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Exhibit 10.29
AGREEMENT
This Agreement is entered into this 16th day of November, 1998, by and
between Stuart Entertainment, Inc., a Delaware corporation (the "Company"),
with its principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx,
Xxxx 00000, and Xxxxxxx X. Xxxxxx an individual (the "Employee"), with his
address at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx 00000.
NOW, THEREFORE in consideration of the covenants undertaken, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Termination. Effective as of November 16, 1998, (the "Termination
Date") Employee will relinquish all positions as a director or officer of the
Company, as well its subsidiaries and affiliates. Employee hereby waives any
right to claim reinstatement as an officer and/or director of the Company
following the Termination Date.
2. Duties. From the Termination Date until December 31, 1998, Employee
agrees to provide information of an advisory nature to assist the Company in
all matters relating to the orderly transition of his previously assigned work
to other employees. Employee agrees to make himself available to give this
information by telephone or letter to the employees of the Company at all
reasonable times.
3. Severance. The Company shall provide Employee with:
a) Severance Payment. The lump sum payment in the amount of Two Hundred
Forty Five Thousand Dollars ($245,000) payable seven (7) days after execution
of this Agreement ("Severance Payment").
b) Severance Benefits. If Employee elects continued coverage under the
Company's health plan pursuant to the Comprehensive Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), then the Company shall pay
the premium for Employee's continued coverage under the Company's health plan
until the first to occur of (1) December 31, 1999; or (2) the first date that
Employee is employed by a third party offering health insurance coverage for
which Employee is eligible to participate.
4. Office Space. Employee shall vacate and remove all personal belongings
from the Company's office space in Council Bluffs, Iowa within seven (7) days
after execution of this Agreement.
5. Stock Options. Employee has vested stock options to acquire 92,000 of
the Company's common stock (the "Options"), with an exercise price of $3.00 per
share. Employee and Company agree that the Company will cancel the Options and
grant to Employee non-qualified stock options for 92,000 shares of common stock
with an exercise price of $3.00 per share, which must be exercised by December
31, 1999.
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6. Company Property. Employee represents that he will turn over to the
Company all files, memoranda, records, other documents and all other physical
property which Employee received from Company and which are the property of the
Company. Employee shall return to the Company all Company credit cards and
calling cards promptly upon request.
7. Tax Liability. Employee agrees that Employee is exclusively liable for
the payment of any federal, State, city or other taxes which may be due as a
result of any consideration received by Employee as provided by this Agreement;
provided, however, that Company shall pay all federal, state and local amounts
withheld from payments to Employee and all other employment taxes of the type
normally paid by Company in connection with the consideration payable to
Employee pursuant to Section 3 of this Agreement.
8. Releases by Employee. Except for obligations created by this Agreement,
Employee hereby covenants not to xxx and fully releases Company and its
subsidiaries and affiliates, past and present, and each of them, as well as
their directors, partners, officers, agents, attorneys, insurers, employees,
stockholders, representatives, assigns and successors, past and present, and
each of them (hereinafter together and collectively referred to as "Releasees")
with respect to and from all actions, and claims of any kind, or unknown,
suspected or unsuspected, which Employee may now have or has ever had against
any of the Releasees, including all claims arising from Employee's employment
as president and/or in any other capacity as an officer and/or director of the
Company, and arising out of the termination of his employment as president
and/or in any other capacity as an officer and/or director of the Company as of
the Termination Date and specifically including any and all claims related to
prior promises or contracts of employment and any and all claims for wages,
benefits, vacation pay, and wrongful termination or discrimination whether
based an age, race, sex, disability or otherwise including specifically and
without limitation claims under the Federal Age Discrimination in Employment
Act, Americans with Disabilities Act, and any state or statute or law).
Employee warrants and represents that Employee has not assigned transferred to
any person or entity any of the claims released by this Agreement and Employee
agrees to defend, by counsel of Company's choosing, and indemnify and hold
harmless any of the Releasees from and against any claims based on or in
connection arising out of any such assignment or transfer made.
9. Releases by Company. Except for obligations created by this Agreement,
Company hereby covenants not to xxx and fully releases Employee and his
successors and assigns (the "Employee Releasees"), with respect to and from all
actions, and claims of any kind, known or unknown, suspected or unsuspected,
which Company may now have or has ever had against any of the Employee
Releasees, including all claims arising from Employee's position as president,
officer and/or director of the Company and the termination of that relationship
as of the Termination Date (and specifically including any and a claims related
to prior promises or contracts of employment) provided, however, the Company
does not release the Employee Releasees with respect to claims arising out of
or relating to the fraud, gross negligence or willful misconduct of the
Employee. The Company warrants and represents that Company has not assigned or
transferred to any person or entity any of the claims released by this
Agreement and Company agrees to defend, by counsel of Employee's choosing which
counsel shall be reasonably acceptable to the Company, and indemnify and hold
harmless any of the Employee
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Releasees from and against any claims based on or in connection with or arising
out of any such assignment or transfer made.
