EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of February 1, 1995, by
and between JUNGLE JIM'S PLAYLANDS, INC., a Delaware corporation (the
"Company"), with its executive offices currently located at 0000 Xxxxxxxx Xxxx,
Xxx Xxxxxxx, Xxxxx 00000, and XXXXX X. EL-XXXX ("Employee"), an individual
currently residing at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
In consideration of the promises and mutual covenants contained
herein and the mutual benefits to be gained by the performance hereof, the
parties hereto agree as follows:
1. Employment. The Company hereby employs Employee as Chairman of
the Board, President and Chief Executive Officer of the Company and Employee
hereby accepts such employment upon the terms and conditions set forth herein.
2. Term. The term of this Agreement shall commence as of the date
hereof (the "Effective Date") and shall continue until the third anniversary of
the Effective Date, subject to earlier termination as hereinafter provided.
3. Duties. Employee shall devote his full business time and
attention to the duties of Chairman of the Board, President and Chief Executive
Officer of the Company and in such capacity shall report directly to the Board
of Directors and shall be responsible for the overall management, strategic
direction and financial and operating strategy of the Company, in accordance
with the policies and directions adopted by the Board of Directors from time to
time and such other responsibilities as may be directed to him by the Board of
Directors of the Company consistent with the terms of this Agreement. In further
consideration hereof, Employee shall act, upon the Company's request and for no
additional compensation, in an executive officer and/or director capacity for
any subsidiary of the Company, and at Employee's election, Employee shall act as
Chief Executive Officer for any subsidiary of the Company. In the performance of
his duties hereunder, Employee shall at all times report solely to and be
subject to the direction of the Board of Directors of the Company and perform
his duties hereunder subject to and in accordance with the resolutions of the
Board of Directors of the Company and the Bylaws of the Company, in each case
consistent with this Agreement, as from time to time in effect. During the term
of this Agreement, Employee shall be entitled to participate in any executive
committees of the Board of Directors as from
time to time constituted. The duties and responsibilities to be performed
pursuant hereto by Employee for the Company and/or any subsidiary of the Company
shall not be modified to require the performance of services materially
different from those customarily required of senior executive officers. This
Agreement shall not be construed as preventing employee from serving as a
director of up to two outside corporate boards so long as service on any such
board does not require more than six business days annually and does not
conflict with Employee's duties to the Company or otherwise require Employee to
undertake substantial additional duties in connection therewith.
4. Compensation.
(a) Initial Base Salary. The Company agrees to pay Employee
compensation at the rate of $275,000 per annum during the initial employment
year ending January 31, 1996. The compensation during each twelve month period
ending on January 31 during the term of this Agreement (each an "employment
year") shall be payable periodically in accordance with the Company's payroll
policy in effect from time to time for executive officers.
(b) Adjustments of Base Salary. The Company agrees to review
Employee's performance at least once each year at least forty-five days prior to
each anniversary date of this Agreement and to discuss with Employee his
compensation. Notwithstanding the previous sentence, the base salary to be paid
to Employee during each subsequent employment year shall automatically be
increased over the base salary of $275,000 provided for the initial employment
year by any increase in the cost of living determined in accordance with the
formula set forth in subparagraph (c).
(c) Cost of Living Increase in Base Salary.
(i) As promptly as practicable following the end of each
employment year during the term hereof and the publication of the Index
(hereinafter defined), the Company shall compute the increase, if any, in
the cost of living, using as the basis of such computation the "Consumer
Price Index-All Urban Consumers Earners (1982-1984=100)," hereinafter
called the Index, published by the Bureau of Labor Statistics of the
United States Department of Labor.
(ii) The Index number in the column for "all cities",
entitled "all items," for the month of January, 1995, shall be the "base
Index number" and the corresponding
2
Index number for the month of January in succeeding calendar years, shall
be the current Index number for purposes of determining base salary during
each succeeding employment year during the term of this Agreement;
provided, however, if the Company's headquarters are relocated to a
metropolitan area for which a separate Index is published, the base Index
number and the current Index number shall be determined by reference to
the Index for such metropolitan area.
