EMPLOYMENT AGREEMENT
Employment Agreement (this "Agreement") made and entered into as of July
1, 1999, by and between Liberty Food Group Ltd., a Delaware corporation (the
"Company"), with offices at 00 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, and Xxxxx
Xxxx, residing at 000 Xxxxxx Xxxx, Xxxx Xxxxxxxxx, Xxx Xxxx 00000 ("Executive").
RECITALS:
WHEREAS, the Company desires to employ Executive and Executive desires
to be employed by the Company, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
EMPLOYMENT; TERM. THE COMPANY SHALL EMPLOY EXECUTIVE AS PRESIDENT, CHIEF
OPERATING OFFICER, SECRETARY AND HEAD OF CORPORATE DEVELOPMENT, SUBJECT TO THE
SUPERVISION AND DIRECTION OF THE COMPANY'S CHIEF EXECUTIVE OFFICER AND ITS BOARD
OF DIRECTORS (THE "BOARD"), FROM THE DATE HEREOF UNTIL JUNE 30, 2004 (SUCH
PERIOD, THE "TERM"). THE TERM SHALL BE AUTOMATICALLY EXTENDED FOR ADDITIONAL
PERIODS OF ONE YEAR EACH, UNLESS EITHER PARTY GIVES NOTICE TO THE OTHER OF ITS
INTENTION NOT TO RENEW AT LEAST 60 DAYS PRIOR TO THE EXPIRATION OF THE
THEN-CURRENT TERM.
COMPENSATION; REIMBURSEMENT.
BASE SALARY. FOR SERVICES RENDERED BY EXECUTIVE HEREUNDER, THE COMPANY SHALL PAY
EXECUTIVE A BASE SALARY OF ONE HUNDRED SIXTY THOUSAND DOLLARS ($160,000) PER
ANNUM, IN EQUAL INSTALLMENTS (THE "BASE SALARY"), IN ACCORDANCE WITH THE PAYROLL
PRACTICES OF THE COMPANY IN EFFECT FROM TIME TO TIME. THE AMOUNT OF THE BASE
SALARY SHALL BE INCREASED ANNUALLY BY AN AMOUNT EQUAL TO THE GREATER OF (I) 10%
OF THE THEN CURRENT BASE SALARY AND (II) THE PERCENT CHANGE THE CONSUMER PRICE
INDEX FOR ALL URBAN CONSUMERS FOR REGION II (NEW YORK AND NORTHERN NEW JERSEY)
FOR THE TWELVE MONTH PERIOD ENDING IN MAY OF EACH YEAR DURING THE TERM.
INCENTIVE BONUS. IN ADDITION TO THE BASE SALARY, EXECUTIVE SHALL BE ELIGIBLE TO
RECEIVE AN INCENTIVE BONUS ("INCENTIVE BONUS") EACH YEAR IN AN AMOUNT NOT LESS
THAN 10% OF THE BASE SALARY (THE "MINIMUM INCENTIVE BONUS"), NOR MORE THAN 100%
OF THE BASE SALARY, AS DETERMINED BY THE BOARD CONSIDERING THE OPERATING RESULTS
OF THE COMPANY FOR EACH YEAR OF THE TERM; PROVIDED, THAT IN ORDER TO RECEIVE AT
LEAST THE MINIMUM INCENTIVE BONUS, FOR EACH YEAR OF THE TERM THE COMPANY SHALL
HAVE ACHIEVED EITHER (A) PRE-TAX INCOME OF $100,000.00, OR (B) REVENUE GROWTH OF
10% OR MORE, BASED ON REVENUES FOR THE 12 MONTH PERIOD ENDING EACH JUNE 30. THE
INCENTIVE BONUS SHALL BE PAID WITHIN 30 DAYS AFTER SUCH OPERATING RESULTS HAVE
BEEN DETERMINED BY THE COMPANY'S ACCOUNTANTS, BUT IN ANY CASE, NOT LATER THAN
OCTOBER 15 OF EACH YEAR.
ADDITIONAL BENEFITS. (A) IN ADDITION TO THE BASE SALARY AND THE INCENTIVE BONUS,
EXECUTIVE SHALL BE ENTITLED TO ALL OTHER BENEFITS OF EMPLOYMENT PROVIDED TO THE
OTHER EXECUTIVES OF THE COMPANY OR ITS AFFILIATES, INCLUDING BUT NOT LIMITED TO
RETIREMENT, HEALTH, DISABILITY, AND LIFE INSURANCE.
