EMPLOYMENT AGREEMENT
Exhibit 6(g)
THIS
AGREEMENT (“Agreement”) is made
effective as of the 15 day of July, 2020 (the “Effective Date”) by and
between THE CHOSEN, LLC, a Utah limited liability company (the
“Company”) and Xxxx
Xxxxxxxx an individual (“Employee”).
RECITALS
A. The
Company produces a multi-season television series on the life of
Xxxxx Xxxxxx (“The
Chosen”).
B. The
Company desires to employ Employee, and Employee desires to be
employed by the Company, on the terms and conditions set forth
herein.
C. The
parties believe it is in their best interests to make provision for
certain aspects of their relationship during and after the period
in which Employee is employed by the Company.
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Company and Employee, it is hereby
agreed as follows:
ARTICLE 1
EMPLOYMENT
1.1 Initial
Employment Term; At Will Employment. The Company employs
Employee, and Employee accepts employment by the Company, for the
period commencing on the date hereof and ending on July 31, 2021
(the “Initial
Employment Term”). After the Initial Employment Term,
any continued employment of Employee shall be “at-will”
at all times thereafter, meaning the Company may then terminate
Employee’s employment with the Company at any time after the
Initial Employment Term and the Employee may quit Employee’s
employment with the Company at any time after the Initial
Employment Term, without any advance notice, and for any reason or
no reason at all, notwithstanding anything to the contrary
contained in or arising from any statements, policies or practices
of the Company relating to the employment, discipline or
termination of its employees. Upon such termination of employment,
all obligations of the Company under this Agreement shall cease
except as otherwise specifically provided herein.
1.2 Position
and Duties. Employee shall be employed in the position of
Chief Operating Officer (“COO”) and shall be
subject to the authority of, and shall report to, the manager of
the Company (the “Manager”).
Employee’s duties and responsibilities shall include all
those duties and responsibilities customarily attendant to the
position of a COO, including the following or efforts to accomplish
the following:
(a) Spearhead
strategies to steer the Company’s future in a positive
direction;
(b) Drive
the company’s operating capabilities to surpass Company
goals;
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(c) Controlling
company costs, and introducing tactical initiatives to address
losses;
(d) Overseeing
marketing initiatives and implementing better business
practices;
(e) Delegating
responsibilities to empower employees to grow as capable
participants;
(f) Employing
various initiatives to coach employees to optimize their
capabilities;
(g) Completing
performance reviews in a prudent manner;
(h) Assessing
and implementing improved processes and new technologies, and
collaborating with management regarding the implementation of these
improvements;
(I) Overseeing
vendor and contractor relationships to maximize efficiency and
profitability; and
(J) such
other duties and responsibilities as may be assigned by the Manager
of the Company.
1.3 Full-Time
Position and Expectations. During Employee’s
employment, Employee shall (a) devote Employee’s entire
business time, loyalty, attention and energies exclusively to
business of the Company, (b) use his best efforts to promote the
interests, prospects and condition (financial and otherwise) and
welfare of the Company and shall perform his duties and
responsibilities to the best of his ability in a diligent,
trustworthy, businesslike and efficient manner, and (c) comply at
all times with all policies and codes of conduct of the Company, as
such policies and codes may change from time to time. Employee
acknowledges that Employee’s duties and responsibilities will
require all of Employee’s business time and efforts and
agrees that during Employee’s employment with the Company
will not engage in any outside business activities that conflict
with his obligations under this Agreement; provided, however, that
nothing set forth in this Section 1.3 shall affect
Employee’s ability to participate in religious, civic or
charitable organizations or to serve on religious, civic or
charitable boards, provided that (i) such activities do not
interfere with Employee’s performance of his duties hereunder
and (ii) the foregoing shall in no way waive, modify, or limit
Employee’s other agreements and obligations hereunder,
including without limitation Article 3.
ARTICLE 2
COMPENSATION AND OTHER BENEFITS
2.1 Base
Salary. The Company shall pay Employee an annual salary of
$200,000 (“Base
Salary”), payable in accordance with the normal
payroll practices of the Company. Employee’s Base Salary will
be reviewed from time to time in accordance with the established
procedures of the Company for adjusting salaries for similarly
situated executives and may be adjusted in the sole discretion of
the Company. Employee’s Base Salary does not include bonuses
paid by the Company.
