Exhibit No. 10.10 EMPLOYMENT AGREEMENT
Exhibit
No. 10.10
This
EMPLOYMENT AGREEMENT
(this "Agreement") is made
and entered into as of this 30th day of January, 2009 by and between Blackhawk
Capital Group BDC, Inc., a Delaware corporation (the "Company") and Xxxxx
X. Xxxxxx ("Employee").
W I T N E S S E T H
:
WHEREAS, the Company is a
business development company ("BDC") registered and
regulated under the Investment Company Act of 1940, as amended (the "Investment
Company Act");
WHEREAS, Employee founded the
Company in 2004 and has served as Chairman, President and Chief Executive
Officer, acting Chief Financial Officer, acting Chief Compliance Officer, and in
charge of Investor Relations, and other offices and has served all such offices
without any compensation from the Company's founding to date;
WHEREAS, subject to the
approval of the Board of Directors of the Company, the Company desires to employ
Employee and to enter into this Agreement embodying the terms of such employment
and Employee desires to enter into this Agreement and to accept such employment,
subject to the terms and provisions hereof.
NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
mutually hereby acknowledged, the Company and Employee hereby agree as
follows:
Section 1. Definitions. Unless
defined in other sections of this Agreement, the following defined terms shall
have the meaning set forth below:
(a)
"Accrued
Obligations" shall mean (i) all accrued but unpaid Base Salary through
the date of termination of Employee’s employment, (ii) any unreimbursed expenses
incurred by Employee in accordance with Section 6 below, and (iii) any benefits
provided under the Company’s employee benefit plans upon a termination of
employment, in accordance with the terms therein, including but not limited to
any accrued but unused vacation.
(b)
"Affiliate"
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified or is a director or officer of
such Person.
(c)
"Base Salary"
shall mean the salary provided for in Section 4(a) below or any increased salary
granted to Employee pursuant to Section 4(a).
(d)
"Board" shall
mean the Board of Directors of the Company.
(e)
"Cause" shall
mean (i) acts of gross negligence or willful misconduct by Employee in
connection with Employee's employment duties; (ii) embezzlement or fraud
committed by Employee; (iii) Employee's indictment for, admission to, or entry
of pleas of no contest to any felony or any other crime involving moral
turpitude; (iv) Employee's material breach of any material provision of this
Agreement; (v) Employee's material violation of any state or federal law
relating to workplace conduct (including, without limitation, laws relating to
sexual harassment or age, sex or other prohibited discrimination); (vi)
Employee's failure to perform Employee's duties as a result of habitual
drunkenness or substance abuse; (vii) Employee's material failure to perform
Employee's duties for any other reason; (viii) the occurrence of an Insolvency
Event; (ix) Employee’s commission of any material violation of any material
written Company policy (including the Company's Code of Ethics and Code of
Conduct); provided, that in the circumstances described in clauses (iv), (vii)
and (ix), Employee shall have 30 calendar days to cure the default (if curable)
after written notice of the existence of Cause from the Company; or (x) Employee
has been found by the Securities and Exchange Commission ("SEC"), or any other
similar federal or state regulatory agency, to have engaged in conduct upon
which such agency has revoked (after Employee has exhausted all appeals or has
admitted to such finding by consent) Employee's authorization to serve as an
officer, board member or stockholder of the Company, any of its Affiliates or of
another business development company.
(f)
"Confidential
Information" shall have the meaning set forth in Section 8(a)
below.
(g)
"Control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. The terms
"Controlling" and "Controlled" have meanings correlative thereto.
(h)
"Disability"
shall mean any physical or mental disability or infirmity that prevents the
performance of Employee's duties for a period of (i) one hundred twenty (120)
consecutive calendar days or (ii) one hundred eighty (180) non-consecutive
calendar days during any twelve (12) month period.
(i)
"Effective
Date" shall mean February 1, 2009, which is the effective date of this
Agreement.