(iii) The increase in the cost of living for purposes of
determining base salary during each succeeding year during the term of
this Agreement shall be determined by dividing the current Index number
(CIN) by the base Index number (BIN), and subtracting the integer 1 from
the quotient, in accordance with the following formula:
Increase in cost of living = (CIN) - 1.
-----
(BIN)
(iv) The percentage of increase in the cost of living,
multiplied by $275,000, shall be the increase required to be paid by
subparagraph (b). Any portion of the increase retroactively due shall be
payable within five days after the computation hereunder has been made.
(v) Appropriate adjustment shall be promptly made in
case there is a published amendment of the Index figures upon which the
computation is based.
(vi) If publication of the Consumer Price Index is
discontinued, the parties shall accept comparable statistics on the cost
of living as computed and published by an agency of the United States or
by a responsible financial periodical of recognized authority to be
selected by the parties.
(d) Bonus.
(i) Upon the execution of this Agreement, Employee will
receive a one-time bonus of $100,000 plus an amount equal to Employee's
initial base salary, less normal payroll deductions, for a two week
period.
(ii) Commencing with the fiscal year ending
December 31, 1995, Employee will have the potential to receive an annual
bonus of up to 40% of his current base salary payable generally in the
month of January during the following employment year, with the payment of
such bonus
3
and the amount thereof to be determined in the sole discretion of the
Company's Board of Directors based upon the attainment of qualitative and
quantitative financial and other goals established by the Board of
Directors from time to time in consultation with Employee.
(e) Deductions. The Company shall deduct from any compensation
payable to Employee the sums which it is required by law to deduct, including
but not limited to federal and, if applicable, state withholding taxes, social
security taxes and state disability insurance.
(f) Vacation, Illness and Holidays. Employee shall be entitled
to no less than four (4) weeks of vacation each year, and holidays and sick-pay
days with full pay in accordance with the Company's policy for executive
officers from time to time in effect.
(g) Stock Purchase Opportunity. Employee shall be granted an
option, upon the terms set forth in Exhibit A which is attached hereto and
incorporated by reference herein (hereinafter the "Stock Option"), to purchase
2,000,000 shares of the Company's Common Stock, par value $.01 (the "Common
Stock") at a price of $1.10 per share, 1,000,000 shares of Common Stock at a
price of $1.65 per share and 1,000,000 shares of Common Stock at a price of
$2.20 per share, in each case, subject to customary anti-dilution adjustments as
provided therein.
(h) Additional Benefits. Employee shall be eligible to
participate in the Company's other employee benefit plans of general application
and any such plans authorized for executives only, including without limitation
any plans covering pension and profit sharing hereafter adopted in accordance
with the rules established for individual participation in any such plan.
Further, the Company shall reimburse Employee for any deductibles or co-payments
incurred or required to be paid in connection with any Company health insurance
plan and for any other health or medical expenses as may be necessary so that
Employee shall receive health and medical benefits from the Company no less
favorable than those provided in the benefit plans provided by Employee's
immediately preceding employer as set forth in Exhibit C hereto. In addition,
the Company agrees to reimburse Employee for his reasonable attorneys' fees
incurred in connection with the negotiation of this Agreement.
(i) Life Insurance. The Company shall provide at its expense
during the term of this Agreement a $500,000 term life insurance policy to be
owned by Employee (or his spouse, if
4
he so elects) for beneficiaries to be designated by the owner of such policy,
subject to appropriate proof of insurability. If requested by Employee, the
Company will assign such policy to Employee at the expiration of the term of
this Agreement.
5. Nondisclosure/Noncompetition Agreement. As a condition to the
execution of this Agreement by the Company and as additional consideration
therefor, Employee shall concurrently herewith execute and deliver to the
Company a Nondisclosure/ Noncompetition Agreement in the form attached hereto as
Exhibit B, which is hereby incorporated by reference and shall be deemed an
integral part hereof. Such Nondisclosure/Noncompetition Agreement shall survive
the termination of this Agreement in accordance with the terms thereof.
6. Reimbursement of Business Expenses Incurred by Employees. The
Company hereby authorizes Employee to incur reasonable business expenses in the
performance of Employee's duties under this Agreement and in promoting the
business of the Company. The Company will reimburse Employee from time to time
for all such expenses, including reasonable expenses of commuting from
employee's current residence, and temporary living accommodation, until the
Company's headquarters are relocated, provided that Employee presents to the
Company documentary evidence, such as receipts or paid bills, that states
sufficient information to establish the amount, date, place, and essential
character of each such expenditure.