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2.2 Benefit
Plans. Employee shall be eligible to participate in and
receive benefits under the employee benefit plans, practices,
policies, perquisites and programs established and maintained by
the Company from time to time for which employees of the Company
are generally eligible, in each case, subject to the eligibility
and participation requirements thereof. Unless and until the
Company provides health insurance benefits to its Employees, it
will reimburse Employee the out of pocket costs incurred by
Employee to pay the basic membership for himself and his immediate
family members with Samaritan Ministries health sharing plan or the
costs of another health insurance plan selected by Employee;
provided, that, if the cost of such Employee selected insurance
plan exceeds the cost of the Samaritan Ministries plan, then the
amount reimbursed by the Company will be capped at the costs that
the Company would have otherwise reimbursed for the Samaritan
Ministries health sharing plan.
2.3 Expenses.
The Company shall reimburse Employee for authorized and
approved expenses
incurred by Employee during his employment and in the course of the
performance of Employee’s duties and responsibilities
pursuant to this Agreement and consistent with the Company’s
policies with respect to travel, entertainment and miscellaneous
expenses; provided, that Employee shall provide to the Company
documentation or evidence of expenses for which Employee seeks
reimbursement in accordance with the policies and procedures
established by the Company from time to time. In addition, the
Company shall reimburse Employee for legal fees incurred by
Employee to retain an attorney to advise Employee with respect to
United States securities law issues related to issuers and issuer
agents; provided, that, such reimbursement amount will be limited
to $2,500 unless the Manager of the Company otherwise consents in
writing to a higher amount is the Manager’s sole and absolute
discretion.
2.4 Paid
Time Off. Employee shall be entitled to 10 business days of
paid time off (including vacation and sick time) in each calendar
year (pro-rated for calendar year 2020). Employee shall make good
faith efforts to schedule vacations so as to least conflict with
the conduct of the Company business and will give the Company
adequate advance notice of Employee’s planned absences.
Accrued paid time off not taken in any calendar year may not be
carried forward or be usable in any subsequent calendar year, nor
shall Employee be entitled to compensation for unused paid time off
during the Employment Period or upon termination of employment.
Paid holidays may be taken in accordance with the holiday policy
and schedule of the Company as from time to time in
effect.
ARTICLE 3
TERMINATION
3.1 Termination
by Company For Cause. The Company may terminate
Employee’s employment at any time for “Cause” (as defined below)
by giving notice to Employee stating the basis for such
termination, effective immediately upon giving such notice or at
such other time thereafter as the Company may designate.
“Cause”
shall mean any of the following:
(a) Employee
has breached this Agreement or any other agreement to which
Employee and the Company are parties or has breached any other
obligation or duty owed to the Company, which breach (other than a
breach under Article
4 hereof which is uncurable) remains uncured to the
satisfaction of the Manager of the Company for thirty (30) days
after Employee receives notice thereof from the
Manager;
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(b) Employee
has engaged in harassing or offensive conduct which has the
potential to give rise to an action under Federal, state or local
laws for discrimination in employment;
(c) Employee
repeatedly interacts with staff or subordinates in a demeaning and
unprofessional or abusive manner;
(d) Employee
has committed gross negligence, willful misconduct or any violation
of law in the performance of Employee’s duties to the
Company;
(e) the
Company’s good faith determination that Employee engaged in
any conduct, even if not in conjunction with his duties hereunder,
which could reasonably be expected to, or which does, materially
and negatively affect the business, integrity, character or
reputation of any of the Company (including its reputation with any
of their content consumers, customers, suppliers, vendors,
employees, contractors or other parties having a business
relationship with the Company);
(f) the
Company’s good faith determination that Employee engaged in
any conduct, even if not in conjunction with his duties hereunder,
which could reasonably be expected to, or which does, materially
and negatively affect Employee’s own integrity, character or
reputation (including Employee’s reputation with any clients,
customers, suppliers, vendors or employees of the Company) so as to
cause Employee to be unfit to act in the capacity of Writer,
Director and Producer of the Company;
(g) Employee
has failed to follow instructions from the Manager to whom Employee
reports concerning the operations or business of the
Company;
(h) Employee
has committed a felony deemed by the Company to be adverse to its
best interest or reputation;
(i) Employee
has misappropriated funds or property of the Company;
(j) Employee
has attempted to obtain a personal profit from any transaction in
which the Company has an interest, and which constitutes a
corporate opportunity of the Company or is adverse to the interests
of the Company, unless the transaction was approved in writing by
the Company’s Manager after full disclosure of all details
relating to such transaction; or
(k) Employee
reporting to work under the influence of alcohol or
Employee’s use of illegal drugs (whether or not at the
workplace).