(j)
"Employment
Period" shall mean the period specified in Section 2 below.
(k)
"Events" shall
mean the closing of both of the following two transactions by the
Company:
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(i)
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Company's
Rule 506 private placement offering under Regulation D of the Securities
Act of 1933, as amended ("Securities
Act") of up to $10 million of its shares of common stock, $.00001
par value per share (“Common Stock” to
qualified institutional buyers (“QIBs”) and accredited investors (as such
terms are defined under the Securities Act) ("Private Placement
Offering"); and
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(ii)
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filing
and effectiveness of Company's N-2 Registration Statement to be filed by
the Company with the SEC under the Securities
Act.
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(l)
"Good Reason"
shall mean, without Employee's consent, (i) any reduction in Employee's Base
Salary; (ii) the relocation of Employee's principal place of employment more
than fifty (50) miles from its current location (it being understood that
temporary assignments for purposes of opening new locations, personal
appearances or similar events shall not constitute a relocation for purposes of
this clause (ii)); (iii) except as set forth in Section 7(g), a material
diminution in Employee's title or duties; or (iv) a material breach of Section 4
of this Agreement by the Company, provided, that the Company shall have 30
calendar days to cure the default after written notice of the existence of Good
Reason from Employee.
(m)
"Governmental
Authority" means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency (including the SEC), authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
(n)
"Insolvency
Event" means
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(i)
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Employee
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to Employee's debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors;
or
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(ii)
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an
involuntary case or other proceeding shall be commenced against Employee
seeking liquidation, reorganization or other relief with respect to
Employee's debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar
official;
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and such
voluntary or involuntary case or other proceeding, as applicable, shall remain
undismissed and unstayed for a period of 90 calendar days; or an order for
relief shall be entered against Employee under the Federal bankruptcy laws as
now or hereafter in effect.
(o)
"N-2 Registration
Statement" means the (i) filing by the Company of its Form N-2
Registration Statement with the SEC and (ii) the N-2 Registration Statement
being declared effective by the SEC.
(p)
"Person" means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
(q)
“Restricted
Period” shall mean the period of Employer’s employment with the Company,
plus 12 months following the termination of such employment.
(r)
"Rule 506
Offering" means the Company's Rule 506 common stock private placement
offering to qualified institutional buyers ("QIBs") and accredited investors
under Regulation D under the Securities Act.
(s)
"Severance
Term" shall mean the period specified in Section 7(d)(ii)
below.
(t)
"Subsidiary"
shall mean any corporation, partnership, limited liability company or other
business entity of which securities or other ownership interests representing
more than 50% of the equity, more than 50% of the ordinary voting power, more
than 50% of the general partnership interests or more than 50% of the limited
liability company membership interests are, at the time any determination is
being made, owned directly or indirectly by the Company.
Section
2. Acceptance and Employment Period.
The
Company agrees to employ Employee and Employee agrees to serve the Company on
the terms and conditions set forth herein. The Company and Employee
acknowledge and agree that the employment period (the "Employment Period")
shall commence on the Effective Date and shall continue until three (3) years
thereafter. The Employment Period will be automatically renewed for
one (1) additional year each year unless ninety (90) calendar days prior to the
end of the applicable Employment Period, the Company advises Employee in writing
that it does not wish to extend the Employment Period for an additional
year.
Section
3. Position, Duties and Responsibilities.
(a)
Subject to Section 7(g) of this Agreement, during the Employment Period,
Employee shall be the President and Chief Executive Officer of the Company
(together with such other position or positions consistent with such title as
the Board shall specify from time to time); provided that if the Company hires
and/or enters into an employment agreement with Xxxxxx X. Xxxx, Xx. or any other
executive who serves as President and Chief Operating Officer of the Company,
Employee shall resign his position as President. Employee agrees to
serve as acting Chief Financial Officer and acting Chief Compliance Officer
until the Company retains employees for such positions. Employee also
agrees to serve as an officer of any Subsidiary of the Company without
additional compensation.
