EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this first day of January, 2001, by Select Media
Communications, Inc. ("Company" or "Select"), a New York corporation and Xxxxx
X. Xxxxxxxxx, an individual residing at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, (hereinafter called "Executive").
W I T N E S S E T H:
Company wishes to employ Executive, Executive wishes to enter into the
employ of Company on the terms and conditions contained in this Agreement.
WHEREAS, Company desires to employ Executive as its Chairman and Chief
Executive Officer ("CEO") and Executive desires to be employed by the Company,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the facts, mutual promises and
covenants contained herein and intending to be legally bound hereby, Company and
Executive agree as follows:
1. Definitions. As used herein, the following terms shall have the
meanings set forth below unless the context otherwise requires.
(a) "Affiliate" shall mean a person or entity who (i) with respect
to any entity, directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such entity; or
(ii) with respect to Executive, is a parent, spouse or issue of Executive,
including persons in an adopted or step relationship.
(b) "Base Compensation" shall mean the annual rate of compensation
set forth in Section 5(a), as such amount shall be adjusted as required by
Section 5(a).
(c) "Board" shall mean the Board of Directors of Company.
(d) "Business" shall mean the business conducted by Company as of
the date of execution of this Agreement, including business activities in
developmental stages, business activities which may be developed by Company, or
any Subsidiary or corporate parent thereof or entity sharing a common corporate
parent with the Company, during the period of Executive's employment by Company,
and all other business activities which flow from a commercially reasonable
expansion of any of the foregoing.
(e) "Cause" shall include but not be limited to any one or more of
the following:
(i) Executive materially breaches or materially neglects the
material duties that Executive is required to perform under the terms of this
Agreement, including if Executive performs his duties in an incompetent manner;
(ii) Executive is reasonably believed, by the majority of the
Board of Directors of the Company, to have committed a felony or a crime
involving moral turpitude or has entered a plea of nolo contendere (or similar
plea) to a charge of such an offense if the majority of the Company's Board of
Directors believes the commission has a material or significant impact on the
Company;
(iii) Executive is reasonably believed by the majority of the
Board of Directors of the Company to have used alcohol or any unlawful
controlled substance while performing his duties under this Agreement if such
use interferes with the performance of Executive's material duties under this
Agreement;
(iv) Executive commits any act of fraud or personal dishonesty
which the Company reasonably believes could damage or has damaged the Company or
misappropriation relating to or involving Company;
(v) Executive intentionally or negligently engages in the
unauthorized disclosure of material Confidential Information; and
(vi) With regard to 1(e)(i), Company will give Executive written
notice of the breach or neglect (hereinafter collectively, "Problematic
Conduct"). In addition, Executive will be given 30 days to attempt to cure the
Problematic Conduct, but the successful result of Executive's attempt to cure
will be determined by Company, in Company's reasonable discretion.
(f) "Commencement Date" shall have the meaning specified in Section
4 hereof.
(g) "Confidential Information" shall have the meaning specified in
Section 14(a) hereof.
(h) "Disability " shall mean Executive's inability, for a period of
twelve (12) consecutive weeks, or a cumulative period of 120 business days
(i.e., Mondays through Fridays, exclusive of days on which Company is generally
closed for a holiday) out of a consecutive period of twelve (12) months, to
perform the essential duties of Executive's position, with any reasonable
accommodation required by law, due to a mental or physical impairment which
substantially limits one or more major life activities.
(i) "Restricted Area" shall have the meaning specified in Section
14(a) hereof.
(j) "Restricted Period" and "Extended Restricted Period" shall have
the meaning specified in Section 14(a) and 14(b) respectively.
(k) "Subsidiary" shall mean any company in which Company owns
directly or indirectly 50% or more of the Voting Stock or 50% or more of the
equity; or any other venture in which it owns either 50% or more of the voting
rights or 50% or more of the equity.
(l) "Term of Employment" shall mean the period specified in Section
4 hereof as the same may be terminated in accordance with this Agreement.
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(m) "Voting Stock" shall mean capital stock for any class or classes
having general voting power under ordinary circumstances in the absence of
contingencies, to elect the Directors of the Company.
2. Employment. Company hereby employs Executive as Chief Executive
Officer and Chairman of the Board of Directors and Executive hereby accepts
employment by Company for the period and upon the terms and conditions specified
in this Agreement.