FROM JULY 1, 1999 THROUGH JUNE 30, 2000, EXECUTIVE SHALL BE ENTITLED TO FOUR
WEEKS PAID VACATION; FROM JULY 1, 2000 THROUGH JUNE 30, 2002, FIVE WEEKS OF
ANNUAL PAID VACATION; FROM AND AFTER JULY 1, 2002, SIX WEEKS OF ANNUAL PAID
VACATION. IN THE EVENT THAT EXECUTIVE IS ABSENT FROM WORK ON ANY DAY WHICH IS A
JEWISH HOLIDAY, SUCH ABSENCE SHALL BE TREATED AS A PAID HOLIDAY AND NOT A
VACATION DAY.
REIMBURSEMENT. EXECUTIVE SHALL BE REIMBURSED FOR ALL REASONABLE OUT OF POCKET
BUSINESS EXPENSES FOR BUSINESS TRAVEL AND ENTERTAINMENT INCURRED IN CONNECTION
WITH THE PERFORMANCE OF HIS DUTIES HEREUNDER (A) SO LONG AS SUCH EXPENSES
CONSTITUTE BUSINESS DEDUCTIONS FROM TAXABLE INCOME FOR THE COMPANY AND ARE
EXCLUDABLE FROM TAXABLE INCOME TO THE EXECUTIVE UNDER THE GOVERNING LAWS AND
REGULATIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE");
PROVIDED, THAT EXECUTIVE SHALL NEVERTHELESS BE ENTITLED TO FULL REIMBURSEMENT IN
ANY CASE WHERE THE INTERNAL REVENUE SERVICE MAY, UNDER SECTION 274(N) OF THE
CODE, DISALLOW TO THE COMPANY DEDUCTION OF 50% OF MEALS AND ENTERTAINMENT
EXPENSES; AND (B) TO THE EXTENT SUCH EXPENSES DO NOT EXCEED THE AMOUNTS
ALLOCABLE FOR SUCH EXPENSES IN BUDGETS THAT ARE APPROVED FROM TIME TO TIME BY
THE COMPANY. THE REIMBURSEMENT OF EXECUTIVE'S BUSINESS EXPENSES SHALL BE
MONTHLY, UPON PRESENTATION TO AND APPROVAL BY THE COMPANY OF VALID RECEIPTS AND
OTHER APPROPRIATE DOCUMENTATION FOR SUCH EXPENSES.
DUTIES.
CORPORATE DEVELOPMENT; ACQUISITIONS. (A) THE EXECUTIVE'S PRIMARY DUTIES SHALL BE
(I) TO ACT AS HEAD OF CORPORATE DEVELOPMENT AND (II) MANAGEMENT OF THE DAY TO
DAY OPERATIONS OF THE COMPANY. EXECUTIVE WILL BE RESPONSIBLE FOR IDENTIFYING,
NEGOTIATING, AND STRUCTURING ACQUISITIONS ON BEHALF OF THE COMPANY, AND WILL
CONDUCT THE DUE DILIGENCE ON THE TARGET COMPANIES AS WELL AS ENGAGE OTHER
PROFESSIONALS (I.E. LEGAL, ACCOUNTING, OR ACTUARIAL) TO ASSIST IN SUCH PROCESS.
EXECUTIVE INTENDS TO UTILIZE HIS NETWORK OF CONTACTS WITHIN THE FINANCIAL
COMMUNITY TO IDENTIFY SOURCES OF FINANCING FOR THE CONTEMPLATED TRANSACTIONS,
AND WILL FURTHER WORK WITH COUNSEL ON THE FINANCIAL AND STRATEGIC PUBLIC
RELATIONS, PRESS RELEASES, AND FILINGS FOR THE COMPANY. EXECUTIVE WILL ALSO MEET
WITH WALL STREET ANALYSTS AND INSTITUTIONS TO SEEK RESEARCH COVERAGE AND
INVESTMENT INTEREST IN THE COMPANY.
UPON CONSUMMATION OF ANY ACQUISITION, EXECUTIVE WILL OVERSEE THE INTEGRATION OF
THE ACQUIRED COMPANY INTO THE OPERATIONS OF THE COMPANY.