(b)
Employee shall devote his full business time, attention, and skill to the
performance of his duties under this Agreement and shall not engage in any other
business or occupation during the Employment Period. Notwithstanding
the foregoing, nothing herein shall preclude Employee from (i) (a) working for
The Concorde Group, Inc. ("Concorde"), DBL
Holdings, LLC and other Concorde Subsidiaries and Affiliates, provided that such
work does not compete with the business and business opportunities of the
Company and (b) serving as a member of the board of directors or advisory boards
(or their equivalents in the case of a non-corporate entity) of non-competing
businesses (with the prior written approval of the Board, which approval shall
not be unreasonably withheld) or the board of directors or advisory boards of
charitable organizations; (ii) engaging in charitable activities and community
affairs, and (iii) managing his personal investments provided that such
investments are passive investments in businesses not competitive with the
business of the Company and such activities are consistent with Section 8(b);
provided, however, that the activities set out in clauses (i), (ii) and (iii)
shall be limited by Employee so as not to interfere, individually or in the
aggregate, with the performance of his duties and responsibilities
hereunder.
Section 4. Compensation. Employee
shall be entitled to the following compensation:
(a)
Base
Salary. Employee shall be paid an annualized base salary,
payable in accordance with the regular payroll practices of the Company, of
$60,000 ("Base
Salary"). The Board will consider increases to this Base
Salary annually if the Employment Period is extended. Increases, if
any, to Employee's Base Salary must be approved in writing by the Board in order
to become effective. The Company recognizes the valuable service the
Employee has provided to the Company since 2004 serving as founder, President,
Chief Executive Officer, acting Chief Financial Officer and acting Chief
Compliance officer and other offices without any support and assistance (except
from one part-time person) and without any compensation. The Company
also recognizes and acknowledges that the Employee has been working to
negotiate, structure, contact and work with investors with respect to the
Events, and such efforts are and will be focused particularly upon the closing
of the Events. In consideration of all of the foregoing service which
Employee has not been compensated for to date, upon consummation of the Company
selling the minimum amount ($3,000,000) in its Rule 506 Offering, the following
shall apply: (i) the Company shall increase Employee's annual Base
Salary to $250,000; and (ii) the Company agrees to pay $50,000 to Employee
(which amount may be proportionately increased depending on whether funds
greater than the minimum are raised from investors in the Company's Rule 506
Offering but not to an amount greater than $100,000). If the minimum
amount is not raised in the Rule 506 Offering, Employee’s annual Base Salary
shall remain at $60,000. The Company also agrees to renegotiate Base
Salary with Employee throughout the Employment Period, provided that Base Salary
shall not be reduced below $60,000.
(b)
Options. Employee
shall be entitled to be granted 600,000 options to purchase shares of Common
Stock at an exercise price of fair market value per share on date of grant as
determined by the Board of Directors pursuant to the requirements of the
Company's Stock Option Plan and the Board of Directors will also determine
vesting for such grant pursuant to the requirements of the Stock Option Plan,
provided that (i) the Company issues such options pursuant to its Stock Option
Plan approved by the stockholders and board of directors of the Company in
accordance with the Investment Company Act of 1940; (ii) such issuance and Stock
Option Plan comply with the Investment Company Act of 1940 provisions applicable
to options issued to an officer of a business development company; and (iii)
upon issuance, the exercise price of the options must be above the net asset
value per share of common stock of the Company.
Section
5. Employee Benefits.
During
the Employment Period, Employee shall be entitled to participate in health,
insurance, 401(k) plan and other benefits, if any, generally provided to other
senior executives of the Company. Employee shall also be entitled to
the same number of holidays, vacation, sick days and other benefits as are
generally allowed to senior executives of the Company in accordance with the
Company policy in effect from time to time.