If
Employee’s employment is terminated pursuant to this
Section 3.1,
Employee shall have no further rights against the Company
hereunder, except for the right to receive (i) any unpaid Base
Salary with respect to the period prior to the effective date of
termination, and (ii) reimbursement of expenses to which Employee
is entitled under Section
2.3 hereof (collectively, the “Accrued Obligations”).
The Accrued Obligations shall be paid in accordance with applicable
state law and in no event later than thirty (30) days after the
date of termination.
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3.2 Termination
by Company Without Cause. The Company may terminate
Employee’s employment at any time without Cause upon written
notice to Employee. If Employee’s employment is terminated
pursuant to this Section
3.2, Employee shall have no further rights against the
Company hereunder, except for the right to receive (i) the Accrued
Obligations payable as set forth in Section 3.1 above, and (ii) if
and only if Employee’s employment is terminated by the
Company without Cause prior to the end of the Initial Employment
Term, severance payments in an aggregate amount equal to
Employee’s Base Salary remaining to be paid over the
remaining Initial Employment Term, payable in equal installments
over the remaining Initial Employment Term at the Company’s
regular payroll intervals, with the first installment being payable
on the first payroll date following the date of termination (the
obligations under clause (ii), the “Severance Benefits”);
provided, however, Employee’s right to receive the Severance
Benefits is subject to and contingent on the Company’s
receipt of a Separation Agreement and General Release in accordance
with Section 3.7 which has not been revoked by Employee. By way of
example, if Company terminated Employee’s employment without
Cause under this Section 3.2 on April 30, 2021, then the remaining
Initial Employment Term would be the subsequent 3 months (May, June
and July, 2021) and the Severance Benefits would be 3 months salary
at the Base Salary rate payable as provided above. Notwithstanding
the foregoing, in the event that Employee shall breach any of his
obligations under Article
4 at any time, in addition to any other remedies available
to the Company at law or in equity, the Company shall be relieved
from and shall have no obligation to pay Employee any then unpaid
Severance Benefits amounts to which Employee would otherwise have
been entitled under this Section 3.2.
3.3 Termination
Upon Death or Disability. Employee’s employment and
the Company’s obligations under this Agreement shall
terminate: (i) automatically, effective immediately and without any
notice being necessary, upon Employee’s death; and (ii) in
the event of the disability of Employee, by the Company giving
notice of termination to Employee. If Employee’s employment
is terminated pursuant to this Section 3.3, Employee (or
Employee’s estate) shall have no further rights against the
Company hereunder (even if such event happens during the Initial
Employment Term), except for the right to receive the Accrued
Obligations payable as set forth in Section 3.1 above. For purposes
of this Agreement, “disability” means the inability of
Employee, due to a physical or mental impairment, for 90 days
(whether or not consecutive) during any period of 360 days to
perform, with reasonable accommodation, the essential functions of
the work contemplated by this Agreement. In the event of any
dispute as to whether Employee is disabled, the matter shall be
determined by the Company’s Manager in consultation with a
physician satisfactory to the Company, and Employee shall cooperate
with the efforts to make such determination. Any such determination
shall be conclusive and binding on the parties. Any determination
of disability under this Section 3.3 is not intended to
alter any benefits any party may be entitled to receive under any
long-term disability insurance policy carried by either the Company
or Employee with respect to Employee, which benefits shall be
governed solely by the terms of any such insurance policy. Nothing
in this subsection shall be construed as limiting or altering any
of Employee’s rights under state workers compensation laws or
state or Federal family and medical leave laws.
3.4 Voluntary
Resignation by Employee. Employee may terminate his
employment for any reason upon written notice. Notwithstanding the
foregoing, during the Initial Employment Term Employee shall
provide at least ninety (90) days advance notice prior to the
termination of his employment; provided, that, upon such notice
from Employee Company may terminate the employment even during the
Initial Employment Term pursuant to this Section 3.4 immediately upon
notice to Employee. If the Employee’s employment is
terminated during or after the Initial Employment Term pursuant to
this Section 3.4,
the Company shall have no further obligation to Employee except for
Accrued Obligations, which shall be paid in accordance with
Section
3.1.