GENERAL MANAGEMENT. EXECUTIVE'S DUTIES SHALL INCLUDE, BUT NOT BE LIMITED TO, THE
DUTIES DESCRIBED AS FOLLOWS:
EMPLOY, PAY, SUPERVISE AND DISCHARGE ALL EMPLOYEES OF THE COMPANY, AND DETERMINE
ALL MATTERS WITH REGARD TO SUCH PERSONNEL, INCLUDING, WITHOUT LIMITATION,
COMPENSATION, BONUSES AND FRINGE BENEFITS;
ESTABLISH PROCEDURES FOR IMPLEMENTING THE POLICIES ESTABLISHED BY THE COMPANY;
AND
CAUSE THE COMPANY TO BE OPERATED IN COMPLIANCE WITH ALL LEGAL REQUIREMENTS.
ASSIGNMENT OF DUTIES. EXECUTIVE SHALL HAVE SUCH OTHER DUTIES AS MAY BE ASSIGNED
TO HIM FROM TIME TO TIME BY THE COMPANY'S CHIEF EXECUTIVE OFFICER OR BOARD OF
DIRECTORS, COMMENSURATE WITH HIS EXPERIENCE AND RESPONSIBILITIES AS PRESIDENT,
CHIEF OPERATING OFFICER AND SECRETARY.
DEVOTION OF TIME. EXECUTIVE HEREBY AGREES TO DEVOTE HIS FULL TIME, ABILITIES AND
ENERGY TO THE FAITHFUL PERFORMANCE OF THE DUTIES ASSIGNED TO HIM OR HER AND TO
THE PROMOTION AND FORWARDING OF THE BUSINESS AFFAIRS OF THE COMPANY; PROVIDED,
THAT NOTHING CONTAINED HEREIN SHALL PREVENT EXECUTIVE FROM DEVOTING BUSINESS
TIME AND ATTENTION TO (A) XXXXXXXXXX.XXX, LLC, (B) LIBERTY TRADING LLC AND (C)
KNOLLWOOD CONTAINER LLC.
CONFLICTING ACTIVITIES.
EXECUTIVE SHALL NOT, DURING THE TERM OF THIS AGREEMENT, BE ENGAGED IN ANY OTHER
BUSINESS ACTIVITY WITHOUT THE PRIOR CONSENT OF THE BOARD OF DIRECTORS OF THE
COMPANY; PROVIDED, HOWEVER, THAT THIS RESTRICTION SHALL NOT BE CONSTRUED AS
PREVENTING EXECUTIVE FROM INVESTING HIS PERSONAL ASSETS IN PASSIVE INVESTMENTS
IN BUSINESS ENTITIES WHICH ARE NOT IN COMPETITION WITH THE COMPANY OR ITS
AFFILIATES, OR FROM PURSUING BUSINESS OPPORTUNITIES AS PERMITTED BY PARAGRAPH
3.5.
EXECUTIVE AGREES TO PROMOTE AND DEVELOP ALL BUSINESS OPPORTUNITIES THAT COME TO
HIS ATTENTION RELATING TO CURRENT OR ANTICIPATED FUTURE BUSINESS OF THE COMPANY,
IN A MANNER CONSISTENT WITH THE BEST INTERESTS OF THE COMPANY AND WITH HIS
DUTIES UNDER THIS AGREEMENT. SHOULD EXECUTIVE DISCOVER A BUSINESS OPPORTUNITY
THAT DOES NOT RELATE TO THE CURRENT OR ANTICIPATED FUTURE BUSINESS OF THE
COMPANY, HE SHALL FIRST OFFER SUCH OPPORTUNITY TO THE COMPANY. SHOULD THE BOARD
OF THE COMPANY NOT EXERCISE ITS RIGHT TO PURSUE THIS BUSINESS OPPORTUNITY WITHIN
A REASONABLE PERIOD OF TIME, NOT TO EXCEED SIXTY (60) DAYS, THEN EXECUTIVE MAY
DEVELOP THE BUSINESS OPPORTUNITY HIMSELF; PROVIDED, HOWEVER, THAT SUCH
DEVELOPMENT MAY IN NO WAY CONFLICT OR INTERFERE WITH THE DUTIES OF EXECUTIVE
HEREUNDER. FURTHER, EXECUTIVE MAY DEVELOP SUCH BUSINESS OPPORTUNITIES ONLY ON
HIS OWN TIME, AND MAY NOT USE ANY SERVICE, PERSONNEL, EQUIPMENT, SUPPLIES,
FACILITY, OR TRADE SECRETS OF THE COMPANY IN SUCH DEVELOPMENT. AS USED HEREIN,
THE TERM "BUSINESS OPPORTUNITY" SHALL NOT INCLUDE BUSINESS OPPORTUNITIES
INVOLVING INVESTMENT IN PUBLICLY TRADED STOCKS, BONDS OR OTHER SECURITIES, OR
OTHER INVESTMENTS OF A PERSONAL NATURE.