7. Termination.
(a) Death. If Employee shall die during the term of this
Agreement, this Agreement and all compensation and benefits hereunder shall
terminate as of the date of such death; except that the Company shall continue
to pay to Employee's estate, or persons designated to receive such payments
pursuant thereto, the salary and additional benefits provided for by Section 4
hereof (plus a pro rated bonus based on the amount, if any, payable in the
immediately preceding year) as it would otherwise become due and payable for a
period which shall terminate on the expiration of 180 days after Employee's
death.
(b) Disability. If Employee shall become Disabled during the
term of this Agreement, this Agreement and all compensation and benefits
hereunder shall terminate as of the Date of Disability (as defined below);
except that the Company shall continue to pay to Employee the salary and
additional benefits provided for by Section 4 hereof (plus a pro rated bonus
based on the amount, if any, payable in the immediately preceding
5
year) as it would otherwise become due and payable for a period which shall
terminate on the expiration of 180 days after the Date of Disability. As used in
this Agreement, Disabled shall mean Employee's inability to perform
substantially his duties and responsibilities to the Company by reason of
physical or mental illness, injury, infirmity or condition: (i) for a continuous
period of 180 days or (ii) at such earlier time as Employee or the Company
submits the other medical evidence, in the form of physician's certification,
that Employee has a physical or mental disability or infirmity that will likely
prevent Employee from substantially performing his duties and responsibilities
for 180 days or longer. As used in this Agreement, the Date of Disability shall
mean the earlier to occur of (i) the last day of such 180-day period and (ii)
the day on which Employee or the Company submits such evidence, as the case may
be. Employee shall cooperate with and submit to a medical examination requested
by the Company for purposes of such determination at the Company's expense.
(c) Cause. The Company may terminate Employee for Cause (as
defined below) by giving written notice thereof to Employee, whereupon this
Agreement and all compensation and benefits hereunder shall terminate
immediately.
For purposes of this Agreement "Cause" shall mean: (i) the willful
and continued failure by Employee to perform substantially his duties to the
Company (other than any such failure resulting from his Disability), which
failure is not cured by Employee within 10 business days after a written notice
specifically describing such failure is provided by the Company to Employee;
(ii) willful misconduct by Employee in the performance of his duties to the
Company; (iii) gross negligence in the performance by Employee of his duties to
the Company if such grossly negligent performance is determined by the Board of
Directors in good faith to have had or to be reasonably likely to have a
material adverse effect on the business, assets, prospects or financial
condition of the Company and its subsidiaries taken as a whole or (iv) the
conviction of Employee by a court of competent jurisdiction of a felony or any
other crime which involves fraud, dishonesty or moral turpitude. Termination of
Employee for Cause shall be communicated by Notice of Termination. For purposes
of this Agreement, a "Notice of Termination" shall mean delivery to Employee of
a copy of a resolution duly adopted by the affirmative vote of the majority of
the entire membership of the Board of Directors at a meeting of the Board of
Directors called and held for that purpose (after reasonable notice to Employee
and reasonable opportunity for Employee, together with Employee's counsel, to be
heard before
6
the Board of Directors prior to such vote), finding that in the good faith
opinion of the Board of Directors Employee was guilty of conduct set forth above
under (i), (ii), (iii) or (iv), and specifying the particulars thereof in
detail. Notwithstanding the foregoing, no act or failure to act of Employee
shall provide a basis for a termination for "Cause" after a period of twelve
months from the date any director of the Company acquired actual knowledge of
such act or failure to act. It is specifically acknowledged that the Company is
incurring significant losses from operations as of the date hereof, the
continuation of losses is anticipated, additional capital may be required to
fund the Company's operations in the future and Employee has agreed to become
employed by the Company pursuant to the terms of this Agreement but has not made
any commitments to the achievement of any revenue, profitability, expense or
other financial plans or targets.