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3.5 General
Release. The obligation of the Company to pay any Severance
Benefits as a result of a termination of Employee’s
employment prior to expiration of the Initial Employment Term
pursuant to Section
3.2 shall be contingent upon Employee’s due execution
and delivery to the Company of a separation agreement and general
release in the form to be provided by the Company upon such
termination (the “Separation Agreement and General
Release”) and Employee’s non-revocation of such
Separation Agreement and General Release. Such Separation Agreement
and General Release shall not, however, relieve Employee of
Employee’s obligation to comply with the continuing terms of
this Agreement, including those arising under Article 4. If the Severance
Benefits are determined by the Company to be non-exempt
nonqualified deferred compensation subject to Section 409A of the
U.S. Internal Revenue Code of 1986, as amended (the
“Code”), and the period
during which Employee has discretion to execute or revoke the
Separation Agreement and General Release straddles two taxable
years of Employee, then the Company shall make the Severance
Benefits payments starting in the second of such taxable years,
regardless of the taxable year in which Employee actually delivers
the executed Separation Agreement and General Release to the
Company.
3.6 Exclusive
Remedy. To the extent permitted by applicable law, the
payments contemplated by this Article 3 shall constitute the
exclusive and sole remedy for any termination of Employee’s
employment by the Company (whether pursuant to, or in violation of,
the terms of this Agreement). Employee covenants not to assert or
pursue any remedies, other than an action to enforce the payments
due to Employee under this Agreement, at law or in equity, with
respect to any termination of employment, and shall execute a
release and waiver on such terms and conditions as the Company may
require as a condition of entitlement to such
payments.
ARTICLE 4
CONFIDENTIALITY;
NONCOMPETITION
4.1 Covenants
Regarding Confidential Information, Trade Secrets and Other
Matters. Employee covenants and agrees as
follows:
(a) Definitions.
For purposes of this Agreement, the following terms are defined as
follows:
(i) “Invention”
means any discovery, improvement or idea (whether or not described
in writing or reduced to practice, and whether patentable or not)
made solely by Employee or jointly with others, during employment
by the Company: (i) relating to The Chosen or any of the
Company’s other media productions, if any; or (ii) relating
to any work or investigations conceived or carried on by Employee
in connection with or because of The Chosen or any of the
Company’s other media productions, if any.
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(ii) “Work
of Authorship” means any literary, pictorial,
sculptural, graphic or audio-visual work, as well as any computer
program or system, whether published or unpublished, and whether
copyrightable or not, in whatever form and in whatever media,
originated solely by Employee or jointly with others, during
employment by the Company or within one (1) year thereafter: (i)
relating to The Chosen or any of the Company’s other media
productions, if any; or (ii) relating to ideas, work or
investigations conceived or carried on by Employee in connection
with or because of The Chosen or any of the Company’s other
media productions, if any.
(iii) “Trade
Secret” means unpublished Inventions and Works of
Authorship as well as all information possessed by or developed for
the Company, including, without limitation, a compilation, program,
device, method, system, technique or process, to which all of the
following apply: (i) the information derives independent economic
value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use and (ii)
the information is the subject of efforts to maintain its secrecy
that are reasonable under the circumstances.
(iv) “Confidential
Information” means information, to the extent it is
not a Trade Secret, which is possessed by or developed for the
Company and which relates to the Company’s existing or
potential business or technology, which information is generally
not known to the public and which information the Company seeks to
protect from disclosure to its existing or potential competitors or
others, including, without limitation, for example: business plans,
strategies, existing or proposed bids, costs, technical
developments, existing or proposed research projects, financial or
business projections, investments, marketing plans, negotiation
strategies, training information and materials, information
generated for client engagements and information stored or
developed for use in or with computers. Confidential Information
also includes information received by the Company from others which
the Company has an obligation to treat as confidential, including
all information obtained in connection with client
engagements.
(b) Ownership
of Intellectual Property. In the event Employee,
individually or jointly with others, makes an Invention, originates
a Work of Authorship, creates Confidential Information or creates a
Trade Secret while employed by the Company, it shall, without
further payment, immediately become the property of the Company
throughout the world. In addition:
(i) Employee
shall disclose and communicate to the Company promptly and fully
all such Inventions made, Works of Authorship originated and Trade
Secrets and Confidential Information created;
(ii) Whether
during or after Employee’s employment by the Company and
without charge to the Company, but at its request and expense,
Employee shall execute patent applications, copyright applications,
assignments and other documents relating to each Invention and Work
of Authorship necessary or proper to vest ownership in the Company
and to obtain, maintain and enforce patents, certificates of
copyright registration, and other proprietary rights to the
Inventions and Works of Authorship throughout the world;
and
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(iii) Whether
during or after Employee’s employment by the Company and
without charge to the Company, but at its request and expense,
Employee shall give affidavits and testimony as to facts within
Employee’s knowledge in connection with any such Inventions
and Works of Authorship in any administrative proceedings,
arbitration, litigation or controversy relating
thereto.