STOCK OF COMPANY. DURING THE TERM, EXECUTIVE SHALL BE ENTITLED TO
PURCHASE STOCK OF THE COMPANY IN THE SAME AMOUNTS AND FOR THE SAME
CONSIDERATION, TERMS AND CONDITIONS AS PROVIDED TO OTHER EXECUTIVES OF THE
COMPANY. THE MANNER OF ACQUISITION OF STOCK SHALL BE STRUCTURED SO AS TO
MINIMIZE ADVERSE TAX CONSEQUENCES TO EXECUTIVE.
CONFIDENTIALITY OF TRADE SECRETS AND OTHER MATERIALS.
TRADE SECRETS. OTHER THAN IN THE PERFORMANCE OF HIS OR HER DUTIES HEREUNDER,
EXECUTIVE AGREES NOT TO DISCLOSE, EITHER DURING THE TERM OF HIS OR HER
EMPLOYMENT BY THE COMPANY OR AT ANY TIME THEREAFTER, TO ANY PERSON, FIRM OR
CORPORATION ANY INFORMATION CONCERNING THE BUSINESS AFFAIRS, THE TRADE SECRETS
OR THE CUSTOMER LISTS OR SIMILAR INFORMATION OF THE COMPANY.
OWNERSHIP OF TRADE SECRETS; ASSIGNMENT OF RIGHTS. EXECUTIVE HEREBY AGREES THAT
ALL KNOW-HOW, DOCUMENTS, REPORTS, PLANS, PROPOSALS, MARKETING AND SALES PLANS,
CLIENT LISTS, CLIENT FILES AND MATERIALS MADE BY HIM OR HER OR BY THE COMPANY
ARE THE PROPERTY OF THE COMPANY AND SHALL NOT BE USED BY HIM IN ANY WAY ADVERSE
TO THE COMPANY'S INTERESTS. EXECUTIVE SHALL NOT DELIVER, REPRODUCE OR IN ANY WAY
ALLOW SUCH DOCUMENTS OR THINGS TO BE DELIVERED OR USED BY ANY THIRD PARTY
WITHOUT SPECIFIC DIRECTION OR CONSENT OF THE BOARD OF DIRECTORS OF THE COMPANY.
EXECUTIVE HEREBY ASSIGNS TO THE COMPANY ANY RIGHTS WHICH HE OR SHE MAY HAVE IN
ANY SUCH TRADE SECRET OR PROPRIETARY INFORMATION.
INDEMNITY. THE COMPANY HEREBY INDEMNIFIES THE EXECUTIVE FROM LIABILITY FOR ANY
PRIOR ACTS OF THE COMPANY, INCLUDING BOTH THE COMMISSION OR OMISSION OF SAID
ACTION OR DISCLOSURE, AND THE EXECUTIVE SHALL BE INDEMNIFIED BY THE COMPANY FOR
ANY ACT PERFORMED BY HIM IN GOOD FAITH WITHIN THE SCOPE OF HIS EMPLOYMENT.
TERMINATION.
BASIS FOR TERMINATION.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE TERMINATED AT ANY TIME BY MUTUAL
AGREEMENT OF THE PARTIES.
THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE ON THE LAST DAY OF THE MONTH IN
WHICH EXECUTIVE DIES OR BECOMES PERMANENTLY INCAPACITATED. "PERMANENT
INCAPACITY" AS USED HEREIN SHALL MEAN MENTAL OR PHYSICAL INCAPACITY, OR BOTH,
REASONABLY DETERMINED BY THE COMPANY'S BOARD OF DIRECTORS BASED UPON A
CERTIFICATION OF SUCH INCAPACITY BY, IN THE DISCRETION OF THE COMPANY'S BOARD OF
DIRECTORS, EITHER EXECUTIVE'S REGULARLY ATTENDING PHYSICIAN OR A DULY LICENSED
PHYSICIAN SELECTED BY THE COMPANY'S BOARD OF DIRECTORS, RENDERING EXECUTIVE
UNABLE TO PERFORM SUBSTANTIALLY ALL OF HIS OR HER DUTIES HEREUNDER AND WHICH
APPEARS REASONABLY CERTAIN TO CONTINUE FOR AT LEAST SIX CONSECUTIVE MONTHS
WITHOUT SUBSTANTIAL IMPROVEMENT. EXECUTIVE SHALL BE DEEMED TO HAVE "BECOME
PERMANENTLY INCAPACITATED" ON THE DATE THE COMPANY'S BOARD OF DIRECTORS HAS
DETERMINED THAT EXECUTIVE IS PERMANENTLY INCAPACITATED AND SO NOTIFIES
EXECUTIVE.