10. Indemnification and Defense by Company. Company shall indemnify and
defend Employee in any threatened, pending, or contemplated action, suit or
proceeding, whether civil or criminal, administrative or investigative, or
whether formal or informal which arises by reason of the fact that Employee was
president, other officer and/or director of the Company prior to the
Termination Date, against expenses, including attorney's fees, judgments,
penalties, fines and amounts to be paid in settlement in connection with such
action, suit or proceeding if it is reasonably determined by Company that
Employee conducted himself in good faith and that Employee reasonably believed
(i) in the case of conduct in his official capacity with the Company, that his
conduct was in the Company's best interests, or (ii) in all other cases (except
criminal cases), that his conduct was at least not opposed to the Company's
best interests, or (iii) in the case of any criminal proceeding, that he had no
reasonable cause to believe that his conduct was unlawful ("Indemnified
Claims"). The Company shall have the sole and exclusive right to select legal
counsel to represent the Company and Employee, and to control the defense
and/or settlement of any Indemnified Claims. Employee agrees to cooperate with
the Company in the defense of any Indemnified Claims, and make available to the
Company any and all documents in his possession and/or control that may be
necessary or useful to such defense and/or settlement.
No indemnification shall be made to Employee under this Section 10 with
respect to any claim, issue or matter in connection with a proceeding by or on
behalf of the Company or any other entity in which Employee's actions giving
rise to the action, suit, proceeding or claim constituted fraud, gross
negligence and/or willful misconduct on the part of the Employee.
11. Confidentiality. The Company acknowledges and agrees that Employee may
enter into endeavors or activities which are competitive with the Company and
nothing in this paragraph 12 is intended or shall be construed to restrict or
limit such endeavors or activities provided the Employee otherwise complies
with (i) his obligations under this paragraph 12, (ii) all obligations under
this agreement and (iii) applicable law.
a) Employer will not at any time, disclose or use for his own benefit or
purposes of any other person, firm, partnership, joint venture, association,
corporation or other business organization, entity or enterprise other than the
Company or its affiliates and subsidiaries, any trade secrets or confidential
information and data relating to, customers, suppliers, development programs,
costs, marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company or its affiliates and/or subsidiaries
("Proprietary Information"). The term Proprietary Information shall not include
information which is not unique to the Company, its affiliates or subsidiaries,
or which is generally known to the industry or the public other than as a
result of the Employee's breech of this covenant. The Employee agrees that all
materials or articles of information of any kind furnished to the Employee by
the Company or developed by the Employee in the course of his employment are
and shall remain the sole property of the Company and that Employee will return
to the Company, all memoranda, books, papers, plans, information, letters and
other data, and all copies thereof; in any way relating to the business of
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the Company and its affiliates or subsidiaries, except that Employee may retain
personal notes, notebooks and diaries. The Employee further agrees that he will
not retain or use for his account at any time any trade names, trademark or
other proprietary business designation used or owned in connection with the
business of the Company or its affiliates or subsidiaries. The Employee agrees
that a Proprietary Information shall be the sole property of the Company and
its assigns, and the Company and its assigns shall be the sole owner of all
licenses and other rights in connection with such Proprietary Information.
b) Employee acknowledges that the Company from time to time receives from
third parties confidential or Proprietary information subject to a duty on the
Company's part to maintain the confidentiality of such information and to use
it only for certain limited purposes ("Third Party Information"). Employee
agrees to hold Third Party Information in the strictest confidence and will not
disclose or use Third Party Information except as permitted by any agreement
between the Company and such third party.
c) Employee agrees to assign to the Company, without further
consideration, his entire right, title, and interest (throughout the United
States and in all foreign countries), free and clear of all liens and
encumbrances, in and to all Inventions. The Inventions shall be the sole
property of the Company, whether or not copyrightable or patentable. In
addition, Employee agrees to maintain adequate and current written records on
the development of all Inventions, which shall also remain the sole property of
the Company. Employee understands that "Inventions" means all inventions of a
technical or product nature which includes ideas, processes, inventions,
technology, designs, formulas, discoveries, patents, copyrights, and
trademarks, and all improvements, rights, and claims related to the foregoing,
that are conceived, developed, or reduced to practice by Employee alone or with
others using confidential and/or proprietary information of the Company. If, in
the course of Employee's employment, with the Company, Employee incorporated
into Company property an invention owned by Employee or in which Employee has
an interest, the Company is granted a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license to make, modify, use and sell Employee's invention
as part of and in connection with the Company property.
12. Non-Solicitation. Company agrees to waive paragraph 7.1(b) of the
Management Consulting Agreement effective as of February 1, 1996, between Xxx
Xxxxxx Associates, Ltd. and the Company, only with respect to any offer of
employment to Employee by Xxx Xxxxxx & Associates.
13. Nondisruption. Employee agrees not to make any negative, disparaging,
disruptive or damaging statements, comments or remarks to any third party
concerning Company or its business, parents, subsidiaries, affiliates, owners,
partners, employees, or management. Company agrees to inform the current
members of its Board of Directors and its executive officers not to make any
negative, disparaging disruptive or damaging statements, comments or remarks to
any third party concerning the Employee.