(d) Termination for other than Death, Disability or Cause or
for Good Reason. If Employee shall be terminated by the Company other than for
Cause and other than as a result of Employee's death or his becoming Disabled,
including, without limitation, if this Agreement is rejected pursuant to Title
11 of the United States Code or any other federal or state bankruptcy or similar
law or in the event Employee voluntarily resigns for "Good Reason" (as defined
below), the Company shall after the effective date of such termination pay to
Employee an amount equal to the amount of Employee's base salary then remaining
to be paid hereunder for the remaining term of this Agreement and continue to
provide the health and medical insurance benefits set forth in Section 4(h) for
the lesser of (i) the remaining term of this Agreement or (ii) employment of
Employee by another employer offering health and medical insurance benefits.
Except as provided in the preceding sentence, this Agreement and all other
compensation and benefits hereunder shall in any such case terminate as of such
effective date. Any payments due pursuant to this Section 7(d) may be made at
the Company's election either (1) as such payments would otherwise become due in
periodic installments or (2) in a lump sum payment equal to the present value of
such payment obligation, applying a discount rate equal to the prevailing
interest rate on certificates of deposit paid by The Chase Manhattan Bank, N.A.
in New York City, with a maturity nearest to the period over which such payments
would otherwise become due. For purposes of this Agreement, "Good Reason" shall
mean:
(i) the assignment to Employee of any material duties inconsistent
with Employee's position as Chairman of the Board, President and Chief Executive
Officer of the Company and all
7
subsidiaries of the Company as to which Employee has elected to serve as Chief
Executive Officer (or the assignment to any other employee of the Company of any
material duties inconsistent with the assignment to Employee of the duties
provided in Section 3 hereof), excluding for this purpose isolated,
insubstantial or inadvertent actions not taken in bad faith and which are
remedied by the Company within 10 business days after receipt of written notice
thereof specifically describing such inconsistent duties given by Employee to
the Company, provided, however, that any change or diminution of the business of
the Company or any subsidiary or subsidiaries of the Company, including without
limitation the sale or transfer of assets or stock of the Company or any such
subsidiaries shall not constitute "Good Reason";
(ii) any failure by the Company to comply with any of the
provisions of this Agreement, other than any isolated, insubstantial or
inadvertent failure not occurring in bad faith, which is not remedied by the
Company within 10 business days after receipt of written notice thereof
specifically describing such failure given by Employee to the Company; or
(iii) the Company's requiring Employee to be based at any office
or location other than within a radius of 25 miles from Boston, Massachusetts,
or, in the event the Company's headquarters is not relocated in accordance with
Section 9 hereof, San Antonio, Texas (or any other metropolitan area to which
the Company's headquarters is relocated in compliance with Section 9 of this
Agreement); except for travel reasonably required in the performance of
Employee's responsibilities.
(e) Material Disagreement. Notwithstanding any other provision in
this Agreement, if (i) there is a material disagreement between Employee and the
Board of Directors of the Company (A) resulting from any determination by or
directions from the Board of Directors to significantly change the strategic
direction or format of the Company (including without limitation significant
changes to the targeted market segments for the Company or significant changes
to the types of products or services offered by the Company at such date) or (B)
relating to the termination of employment of Senior Employees other than
Employee (even if such other employees have employment agreements with the
Company), (ii) Employee and the Board of Directors of the Company are not able
to resolve such differences to their mutual satisfaction, and (iii) Employee
informs the Board of Directors of the Company in writing that he will not
implement the decisions of the Board of Directors and/or with respect to
employment decisions intends to instead implement or continue contrary actions
or decisions, such refusal or contrary
8
implementation by Employee shall not constitute "Cause" for any purpose
hereunder. Employee acknowledges that nothing herein shall limit the scope or
exercise of the authority of the Board of Directors of the Company and that he
may be removed, without cause, for any such refusal or contrary implementation;
provided, however, that failure of the Board of Directors to terminate
Employee's employment within a reasonable time following written notice pursuant
to clause (iii) above shall constitute a ratification of Employee's actions or
inactions by the Board of Directors and acknowledgment by the Board of Directors
that Employee was acting within the scope of his employment for all purposes
(including without limitation Section 19 hereof).