3. Office and Duties.
(a) Executive shall be employed as Chief Executive Officer and
Chairman of the Board of Directors. In such capacity, Executive shall render
such services as are necessary and desirable to protect and advance the best
interests of Company, acting, in all instances, under the supervision of and in
accordance with the policies set by the Board.
(b) Executive during the term of this Agreement, unless prevented by
ill health, shall devote at least 60% of his working time, energy, skill and
commercially reasonable efforts to the performance of Executive's duties
hereunder in a manner which will faithfully and diligently further the business
and interests of the Company. The Company recognizes that the Executive also is
and may continue to serve as President and Managing Director of the Homewood
Capital Group, LLC ("HCG") and also may continue to represent the HCG and its
predecessor business LBC Capital with other companies and business activities.
4. Term. Executive shall be employed by Company for an initial term of
employment (the "Initial Term"), commencing January 1, 2001 (the "Commencement
Date"), and ending on December 31, 2003, unless sooner terminated as hereinafter
provided. Unless either party elects to terminate this Agreement at the end of
the Initial Term by giving the other party written notice of such election at
least one hundred and twenty (120) days before the expiration of the Initial
Term, the term of employment shall be deemed to have been extended for an
additional term of one (1) year (the "Additional Term") commencing on the day
after the expiration of the Initial Term. At any time during the Additional
Term, either party may terminate this Agreement by giving the other party
written notice of such election at least one hundred and twenty (120) days prior
to such termination.
5. Compensation and Bonus.
(a) Base Compensation. For all of the services rendered by Executive
to Company, Executive shall receive Base Compensation at the gross annual rate
of two hundred and fifty thousand dollars ($250,000) payable in installments in
accordance with Company's regular payroll practices in effect from time to time.
The Base Compensation will be increased at the end of each contract year (twelve
(12) month time period beginning on the date of execution of this Agreement) by
10%, if Executive is actively employed by the Company at the end of the contract
year.
(b) Bonus. Executive shall be entitled to an annual bonus pursuant
to terms, conditions and eligibility requirements of the plan, if any, adopted
by the Board of Directors, in the Board's sole discretion.
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(c) Stock Option Awards. The Executive shall be eligible for stock
options pursuant to and in accordance with the terms, conditions, restrictions
and eligibility requirements of a stock option plan, if any, adopted by the
Board of Directors.
(d) Travel and Housing. The Company shall reimburse Executive for
all reasonable out-of-pocket expenses incurred for travel and housing as a
result of commuting from Wellesley, Massachusetts where Executive's principle
residence is located and New York, New York, where the Company's principal
office is located. Reimbursement shall be made on a monthly basis.
6. Fringe Benefits. As an additional inducement to Executive to
commence employment hereunder, and in consideration of Executive's covenants
under this Agreement, Executive shall be entitled to the benefits set forth
below (the "Fringe Benefits") during the Term of Employment:
(a) Executive shall be eligible to participate in any health, life,
accident or disability insurance or other benefit plans or programs made
available to other similarly situated Executives of Company as long as the plans
and programs are kept in force by Company and provided that Executive meets the
eligibility requirements and other terms, conditions and restrictions of the
respective plans and programs.
(b) Executive shall be entitled to four (4) weeks paid vacation
during each year, as well as the usual Company holidays and sick time days,
subject to Company's generally applicable policies relating to paid time off.
Unused time will not be paid upon separation but, up to a maximum of ten days of
paid time off (holiday, sick and vacation time) can be carried over to the next
contract year.
(c) Company will reimburse Executive for all reasonable and
necessary expenses incurred by Executive in connection with the performance of
Executive's duties hereunder upon receipt of documentation therefor in
accordance with Company's regular reimbursement procedures and practices in
effect from time to time.
(d) Executive shall be entitled to an automobile allowance of one
thousand dollars ($1,000) per month. This allowance covers all related costs and
expenses including but not limited to gasoline, insurance and maintenance.
(e) The Company agrees to allow Executive to maintain one seat on
the Board of the Company throughout Executive's active employment with the
Company.
7. Stock. Upon signing of this Agreement, the Company shall issue to
the Executive a seven year warrant to purchase two million (2,000,000) common
shares of the Company's stock at one dollar ($1.00) per share. The warrant shall
be exercised pursuant to a cashless exercise provision and contain standard
provisions as to anti-dilution, transferability, etc.