(iv) Employee
hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as Employee’s agents and
attorneys in fact to act for and in Employee’s behalf and
instead of Employee, to execute and file any documents and to do
all other lawfully permitted acts to further the above purposes
with the same legal force and effect as if executed by Employee.
The foregoing designation and appointment shall constitute an
irrevocable power of attorney, and are deemed by the Company and
Employee to be, coupled with an interest.
(v) Employee
acknowledges that all original works of authorship (including
software (in source or object code forms)) which are made by him
(solely or jointly) are works made for hire under the United States
Copyright Act (17 U.S.C., et seq.).
(c) Nondisclosure
of Confidential Information. Except as required in the
conduct of the Company’s business or as expressly authorized
in writing on behalf of the Company, Employee shall not use or
disclose, directly or indirectly, any Confidential Information
during the period of his employment with the Company. In addition,
for a two year period following the termination of Employee’s
employment Employee shall not use or disclose, directly or
indirectly, any Confidential Information. This prohibition does not
apply in the following circumstances: (i) when disclosure of
Confidential Information is required by law or by any court,
arbitrator, mediator or administrative or legislative body;
provided, that prior to such disclosure Employee shall provide to
the Company prompt notice of such required disclosure to enable the
Company to seek a protective order or other relief, and reasonably
cooperate with the Company in connection with seeking any such
order or other relief; or (ii) with respect to Confidential
Information that becomes generally known to the public other than
due to (A) Employee’s violation of this Agreement or any
other obligation or duty to the Company or (B) a disclosure by a
third party who owes the Company an obligation of confidence in
relation to such Confidential Information. This prohibition also
does not prohibit Employee’s use of general skills and
know-how acquired during and prior to employment by the Company, as
long as such use does not involve the use or disclosure of
Confidential Information or Trade Secrets.
(d) Trade
Secrets. During Employee’s employment by the Company,
Employee shall do what is reasonably necessary to prevent
unauthorized misappropriation or disclosure and threatened
misappropriation or disclosure of the Company’s Trade Secrets
and, after termination of employment, Employee shall not use or
disclose the Company’s Trade Secrets as long as they remain,
without misappropriation, Trade Secrets. Notwithstanding the
foregoing, Employee understands that, pursuant to the Defend Trade
Secrets Act of 2016, Employee shall not be held criminally or
civilly liable under any federal or state trade secret law for the
disclosure of a Trade Secret that: (i) is made (a) in confidence to
a federal, state or local government official, either directly or
indirectly, or to an attorney and (b) solely for the purpose of
reporting or investigating a suspected violation of law; or (ii) is
made in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal. Nothing in this
Agreement is intended to conflict with 18 U.S.C. § 1833(b).
Employee understands that in the event it is determined that
disclosure of the Trade Secrets of the Company was not done in good
faith pursuant to the above, Employee shall be subject to damages
under federal criminal and civil law, including punitive damages
and attorneys’ fees.
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(e) Policy
on Documents. In any event, and regardless whether
Confidential Information or Trade Secrets are involved, Employee
will not remove from the Company premises or publish any copies or
originals of contracts, sales invoices, purchase orders, leases,
pricing information, bid forms, government filings, blueprints,
designs, plans, processes, technical information, computer media or
files, or other documents or materials pertaining to the
Company’s business, unless required in the course of
employment by the Company or unless expressly authorized in writing
by the Company.
4.2 Non-Solicitation.
For a two year period following the termination of Employee’s
employment, Employee will not solicit, or assist another person to
solicit, any employee, supplier or independent contractor of the
Company (including, without limitation, any actor or other party
participating in the production of The Chosen) to terminate such
employee’s employment or terminate or curtail such
supplier’s or independent contractor’s business
relationship with the Company.
