EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into by and
between Alliance Entertainment Corp, a Delaware corporation (the "Company"), and
Xxxx Xxxxxxx, a resident of the State of Florida ("Executive").
TERMS OF AGREEMENT
In consideration of the mutual covenants contained herein, and
subject to the conditions herein set forth, the parties hereby agree as follows:
1. EMPLOYMENT
a. POSITION. Executive shall be the President of the Company.
b. BOARD OF DIRECTORS. At all times during the term of this Agreement,
the Company shall cause Executive to be nominated as a member of the
Company's Board of Directors.
c. DUTIES. The Executive shall have full responsibility for all the
day-to-day activities of the Company and its affiliated companies
and over all officers and employees of the Company, and shall have
responsibilities commensurate with those normally performed by a
President. In such capacity, the Executive shall report directly to
the Chief Executive Officer of the Company.
d. PLACE OF EMPLOYMENT. During the term of this Agreement, the
Executive shall perform the services required by this Agreement at
the principal executive office of the Company.
e. EMPLOYMENT TERM. Unless terminated in accordance with its
provisions, this Agreement shall be for an initial term of three (3)
years from the Effective Date (the "Employment Term"). The
Employment Term is subject to early termination in accordance with
the provisions set forth in Section 3 hereof.
f. PERFORMANCE OF DUTIES. The Executive agrees to devote his full time
and best efforts to the performance of his duties and to serve the
Company well and faithfully in conformity with the direction of the
Chief Executive Officer, Board and written policies of the Company.
g. COMPENSATION. As compensation for Executive's services and in
consideration of the covenants set forth in Sections 5, 6, 7, 8, 9,
and 10 below, the Company shall pay to Executive the following
compensation during the Employment Term, subject to any withholding
and other taxes:
i. Base Salary. The Company shall pay to Executive a Base Salary
equal to $411,530.86 annually during the Employment Term. The
Base Salary shall be payable in accordance with the Company's
customary payroll practices and procedures and shall be
prorated for any partial year during the Employment Term.
Executive's Base Salary shall be reviewed no less frequently
than annually by the Board of Directors of the Company to
determine whether or not such Base Salary should be adjusted
in light of Executive's duties, responsibilities, and
performance.
ii. Bonus. The Company shall provide Executive an annual Bonus
potential equal to Fifty (50%) Percent of Executive's Base
Salary. The actual Bonus paid to Executive will depend on
Executive meeting performance goals established by the Board.
iii. Stock Options. Executive shall be entitled to participate in
the incentive stock option plan to be adopted by the Company
each year.
iv. Executive Benefits. Executive shall be entitled to participate
in all Executive benefit plans and programs, if any,
(including 401(k) Plan, medical, dental, short and long term
disability and life insurance plans and programs) that are
established and made generally available by the Company from
time to time to its Executives, subject, however, to the
applicable eligibility requirements and other provisions of
such plans and programs.
v. Automobile. Executive shall be entitled to a car allowance in
the amount of $1,000 per month. In connection therewith, the
Executive shall be responsible for any and all expenses
related to such automobile, including but not limited to
insurance, maintenance, gas and repairs for such automobile.
vi. Vacation and Holidays. Executive shall be entitled to paid
vacation and holidays pursuant to the Company's Personal
Absence Time Policy, to be taken at such time(s) as shall not,
in the reasonable judgment of the Executive's supervisor,
interfere with Executive's fulfillment of Executive's
employment duties hereunder and otherwise in accordance with
the Company's policies and procedures in effect.
vii. Officers' and Directors' Liability Insurance; Indemnification.
The Company at its expense will provide officers and directors
indemnity and liability insurance coverage to Executive, based
on, and subject to, terms and insurance levels that are
commercially available and typical in the industry, and no
less favorable in any material respect to Executive than the
terms and levels applicable to the coverage provided to other
officers and/or directors of the Company.