8. Disability. If Executive suffers a Disability, Company may terminate
Executive's employment relationship with Company at any time thereafter by
giving Executive ten (10) days written notice of termination. Thereafter,
Company shall have no obligation to Executive for Base Compensation, Bonus,
Fringe Benefits or any other form of compensation or benefit to Executive,
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except as otherwise required by law or by benefit plans provided at Company
expense, other than (a) amounts of Base Compensation accrued through the date of
termination, (b) a prorated portion of the Bonus, if any, and (c) reimbursement
of appropriately documented expenses incurred by Executive before the
termination of employment, to the extent that Executive would have been entitled
to such reimbursement but for the termination of employment. Any compensation
Executive receives from any Company sponsored or Company paid for insurance,
benefit plan or policy under which the Executive was covered at the time of his
inability, due to his disability, including but not limited to workers'
compensation payments and payments from a Company disability plan will be
deducted from the Company's prorated Bonus payment, if any, to Executive.
9. Death. If Executive dies during the Term of Employment, the Term of
Employment and Executive's employment with Company shall terminate as of the
date of Executive's death. Company shall have no obligation to Executive or
Executive's estate for Base Compensation, Bonus, Fringe Benefits or any other
form of compensation or benefit, except as otherwise required by law or by
benefit plans provided at Company expense, other than (a) amounts of Base
Compensation that have accrued through the date of Executive's death, (b) a
prorated portion of the Bonus (if any) and (c) reimbursement of appropriately
documented expenses incurred by Executive before the termination of employment,
to the extent that Executive would have been entitled to such reimbursement but
for the termination of employment.
10. Termination for Cause.
(a) Company may terminate Executive's employment relationship with
Company at any time for Cause. Upon termination of Executive under this Section
10, Company shall have no obligation to Executive for Base Compensation, Bonus,
Fringe Benefits, or any other form of compensation or benefits other than (a)
amounts of Base Compensation accrued through the date of termination, and (b)
reimbursement of appropriately documented expenses incurred by Executive before
the termination of employment, to the extent that Executive would have been
entitled to such reimbursement but for the termination of employment.
(b) Any and all disputes regarding whether an Executive's discharge
is with or without Cause, as defined by this Agreement, will be resolved by
arbitration to be held in New York, New York, in accordance with the Employment
Dispute Resolution Rules of the American Arbitration Association then in effect.
(c) Executive will be bound by the confidentiality, noncompetition
and trade secret provisions stated in Sections 13 and 14 below.
11. Termination without Cause.
(a) Company may terminate Executive's employment relationship with
Company at any time without Cause. Notwithstanding termination of Executive
under this Section 11, Company shall continue to pay Executive's Base
Compensation, as such amounts would have accrued through the three year Initial
Term of the Agreement and any Additional Term so long as Executive (i) executes
and does not revoke a Separation Agreement and General Release, (ii) the
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termination is without Cause and (iii) Executive complies with Section 14 of
this Agreement which deals with confidentiality, non-competition and trade
secrets and which extends the twelve (12) month non-competition provision to the
period of time Company pays Executive his Base Compensation following
Executive's actual termination date. However, the maximum time of the
non-compete is twenty four (24) months from separation and the minimum is twelve
(12) months. The Base Compensation, if payable, will be paid out in installments
in accordance with the Company's regular payroll practices. Executive also will
be paid a prorated portion of his Bonus, if any, for the portion of the last
year he worked.
(b) Executive may terminate his employment with Company for any or
no reason, upon ninety (90) days written notice. If such notice is provided by
Executive, Company, in its sole discretion, may waive the notice period or any
portion thereof, without pay (Base Compensation, Bonuses, etc.) or Fringe
Benefits to Executive for the remaining notice period. The Company shall then
consider the Executive's employment terminated on the date on which Executive
last receives Base Compensation as an Executive. Upon termination by Executive
of his employment under the provisions of this Subsection 11(b), the Company
shall have no obligation to Executive for Base Compensation, Bonus, Fringe
Benefits or any other form of compensation or benefits other than (a) amounts of
Base Compensation accrued through the date of his termination, and (b)
reimbursement of appropriately documented expenses incurred by Executive before
the termination of employment, to the extent that Executive would have been
entitled to such reimbursement but for his termination of his employment.