8. Liquidation or Change of Control. Upon the (i) liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary or
(ii) merger or consolidation of the Company with or into another corporation
resulting in the stockholders of the Company immediately prior to such
transaction owning less than a majority of the outstanding voting stock of the
surviving or successor entity, or the sale of all or substantially all of the
Company's assets (any event in (i) or (ii) above being called the "Event")
Employee shall receive his base salary (A) until the third anniversary of the
Effective Date if the Event occurs before the first anniversary of the Effective
Date or (B) for two years from the date of the Event if the Event occurs on or
after the first anniversary of the Effective Date, and except as provided in
this sentence, this Agreement and all other compensation and benefits hereunder
shall in any such case terminate upon the occurrence of such Event.
9. Relocation of Business. It is acknowledged and agreed that
Employee may, in his sole discretion, relocate the headquarters of the Company
to the Boston, Massachusetts metropolitan area. Employee may relocate the
headquarters of the Company to any other major United States metropolitan area,
subject to approval of the Board of Directors of the Company, which approval
shall not be unreasonably withheld. In the event Employee elects not to relocate
the Company's headquarters to the Boston, Massachusetts metropolitan area or
Executive with approval of the Board of Directors elects to relocate the
headquarters from San Antonio, Texas to a metropolitan area other than Boston,
not later than August 15, 1995, Employee shall cause his principal residence to
be relocated in the metropolitan area in which the Company's headquarters is
located and the Company shall advance or pay on behalf of Employee all
reasonable out-of-pocket expenses in connection with such relocation (including
without limitation expenses in connection with enrolling
9
Employee's children in public or private schools, other than tuition).
10. No Conflict. Employee represents and warrants that the
execution, delivery and performance of this Agreement by Employee will not
violate any agreement, undertaking or covenant to which Employee is party or is
otherwise bound.
11. Notices. Any notice to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by certified
mail, postage prepaid with return receipt requested. Mailed notices shall be
addressed to the parties at the addresses appearing in the introductory
paragraph of this Agreement, but either party may change his or its address by
written notice in accordance with this paragraph. Notices delivered personally
shall be deemed communicated as of the actual receipt thereof; mailed notices
shall be deemed communicated and received three (3) business days after the
mailing of same.
12. Invalid Provisions. The invalidity or unenforceability of a
particular provision of this Agreement shall not affect the enforceability of
any other provisions hereof and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
13. Amendments to the Agreement. This Agreement may only be amended
in writing by an agreement executed by both parties hereto.
14. Law Governing Agreement. This Agreement is made
and shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts.
15. Construction. Waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party. This Agreement shall not be assignable. Subject
to the prohibition against assignment herein contained, this Agreement and the
terms and conditions herein shall inure to the benefit of and be binding upon
the parties hereto, their successors, heirs and legal representatives.
16. Entire Agreement. This Agreement contains the entire agreement
of the parties hereto and supersedes any and all prior agreements, oral or
written, and negotiations between said parties regarding the subject matter
herein contained.
10
17. Mitigation. In no event shall Employee be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Employee under any of the provisions of this Agreement.
18. Costs and Expenses to Prevailing Party. In the event there shall
be instituted any legal proceedings between the parties hereto in connection
with the enforcement or interpretation of this Agreement, the prevailing party
shall be entitled to an award of its costs and expenses, including reasonable
attorneys' fees, incurred in connection therewith.
19. Indemnification. The Company hereby agrees to indemnify and hold
harmless Employee from and against any and all losses, claims, expenses and/or
liabilities of any kind or nature whatsoever, incurred or sustained by Employee
relating to or arising from Employee's performance of this Agreement and acting
within the scope of his employment contemplated hereby, including with respect
to the performance of services for any subsidiary of the Company, to the maximum
extent permissible under the General Corporation Law of the State of Delaware or
other applicable law. Without limiting the foregoing, the Company agrees to
reimburse Employee for any expenses (including without limitation attorneys
fees, retainers and court costs) incurred by Employee in any action or
proceeding for which such indemnification may be claimed, upon a receipt of an
undertaking by Employee to repay all amounts so advanced in the event that it
shall ultimately be determined that Employee is not entitled to be indemnified
by the Company hereunder or under the Certificate of Incorporation or By-laws of
the Company or under any other agreement between Employee and the Company.