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2. REIMBURSEMENT OF EXPENSES. The Company shall pay or reimburse Executive
for all reasonable and necessary travel, entertainment and other expenses
incurred by Executive in connection with the performance of Executive's
duties hereunder during the Employment Term; provided, that (a) such
expenditure is of a nature deductible under Section 162 of the U.S.
Internal Revenue Code on the Federal income tax return of the Company as a
business expense and not deductible as compensation to Executive, and (b)
Executive provides the Company with such documentary evidence as shall in
the opinion of the Company be required by the Code or any regulation
promulgated thereunder for the substantiation of such expenditure as a
deductible business expense of the Company and not as deductible
compensation to Executive. Executive agrees that, if at any time, any
payment made to Executive by the Company as a business expense
reimbursement shall be disallowed as a deductible expense to the Company
by the appropriate taxing authorities, Executive shall reimburse the
Company to the full extent of such disallowance.
3. TERMINATION. This Agreement and Executive's employment hereunder, may be
terminated as follows:
a. FOR CAUSE. As used herein, "Cause" shall mean (i) the Executive
shall have committed an act of fraud, embezzlement or
misappropriation against the Company or committed a material breach
of fiduciary duty owed to the Company; or (ii) the Executive shall
have been convicted by a court of competent jurisdiction (or entered
a plea of guilty or nolo contendere) of any felony or crime
involving moral turpitude or fraud; or (iii) the Executive shall
have engaged in material violations of his obligations under this
Agreement other than as a result of incapacity due to physical or
mental illness, which violations (A) are demonstrably willful and
deliberate on Executive's part, (B) are committed in bad faith or
without reasonable belief that such violations are in the best
interests of the Company; or (iv) the Executive's failure or refusal
to timely comply with a written directive of the Chief Executive
Officer (or such other executive designated by the Company),
provided that such directive is consistent with the Executive's
position; and provided further that such directive does not require
the commission by the Executive of an illegal act. Should Executive
dispute the validity of any such alleged Cause, the matter shall be
finally determined in accordance with the arbitration provisions of
Section 18 of this Agreement.
b. DEATH. In the event of Executive's death, this Agreement shall
automatically terminate without a notice requirement to/from either
party.
c. DISABILITY. In the event that Executive becomes permanently disabled
(as defined in the Company's Long Term Disability Plan), the Company
shall have the right to terminate this Agreement and Executive's
employment with the Company hereunder by giving written notice of
termination to Executive. Such notice shall specify the date of
termination, which date shall not be earlier than thirty (30)
calendar days after such notice is given.
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d. WITHOUT CAUSE. The Company shall have the right to terminate this
Agreement and Executive's employment with the Company at any time
for any reason whatsoever (other than For Cause) on prior written
notice to Executive.
e. TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive may terminate
this Agreement and Executive's employment with the Company for Good
Reason. For purposes of this Agreement, Executive shall be deemed to
have "Good Reason" if, the Company commits a material breach of its
obligations under this Agreement and fails to cure such breach
within twenty (20) business days following receipt of notice of such
breach. Should Company dispute the validity of any such alleged Good
Reason, the matter shall be finally determined in accordance with
the arbitration provisions of Section 18 of this Agreement.
f. TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. Executive shall have
the right to terminate this Agreement and Executive's employment
with the Company at any time for any reason whatsoever by giving
thirty (30) days' prior written notice to the Company; provided,
however, that termination pursuant to this subsection 3(f) shall not
be construed as termination pursuant to subsection 3(e).