Section
6. Reimbursement of Business Expenses.
Employee
is authorized to incur reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company shall promptly reimburse
him for all business expenses incurred in connection with carrying out the
business of the Company, subject to documentation and otherwise in accordance
with the Company’s policy, as in effect from time to time.
Section
7. Termination of Employment.
(a)
General. The
Employment Period shall terminate upon the earliest to occur of (i) Employee's
death, (ii) a termination by reason of a Disability, (iii) a termination by the
Company with or without Cause, (iv) a termination by Employee with or without
Good Reason, or (v) Employee's replacement is hired by the Company upon the
approval of the Board of Directors as provided below in Section
7(g).
(b)
Termination due to
Death or Disability. Employee's employment shall terminate
automatically upon his death. The Company may terminate Employee’s
employment immediately upon the occurrence of a Disability, such termination to
be effective upon Employee's receipt of written notice of such
termination. In the event Employee's employment is terminated due to
his death or Disability, Employee or his estate or beneficiaries, as the case
may be, shall be entitled to the Accrued Obligations. Following
termination of Employee's employment by the reason of death or Disability,
except as set forth in this Section 7(b), Employee shall have no further rights
to any compensation or any other benefits under this Agreement.
(c)
Termination by the
Company for Cause. In the event the Company terminates
Employee’s employment for Cause, effective upon Employee's receipt of written
notice of such termination or, if later, upon the expiration of the 30 calendar
day cure period, if applicable, without the occurrence of such a cure, Employee
shall be entitled only to the Accrued Obligations. Following
termination of Employee’s employment for Cause, except as set forth in this
Section 7(c), Employee shall have no further rights to any compensation or any
other benefits under this Agreement. If Employee is terminated for
Cause, the Restricted Period for the non-competition restriction in Section 8(b)
below shall be sixty (60) calendar days rather than the twelve (12) months
otherwise applicable. If the Employee is terminated for Cause, the
Company must vacate Concorde corporate offices within five (5) business days (if
Blackhawk is leasing space from Concorde at time of termination) and must
compensate Concorde for use of its office space, office equipment, and materials
and make a single payment totaling $4,000 per month computed from April 2004
through the date that the Company vacates Concorde offices (with credit for any
rental payments made).
(d) Termination by the Company
Without Cause. The Company may terminate Employee's employment
without Cause, effective upon Employee's receipt of written notice of such
termination. In the event Employee’s employment is terminated by the
Company without Cause (other than due to death or Disability) and subject to
Employee’s compliance with the obligations set forth in Section 8, Employee
shall be entitled beginning no later than 15 calendar days following the
Effective Date of the Release of Claims to:
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(i)
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The
Accrued Obligations;
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(ii)
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Severance
in the cumulative gross amount equivalent to the Base Salary to the end of
the Employment Period, less applicable withholdings and deductions,
payable in equal installments until the end of the Employment Period (the
"Severance
Term") at normal pay
periods;
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(iii)
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If
Employee timely elects COBRA continuation of health insurance, and the
Company has a health insurance plan, the Company will reimburse Employee
for the COBRA premiums necessary to continue this coverage through the
Severance Term; and
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(iv)
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The
Company must vacate Concorde corporate offices within five (5) business
days (if Blackhawk is leasing space from Concorde at time of termination)
and must compensate Concorde for use of its office space, office
equipment, and materials and make a single payment totaling $4,000 per
month computed from April 2004 through the date that the Company vacates
Concorde offices (with credit for any payments
made).
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Following
such termination of Employee's employment by the Company without Cause, except
as set forth in this Section 7(d), Employee shall have no further rights to any
compensation or any other benefits under this Agreement. In the event
the Employee is terminated without Cause, the non-competition restriction in
Section 8(b) below shall end on the last day of the Employment
Period.