(c) Termination of Executive's employment pursuant to Sections 8
through 11 shall release the Company of all its liabilities and obligations
under this Agreement, except as expressly provided in Sections 8 through 11 and
except for federal and state law requirements. Termination of Executive's
employment pursuant to this Section shall not, however, release Executive from
Executive's obligations and restrictions as stated in Sections 13 and 14 of this
Agreement.
(d) Executive shall not be entitled to any payment or benefit under
any Company severance plan, practice or policy, if any, in effect at or after
the time of Executive's termination, pursuant to Sections 8 through 11, since
this Agreement supersedes all such plans, practices and policies.
(e) Executive will not be required to offset or mitigate
compensation lost due to the termination of his employment by Company without
Cause.
12. Indemnification.
(a) The Company agrees that if Executive is or becomes a party, or
is threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether brought by or in the right of the Company or otherwise
("Proceeding"), by reason of the fact that (whether before or after the
Effective Date) he is or was a director, officer, or employee of the Company or
is or was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including (without limitation) service with respect to
employee benefit plans, so long as the basis of such Proceeding is Executive's
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alleged action in an official capacity while serving as a director, officer,
member, employee or agent, Executive shall be indemnified and held harmless by
the Company to the fullest extent legally permitted or authorized by the Company
or, if greater, by laws of the State of New York or any other applicable state
or organization or formation, against all cost, expense, liability or loss
(including, without limitation, attorneys' fees, judgments, costs of appearance,
fines, excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by Executive in connection therewith, and such
indemnification shall continue as to Executive even if he has ceased to be a
director, member, employee or agent of the Company or other entity and shall
inure to the benefit of Executive's heirs, executors and administrators. In this
Section 12, (i) each reference to "the Company" (other than for the purpose of
any notice) shall include, without limitation, all entities that are
subsidiaries and affiliates of the Company, and (ii) all obligations of the
Company shall be joint and several as to entities included in such definition of
"the Company". Executive agrees to repay any and all monies paid by Company
under this provision if it shall ultimately be determined by Company that
Executive is not entitled to be indemnified against such costs and expenses.
(b) Neither the failure of the Company (including, without
limitation, its board of directors, independent legal counsel or stockholders)
to have made any determination that indemnification of Executive is proper
because he has met the applicable standard of conduct, nor a determination by
the Company (including, without limitation, its board of directors, independent
legal counsel or stockholders) that Executive has not met such applicable
standard of conduct, shall create a presumption that Executive has not met the
applicable standard of conduct or shall be a defense to any action or proceeding
to enforce the Company's indemnification or expense-defense to any action or
proceeding to enforce the Company's indemnification or expense-advancement
obligations. The Company shall have the burden of proof in establishing that
Executive has not met the applicable standard of conduct. Where Executive is
entitled to indemnification under this Section 12 for a portion of the
indemnifiable liabilities described in Section 12(a), but not for the total
amount of liabilities of that kind, the Company shall nevertheless indemnify
Executive for such portion of the indemnifiable liabilities to which Executive
is entitled.
(c) Executive's rights provided in this Section 12 shall not be
exclusive of any other rights of indemnification or advancement of expenses (or
any similar rights) that Executive may have against the Company or under any
liability insurance covering Executive.
(d) The Company agrees to continue and maintain one or more
directors' and officers' liability insurance policies that cover Executive (with
reputable and financially sound insurers) at a level that is commercially
reasonable (in light of the Company's business and the risks of litigation or
claims), and otherwise to the fullest extent the Company provides such coverage
for any of its other executive officers.
(e) Without limiting the generality of Section 12 hereof, the right
of indemnity in favor of Executive in this Section 12 shall continue and survive
any expiration or termination of this Agreement or Executive's ceasing to be a
director, officer or employee of the Company.
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13. Company Property. All sales, accounting, pricing, marketing,
manufacturers' and other materials or articles or information, including without
limitation data processing reports, computer programs, software, customer
information and records, business records, price lists or information, samples,
or any other materials or data of any kind furnished to Executive by Company or
developed by Executive on behalf of Company or at Company's direction or for
Company's use or otherwise in connection with Executive's employment hereunder,
are and shall remain the sole property of Company, including in each case all
copies thereof in any medium, including computer tapes and other forms of
information storage. If Company requests the return of such materials at any
time during or at or after the termination of Executive's employment, Executive
shall deliver all copies of the same to Company immediately.