4. COMPANY'S OBLIGATIONS UPON TERMINATION. Following the termination of
Executive's employment under the circumstances described below, the
Company shall pay Executive the following compensation and provide the
following benefits, subject to Executive's compliance with Sections 5, 6,
7, 8, 9, and 10 hereof, in full satisfaction and final settlement of any
and all claims and demands Executive then has or may have against the
Company in connection herewith:
a. TERMINATION FOR CAUSE. In the event that this Agreement and
Executive's employment with the Company is terminated for Cause,
then the Company shall pay to Executive's then current Base Salary
earned through the date of termination and shall reimburse Executive
for any expenses to which Executive is entitled to reimbursement
under this Agreement.
b. TERMINATION BY THE COMPANY DUE TO DEATH. In the event that the
Company shall terminate this Agreement and Executive's employment
with the Company in the event of Death under Section 3(b), then the
Company shall pay to Executive's heirs and/or personal
representatives, in addition to the amounts payable pursuant to
Section 4(a) above, a pro-rated portion of the then scheduled Annual
Bonus (with payout as determined by the Board in accordance with
Section 1.g.ii. of this Agreement), which shall be calculated by
multiplying the scheduled Annual Bonus (using the payout as
determined by the Board in accordance with Section 1.g.ii. of this
Agreement), by the quotient of (x) the number of calendar days from
the start of the Annual Bonus period through the termination of
Executive's employment divided by (y) 365, and the Company shall
have no further payment obligation to Executive.
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c. TERMINATION BY THE COMPANY DUE TO DISABILITY. In the event that the
Company shall terminate this Agreement and Executive's employment
with the Company in the event of Disability under Section 3(c)
above, then the Company shall (i) pay to Executive, in addition to
the amounts payable pursuant to Section 4(a) above, a pro-rated
portion of the Annual Bonus, which shall be calculated as set forth
in Section 4(b) above, and (ii) pay the cost to continue Executive's
medical insurance coverage under the Company's health plan as
provided under COBRA for 12 months following such termination, and
the Company shall have no further payment obligation to Executive.
d. TERMINATION UPON THE NATURAL EXPIRATION OF THE EMPLOYMENT TERM OR
NON-RENEWAL OF THE INITIAL EMPLOYMENT TERM OR ANY RENEWAL TERM. Upon
the natural expiration of the Employment Term or upon the
termination of the Initial Employment Term or any Renewal Term, on
the last day thereof as a result of delivery of a Non-Renewal Notice
by the Company, or Executive, the Company shall pay to Executive, in
addition to the amounts payable pursuant to Section 4(a) above, a
pro-rated portion of the Annual Bonus, which shall be calculated as
set forth in Section 4(b) above. In addition, the Company shall pay
to the Executive an amount equal to twenty-four (24) months of the
Executive's then current salary as severance pay plus any unpaid
prior fiscal year bonus. Thereafter the Company shall have no
further payment obligation to Executive.
e. TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY EXECUTIVE FOR GOOD
REASON. In the event that the Company shall terminate this Agreement
and Executive's employment with the Company Without Cause pursuant
to Section 3(d) or if Executive terminates Executive's employment
with the Company for Good Reason pursuant to Section 3(e), in
addition to the amounts payable pursuant to Section 4(a) above, the
Company shall pay to the Executive a pro-rated portion of the Annual
Bonus, which shall be calculated as set forth in Section 4(b) above
and an amount equal to the greater of (1) the Executive's Base
Salary corresponding to the remaining Term of this Agreement, or (2)
twenty four (24) months of the Executive's then current Base Salary
as severance pay plus any unpaid prior fiscal year bonus, and
i. Such payment shall be due and payable to the Executive within
ten (10) days after the Executive's termination; provided,
however, at the Executive's election, such severance pay shall
be paid at such intervals as Executive may request, and
ii. The Executive shall also be entitled to any and all other
accrued benefits to which he or she would otherwise be
entitled under the Company's policy or as provided by law for
a period of Twenty Four (24) months including but not limited
to medical, dental, life, and disability insurance, and
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iii. Any stock options granted to Executive shall become 100%
vested on the termination date and the exercise period shall
be extended for twelve (12) months, provided that in no event
shall the total payment due to Executive exceed those amounts
set forth above. No further payment obligation shall be due to
Executive, and Executive shall, as a condition of receiving
such payment, fully release the Company from any further
liability by Company to Executive.
iv. Change in Control. If there is a "change of control" (defined
as a merger, acquisition, or a significant change in the Board
of Directors, or senior management, or a substantial
shareholder ownership of the Company) that causes the
Executive's position with the Company (i.e.: the Executive's
salary, function, duties or responsibilities) to be of
significantly less amount, dignity, responsibility, importance
or scope from the position and attributes thereof immediately
prior to such change in control, then Executive shall have the
option of, within one year of such significant change,
resigning his position with Company. If Executive resigns his
position with Company, such event shall be deemed a
Termination by Executive for Good Reason pursuant to this
Section 4(e).