14. Nonadmission of Violation. This Agreement is not, and shall not be
construed as, an admission by Company of any violation of its policies or
procedures, or of any local, state or federal law or regulation.
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15. Complete Agreement. This Agreement constitutes the full and entire
agreement and understanding of the parties. This Agreement supersedes and
replaces all prior negotiations and all agreements, proposed or otherwise,
between the parties, whether written or oral, concerning the subject matters
hereof. This Agreement also supersedes, replaces and terminates as null and
void all prior employment and severance agreements between Employee and the
Company. All such prior negotiations and agreements are merged into this
Agreement. This Agreement does not, however, affect or limit the parties' past
or ongoing respective rights and responsibilities under any applicable stock
option agreement which provides for disposition of stock which Employee may
hold in the Company. The terms and conditions contained herein shall inure to
the benefit of, and be binding upon, the heirs, representatives, assigns and
successors-in-interest of the parties. This is an integrated document
16. Severability of Invalid Provisions. If any provision or portion of
this Agreement or the application thereof is held by a court of competent
jurisdiction or arbitrator to be invalid, unlawful or unenforceable, the
remaining provisions or portions of provisions of this Agreement shall remain
in full force and effect. Such invalidity shall not affect other provisions or
applications of the Agreement which can be given without the invalid provisions
or applications and to this end the provisions of this Agreement are declared
severable.
17. Dispute Resolution and Choice of Law. Except for claims relating to
Proprietary Information, any dispute between the parties relating in any way to
Employee's employment, the termination of that employment or this Agreement,
including, without limitation, the formation, implementation, or termination
thereof shall be resolved by arbitration before a single arbitrator in Council
Bluffs, Iowa, according to commercial rules of the American Arbitration
Association. The parties also agree that prior to commencing any arbitration
proceedings, as provided above, the parties shall first attempt to resolve any
dispute between or among them through mediation with the assistance of a
mediator selected by or agreeable to the parties to the dispute. The costs and
expense of arbitration and remediation shall be shared equally by the parties
to the arbitration and/or mediation, regardless of which party prevails. The
rights and obligations of the parties hereunder, including any agreement to
arbitrate and the law to be applied in the arbitration shall be construed and
enforced in accordance with and governed by the law of the United States to the
extent applicable and otherwise the laws State of Delaware, without giving
effect to principles of conflicts of law.
18. Joint Preparation of Agreement. This Agreement is deemed to have been
drafted jointly by the parties. Hence, in any construction to be made of this
Agreement, the provisions of the Agreement shall not be construed against any
party on the basis that the party was the drafter.
19. Waiver of Breach. No waiver, amendment or modification of this
Agreement shall be effective unless in writing and signed by the against whom
the amendment or modification is sought to be enforced. No waiver of any term,
condition, breach or default of this Agreement shall be construed as a waiver
of any other term, condition, breach or default. Failure to enforce any breach
or default of this Agreement shall not be a waiver of that breach or default or
any other breach or default of Agreement.
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20. Further Executions. All parties agree to cooperate fully and to
execute any and all supplementary documents and to take all additional actions
that may be necessary or appropriate to give full force to the basic terms and
intent of this Agreement which are not inconsistent with its terms.
21. Headings. The use of headings in this Agreement is only for ease of
reference and the headings have no effect and are not to be considered a part
or term of this Agreement.
22. Each Party to Bear Own Costs. Except as provided herein, the parties
agree that each party shall be responsible for the payment of its own costs,
attorneys' fee all other expense in connection with the negotiation of this
Agreement.
23. Counterparts. This Agreement may be executed in counterparts.
24. Further Acknowledgments. Employee further acknowledges that: (a)
Employee has read this Agreement; (b) Employee has been provided a full and
ample opportunity to study it; (c) Employee hereby is advised in writing to
consult a attorney prior to signing this Agreement; (d) Employee has been
advised that Employee has twenty-one (21) days from the date this Agreement is
presented Employee in which to consider this Agreement and whether Employee
will enter into it, although Employee may, in the exercise of Employee's
discretion, sign or reject this Agreement at any time before the twenty-one
(21) day period expires; Employee has seven (7) days following execution of
this Agreement to revoke the Agreement by delivering timely notice of
Employee's revocation to the Chairman and Chief Executive Officer of Company;
(f) this Agreement shall not become effective or enforceable and no funds shall
be exchanged until the seven (7) day revocation period had expired; (g)
Employee enters into this Agreement based upon Employee's own knowledge and
judgment and not in reliance on any representations or promises of Company
other than those contained in this Agreement; (h) Employee understands that if
any facts or matters upon which Employee has relied in entering into this
Agreement shall hereinafter prove to be otherwise, this Agreement shall
nevertheless remain in full force and effect; and (j) Employee is signing this
Agreement voluntarily, without coercion, and with full knowledge that it is
intended, to the maximum extent permitted by law, as a complete and final
release and waiver of any and all claims.
In Witness Whereof, the parties have duly executed this Agreement as of
the date first above written above.
Stuart Entertainment, Inc, Employee
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxxxx, Chairman Xxxxxxx X. Xxxxxx
and Chief Executive Officer
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