(e)
Termination by
Employee with Good Reason. Employee may terminate his
employment with Good Reason, effective upon the expiration of a 30 calendar
day-cure period (that begins to run on the date the Company receives written
notice of such termination) without the occurrence of such a cure; and, subject
to Employee's compliance with the obligations set forth in Section 8, except as
otherwise stated, Employee shall be entitled to the same payments as provided in
Section 7(d) above for a termination without Cause. Following such
termination of Employee's employment by Employee with Good Reason, except as set
forth in this Section 7(e), Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
(f)
Termination by
Employee without Good Reason. Employee may terminate his
employment without Good Reason by providing the Company 30 calendar days written
notice of such termination. In the event of a termination of
employment by Employee under this Section 7(f), Employee shall be entitled only
to the Accrued Obligations. Following such termination of Employee’s
employment by Employee without Good Reason, except as set forth in this Section
7(f), Employee shall have no further rights to any compensation or any other
benefits under this Agreement.
(g)
Termination Upon
Company Finding Replacement. In the event that upon the
approval of the Board of Directors, the Company hires an individual to replace
Employee and serve as President and/or Chief Executive Officer of the Company,
the Company may terminate Employee; provided that this Section 7(g) does not
apply if the Company hires and/or enters into an employment agreement with
Xxxxxx X. Xxxx, Xx. or any other executive who serves as President and Chief
Operating Officer of the Company. Upon such termination, the
provisions of Section 7(d) and Section 8 of this Agreement regarding severance
and other compensation, release and non-competition shall apply.
Section 8. Restrictive
Covenants.
Employee
acknowledges and agrees that (A) the agreements and covenants contained in this
Section 8 are (i) reasonable and valid in geographical and temporal scope and in
all other respects, and (ii) essential to protect the value of the Company’s
business and assets and (B) by his employment with the Company, Employee has
obtained and will obtain information, contacts, know-how, and access to trade
secrets of Company and there is a substantial probability that such knowledge,
know-how, contacts and trade secrets, could be used to the substantial advantage
of a competitor of the Company and to the Company's substantial
detriment. For purposes of this Section 8, references to the Company
shall be deemed to include its Subsidiaries and
Affiliates. Employee's ownership of and work with Concorde shall not
violate this Section 8 provided the following rules are adhered to by
Employee: (i) Employee does not pursue any business opportunities of
the Company on behalf of Concorde; and (ii) any conflicts of interest that may
arise between business opportunities between the Company and Concorde shall be
resolved by a unanimous vote of the independent directors of the
Company.
(a)
Confidential
Information. Employee covenants that at all times following
the Commencement Date Employee shall hold in strict confidence and not use in
any way except in connection with his employment by the Company, all
Confidential Information. For the purposes of this Agreement,
"Confidential Information" shall include any and all information about the
Company not publicly available. Employee acknowledges and agrees that
the term Confidential Information also includes all information, whether or not
publicly available, regarding the following: products, services, investments,
opportunities, customer and investor lists and databases (including, without
limitation, names, addresses and telephone numbers), business plans, methods and
procedures, accounting data, business and financial models, projections, files
and accounting and financial data of the Company. Without limiting
the generality of the foregoing, Employee acknowledges and agrees that all of
the Confidential Information is a trade secret under applicable law and derives
independent economic value, actual or potential, from not being generally known
to the public or other persons or entities which can obtain economic value from
its disclosure or use, and is the subject of efforts that are reasonable under
the circumstances to maintain its secrecy, the applicable provisions of this
Agreement being an example of such efforts.