5. MUTUAL TERMINATION. Notwithstanding anything to the contrary herein, the
Company and the Executive may Jointly terminate this Agreement and the
Employment relationship at any time upon mutual agreement, and upon terms
mutually acceptable.
6. CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges access to
certain Confidential Information (as defined below) and that such
information constitutes valuable, special and unique property of the
Company. Executive acknowledges that the Confidential Information is and
shall remain the exclusive property of the Company. Executive agrees not
to, at any time during the Employment Term, or at any time thereafter,
disclose any Confidential Information to anyone outside the Company, or
utilize any Confidential Information for Executive's own benefit or the
benefit of any third party without the prior written consent of the
Company. Executive further agrees that all memoranda, disks, files, notes,
records or other documents which contain Confidential Information, whether
in electronic form or hard copy, and whether created by Executive or
others, which come into Executive's possession and wherever located, shall
be and remain the exclusive property of the Company to be used by
Executive only in the performance of Executive's obligations hereunder.
Executive agrees that the foregoing restrictions shall apply whether or
not such information is marked "Confidential," "Proprietary" or otherwise.
For purposes hereof, "Confidential Information" shall mean and include all
information, whether written or oral, tangible or intangible, of a
private, secret, proprietary or confidential nature, of or concerning the
Company or its business or operations, including without limitation any
trade-secrets or know-how, computer software programs in both source code
and object code form, any technique, process or methodology, any sales,
promotional or marketing plans, programs, techniques, practices or
strategies, any expansion plans (including existing and entry into new
markets), any operational or management guidelines, any cost, pricing or
other
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financial data or projections, the identity and background of any
customer, Executive, prospect, supplier or investor, and any other
information that is to be treated as confidential because of any duty of
confidentiality owed by the Company to a third party or any other
information that the Company shall, in the ordinary course of business,
possess or use and not release externally without restriction on use or
disclosure.
7. RETURN OF DOCUMENTS AND PROPERTY. Upon the termination or expiration of
this Agreement or Executive's Employment or at any other time upon the
request of the Company, Executive (or Executive's heirs or personal
representatives) (a) shall deliver to the Company all memoranda, disks,
files, notes, records or other documents which contain or are based upon
Confidential Information and shall not retain any copies thereof in any
format or storage medium (including computer disk or memory) and (b) purge
from any computer system in Executive's possession other than those owned
by and returned to the Company, all computer files which contain or are
based upon any Confidential Information and confirm such purging in
writing to the Company.
8. NON-COMPETITION. Executive acknowledges that (a) the Company engages in a
competitive business, (b) Executive's services and responsibilities are
unique in character and are of particular significance to the Company, (c)
Executive's position with the Company will place Executive in a position
of confidence and trust with the customers, suppliers and Executives of
the Company, and (d) Executive's position with the Company will provide
Executive access to Confidential Information which is valuable and
material to the business and competitive position to the Company.
Executive therefore agrees that during the Employment Term and the period
of one (1) year thereafter, regardless of the reason for expiration,
non-renewal or termination, (the "Non-Compete Period"), Executive will not
(other than as a director, Executive, agent or consultant of the Company),
directly or indirectly, as an individual proprietor, partner, shareholder,
officer, director, Executive, consultant, independent contractor, joint
venturer, investor (with holdings of at least 5% of any security of any
class of any business entity) or lender, participate in any business or
enterprise engaged anywhere in the world in the design, development,
manufacture, distribution or sale of any products or the provision of any
services which are the same as, similar to or competitive with the
products or services which the Company or any of its affiliates design,
develop, manufacture, distribute, sell or provide or is then planning to
design, develop, manufacture, distribute, sell or provide, in either case,
at any time while Executive was employed by the Company, unless Executive
shall have obtained the prior written consent of the Board of Directors of
the Company.