11
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
/s/ Xxxxx X. El-Xxxx
---------------------------
XXXXX X. EL-XXXX
JUNGLE JIM'S PLAYLANDS, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
12
AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this "Amendment"), dated as
of April 11, 1997, among JEEPERS! INC. (f/k/a Jungle Jim's Playlands, Inc.), a
Delaware corporation (the "Company"), and Xxxxx X. El-Xxxx ("Employee").
RECITALS
A. The Company and Employee previously entered into an Executive
Employment Agreement, dated as of February 1, 1995 (the "Existing Employment
Agreement"), under which the Company has employed Employee as Chairman of the
Board, President and Chief Executive Officer.
B. The Company and Employee wish to extend the term of the Existing
Employment Agreement for an additional two-year period and to reflect the
modification concurrently herewith of the terms of the Option Agreement dated
effective February 1, 1995 between the Company and the Optionee.
In consideration of the foregoing, the Company and Employee agree as
follows:
SECTION 1
Amendments to Existing Employment Agreement
-------------------------------------------
The Existing Employment Agreement is hereby amended as follows:
(a) Section 2 is amended by deleting the reference in such Section to the
phrase "third anniversary" and inserting in lieu thereof the phrase "fifth
anniversary."
(b) Section 4(g) is amended by adding to the end of such Section the
phrase "and as such Stock Option may be otherwise amended and in effect from
time to time."
SECTION 2
Miscellaneous
-------------
(a) Effective Date. This Amendment shall be effective as of the date
hereof upon the
execution and delivery hereof by the Company and Employee. Except as expressly
amended herein, the Existing Employment Agreement shall remain in full force and
effect in accordance with its terms.
(b) Governing Law. This Amendment is made and shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
(c) Entire Agreement. This Amendment contains the entire agreement of the
parties hereto and supersedes any and all prior agreements, oral or written, and
negotiations between said parties regarding the subject matter herein contained.
IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized
officer of the Company and by the Employee.
/s/ Xxxxx X. El-Xxxx
--------------------------
Xxxxx X. El-Xxxx
COMPANY:
JEEPERS! INC.
By: /s/ X. Xxxxxxxxxx
----------------------------
Name: X. Xxxxxxxxxx
Title: Chief Financial Officer
2
SECOND AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT, (this "Amendment"),
dated as of May 12, 1998, among JEEPERS! INC. (f/k/a Jungle Jim's Playlands,
Inc.), a Delaware corporation (the "Company"), and Xxxxx X. El-Xxxx
("Employee").
RECITALS
A. The Company and Employee previously entered into an Executive
Employment Agreement, dated as of February 1, 1995, as amended as of April 11,
1997 (the "Existing Employment Agreement"), under which the Company has employed
Employee as Chairman of the Board, President and Chief Executive Officer.
B. The Company and Employee wish to extend the term of the Existing
Employment Agreement as provided herein.
In consideration of the foregoing, the Company and Employee agree as
follows:
SECTION 1
Amendment to Existing Employment Agreement
------------------------------------------
The Existing Employment Agreement is hereby amended as follows:
Section 2 is amended by deleting the reference in such Section to the
phrase "the fifth anniversary of the Effective Date," and inserting in lieu
thereof the following:
"(i) the third anniversary of the closing date of the Company's initial public
offering of common stock (the "IPO") (pursuant to registration statement file
no. 333-50297), or (ii) if for any reason the IPO is not consummated on or prior
to August 31, 1998, the fifth anniversary of the Effective Date, in each case"
SECTION 2
---------
Miscellaneous
(a) Effective Date. This Amendment shall be effective as of the date
hereof upon the execution and delivery hereof by the Company and Employee.
Except as expressly amended
herein, the Existing Employment Agreement shall remain in full force and effect
in accordance with its terms.
(b) Governing Law. This Amendment is made and shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
(c) Entire Agreement. This Amendment contains the entire agreement of
the parties hereto and supersedes any and all prior agreements, oral or written,
and negotiations between said parties regarding the subject matter herein
contained.
IN WITNESS WHEREOF, this Amendment has been executed by a duly
authorized officer of the Company and by the Employee.
EMPLOYEE:
/s/ Xxxxx X. El-Xxxx
-----------------------------
Xxxxx X. El-Xxxx
COMPANY:
JEEPERS! INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
2