4.3 Return
of Materials. Immediately upon termination of employment,
Employee will return to the Company, and so certify in writing to
the Company, all the Company’s papers, documents and things,
including information stored for use in or with computers and
software applicable to the Company’s business (and all copies
thereof), which are in Employee’s possession or under
Employee’s control, regardless whether such papers, documents
or things contain confidential information or trade
secrets.
4.4 Post-Employment
Assistance. After the termination of Employee’s
employment with the Company for any reason, Employee shall, upon
reasonable notice, furnish the Company with such information as may
be in Employee’s possession or control, and cooperate with
the Company, as the Company may reasonably request, in connection
with any litigation, claim, or other dispute in which any Company
or any of its Affiliates is or may become a party, provided that
following termination of Employee’s employment with the
Company, any such assistance shall not unreasonably interfere with
Employee’s personal or business affairs. The Company shall
reimburse Employee for all reasonable out-of-pocket expenses
incurred by Employee in fulfilling Employee’s obligations
under this Section
4.4. For purposes of this Agreement, the term
“Affiliates” means any
individual, corporation, limited liability company, partnership,
association, joint-stock company, trust, unincorporated association
or other entity (other than the Company) that directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the
Company.
4.5 Disclosure
to Future Employer. During the term of Employee’s
employment and for a two year period following the termination of
Employee’s employment Employee shall disclose the existence
and contents of this Agreement to any potential employer prior to
accepting employment with that employer.
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4.6 No
Conflicts. To the extent that they exist, Employee will not
disclose to the Company any of Employee’s previous
employer’s confidential information or trade secrets.
Further, Employee represents and warrants that Employee has not
previously assumed any obligations inconsistent with those of this
Agreement and that employment by the Company does not conflict with
any prior obligations to third parties.
4.7 Agreement
on Fairness. Employee acknowledges that: (i) this Agreement
has been specifically bargained between the parties and reviewed by
Employee, (ii) Employee has had an opportunity to obtain legal
counsel to review this Agreement, and (iii) the covenants made by
and duties imposed upon Employee hereby are fair, reasonable and
minimally necessary to protect the legitimate business interests of
the Company, and such covenants and duties will not place an undue
burden upon Employee’s livelihood in the event of termination
of Employee’s employment by the Company and the strict
enforcement of the covenants contained herein.
4.8 Equitable
Relief and Remedies. Employee acknowledges that any breach
of this Agreement will cause substantial and irreparable harm to
the Company for which money damages would be an inadequate remedy.
Accordingly, the Company shall in any such event be entitled to
obtain injunctive and other forms of equitable relief to prevent
such breach and to recover from Employee the Company’s costs
(including, without limitation, reasonable attorneys’ fees)
incurred in connection with enforcing this Agreement, in addition
to any other rights or remedies available at law, in equity or by
statute.
ARTICLE 5
GENERAL PROVISIONS
5.1 Notices.
Except as otherwise provided in this Agreement, all notices,
demands, requests, consents, approvals and other communications
with respect to this Agreement, shall be in writing and shall be
deemed delivered upon: (a) the personal delivery thereof; (b) upon
transmission if transmitted by fax or e-mail and accompanied by a
confirmation of valid transmission or receipt; (c) upon the earlier
of (i) receipt or (ii) three days after posting by registered mail
or certified mail, return receipt requested; or (d) on the next
business day following delivery to a reliable and recognized
overnight air freight delivery service; provided such notices
(other than personal delivery which may be made at any location)
shall be addressed or delivered to the parties at their respective
physical addresses, fax numbers or e-mail addresses set forth below
(or to such other physical address, fax number or e-mail address
for a party as such party may have substituted by notice pursuant
to this Section). Each of the foregoing methods of delivery is a
writing for purposes of this Agreement.:
(a) If
to the Company:
The
Chosen, LLC
0 Xxxxx 0000 Xxxx,
Xxxxx
Xxxxxxxxx, Xxxx
00000
phone:
email:
Attn: The Chosen
Productions, LLC, Manager
If to
Employee:
_________________________________
_________________________________
phone:
email
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5.2 Effect
of Prior Agreements. This Agreement contains the entire
understanding between the Company and Employee relating to the
subject matter hereof and, as of the Effective Date, will supersede
any prior employment agreement between Employee and any Company
Entity and any other agreement relating to the subject matter
hereof between Executive and any Company Entity. From and after the
Effective Date, Employee shall not be entitled to any rights or
benefits, and the Company shall not have any obligations, under any
prior employment agreement between Employee and the Company or any
other agreement relating to the subject matter hereof between
Employee and the Company. Employee acknowledges that has not
relied, is not relying and will not (at any time) rely on any oral
or written statements, promises, representations or warranties
(whether made by the Company or any equity holder, partner, member,
director, manager, officer, employee, agent or other representative
of the Company or otherwise) that are not expressly set forth in
this Agreement.