9. NON-SOLICITATION. During the Non-Compete Period, Executive agrees not to,
directly or indirectly, whether for Executive's own account or for the
account of any other individual or entity: (a) attempt in any manner to
solicit or sell to any Customer (as defined below) any products of the
type developed, produced, marketed or sold or being developed, produced,
marketed or sold by the Company while Executive was employed by the
Company or any products competitive with such products or to persuade any
Customer to cease to do business or reduce the amount of business which
such Customer has customarily done or is reasonably expected to do with
the Company, whether or not
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the relationship between the Company and such Customer was originally
established in whole or in part through Executive's efforts; (b) attempt
in any manner to interfere with the relationship between the Company and
any of its suppliers that have provided services or products to the
Company at any time while Executive was a consultant to or employed by the
Company; or (c) solicit, induce, enter into any agreement with, or attempt
to influence any individual who was an Executive or key person of or
consultant to the Company or any of its affiliates at any time during the
preceding twelve (12) month period, to terminate Executive's employment or
key person's relationship with the Company or any of its affiliates or to
become employed by Executive or any individual or entity by which
Executive is employed, or interfere in any other way with the employment
or other relationship of any Executive of or consultant to the Company or
any of its affiliates. As used in this paragraph, the term "Customer"
shall mean and include (i) anyone who was a customer of the Company or any
of its present or future parents, subsidiaries or other affiliates on the
Expiration Date or at any time during the two (2) years immediately
preceding the Expiration Date, (ii) any prospective customer to whom any
representative of the Company or any of its present or future parents,
subsidiaries or other affiliates made a business presentation or sales
pitch at any time during the one year period immediately preceding the
Expiration Date and (iii) any prospective customer to whom any
representative of the Company or any of its present or future parents,
subsidiaries or other affiliates made a business presentation or sales
pitch at any time within six months after the Expiration Date if the
initial contact or discussion with such prospective customer relating to
the sale of products occurred prior to the Expiration Date.
10. NON-DISPARAGEMENT. Executive agrees that at all times during and after the
Employment Term, Executive will not engage in any conduct that is
injurious to the reputation or interests of the Company or its affiliates,
including, but not limited to, making disparaging comments (or inducing or
encouraging others to make disparaging comments) about the Company or any
of its affiliates, or any of their respective directors, officers,
Executives or agents, or their respective operations, financial condition,
prospects, content, products or services.
11. INTELLECTUAL PROPERTY.
a. OWNERSHIP OF DEVELOPMENTS. Executive acknowledges that all original
works of authorship, inventions, improvements, discoveries,
developments, concepts, software (including, without limitation,
images, text, source code, object code, html code and scripts),
databases and trade secrets and other original works, and any
upgrades, modifications, improvements or enhancements to the
foregoing and any related patents, patent applications, copyrights
and copyright applications, which are created, made, conceived,
developed or reduced to practice by Executive whether under
Executive's direction or jointly with others during the (a)
Employment Term and (b) since Executive's tenure first began with
the Company and its predecessor company on April 1, 1988, or within
one (1) year after the Expiration Date (whether or not during normal
working hours, on the premises of the Company or any other location
or using Company's equipment or personal
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equipment or Confidential Information), which relate to the present
or anticipated business activities of the Company (all of which are
collectively referred to as "Developments") are and shall remain the
sole and exclusive property of the Company, and all right, title and
interest therein, whether or not used by the Company, shall, from
the inception of development, be exclusively and perpetually the
property of the Company. Unless otherwise agreed to in writing by
the Company, nothing in this or any agreement or in the course of
dealing between Executive and the Company shall be construed to
grant Executive or Executive's affiliates any ownership right, title
or interest in or license to any of the Developments. Executive
acknowledges that all Developments made by Executive (solely or with
others) within the scope of Executive's duties hereunder and which
are protectable by copyright are "works made for hire" within the
meaning of the U.S. Copyright Act and any other U.S. and foreign
laws relating to intellectual property. To the extent that any
Developments shall not be deemed "works made for hire," Executive
hereby irrevocably assigns, and herein appoints the Company as
Executive's attorney in fact to perfect any such assignment, to the
Company any of Executive's worldwide right, title or interest in and
to all Developments and all intellectual property rights, including
but not limited to all worldwide copyrights, trade secrets, patent
rights and trademark rights, in and to all of the Developments, and
any extensions and renewals thereof.