(b)
Non-Competition. Employee
covenants and agrees not to during the Restricted Period (i) engage or invest in
(including by holding any equity or debt interest in a person engaged in any of
the activities prohibited by this Section 8(b), or through any profit
participation or other similar interest involving any of the activities
prohibited by this Section 8(b)), own, manage, operate, sponsor, finance,
control, or participate in the ownership, management, operation, sponsorship,
financing, or control of, (ii) be in any manner employed by or connected with,
lend his name or any similar name to (whether as a consultant, director,
officer, employee or in any other capacity) or (iii) lend his credit to, in the
case of each of clauses (i) and (ii) above, any business, other than that of the
Company and its Affiliates, engaged, in whole or in part, in any activities in
which the Company has or plans to engage in while Employee is employed by the
Company or any similar or related business anywhere in the United States of
America (including, without limitation, rendering to any such business or person
engaged in any such business any services or advice)(collectively the “Competitive
Activities”) . Notwithstanding the foregoing, Employee may
purchase or otherwise acquire in the aggregate up to three percent (3.0%) of any
class of securities of any enterprise (but without otherwise participating in
the activities of such enterprise) if such securities are listed on any national
or regional securities exchange or have been registered under Section 12(g) of
the Securities Exchange Act of 1934, as amended. Employee agrees that
this covenant is reasonable with respect to its duration, geographical area, and
scope. Employee agrees not to, directly or indirectly, take any
actions or act in concert with any one who takes an action (including the
failure to take a reasonable action) such that the resulting effect is
inconsistent with the material terms herein. The rules regarding
Employee's involvement with Concorde set forth at the beginning of this Section
8 shall apply to this Section 8(b).
(c)
Non
Solicitation. During the Restricted Period, Employee shall
not, directly or indirectly, for his own account or for the account of any other
individual or entity, except solely on behalf of the Company during Employee's
employment with it, directly or indirectly (1) hire, offer to hire or solicit
for employment any of the employees of the Company or any Affiliate or (2)
solicit, induce, or attempt to solicit or induce, any customers, clients,
suppliers or landlords of the Company (each, a "Customer") or any
Affiliate to terminate his, her or its respective relationship with the Company
or such Affiliate, as the case may be, for the purpose of associating with or
becoming a customer, investor in, portfolio investment of, client, supplier or
landlord to Employee, or otherwise solicit, induce, or attempt to solicit or
induce, any such Customer to terminate his, her or its respective relationship
with the Company or any Affiliate, as the case may be, for any other purpose or
for no purpose whatsoever.
(d)
Non-Disparagement. During
the Employment Period and thereafter, Employee covenants that he shall not make,
participate in the making of, or encourage any other person to make, any
statement, whether written, oral or otherwise, that criticizes, disparages or
defames the Company, any of its Affiliates or any of their respective
representatives. Notwithstanding the foregoing, nothing in this
Agreement shall prohibit Employee from making truthful statements when required
by law or by order of any court or other governmental agency, legislative body
or other body having jurisdiction to legally compel such statements, or as
otherwise may be required by law or legal process. Employee agrees to
immediately notify the Company in the event that any such legally compelled
disclosure is anticipated or required.
(e)
Assignment of Rights
in Inventions. Employee hereby assigns to the Company any and
all of his right, title, and interest, in and to any and all inventions,
discoveries, improvements, developments, advances, works of authorship,
concepts, ideas, and contributions, whether or not patentable or protectable by
copyright, trademark or other intellectual property right ("Inventions"), which
are conceived, authored, developed or reduced to practice, in whole or in part,
by Employee, alone or jointly with others, during the period of employment with
Company which (A) are related to the current or anticipated business,
activities, products, or services of the Company, (B) were created with the use
of the Company's equipment, supplies, facilities or trade secret information, or
(C) result from any work performed by Employee for the Company. In
addition, any work of authorship created, in whole or in part, by Employee which
falls within the definition of "work made for hire," as such term is defined in
17 U.S.C. Section 101, shall be considered "a work made for hire," the copyright
in which shall vest initially and exclusively in the
Company. Employee further agrees to disclose immediately to the
Company all Inventions.
