any
other person or entity, request, advise, or solicit any
employee of the Company to leave that employment in
order to engage in, or assist any other person or
entity to engage in, competition with the Company.
16.4 TERMINATION WITHOUT CAUSE. It is understood and agreed that, in
the event the Company terminates the Executive's employment
without cause, or if the Company breaches its Employment
Agreement dated as of January 1, 1997, and does not cure said
breach after ten (10) days' written notice, SUBSECTION 16.3
hereof shall be null and void. Notwithstanding the foregoing
provision, however, if the Executive's employment is terminated
under circumstances which entitle him to receive the benefits
provided in SECTION 5 of this Agreement, then and in
-10-
such event, the provisions of SECTION 16.3 hereof shall remain in
full force and effect.
16.5 JUDICIAL MODIFICATION. In the event that any court of law or
equity shall consider or hold any aspect of this section to be
unreasonable or otherwise unenforceable, the parties hereto agree
that the aspects of this section so found may be reduced or
modified by appropriate order of the court, and shall thereafter
continue, as so modified, in full force and effect.
16.6 INJUNCTIVE RELIEF. The parties hereto acknowledge that the
remedies at law for breach of this section will be inadequate,
and the Company shall be entitled to injunctive relief for
violation thereof; provided, however, that nothing herein shall
be construed as prohibiting the Company from pursuing any other
remedies available for such breach or threatened breach,
including the recovery of damages from the Executive.
In witness whereof, the parties have executed this Agreement as of the
date first above written.
BALLANTYNE OF OMAHA, INC.
BY: /s/ Xxxxxx Xxxxxx
------------------------------
Chairman
/s/ Xxxx X. Xxxxxxx
------------------------------
Executive
-11-