b. OBLIGATIONS OF EXECUTIVE. Executive shall (a) promptly notify, make
full disclosure to, and execute and deliver any documents requested
by, the Company, to evidence or better assure title to all
Developments in the Company, as so requested, (b) renounce any and
all claims, including but not limited to claims of ownership and
royalty, with respect to all Developments and all other property
owned or licensed by the Company or its affiliates, (c) assist the
Company and its affiliates in obtaining, maintaining and enforcing
for itself at its own expense United States and foreign patents,
copyrights, trademark, trade secret or other protection of any and
all Developments, and (d) promptly execute, whether during the
Employment Term or thereafter, all applications, endorsements or
other documents necessary or appropriate to maintain patents and
other rights for the Company or its affiliates and to protect the
title of the Company or its affiliates thereto, including but not
limited to assignments of such patents, copyrights, trademark, trade
secrets and other rights in accordance with Subsection (c) below.
c. PATENT AND COPYRIGHT REGISTRATIONS. The Company and its nominees
shall have the right to use and apply for common law and statutory
protections of all Developments in any and all countries and
jurisdictions. Furthermore, Executive agrees to assist the Company,
or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Developments and any patents,
copyrights, trademark and mask work rights or other intellectual
property rights relating thereto in any and all countries and
jurisdictions, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution
of all applications, specifications, oaths, assignments and all
other instruments which the Company shall deem necessary in order to
apply for and
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obtain such rights and in order to assign and convey to the Company,
its successors, assigns and nominees the sole and exclusive right,
title and interest in and to such Developments, including all rights
associated with works of authorship throughout the world, any
copyrights, patents, mask work rights, trade secrets, or other
intellectual property rights relating thereto or analogous to those
set forth herein. Executive further agrees that Executive's
obligation to execute or cause to be executed any such instrument or
papers shall continue after the termination of this Agreement. If
the Company is unable because of Executive's mental or physical
incapacity, Executive's refusal or for any other reason to secure
Executive's signature to apply for or to pursue any application for
any United States or foreign patents or copyright registrations
covering Developments, then Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents
as Executive's agent and attorney-in-fact, which designation and
appointment is coupled with an interest, to act for and on
Executive's behalf and stead, to execute and file any such
applications and to do all other lawfully permitted acts to further
the prosecution and issuance of patent or copyright registrations
thereon with the same legal force and effect as if executed by
Executive. The foregoing rights shall also apply to any divisions,
continuations, renewals, reissues and extensions of the foregoing,
as applicable, now existing or hereafter filed, issued or acquired.
d. PRIOR INVENTIONS RETAINED AND LICENSED. If any, attached hereto as
Exhibit A is a list describing all inventions, original works of
authorship, developments, improvements and trade secrets which were
created, made, conceived, developed or reduced to practice by
Executive prior to Executive's engagement with the Company which
relate to the present or anticipated business activities of the
Company and its affiliates (collectively, the "Prior Inventions").