Employee
agrees to execute and deliver any instrument or documents, and to do all other
things reasonably requested by the Company (both during and after Employee's
employment with the Company), in order to more fully vest the Company with all
ownership rights in Inventions transferred by Employee to the Company and/or to
secure legal protection therefore. In the event that the Company is
unable to secure Employee's signature on any document needed in connection with
the foregoing, Employee hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents, as Employee's agent and
attorney-in-fact, which appointment is coupled with an interest, to act or and
in Employee's behalf to execute, verify and file and such documents, and to all
other acts to further the purpose of the preceding paragraph, with the same
legal force and effect as if executed or performed by Employee.
(f)
Return of
Documents. In the event of the termination of Employee’s
employment for any reason, Employee shall deliver to the Company (to the extent
then in Employee's possession or control) all of (i) the property of the
Company, and (ii) the documents and data of any nature and in whatever medium of
the Company. Given the fact that the Employee is the Company's
founder and has subsidized the Company either directly or indirectly by
Concorde, of which Employee is a controlling person, he shall be allowed to
retain copies of any such documents or data or any reproduction thereof, or any
documents containing or pertaining to any Confidential Information in the
Employee's possession through the period ending at 5:00 p.m. on the last date of
employment, provided such action does not materially adversely effect the
Company and/or such documents and data are not disclosed to a third
party.
(g)
Blue
Pencil. If any court of competent jurisdiction shall at any
time deem the duration or the geographic scope of any of the provisions of this
Section 8 unenforceable, the other provisions of this Section 8 shall
nevertheless stand and the duration and/or geographic scope set forth herein
shall be deemed to be the longest period and/or greatest size permissible by law
under the circumstances, and the parties hereto agree that such court shall
reduce the time period and/or geographic scope to permissible duration or
size.
(h)
Effect on Other
Agreements. Employee and the Company agree that the provisions
of this Section 8 shall not be construed to limit any obligations of Employee
pursuant to any separate agreement that may have been entered into by
Employee.
Section
9. Injunctive Relief.
Without
intending to limit the remedies available to the Company, Employee acknowledges
and agrees that a breach of any of the covenants contained in Section 8 hereof
may result in material irreparable injury to the Company or its Subsidiaries or
Affiliates for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled to a temporary
restraining order and/or a preliminary or permanent injunction restraining
Employee from engaging in activities prohibited by Section 8 hereof or such
other relief as may be required specifically to enforce any of the covenants in
Section 8 hereof without posting a bond. Employee also agrees to
reimburse the Company for all reasonable attorneys’ fees and court costs
incurred in connection with obtaining a final court finding that Employee
violated Section 8 in whole or part.
Section
10. Representations and Warranties of Employee.
Employee
represents that:
(a)
Employee is entering into this Agreement voluntarily and that his employment
hereunder and compliance with the terms and conditions hereof will not conflict
with or result in the breach by him of any agreement to which he is a party or
by which he may be bound;
(b)
Employee has not violated, and in connection with his employment with the
Company will not violate, any non-solicitation or other similar covenant or
agreement by which he is or may be bound;
(c)
in connection with his employment with the Company, Employee will not use any
confidential or proprietary information he may have obtained in connection with
employment with any prior employer; and
(d)
Employee will, during his employment with the Company, not utilize the Company's
resources for his personal use or benefit and, to the extent that Employee
engages any employee, consultant or other service provider to the Company for
purposes other than the business of the Company, he shall promptly inform the
Board of such engagement and the terms thereof.
Section
11. Taxes.
The
Company may withhold from any payments made under this Agreement all amounts
required or authorized to be withheld by law including all applicable
taxes.
Section
12. Set Off; Mitigation.
Employee
shall not be required to mitigate the amount of any payment provided for
pursuant to this Agreement by seeking other employment or otherwise and the
amount of any payment provided for pursuant to this Agreement shall not be
reduced by any compensation earned as a result of Employee’s other employment or
otherwise.
Section
13. Successors and Assigns.
(a)
The Company.
This Agreement shall inure to the benefit of and be enforceable by, and may be
assigned by the Company to, any purchaser of all or substantially all of the
Company's business or assets, any successor to the Company or any assignee
thereof (whether direct or indirect, by purchase, merger, consolidation or
otherwise).