EXECUTIVE'S EMPLOYMENT MAY BE TERMINATED BY THE COMPANY "WITH CAUSE," EFFECTIVE
UPON DELIVERY OF WRITTEN NOTICE TO EXECUTIVE GIVEN AT ANY TIME (WITHOUT ANY
NECESSITY FOR PRIOR NOTICE) IF ANY OF THE FOLLOWING SHALL OCCUR:
ANY MATERIAL BREACH OF EXECUTIVE'S OBLIGATIONS IN SECTION
(6?) ABOVE; OR
ANY MATERIAL ACTS OR EVENTS WHICH INHIBIT EXECUTIVE FROM FULLY PERFORMING
HIS OR HER RESPONSIBILITIES TO THE COMPANY IN GOOD FAITH, SUCH AS (A) A
FELONY CRIMINAL CONVICTION; (B) ANY OTHER CRIMINAL CONVICTION INVOLVING
EXECUTIVE'S LACK OF HONESTY OR EXECUTIVE'S MORAL TURPITUDE; (C) DRUG OR
ALCOHOL ABUSE; OR (D) GROSS CARELESSNESS OR GROSS MISCONDUCT.
EXECUTIVE'S EMPLOYMENT MAY BE TERMINATED BY THE COMPANY "WITHOUT CAUSE" (FOR ANY
REASON OR NO REASON AT ALL) AT ANY TIME BY GIVING EXECUTIVE 60 DAYS PRIOR
WRITTEN NOTICE OF TERMINATION, WHICH TERMINATION SHALL BE EFFECTIVE ON THE 60TH
DAY FOLLOWING SUCH NOTICE. IF EXECUTIVE'S EMPLOYMENT UNDER THIS AGREEMENT IS
TERMINATED WITHOUT CAUSE, OR IF HIS AGENT IS TERMINATED UPON A CHANGE OF CONTROL
(AS DEFINED BELOW), THE COMPANY SHALL IMMEDIATELY (A) MAKE A LUMP SUM CASH
PAYMENT TO EXECUTIVE EQUAL TO THE SUM OF (I) EXECUTIVE'S BASE SALARY FOR THE
BALANCE OF THE YEAR IN WHICH TERMINATION OCCURS, (II) A PRO RATA PORTION OF THE
MINIMUM INCENTIVE BONUS, IF ANY, EARNED FOR THE YEAR IN WHICH TERMINATION OCCURS
PRORATED TO THE DATE OF TERMINATION, AND (III) ANY UNREIMBURSED EXPENSES
ACCRUING TO THE DATE OF TERMINATION; AND (B) MAKE A LUMP SUM CASH PAYMENT EQUAL
TO THE SUM OF EXECUTIVE'S ANNUAL BASE SALARY FOR ALL ADDITIONAL YEARS REMAINING
IN THE TERM AND THE MINIMUM INCENTIVE BONUS FOR EACH SUCH YEAR. IMMEDIATELY UPON
THE COMPANY'S TERMINATION OF EXECUTIVE UNDER THIS PROVISION, ALL STOCK OPTIONS,
ENTITLEMENTS, MATCHING FUNDS, AND PROFIT SHARING PREVIOUSLY GRANTED SHALL
IMMEDIATELY VEST. A "CHANGE OF CONTROL" MEANS THAT THE EARLIER TO OCCUR AT ANY
TIME DURING THE TERM: (I) ANY PERSON OR GROUP ACQUIRES 49.9% OR MORE OF ANY
CLASS OF STOCK OR OTHER EQUITY INTEREST IN THE COMPANY, (II) ANY PERSON OR GROUP
ACQUIRES, THROUGH PURCHASE, VOTING AGREEMENT, TRUST, DEVISE OR OTHERWISE, THE
POWER TO ELECT A MAJORITY OF THE BOARD, OR OTHERWISE DIRECT THE MANAGEMENT AND
AFFAIRS OF THE COMPANY, (III) THE COMPANY MERGES, CONSOLIDATES OR ENTERS INTO A