The Prior Inventions shall belong to Executive and shall not be
assigned to the Company hereunder. If no such Prior Inventions are
listed on Exhibit A, Executive represents that there are no such
Prior Inventions. If in the course of Executive's engagement with
the Company, Executive incorporates into any invention, improvement,
development, product, copyrightable material or trade secret any
invention, improvement, development, concept, discovery or other
proprietary information owned by Executive or in which Executive has
an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide
license to make, have made, modify, use and sell such item as part
of or in connection with such product, process or machine.
e. INVENTIONS ASSIGNED TO THE UNITED STATES. Executive agrees to assign
to the United States government all Executive's right, title, and
interest in and to any and all Developments whenever such full title
is required to be in the United States by a contract between the
Company and the United States or any of its agencies.
f. MAINTENANCE OF RECORDS. Executive agrees to keep and maintain
adequate and current written records of all Developments made by
Executive (solely or jointly with others) during the term of
Executive's employment with the Company. The
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records will be in the form of notes, sketches, drawings, and any
other format that may be specified by the Company, all of which
shall be capable of use as intended by anyone Company designates at
any time. The records shall be available to and remain the sole
property of the Company at all times.
g. ENFORCEABILITY OF RESTRICTIVE COVENANTS. Executive hereby
acknowledges that the restrictions on Executive's activity contained
in Sections 5, 6, 7, 8, 9, and 10 are necessary for the reasonable
protection of the Company and are a material inducement to the
Company entering into this Agreement. Executive further acknowledges
that a breach or threatened breach of any such provisions would
cause irreparable harm to the Company for which there is no adequate
remedy at law. Executive agrees that in the event of any breach or
threatened breach of any provision contained in Section 5, 6, 7, 8,
9, or 10 of this Agreement, the Company shall have the right, in
addition to any other rights or remedies it may have, to seek
injunctive relief without having to post bond or other security and
without having to prove special damages or the inadequacy of the
available remedies at law. The parties acknowledge that (a) the
time, scope, geographic area and other provisions contained in
Sections 5, 6, 7, 8, 9, and 10 are reasonable and necessary to
protect the goodwill and business of the Company, (b) the customers
of the Company may be serviced from any location and accordingly it
is reasonable that the covenants set forth herein are not limited by
narrow geographic area, and (c) the restrictions contained in
Sections 5, 6, 7, 8, 9, and 10 will not prevent Executive from being
employed or earning a livelihood. If any covenant contained in
Section 5, 6, 7, 8, 9, and 10 is held to be unenforceable by reason
of the time, scope or geographic area covered thereby, such
covenant shall be interpreted to extend to the maximum time, scope
or geographic area for which it may be enforced as determined by a
court making such determination, and such covenant shall only apply
in its reduced form to the operation of such covenant in the
particular jurisdiction in which such adjudication is made. The
existence of any claim or cause of action by Executive against the
Company or any of its affiliates predicated on this Agreement or
otherwise shall not constitute a defense to the enforcement by the
Company of any provision of Section 5, 6, 7, 8, 9, and 10.
12. CONFLICTS. Executive hereby represents and warrants to the Company that
neither the execution or delivery of this Agreement by Executive nor the
performance by Executive of Executive's duties hereunder shall constitute
a default, breach or violation of any understanding, contract or
commitment, written or oral, express or implied, to which Executive is a
party or to which Executive is or may be bound, including, without
limitation, any understanding, contract or commitment with any present or
former employer. Executive hereby agrees to indemnify and hold the Company
harmless from and against any and all claims, losses, damages,
liabilities, costs and expenses (including, without limitation, attorneys'
fees and expenses) incurred by the Company in connection with any default,
breach or violation by Executive of any such understanding, contract or
commitment.
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13. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns, except that Executive may not assign any of Executive's rights or
delegate any of Executive's duties hereunder without the prior written
consent of the Company (which may be granted or withheld in the Company's
sole and absolute discretion).
14. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of
the parties relating to the subject matter hereof and supersedes all prior
agreements, understandings, arrangements, promises and commitments,
whether written or oral, express or implied, relating to the subject
matter hereof, and all such prior agreements, understandings,
arrangements, promises and commitments are hereby canceled and terminated
including that certain December 21, 2000 Employment Agreement as amended.