5.3 Withholding
and Deductions. All amounts payable to Employee (or his
estate, as applicable) pursuant to this Agreement shall be subject
to such withholding and deductions by the Company as required by
law and the applicable benefit plans of the Company.
5.4 Amendment.
This Agreement may be altered, amended or modified only in a
writing, signed by both of the parties hereto. Headings included in
this Agreement are for convenience only and are not intended to
limit or expand the rights of the parties hereto. References to
Sections herein shall mean sections of the text of this Agreement,
unless otherwise indicated.
5.5 Assignability.
This Agreement and the rights and duties set forth herein may not
be assigned by Employee, but may be assigned by the Company, in
whole or in part. This Agreement shall be binding on and inure to
the benefit of each party and such party’s respective heirs,
legal representatives, successors and assigns.
5.6 Severability.
If any court of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, then such
invalidity or unenforceability shall have no effect on the other
provisions hereof, which shall remain valid, binding and
enforceable and in full force and effect, and such invalid or
unenforceable provision shall be construed in a manner so as to
give the maximum valid and enforceable effect to the intent of the
parties expressed therein.
5.7 Arbitration.
Any controversy, dispute or claim arising out of or relating to
this Agreement (including, but not limited to, any claim regarding
the scope or effect of this Section and any claim that this Section
is invalid or unenforceable), or the breach hereof, shall be
settled by a single arbitrator in binding arbitration conducted in
St. Xxxxxx, Utah in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (“AAA”)
(or such other arbitration service as the parties may agree upon),
and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The
arbitrator’s decision shall be in writing. In addition to the
Commercial Arbitration Rules of the AAA and unless otherwise agreed
to by the parties, the following rules shall apply:
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(a) Each
party shall be entitled to discovery exclusively by the following
means: (i) requests for admission, (ii) requests for production of
documents, (iii) up to 15 written interrogatories (with any subpart
to be counted as a separate interrogatory), and (iv) depositions of
no more than six individuals.
(b) Unless
the arbitrator finds that delay is reasonably justified or as
otherwise agreed to by the parties, all discovery shall be
completed, and the arbitration hearing shall commence within five
months after the appointment of the arbitrator.
(c) Unless
the arbitrator finds that delay is reasonably justified, the
hearing will be completed, and an award rendered within 30 days of
commencement of the hearing.
The
arbitrator’s authority shall include the ability to render
equitable types of relief and, in such event, any aforesaid court
may enter an order enjoining and/or compelling such actions or
relief ordered or as found by the arbitrator. The arbitrator also
shall make a determination regarding which party’s legal
position in any such controversy or claim is the more substantially
correct (the “Prevailing Party”) and
the arbitrator shall require the other party to pay the legal and
other professional fees and costs incurred by the Prevailing Party
in connection with such arbitration proceeding and any necessary
court action. However, notwithstanding the foregoing, the parties
expressly agree that a court of competent jurisdiction may enter a
temporary restraining order or an order enjoining a breach of
Article 3 of this Agreement pending a final award or further order
by the arbitrator. Such remedy, however, shall be cumulative and
nonexclusive, and shall be in addition to any other remedy to which
the parties may be entitled.
5.8 Waiver
of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by either party.
5.9 Governing
Law; Construction. This Agreement shall be governed by the
internal laws of the State of Utah, without regard to any rules of
construction concerning the party responsible for the drafting
hereof.
5.10 Counterparts.
This Agreement may be executed in separate counterparts and may be
executed and delivered by facsimile or electronically transmitted
PDF copies, each of which is deemed to be an original and all of
which, taken together, constitute one and the same
agreement.
5.11 No
Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be
applied against any person.
[Remainder
of Page Intentionally Blank; Signature Page to Follow]
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Employee has signed
this Agreement, as of the date first above written.
COMPANY
The Chosen,
LLC
By:
/s/Xxxxxx
Eves___________
Name:
Xxxxxx Xxxx
Title:
CEO
EMPLOYEE:
/s/Xxxx Swerdlow___________
Xxxx
Xxxxxxxx
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