BUSINESS COMBINATION WITH ANOTHER ENTITY WHEREBY THE THEN-CURRENT STOCKHOLDERS
OF THE COMPANY OWN IN THE AGGREGATE 50% OR LESS OF THE OUTSTANDING EQUITY
SECURITIES OF THE SURVIVING ENTITY AS A RESULT OF SUCH TRANSACTION, OR (IV) THE
COMPANY SELLS ALL OR SUBSTANTIALLY ALL OF ITS ASSETS (ANY SUCH EVENT IN CLAUSES
(I) THROUGH (IV) OF THIS PARAGRAPH, A "CHANGE IN CONTROL"). WHILE IT IS NOT
EXPECTED THAT PAYMENTS MADE TO EXECUTIVE HEREUNDER WILL BE TREATED AS PAYMENTS
SUBJECT TO ANY EXCISE TAX UNDER CODE SECTION 4999, TO THE EXTENT THEY ARE THE
COMPANY SHALL PAY EXECUTIVE AN AMOUNT WHICH, NET OF ANY APPLICABLE TAXES
THEREON, WILL PROVIDE EXECUTIVE WITH SUFFICIENT CASH TO PAY ANY EXCISE TAX
PAYABLE BY HIM BY REASON OF ANY PAYMENTS HEREUNDER.
UPON A CHANGE IN CONTROL, EXECUTIVE WILL HAVE NO FURTHER OBLIGATIONS HEREUNDER,
AND SHALL IMMEDIATELY BE ENTITLED TO SEEK OTHER EMPLOYMENT, PROVIDED THAT
NOTHING SHALL DIMINISH THE PAYMENTS DUE EXECUTIVE HEREUNDER.
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT HEREUNDER BY GIVING THE COMPANY 60 DAYS
PRIOR WRITTEN NOTICE, WHICH TERMINATION SHALL BE EFFECTIVE ON THE 60TH DAY
FOLLOWING SUCH NOTICE.
PAYMENT UPON TERMINATION. UPON TERMINATION UNDER PARAGRAPHS 6.1(A), (B), (C), OR
(F), THE COMPANY SHALL PAY TO EXECUTIVE WITHIN 10 DAYS AFTER TERMINATION AN
AMOUNT EQUAL TO THE SUM OF (I) EXECUTIVE'S BASE SALARY ACCRUED TO THE DATE OF
TERMINATION AND (II) UNREIMBURSED EXPENSES ACCRUED TO THE DATE OF TERMINATION.
MISCELLANEOUS.
TRANSFER AND ASSIGNMENT. THIS AGREEMENT IS PERSONAL AS TO EXECUTIVE AND SHALL
NOT BE ASSIGNED OR TRANSFERRED BY EXECUTIVE. THIS AGREEMENT MAY BE ASSIGNED BY
THE COMPANY TO ANY ENTITY WHICH IS A SUCCESSOR IN INTEREST OR OPERATOR OF THE
COMPANY'S BUSINESS.
SEVERABILITY. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE THE
COMMISSION OF ANY ACT CONTRARY TO LAW. SHOULD THERE BE ANY CONFLICT BETWEEN ANY
PROVISIONS HEREOF AND ANY PRESENT OR FUTURE STATUTE, LAW, ORDINANCE, REGULATION,
OR OTHER PRONOUNCEMENT HAVING THE FORCE OF LAW, THE LATTER SHALL PREVAIL, BUT
THE PROVISION OF THIS AGREEMENT AFFECTED THEREBY SHALL BE CURTAILED AND LIMITED
ONLY TO THE EXTENT NECESSARY TO BRING IT WITHIN THE REQUIREMENTS OF THE LAW, AND
THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT.