15. AMENDMENT. This Agreement may not be amended, supplemented or modified in
whole or in part except by an instrument in writing signed by the party or
parties against whom enforcement of such amendment, supplement or
modification is sought.
16. SURVIVAL. The provisions of Sections 5 through 24 hereof shall survive the
termination or expiration of this Agreement.
17. NOTICE. Any notice, request or other document required or permitted to be
given under this Agreement shall be in writing and shall be deemed given
(a) upon delivery, if delivered by hand, (b) three (3) days after the date
of deposit in the mail, postage prepaid, if mailed by U.S. certified or
registered mail, or (c) on the next business day, if sent by prepaid
overnight courier service, in each case, addressed as follows:
If to Executive, to: Xxxx Xxxxxxx
0000 X.X. 000 Xxxx
Xxxxxxxx, Xxxxxxx 00000
If to the Company, to: AEC One Stop Group, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attn: (1) CEO
(2) Legal Dept.
Any party may change the address to which notice shall be sent by giving
notice of such change of address to the other parties in the manner
provided above.
18. WAIVERS. The failure or delay of any party to enforce any provision of
this Agreement shall in no way affect the right of such party to enforce
the same or any other provision of this Agreement. The waiver by any party
of any breach of any provision of this Agreement shall not be construed as
a waiver, by such party, of any succeeding breach of such provision or a
waiver, by such party, of a breach of any other provision. The
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granting of any consent or approval by any party in any one instance shall
not be construed to waive or limit the need for such consent or approval
in any other or subsequent instance.
19. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, including the making, interpretation or breach thereof, or the
employment or termination of employment of Executive shall be resolved by
expedited arbitration in Ft. Lauderdale, Florida in accordance with the
Employment Dispute Resolution Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having Jurisdiction thereof, and any party to the
arbitration may, if such party so elects, institute proceedings in any
court having jurisdiction for the specific performance of any such award.
The powers of the arbitrator(s) shall include, but not be limited to, the
awarding of injunctive relief. Each party shall bear his or its own
attorneys' fees and expenses, and the parties shall bear equally all other
costs and expenses of the arbitration. The provisions of this Section 18
shall survive the termination of this Agreement.
20. SEVERABILITY. If any term or provision of this Agreement shall be
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable for any reason, the remaining provisions of this Agreement
shall remain enforceable and the invalid, illegal or unenforceable
provisions shall be modified so as to be valid and enforceable and shall
be enforced.
21. SECTION HEADINGS. Section headings are included in this Agreement for
convenience of reference only, and shall in no way affect the meaning or
interpretation of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
23. NUMBER OF DAYS. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, if the final day of any time period falls on
a Saturday, Sunday or holiday on which federal banks in the United States
are or may elect to be closed, then the final day shall be deemed the next
day which is not a Saturday, Sunday or such holiday.
24. ATTORNEYS' FEES. In any action brought to enforce any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs from the other party to the action or
proceeding. For purposes of this Agreement, the "prevailing party" shall
be deemed to be that party who obtains substantially the result sought,
whether by settlement, mediation, judgment or otherwise, and "attorneys'
fees" shall include, without limitation, the actual attorneys' fees
incurred in retaining counsel for advice, negotiations, suit, or other
legal proceeding, including mediation and arbitration.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
DATE OF AGREEMENT ("EFFECTIVE DATE"): January 1, 2004
COMPANY EXECUTIVE
Alliance Entertainment Corp. Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxxx Signature: /s/ Xxxx Xxxxxxx
----------------------------- ---------------------------
Signature
Xxxx Xxxxxx Xxxx Xxxxxxx
--------------------------------- -------------------------------------
Print Name Print Name
Its Chairman, CEO Address: 0000 X X. 000 Lane
----------------------------- ------------------------------
Title Xxxxxxxx, XX 00000
--------------------------------------
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EXHIBIT A
NO PRIOR INVENTIONS
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