14. Noncompetition, Trade Secrets, Etc. Executive hereby acknowledges
that, during and solely as a result of his employment by Company, Executive will
have access to confidential information and business and professional contacts.
In consideration of such special and unique opportunities afforded by Company to
Executive as a result of Executive's employment and the other benefits referred
to within this Agreement;
(a) Executive agrees that if Executive terminates his own employment
or if Executive's employment is terminated by the Company for Cause, from the
date hereof until twelve (12) months following the termination of Executive's
employment with Company ("Restricted Period") Executive shall not, for his own
benefit or the benefit of any third party; (i) directly or indirectly engage in
(as a principal, shareholder, partner, director, officer, agent, Executive,
consultant or otherwise) or be financially interested in any business operating
within the United States (the "Restricted Area"), which is the same as, similar
to or in competition with the Business, or with any business activities being
definitely planned by Company at the time of the termination of Executive's
employment (provided however nothing contained in this Section 14 shall prevent
Executive from holding for investment less than five percent (5%) of any class
of equity securities of a company whose securities are publicly traded on a
national securities exchange or in a national market system) or (ii) directly or
indirectly, induce or attempt to influence any employee, customer, client,
independent contractor or supplier of Company to terminate employment or any
other relationship with Company.
(b) Executive agrees that if Executive is terminated by Company
without Cause and executes a General Release, Executive will be bound by the
non-competition provision in 14(a) for the greater of twelve (12) months from
Executive's termination date or the remaining time under the Initial Term of
this Agreement during which Executive is being paid by the Company ("Extended
Restricted Period"). However, in no event will Executive be bound by Section 14
(a) above for more than twenty four (24) months from Executive's termination
date, or less than twelve (12) months from Executive's terminate date.
(c) Executive agrees that from the date hereof and forever,
regardless of the cause or lack of cause of his separation of employment from
the Company:
(i) Executive shall not use for Executive's personal benefit, or
disclose, communicate or divulge to, or use for the direct or indirect benefit
of any person, firm, association or company other than Company, any
"Confidential Information" which term shall mean any information regarding the
business methods, business policies, policies, procedures, techniques, research
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or development projects or results, historical or projected financial
information, budgets, trade secrets, or other knowledge or processes of or
developed by Company or any names and addresses of customers or clients or any
data on or relating to past, present or prospective Company customers or clients
or any other confidential information relating to or dealing with the business
operations or activities of Company, made known to Executive or learned or
acquired by Executive while in the employ of Company. Confidential Information
shall not include information otherwise lawfully known generally by or readily
accessible to the trade or the general public. All memoranda, notes, lists,
records, files, documents and other papers and other like items (and all copies,
extracts and summaries thereof) made or compiled by Executive or made available
to Executive concerning the business of Company shall be Company's property and
shall be delivered to Company promptly upon the termination of Executive's
employment with Company or at any other time on request. The foregoing
provisions of this Subsection (c) shall apply during and after the period when
Executive is an Executive of Company and shall be in addition to (and not a
limitation of) any legally applicable protections of Company's interest in
confidential information, trade secrets and the like. At the termination of
Executive's employment with Company, Executive shall return to Company all
copies in his possession of the Company's Confidential Information in any
medium, including computer tapes and other forms of data storage.
(ii) Any and all writings, inventions, improvements, processes,
procedures and/or techniques which Executive may make, conceive, discover or
develop, either solely or jointly with any other person or persons, at any time
when Executive is an Executive of Company, whether or not during working hours
and whether or not at the request or upon the suggestion of Company, which
relate to or are useful in connection with the Business or with any business now
or hereafter carried on by Company during the Executive's employment, including
developments or expansions of its present fields of operations, shall be the
sole and exclusive property of Company. Executive shall make full disclosure to
Company of all such writings, inventions, improvements, processes, procedures
and techniques, and shall do everything necessary or desirable to vest the
absolute title thereto in Company.
(d) Executive acknowledges that the restrictions contained in the
foregoing Subsections (a), (b), and (c), in view of the nature of the business
in which Company is engaged, are reasonable and necessary in order to protect
the legitimate interests of Company, that their enforcement will not impose a
hardship on Executive or significantly impair Executive's ability to earn a
livelihood, and that any violation thereof would result in irreparable injuries
to Company. Executive therefore acknowledges that, in the event of Executive's
violation of any of these restrictions, Company shall be entitled to obtain from
any court of competent jurisdiction preliminary and permanent injunctive relief
as well as damages and an equitable accounting of all earnings, profits and
other benefits arising from such violation, which rights shall be cumulative and
in addition to any other rights or remedies to which Company may be entitled.