(b)
Employee. Employee's
rights and obligations under this Agreement shall not be transferable by
Employee by assignment or otherwise; provided, however, that if
Employee shall die, all amounts then payable to Employee hereunder shall be paid
in accordance with the terms of this Agreement to Employee's devisee, legatee or
other designee or, if there be no such designee, to Employee’s
estate.
Section
14. Waiver and Amendments.
Any
waiver, alteration, amendment or modification of any of the terms of this
Agreement shall be valid only if made in writing and signed by the parties
hereto; provided, however, that any
such waiver, alteration, amendment or modification is consented to on the
Company’s behalf by the Board. No waiver by either of the parties
hereto of their rights hereunder shall be deemed to constitute a waiver with
respect to any subsequent occurrences or transactions hereunder unless such
waiver specifically states that it is to be construed as a continuing
waiver.
Section
15. Severability.
Subject
to Section 8(g), if any covenants or such other provisions of this Agreement are
found to be invalid or unenforceable by a final determination of a court of
competent jurisdiction: (a) the remaining terms and provisions hereof shall be
unimpaired, and (b) the invalid or unenforceable term or provision hereof shall
be deemed replaced by a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision hereof.
Section
16. Governing Law; Consent to Jurisdiction.
THIS
AGREEMENT SHALL BE SUBJECT TO AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. IN ANY ACTION BROUGHT BY THE COMPANY UNDER OR
RELATING TO THIS AGREEMENT, THE EMPLOYEE CONSENTS TO EXCLUSIVE JURISDICTION AND
VENUE IN THE STATE COURTS OR UNITED STATES DISTRICT COURTS IN, AT THE ELECTION
OF THE COMPANY, (A) NEW YORK, NEW YORK AND (B) ANY STATE AND COUNTY OF ANY
COUNTRY IN WHICH THE COMPANY CONTENDS THAT THE EMPLOYEE HAS BREACHED THIS
AGREEMENT. IN ANY ACTION BROUGHT BY THE EMPLOYEE UNDER OR RELATING TO
THIS AGREEMENT, THE COMPANY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE IN
THE STATE COURTS OR UNITED STATES DISTRICT COURTS IN NEW YORK, NEW
YORK.
Section
17. Notices.
(a)
Every notice or other communication relating to this Agreement shall be in
writing, and shall be mailed to or delivered to the party for whom it is
intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by Employee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to Employee may be given to Employee personally or may be mailed to
Employee at Employee's last known address, as reflected in the Company's
records.
(b)
Any notice so addressed shall be deemed to be given: (i) if delivered
by hand, on the date of such delivery; (ii) if mailed by courier or by overnight
mail, on the first business day following the date of such mailing; and (iii) if
mailed by registered or certified mail, on the third business day after the date
of such mailing.
Section
18. Section Headings.
The
headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part thereof, affect
the meaning or interpretation of this Agreement or of any term or provision
hereof.
Section
19. Entire Agreement.
This
Agreement constitutes the entire understanding and agreement of the parties
hereto regarding the employment of Employee. This Agreement
supersedes all prior negotiations, discussions, correspondence, communications,
understandings and agreements between the parties relating to the subject matter
of this Agreement.
Section
20. Survival of Operative Sections.
The
provisions of this Agreement shall survive to the extent necessary to give
effect to the provisions hereof.
Section
21. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument. The execution of this Agreement may be by actual or
facsimile signature.
[Signatures
appear on the following page.]
IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date first above
written.
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BLACKHAWK
CAPITAL GROUP BDC, INC.
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By:
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/s/ Xxxxx X. Xxxxxx | ||
| Name: Xxxxx X. Xxxxxx | |||
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Title: President
and CEO
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XXXXX
X. XXXXXX
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| /s/ Xxxxx X. Xxxxxx | |||