GOVERNING LAW. THIS AGREEMENT IS MADE UNDER AND SHALL BE CONSTRUED
PURSUANT TO THE LAWS OF THE STATE OF DELAWARE.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS AND ALL DOCUMENTS
SO EXECUTED SHALL CONSTITUTE ONE AGREEMENT, BINDING ON ALL OF THE PARTIES
HERETO, NOTWITHSTANDING THAT ALL OF THE PARTIES DID NOT SIGN THE ORIGINAL OR THE
SAME COUNTERPARTS.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR ORAL OR WRITTEN AGREEMENTS, ARRANGEMENTS, AND
UNDERSTANDINGS WITH RESPECT THERETO. NO REPRESENTATION, PROMISE, INDUCEMENT,
STATEMENT OR INTENTION HAS BEEN MADE BY ANY PARTY HERETO THAT IS NOT EMBODIED
HEREIN, AND NO PARTY SHALL BE BOUND BY OR LIABLE FOR ANY ALLEGED REPRESENTATION,
PROMISE, INDUCEMENT, OR STATEMENT NOT SO SET FORTH HEREIN.
MODIFICATION. THIS AGREEMENT MAY BE MODIFIED, AMENDED, SUPERSEDED, OR CANCELLED,
AND ANY OF THE TERMS, COVENANTS, REPRESENTATIONS, WARRANTIES OR CONDITIONS
HEREOF MAY BE WAIVED, ONLY BY A WRITTEN INSTRUMENT EXECUTED BY THE PARTY OR
PARTIES TO BE BOUND BY ANY SUCH MODIFICATION, AMENDMENT, SUPERSESSION,
CANCELLATION, OR WAIVER.
ATTORNEYS' FEES AND COSTS. IN THE EVENT OF ANY DISPUTE ARISING OUT OF THE
SUBJECT MATTER OF THIS AGREEMENT, THE PREVAILING PARTY SHALL RECOVER, IN
ADDITION TO ANY OTHER DAMAGES ASSESSED, ITS ATTORNEYS' FEES AND COURT COSTS
INCURRED IN LITIGATING OR OTHERWISE SETTLING OR RESOLVING SUCH DISPUTE WHETHER
OR NOT AN ACTION IS BROUGHT OR PROSECUTED TO JUDGMENT. IN CONSTRUING THIS
AGREEMENT, NONE OF THE PARTIES HERETO SHALL HAVE ANY TERM OR PROVISION CONSTRUED
AGAINST SUCH PARTY SOLELY BY REASON OF SUCH PARTY HAVING DRAFTED THE SAME.
WAIVER. THE WAIVER BY EITHER OF THE PARTIES, EXPRESS OR IMPLIED, OF ANY RIGHT
UNDER THIS AGREEMENT OR ANY FAILURE TO PERFORM UNDER THIS AGREEMENT BY THE OTHER
PARTY, SHALL NOT CONSTITUTE OR BE DEEMED AS A WAIVER OF ANY OTHER RIGHT UNDER
THIS AGREEMENT OR OF ANY OTHER FAILURE TO PERFORM UNDER THIS AGREEMENT BY THE
OTHER PARTY, WHETHER OF A SIMILAR OR DISSIMILAR NATURE.
HEADINGS. THE SECTION AND OTHER HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR
REFERENCE PURPOSES ONLY AND SHALL NOT IN ANY WAY AFFECT THE MEANING AND
INTERPRETATION OF THIS AGREEMENT.
NOTICES. ANY NOTICE UNDER THIS AGREEMENT MUST BE IN WRITING, MAY BE TELECOPIED,
SENT BY EXPRESS 24 HOUR GUARANTEED COURIER, OR HAND DELIVERED, OR MAY BE SERVED
BY DEPOSITING THE SAME IN THE UNITED STATES MAIL, ADDRESSED TO THE PARTY TO BE
NOTIFIED, POSTAGE PREPAID AND REGISTERED OR CERTIFIED WITH A RETURN RECEIPT
REQUESTED. THE ADDRESSES OF THE PARTIES FOR THE RECEIPT OF NOTICE SHALL BE AS
FOLLOWS:
If to the Company: Liberty Group Holdings, Inc.
00 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
[Remainder of Page Intentionally Omitted;
Signature Page to Follow]
If to Executive: Xxxxx Xxxx
000 Xxxxxx Xxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
with a copy in either
case to : Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Each notice given by registered or certified mail shall be deemed
delivered and effective on the date of delivery as shown on the return receipt,
and each notice delivered in any other manner shall be deemed to be effective as
of the time of actual delivery thereof. Each party may change its address for
notice by giving notice thereof in the manner provided above.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
LIBERTY GROUP HOLDINGS, INC.
/s/
By: ------------------------
Name: Xxxxx Xxxx
Title: President
/s/
-------------------------
Xxxxx X. Xxxx