(e) If the Restricted Period or the Restricted Area specified in
Section 14(a) or the Extended Restricted Period in Section 14(b) above should be
adjudged unreasonable in any proceeding, then the period of time shall be
reduced by such amount or the area shall be reduced by the elimination of such
portion or both such reductions shall be made so that such restrictions may be
enforced for such time and in such area as is adjudged to be reasonable. If
Executive violates any of the restrictions contained in the foregoing Subsection
(a), (b) or (c), the relevant Restricted Period or Extended Restricted Period,
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respectively, shall be extended by a period equal to the length of time from the
commencement of any such violation until such time as such violation shall be
cured by Executive to the commercially reasonable satisfaction of Company. The
Company shall have the right and remedy to require Executive to account for and
pay over to either Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive as the result of
any transactions constituting a breach of this Section 14, and Executive shall
account for and pay over such amounts upon request therefor. Executive hereby
expressly consents to the jurisdiction of any court within New York to enforce
the provisions of this Section 14, and agrees to accept service of process by
mail relating to any such proceeding. The Company may supply a copy of Section
14 of this Agreement to any future or prospective employer of Executive or to
any person to whom Executive has supplied information if the Company determines
in good faith that there is a reasonable likelihood that Executive has violated
or will violate such Section.
15. Prior Agreements. Executive represents to the Company that there
are no restrictions, agreements or understandings, oral or written, to which
Executive is a party or by which Executive is bound that prevent or make
unlawful Executive's execution or performance of this Agreement. This Agreement
supercedes the Employment Agreement and New Employment Agreement dated February
1, 2000 which employed Executive as Vice Chairman of the Company, provided that
the Company shall not be relieved of any of its obligations through December 31,
2000.
16. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part
of either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
(b) Controlling Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of New York.
(c) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received only when personally
delivered, on the day specified for delivery when deposited with a recognized
national or regional courier service for delivery to the intended addressee or
two (2) days following the day when deposited in the United States mails, first
class postage prepaid, addressed as set forth below:
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(i) If to Executive:
Xxxxx X. Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(ii) If to Select Media Communications, Inc:
Select Media Communications, Inc.
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
with a copy to:
Wolf, Block, Xxxxxx & Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Esquire
In addition, notice by mail shall be by air mail if posted outside of
the continental United States. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change of
address in conformity with the provisions of this Section for the giving of
notice.
(d) Binding Nature of Agreement. This Agreement shall be binding
upon Company and shall inure to the benefit of Company, its present and future
Subsidiaries, Affiliates, successors and assigns including any transferee of the
business operation, as a going concern, in which Executive is employed and shall
be binding upon Executive, Executive's heirs and personal representatives. None
of the rights or obligations of Executive hereunder may be assigned or
delegated, except that in the event of Executive's death or Disability, any
rights of Executive hereunder shall be transferred to Executive's estate or
personal representative, as the case may be. Company may assign its rights and
obligations under this Agreement in whole or in part to any one or more
Affiliates or successors, but no such assignment shall relieve Company of its
obligations to Executive if any such assignee fails to perform such obligations.
(e) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
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(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the employment of
Executive by Company and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing. Notwithstanding the foregoing, nothing herein shall limit
the application of any generally applicable policy, practice, plan or the terms
of any manual or handbook applicable to the executives generally of Company, if
provided to Executive prior to being applicable, except to the extent the
foregoing directly conflict with this Agreement, in which case the terms of this
Agreement shall prevail.
(h) Section Headings. The Section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
(i) Number of Days. Except as otherwise provided herein, in
computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided, however, that if
the final day of any time period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday or such holiday.
(j) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(k) Survival. All provisions of this agreement which by their terms
survive the termination of Executive's employment with Company including without
limitation the covenants of Executive set forth in Sections 13 and 14 and the
obligations of Company to make any post-termination payments under this
Agreement, shall survive termination of Executive's employment by Company and
shall remain in full force and effect thereafter in accordance with their terms.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement on this ___ day of May, 2001.
SELECT MEDIA COMMUNICATIONS, INC.:
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------- -----------------------------------
XXXXX X. XXXXXXXXX Name: Xxxxxxx X. Xxxxxxx
Title: Director
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